facts are therein alleged showing wherein or how the defendant's servants or agents negligently conducted themselves in or about the carriage of plaintiff as a passenger, and that no facts are alleged therein showing wherein plaintiff's ejectment was wrongful. It does not appear with sufficient certainty wherein or how the defendant or its servants or agents violated any duty which it owed the plaintiff.

The defendant filed the following pleas after demurrer overruled: (1) The general issue. (2) "And for further plea and answer to plaintiff's complaint, and to each count thereof separately and severally, the defendant says that plaintiff ought not to have and maintain this action against defendant, for that defendant at the time of the wrongs and injuries alleged in said complaint was running or operating two cars, the one attached to the other, the front car being called the 'motor car' and the rear car being called the 'trailer car'; and defendant avers that defendant had a separate conductor in charge of each of said cars at said time, and that plaintiff voluntarily took passage on the rear or trailer car, and paid his fare to the conductor in charge of said trailer car, while on said trailer car, and thereafter plaintiff disembarked in said trailer car and boarded and took passage on said motor car, and, upon demand being made of him by the conductor in charge of said motor car for his fare, plaintiff refused and failed to pay to said conductor in charge of said motor car a fare entitling him to be carried as a passenger on said motor car, whereupon plaintiff was ejected from said motor car by the conductor of said car, because he refused and declined to pay his fare on said motor car, and insisted on riding on said motor car without paying his fare; and defendant avers that no more force than was necessary was used in ejecting plaintiff from said motor car." Pleas 3 and 4 were practically the same as plea 2, with the additional allegation that the company had a rule in force which required the collection of fares on each car of the train by the separate conductors on said cars, and that one taking passage on a motor car and paying fare thereon was entitled to continue on said car to his journey's end; but, if said passenger left the motor car and boarded the trailer, such passenger was required also to pay fare on the trailer, and vice versa, and that plaintiff had notice of this rule, and was advised of it before being ejected, and was given an opportunity to return to the car on which he originally took passage before being ejected.

Demurrers were interposed to plea 2, because it failed to show any legal justification for an attempt to collect two fares for the same person; for that it fails to aver or show any reasonable rule for requirement of defendant that plaintiff as its passenger should continue his journey in the same car it was begun, and because it fails to show that

plaintiff had any knowledge of any rule under which it was prohibited from changing cars on the same train. To pleas 3 and 4 demurrers were interposed upon the same grounds as to plea 2, with the additional ground that the plea shows on its face that the rule is not reasonable, and that it fails to aver or show that plaintiff had knowledge of the rule before he became a passenger on said train, and that said plea failed to show or aver that defendant furnished plaintiff with a convenient and comfortable place to ride on said trailer car.

To the third and fourth pleas the plaintiff filed the following replications: "For further reply to each of third and fourth pleas separately and severally plaintiff says that said trailer car and said motor car were attached together as said train, and both were being used by the defendant for the carriage of passengers at said time, and that said trailer car was crowded, and plaintiff could not obtain a seat thereon, and that plaintiff before said ejection informed the defendant's conductor of said motor car that said trailer car was crowded, and the said conductor knew that there was no seat available to plaintiff on said trailer car. (3) For further replication to each of third and fourth pleas separately and severally plaintiff says that said trailer car and said motor car were attached to the other as one train, and both were being used by the defendant for the carriage of passengers at said time, and that at the time he left said trailer car as stated in said plea it was very uncomfortable in said trailer car, in this, to wit: There was no unoccupied seat on same, and said car was crowded, and men were smoking tobacco to such an extent that same was very uncomfortable to plaintiff, and plaintiff disembarked from said trailer car and took passage upon said motor car as aforesaid to escape the said inconvenience and discomfort, and before said ejection plaintiff informed the conductor of said mo tor car that said trailer car was crowded and of the discomfort on the trailer car, and neither said conductor nor defendant offered to remedy the same."

Demurrers were interposed as follows: To replication 2, because it is not alleged or shown therein that it was the duty of the conductor in charge of the motor car to carry plaintiff as a passenger free on said car; for that plaintiff became a new passenger on said motor car when he boarded the same: for that said replication sets up a failure to provide plaintiff with a seat as an excuse for violation of a rule of defendant; for aught that appears therefrom plaintiff was not refused a seat on said trailer car; for that said replication fails to show that plaintiff had demanded a seat on the car from which he disembarked; for aught that appears therefrom plaintiff did not have a seat on the trailer car when he paid his fare on said car. To the third replication the same

as to the second with these additions: For that it appears therefrom that it became and was the duty of plaintiff either to have remained on said trailer car and brought his action for said discomfort, or to have paid his fare on said motor car and brought his action for said discomfort; for that it is not alleged or shown that plaintiff was forced to leave said trailer car by reason of any negligence or wrong of defendant, or its servants or agents; and for that said replication seeks to set up a wrong of defendant or its conductor in justification of his own wrong in insisting upon riding on said motor car without paying his fare. To both replications, for that they work a departure from plaintiff's cause of action, and that the replication sets up an alleged breach of contract.

Tillman, Grubb, Bradley & Morrow, for appellant. Bowman, Harsh & Beddow, for appellee.

ANDERSON, J. The gravamen of the first count is the wrongful ejection of the plaintiff from the car, and the averment of other things proximately caused thereby are mere matters of inducement or aggravation, going to swell the damage. Nor was the first count of the complaint subject to the other grounds of demurrer insisted upon by the appellant in brief of counsel.

The second count does not charge that the ejection per se was wrong, but that it was made so by the use of unnecessary force and violence. Even if the defendant had the lawful right to eject the plaintiff, it would be answerable in damages for any unnecessary force or violence inflicted upon him by its agents acting within the scope of their authority. The trial court did not err in overruling the demurrer to the second count.

The third count of the complaint was not subject to the demurrer interposed thereto. Sou. Ry. Co. v. Burgess, 143 Ala. 364, 42 South. 35.

The second plea attempted to justify the ejection of the plaintiff, but failed to set up any rule of the defendant, and the demurrer thereto was properly sustained.

The plaintiff's replications, in effect, concede the reasonableness of the rule, but attempt to set up a state of facts forbidding the enforcement of same, and which we deem insufficient to authorize a relaxation of said rule. If the facts were as set out in the replication, the plaintiff doubtless had his recourse for a breach of the contract, or of duty growing out of same; but the breach of the contract by the defendant, or a duty growing out of same, did not authorize the plaintiff to take passage in another car, controlled by another conductor, and continue the journey without paying the new fare demanded by the conductor, after informing him of the rule. Lasker v. Third Ave. Co., 27 Misc. Rep. 824, 57 N. Y. Sup. 395; Gravill v. Manhattan R R. Co., 105 N. Y. 525, 12 N. E. 51, 59 Am. Rep. 516.

The trial court erred in overruling the demurrers to the replications to pleas 3 and 4, and the judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

TYSON, C. J., and HARALSON, DOWDELL, SIMPSON, and DENSON, JJ., con

cur.

HARRIS v. STATE.

(Supreme Court of Alabama. May 14, 1908.) WEAPONS CRIMINAL PROSECUTION - EVIDENCE-POSSESSION OF WEAPONS.

Where defendant was prosecuted for carrying a concealed weapon at a place other than the house, after eating his supper there, it was proper to show the apparel defendant wore at the supper and after leaving it, as evidence of the concealment; but whether or not witnesses saw defendant have a weapon at supper was immaterial.

Appeal from Macon County Court; M. B. Abercrombie, Judge.

Frank Harris was convicted of carrying concealed weapons, and he appeals. Affirmed.

Alexander M. Garber, Atty. Gen., for the State.

MCCLELLAN, J. Conviction of carrying a concealed weapon. The evidence for the state tended to show that the defendant attended a supper, that while in the house he removed his coat, and that on leaving the house he replaced his coat, and after he had, with witnesses for the state, gone about 100 yards from the house, he drew from his hip pocket a pistol theretofore concealed, and unseen by them, and exhibited it to his associates, and then returned it to concealment in the pocket. The evidence for the defendant tended to show that the defendant wore no coat on the occasion in question, but did have on a baseball blouse or shirt, which did not reach below the waist line.

The election by the state was for an offense developed away from the place where the supper took place. While, of course, the apparel worn by the defendant en route to the supper, thereat, and away from it, was the proper subject of inquiry, as evidence of the concealment of the weapon, yet whether the defendant's witnesses saw him with a pistol at the supper, or not, could not, in behalf of the defendant, shed any light on the gist of the investigation, viz., did he have a conceal ed weapon on the occasion for which he wa being tried? If his witnesses had been per mitted to testify that they did not see hin with a pistol at the supper, that fact would not have had any tendency to refute the as serted fact that he drew a concealed weapon on the road. That the weapon was concealed at the supper would naturally forbid thei seeing it. If, on the other hand, they had testified that they did see him with a pistol

He

HARALSON, J. The defendant, L. V. Crum, was arrested on affidavit and warrant, and was tried by the intendant of the town of Prattville, and fined $20, on the charge of carrying on business in said town, without a license, as required under subdivision 2, § 134, of the Code of said town. appealed to the circuit court, where he was charged on complaint, with "retailing goods, wares, or merchandise, within the corporate limits of said town, without having obtained a license therefor, as provided by the ordinance of said town."

Several questions are presented, on assignments of error, which we deem it unnecessary to consider. The affirmative charge was given for the plaintiff, and a like charge requested for defendant was refused.

The defendant was tried before the intendant, as stated, with carrying on business in Prattville without a license as required by ordinance of the town; and in the circuit court, on a charge of retailing goods, wares and merchandise in said town, without a license.

There is no evidence that he did either of the acts with which he is charged, whether before the intendant or the circuit court. He did not sell anything in the town of

In a

Prattville or elsewhere in the county of Autauga, nor is it shown that any of the goods referred to were sold in said town; but it does appear that the orders for the goods as made, were effected outside of said town in the county of Autauga. The goods that were sold in that county were sold by salesmen for the Omaha Grocery Company of Nebraska, on written orders procured by them and sent to the company for their approval. If approved, the goods as thus ordered, were shipped in packages by the company, consigned to themselves, at Prattville, and the defendant, who had no interest in the matter, other than as an employé of plaintiff, simply delivered the goods to the purchasers on the payment of the price therefor. case, on substantially the same facts as in this case, the Supreme Court of Texas held that the accused was engaged in interstate commerce, and was not subject to conviction for nonpayment of an occupation tax, imposed on traveling salesmen engaged in selling patent or other medicines. To the same effect is our recent case of Lee v. Intendant of LaFayette (Ala.) 45 South. 294, citing decisions from this and other jurisdictions, including cases from the Supreme Court of the United States; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 368; Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128. The defendant, under the facts disclosed, was not liable for a license tax.

There was error in giving the general charge for the plaintiff, and in refusing a like charge for the defendant.

Reversed and remanded.

TYSON, C. J., and SIMPSON and DENSON, JJ., concur.

FOMBY v. CUNDELL LUMBER CO. (Supreme Court of Alabama. June 3, 1908.) APPEAL AND ERROR PROCEEDINGS FOR TRANSFER-APPEAL BOND-NEW BOND.

Where an appellant fails to make a new appeal bond, as required by an order of the court, the appeal will be dismissed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 2064-2070.]

Appeal from City Court of Anniston; Thos. W. Coleman, Jr., Judge.

Action between R. L. Fomby and the Cundell Lumber Company. From a judgment, Fomby appeals. Appeal dismissed.

Knox, Acker & Blackmon, for appellant. Matthews & Matthews and M. B. Eubanks, for appellee.

PER CURIAM. Appeal dismissed, for failure to make new appeal bond, as requir ed under former order.

PETTIBONE-TAYLOR CO. v. FARMERS' BANK & TRUST CO.

(Supreme Court of Alabama. April 9, 1908. Rehearing Denied June 18, 1908.) APPEAL AND ERROR-ASSIGNMENT OF ERRORS -NECESSITY.

A judgment will be affirmed, in the absence of an assignment of errors.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3089.]

Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.

Action between the Pettibone-Taylor Company, agent, and the Farmers' Bank & Trust Company. From a judgment in favor of the latter, the former appeals. Affirmed.

Roach & Chamberlain, for appellant. Inge & Armbrecht, for appellee.

PER CURIAM. Affirmed, for want of assignment of errors.

BLUE v. BLUE (two cases). (Supreme Court of Alabama. May 21, 1908.) WITNESSES COMPETENCY TRANSACTIONS

WITH PERSON SINCE DECEASED.

Asking a witness, who was administrator of a decedent's estate, if he had not admitted to persons named that a specified amount of money raised by a loan by decedent was used by him in making a specified investment, is not improper, as calling for testimony as to transactions with a person since deceased, within the inhibition of Civ. Code 1896, § 1794.

Appeal from Probate Court, Montgomery County; J. B. Gaston, Judge.

Proceedings by A. W. Blue against M. W. Blue, administrator, to charge defendant with a sum of money as belonging to the estate. From a judgment for defendant, both parties appeal. Affirmed.

Rushton & Coleman, for appellant. Gunter & Gunter and W. F. Thetford, for appellee.

SIMPSON, J. M. W. Blue is the administrator of the estate of Jane E. L. Blue, and the contest in this case arises out of a motion made by the appellant in the probate court to charge said administrator with the sum of $3,600 which it is claimed was due by said M. W. Blue to the estate of his intestate when he was appointed administrator.

The first assignment of error insisted on by the appellant is the overruling of the objection by contestant (appellant here) to the question to M. W. Blue as a witness: "Did you ever, at any time since or before your mother's death, or at any other time or place, or under any circumstances in the world, ever say or admit to Mr. and Mrs. A. W. Blue that any money, or the $3,600, raised by your mother by the loan from Dr. Crawford, was used in part or in whole in the purchase of any interest for you, or for Gerald & Blue, in the New Home sewing ma

chine business in Montgomery, Ala.?" This contention is based on section 1794 of the Civil Code of 1896, but we do not think it violative of that section. Both A. W. Blue and his wife had stated that the witness had made admissions to them, as stated in the question, and this question did not ask what were the facts in regard to this transaction with the deceased, but simply whether he had made the admissions to these living witnesses as stated by them. The testimony was competent.

The probate judge, after hearing all the testimony and making a careful analysis of it, holds that the evidence does not show that said amount of money is due by said M. W. Blue to the estate of his said decedent, and we do not find sufficient testimony in the record to justify this court in reversing his decision.

It is unnecessary to consider the cross-assignments of error.

The judgment of the court is affirmed.

TYSON, C. J., and HARALSON and DENSON, JJ., concur.

ASKEW v. STATE.

(Supreme Court of Alabama. May 14, 1908.) INTOXICATING LIQUORS UNLAWFUL SALE OR GIFT TO CONVICT - INDICTMENT - INSUFFICIENCY.

Under Cr Code 1896, § 4554, making any one who sells, gives, or furnishes to a convict any intoxicating beverage or drink guilty of a misdemeanor, and under section 4898, providing that words used in a statute to define an offense need not be strictly pursued in an indictment, an indictment charging that accused sold, gave, or furnished whisky and intoxicating beverage or drink to a specified person, a convict sentenced to imprisonment for 20 years for murder, and while sentence was yet in court, etc., is sufficient; it being unnecessary to aver that the convict was confined in the penitentiary or any special place, and sufficient that he was serving a sentence at the time of the alleged defense, and the indictment sufficiently negativing the idea that the convict may have been under sentence from a municipality, if the statute does not apply to convicts of every description.

Appeal from Circuit Court, Baldwin County; Samuel B. Browne, Judge.

Clem Askew was convicted of selling or giving intoxicating beverages to a convict, and he appeals. Affirmed.

The third count in the indictment is in the following language: "The said grand jury further charge that before the finding of this indictment Clem Askew did sell, give, or furnish whisky and intoxicating beverage or drink to Thomas Long, who was then and there a convict, sentenced to imprisonment for 20 years for murder in the second degree in the city court of Mobile, Ala., on, to wit, February 3, 1900, and while said sentence was yet in court against the said Thomas Long, against the peace and dignity," etc. Demurrer was interposed to the third count as follows: "(1) The said count does not

ANDERSON, J. This case was tried upon the third count of the indictment; the other counts having been eliminated by the solicitor. The third count substantially pursued section 4554 of the Criminal Code of 1896, and was sufficient. Section 4898 of the Criminal Code of 1896. Nor was it necessary to aver that the convict was confined in the penitentiary or any special place. It was sufficient if he was serving a sentence at the time of the alleged offense. We also think the indictment sufficiently negatives the idea that the person to whom the liquor was furnished may have been under sentence from a municipality, even if the statute does not apply to convicts of every description, which we need not decide, as it avers that he was under sentence of the city court of Mobile upon a conviction for murder.

The demurrer to the indictment was properly overruled, and the judgment of the circuit court is affirmed.

Affirmed.

TYSON, C. J., and SIMPSON and DENSON, JJ., concur.

SIGNATURE

OF

ROBERTS v. ENGLISH MFG. CO. (Supreme Court of Alabama. May 21, 1908.) 1. EXCEPTIONS, BILL OF JUDGE SIGNATURE OF ATTORNEYS. The fact that the attorneys signed a bill of exceptions does not vitiate it as a bill of exceptions, where the judge wrote under their names his approval and signed the same, as required by Civ. Code 1896, § 615, providing that a bill of exceptions signed by the judge thereby becomes a part of the record.

2. LIBEL AND SLANDER-PUBLICATION OF LIBEL-NECESSITY.

In an action for libel, it is necessary to show that the libelous matter was published by being communicated to some third person.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 107, 108.] 3. SAME.

Sending through the mail of a libelous letter to the person libeled is not such a publication as will sustain an action for libel, unless there is evidence to show that the person who sent the letter knew that some other person was in the habit of opening letters, or that in the ordinary course of business the contents of the letter would come to the knowledge of some third person.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 107, 108.]

4. SAME.

Where, in an action for libel by sending to plaintiff through the mail a libelous letter there was no evidence showing whether the letter was written by the person who sent it, or dictated, there was no proof of publication by dictation to a third person.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 107, 108.]

5. APPEAL AND ERROR-EXCLUSION OF EVIDENCE-IMMATERIAL ERRORS.

Where the testimony offered and excluded. together with the testimony admitted, would not establish a cause of action, the question whether or not the court erred in excluding the testimony was immaterial.

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by William R. Roberts against the English Manufacturing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

McAlpine & Robinson, for appellant. Gregory L. & H. T. Smith, for appellee.

SIMPSON, J. While it is not customary for the attorneys to sign the bill of exceptions, the essential, according to the statute, being that it shall be signed by the judge (Civ. Code 1896, § 615), yet the fact that the attorneys signed it when presented, and that the judge wrote under their names his approval and signed the same, does not vitiate it as the bill of exceptions in the case.

This action was brought by the appellant. against the appellee for the publication of a libel charging him with obtaining goods under false pretenses. Said libel was in a let ter which, it is claimed, was written by the defendant to the plaintiff, sent through the mails, and received and opened by the wife of the plaintiff. Admitting that it was error to exclude the testimony as to the character of stationary used by the defendant and the kind of stamp used by the defendant, as circumstances to go to the jury on the question as to who wrote the letter in question, yet, even with all of the testimony which was offered admitted, there would be no proof of publication of the libel. In the civil action for libel it is necessary to show that the libelous matter was published by being communicated to some third person. Consequently a sealed letter, sent through the mail to the person who claims to be libeled, is not such a publication as the law requires, unless there is evidence to show that the party who sent it knew that some other person was in the habit of opening letters, or that in the ordinary course of business the contents of the letter would come to the knowledge of some third person. Weir v. Hoss, 6 Ala. 881, 888; Wilcox v. Moon, 61 Vt. 450, 24 Atl. 244, 15 L. R. A. 760, 33 Am St. Rep. 936; Spaits v. Poundstone, 87 Ind 522, 44 Am. Rep. 773; McIntosh v. Matherly. 9 B. Mon. (Ky.) 119; Lyle v. Clason, 1 Caines (N. Y.) 581 Sylvis v. Miller, 96 Tenn. 94, 33 S. W. 921; Warnock v. Mitchell (C. C)