TYSON, J. Only one exception was reserved during the trial-as to the admissibility of evidence. The objection interposed was general, no ground whatever being stated. A part of the statement to which the objection was taken was clearly legal, and, if it be conceded that the other portion was not, the court was under no duty to separate the legal from the illegal. Wright v. State, 136 Ala. 139, 34 South. 233; Davis v. State, 131 Ala. 10, 31 South, 569; Ray v. State, 126 Ala. 9, 28 South. 634, and cases there cited. We cannot affirm that the court clearly erred in its finding of fact that the defendant was guilty as charged. The motion to discharge him was properly overruled.

-EVIDENCE-ADMISSIBILITY-AFFIDAVIT
FOR ARREST-SUFFICIENCY.

1. An affidavit for arrest which averred that affiant had probable cause for believing, and did believe, that defendant carried a pistol concealed about his person, was sufficient, under Code 1896, § 4600, providing that one desiring to bring a charge of misdemeanor may make affidavit that he has probable cause for believing, and does believe, that an offense has been committed, etc.

2. Where, on appeal in a criminal case, no motion to quash the affidavit on which the arrest was made is set out in the transcript, no question as to the ruling of the court on such a motion is presented for review.

3. On a prosecution for carrying concealed weapons, prosecutor testified to facts showing the guilt of defendant, and defendant introduced a witness who testified to general good character of the defendant. The witness was asked to state what was said and done by the prosecutor and defendant at the time the witness saw defendant with a pistol concealed about his person. Held that, inasmuch as the question was so general that irrelevant evidence would have been responsive to it, it was not error to refuse to permit the witness to an

swer.

4. Where on appeal the record did not show what answer was expected from a witness in reply to a question put to him, the refusal of the trial court to permit the witness to answer was not open to review.

5. On a prosecution for carrying concealed weapons, a witness for defendant was asked to state "what prosecutor said at that time," and "whether or not prosecutor went and got a gun, and came back with it, and what he said about killing defendant." Held, that the question called for irrelevant evidence.

6. On a prosecution for carrying concealed weapons, a witness for defendant was asked on cross-examination if defendant and witness had not been to a stillhouse, and whether they did not have a bottle of whisky with them, and did not go to church in the neighborhood with a pistol in the buggy. Held, that an objection to the question on the ground that it called for illegal, irrelevant, and immaterial evidence was properly overruled.

7. On a criminal prosecution, defendant was Being examined for the purpose of laying a predicate to show the bad character of another witness, and he was asked to state whether he

1. See Criminal Law, vol. 14, Cent. Dig. § 423.

knew the general character of such witness in the neighborhood where he lived. Held, that it was error to sustain an objection to the question, as it was the regular mode of examining into the character of a witness sought to be impeached.

8. A witness was being examined for the purpose of laying a predicate to show the bad character of another witness, and was asked whether he knew the general character of such other witness in the neighborhood where he lived, as a turbulent, violent, or boisterous man. Held, that the question was improper.

9. On a prosecution for carrying concealed weapons, defendant was asked on the cross-examination if he carried the pistol concealed at a different time from that when the prosecutor swore he saw him with it. An objection to the question was overruled, and witness answered that he had not carried it at such time. Held that, if it was error to allow the question, it was error without injury.

10. On a criminal prosecution, it was proper to refuse to admit in evidence, for the purpose of impeaching a certain witness, an indictment found against him for an assault with intent to murder.

11. Where, on a prosecution for carrying concealed weapons, there was no evidence tending to show that defendant had good reason to apprehend an attack, it was proper to refuse an instruction that good reason to apprehend an attack would excuse the carrying of a concealed weapon.

12. An instruction which gives undue prominence to any portion of the testimony of a witness is erroneous.

Appeal from Cullman County Court; S. L. Fuller, Judge.

Yance Ross was convicted of carrying a concealed weapon, and he appeals. Re versed.

The complaint was as follows: "Before me, S. L. Fuller, judge of the county court of said county, personally appeared T. H. Hooten, who, being duly sworn, doth depose and say that he has probable cause for believing. and doth believe, that the offense of carrying a pistol concealed about his person has been committed in said county by Yance Ross, within the last twelve months, against the peace and dignity of the state of Alabama."

To this complaint, the defendant demurred upon the following grounds: "(1) Because the complaint does not state that the defendant carried concealed about his person a pistol. (2) Because the complaint states the conclusion of the pleader and not the facts constituting the offense. (3) Because the complaint is vague, indefinite and uncertain."

The facts of the case relating to the rulings of the court upon the evidence, reviewed on the present appeal, are sufficiently shown in the opinion.

The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) The court charges the jury that if they believe the evidence in this case, they must find the defendant not guilty. (2) The court charges the jury that they may justify or excuse the defendant from carrying a pistol, although it may have been concealed about

the person, if they believe from the evidence that he had good reason to apprehend an attack. (3) The court charges the jury that the fact, if it be a fact, that the defendant had a pistol in a buggy, and went to the house of the owner of a still on business, and went by a church house, and did not disturb any one on the route, is no evidence of bad character."

Massey Wilson, Atty. Gen., for the State.

HARALSON, J. 1. The affidavit for the arrest of the defendant, charging him with the commission of the offense therein named, seems to have followed the requirements of the Code of 1896 (section 4600), and was not subject to the demurrer interposed to it.

2. In the bill of exceptions reference is made to a motion to quash the affidavit on which defendant was tried, but no motion to this effect is set out in the transcript, and no question, therefore, as to the ruling of the court on the motion is presented for review. Wiggins v. Witherington, 96 Ala. 535, 11 South. 539.

3. The prosecutor had testified to facts tending to show the guilt of the defendant. The defendant introduced Ed Bright, who testified to the general character of the defendant, as a peaceable and law-abiding citizen, and that it was good. The witness was asked by counsel for defendant, "to go on and state what was said and done by Hooten [the prosecutor] and the defendant at the time" (the witness saw the defendant with a pistol concealed about his person). On objection of the solicitor, the court refused to allow the witness to answer. The record does not show what answer from the witness was expected, so that this court can pass intelligently on the ruling and we cannot, therefore, consider it. Tolbert v. State, 87 Ala. 27, 6 South. 284. Furthermore, the question was very general, so much so, that irrelevant evidence would have been responsive to it.

The other questions asked this witness by defendant,-"to state what Hooten said at that time," and "whether or not Hooten went and got a gun and came back with it, and what he said about killing defendant?"-call for evidence entirely irrelevant to the issue, as to whether defendant was carrying a pistol concealed about his person.

4. On the cross-examination of this witness, the solicitor asked him, "if they [defendant and the witness] had not been to a stillhouse that day, and whether or not they did not have a bottle of whisky with them, and whether they did not go to church in the neighborhood with the pistol in the buggy." Objection was interposed by defendant, that the question called for illegal, irrelevant and immaterial evidence, which objection was

overruled by the court. In this there was no error. The question was within the latitude of a cross-examination. Carson v. State, 128 Ala. 58, 29 South, 608.

5. The defendant being examined as a witness for the purpose of laying a predicate to show the bad character of the witness Hooten, the prosecutor,-was asked by his counsel "to state whether he knew the general character of the witness, Henry Hooten, in the neighborhood where he lived." The state made a general objection to the question, and the court sustained it. This question was according to the regular and proper mode of examining into the character of the witness sought to be impeached, and the court erred in refusing to allow it. Holland v. Barnes, 53 Ala. 86, 25 Am. Rep. 595; Byers v. State, 105 Ala. 39, 16 South. 716; 1 Greenleaf on Evidence, 461.

The defendant as a witness, was further asked by his counsel, "to state whether he knew the general character of the witness, Henry Hooten, in the neighborhood where he lived. as a turbulent, violent, boisterous man?" The court sustained an objection to this question and in this there was no error. It was improper for the purposes for which asked. Authorities supra.

6. The solicitor asked the defendant on the cross, if he carried the pistol concealed at a different time from that when the prosecutor swore he saw him with it concealed on his person. The defendant objected, because the evidence called for was illegal and irrelevant, and this objection was overruled. The witness answered, that he had not carried it concealed at the time inquired about, or during that day. If there was error in allowing the question answered, it was error without injury.

7. The defendant, in order to impeach the witness, Hooten, proposed to introduce in evidence an indictment found by the grand jury against him at the spring term of the court, 1902, for an assault with intent to murder, an objection to which by the state was sustained. It was entirely irrelevant and immaterial for the purpose it was offered. Campbell v. State, 23 Ala. 81; 29 Am. & Eng. Ency. Law (1st Ed.) 811.

8. The first charge requested by defendant, -the general charge,-was properly refused, there being evidence tending to show defendant's guilt. The second was abstract. There was no evidence in the record from which the jury could infer that defendant had good reason to apprehend an attack. Charge No. 3 was not improperly refused. If admitted that it asserts a correct proposition of law, it gives undue prominence to certain parts of the defendant's testimony. Lodge v. State, 122 Ala. 107, 26 South. 200.

Reversed and remanded.

(139 Ala. 526)

LEE v. BAIRD. (Supreme Court of Alabama. Feb. 11, 1904.) TRANSITORY ACTION-COURTS-JURISDICTION

PROCESS-SERVICE.

1. Where defendant, a nonresident, was personally served with process while within the jurisdiction of the trial court, and he was not induced by fraud or otherwise to come within such jurisdiction, he was subject to suit therein on a transitory cause of action by plaintiff, who was also a nonresident.

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Mamie Lee, by her next friend, against R. W. Baird. From a judgment in favor of defendant on plaintiff's declining to plead further after the overruling of a demurrer to a plea in abatement, plaintiff appeals. Reversed.

The complaint contained the common counts, seeking to recover $500 due from the defendant. The suit was instituted in the circuit court of Jefferson county on June 12, 1899, and on July 21, 1899, the sheriff returned the summons and complaint as executed "by leaving a copy of the written summons and complaint with R. W. Baird, the defendant." The defendant filed the following plea in abatement: "And now comes the defendant, R. W. Baird, and, appearing specially and for the purpose of this plea only, says that he ought not to be required to plead to the complaint filed in this cause, and that the same ought to be quashed and said suit abated, because the said plaintiff, Mamie Lee, and her next friend, T. J. Lee, who is father of said plaintiff, are both nonresidents of the state of Alabama, but are and have been for a long time, to wit, from the day set forth in said complaint as the date of the grievances therein complained of to this day, citizens and residents of the county of Sunflower, in the state of Mississippi. That this defendant has been for the entire time aforesaid, and still is now, a nonresident of the state of Alabama, but a resident and citizen of said Sunflower county, in the state of Mississippi, where he has during the entire time aforesaid resided, and where he still resides, within a few miles of the residence of the plaintiff and said next friend, and that no reason exists or has existed why he might not be impleaded in the state and county of the residence of all the parties to this suit. And defendant says that the process of this court, issued in this cause, was served upon him whilst he was in transit, traveling through the state of Alabama from his home in Mississippi to the state of North Carolina. He further says that the cause of action set forth in said complaint did not arise in the state of Alabama, nor out of any contract made, transaction had, or act done or omitted in said state of Alabama.

Wherefore defendant prays judgment whether he ought to be required to answer further to said complaint, and that the same be quashed and abated." To this plea, the plaintiff demurred upon the following grounds: (1) That said plea does not show, by any of the facts averred therein, any cause why said suit should not be maintained in said court, and is no answer to the complaint. (2) For that said plea does not aver or show that the defendant was induced by fraud or artifice into the jurisdiction of this court, and that he was personally served with process in this case in the county of Jefferson, where said suit is pending. (3) For that it appears from said plea that the defendant was personally served with process while in the jurisdiction of this court, viz., Jefferson county, state of Alabama; and that he was not induced to come into the jurisdiction of this court by the fraud of plaintiff or any one else, nor was he enticed into the jurisdiction of the same by artifice of plaintiff or any other person. (4) For that the facts averred and set out in said plea do not show sufficient ground or cause in law why this suit cannot be maintained in this court. (5) For that it appears in said plea that the defendant was personally served with process in this cause whilst in the jurisdiction of this court.

Frank S. White & Sons, for appellant. Geo. A. Evans, for appellee.

DOWDELL, J. The only distinction made by our statutes between residents and nonresidents in the bringing of suits on summons and complaint in the courts of this state is that, in case of suit by a nonresident, security for costs must be given. Code 1896, § 1347. The defendant was served personally with process while within the jurisdiction of the court. There is no pretense that he was induced by the plaintiff, by any fraud or otherwise, to come within the jurisdiction of the court. The action is personal and transitory, and the case falls clearly within the principle laid down in Smith v. Gibson, 83 Ala. 284, 3 South. 321; Steen v. Swadley, 126 Ala. 616, 28 South. 620, and authorities there cited; Works on Jurisdiction, p. 43. This court has drawn a distinction in certain cases in actions against nonresident corporations and nonresident individuals. Central R. R. & Banking Co. v. Carr, 76 Ala. 388, 52 Am. Rep. 339; Pullman Palace Car Co. v. Harrison, 122 Ala. 149, 25 South. 697, 82 Am. St. Rep. 68. The reasons assigned in those cases for not taking jurisdiction of defendant corporations are not applicable in cases of natural persons, and therefore cannot be considered as authority in support of appellee's insistence. The court erred in over. ruling plaintiff's demurrer to the plea in abatement.

Reversed and remanded.

1. Where a motion was made to exclude all of the evidence of a witness on the ground that it was immaterial, illegal, and incompetent, and most of the evidence was not objectionable, the motion was properly denied.

2. Where, on objection to the evidence of a witness on the ground of variance, the court inspected the indictment and ruled that it charged that "S. P. Sarratt," and not "S. P. Sanatt," was the owner of the property alleged to have been stolen, and that there was therefore no variance, such ruling would not be reviewed on appeal, unless the original indictment, or a fac simile thereof properly authenticated, was contained in the record.

3. In a prosecution for larceny, an instruction that a married woman is capable of owning personal property in her own right stated a mere abstract proposition of law, which the court was not bound to give.

4. Where, in a prosecution for larceny of certain bed clothing, S. testified that he was the owner thereof, and his wife testified that though she made the quilt and blanket after her marriage, and they were her property, they were also her husband's property, "for what is mine is his," a requested instruction that if the jury had a reasonable doubt, from all the evidence, whether the property belonged to the husband or to the wife, they should give defendant the benefit thereof and acquit him, was properly refused as misleading.

Appeal from Circuit Court, Cherokee County; J. A. Bilbro, Judge.

Joe Kirby was convicted of larceny, and he appeals. Affirmed.

In the indictment as copied in the transcript on this appeal, the ownership of the property alleged to have been stolen was laid in S. P. Sarratt.

On the trial of the case S. P. Sarratt testified as a witness for the state that he was the owner of the property alleged to have been stolen; that the quilts and blankets were kept at his farmhouse in Cherokee county; that they were found in the possession of the defendant at the latter's house. This witness further testified that his name was "S. P. Sarratt" and that he had never been known or called by the name of "S. P. Sanatt." The defendant moved the court to exclude all the evidence of S. P. Sarratt, upon the following grounds: "Because the same is illegal, irrelevant and immaterial, illegal and incompetent, and because the defendant was charged with stealing the quilts from Sanatt, and the evidence showed that said articles were taken from Simon P. Sarratt." The other facts of the case are stated in the opinion.

The defendant requested the court to give to the jury the following written charges, and separate excepted to the court's refusal to give each of them as asked: "(1) A married woman is capable of owning title to and in personal property in the state of Ala

1. See Criminal Law, vol. 14, Cent. Dig. § 1643. 36 SO.-46

bama in her own right. (2) If the jury have a reasonable doubt from all the evidence whether the property alleged to have been stolen was the property of S. P. Sarratt or his wife's property, then the jury should give the defendant the benefit of such doubt and acquit him. (3) The court charges the jury that it is a question of fact for the determination of the jury whether the name of the owner alleged in the indictment, of the quilts and blanket, is S. P. Sanatt or S. P. Sarratt. (4) If the jury find the name of the owner of the quilts and blanket alleged in the indictment to be S. P. Sanatt and not S. P. Sarratt, then the jury cannot convict the defendant."

Massey Wilson, Atty. Gen., for the State.

HARALSON, J. There was no error in refusing to exclude the evidence of the witness Sarratt, on the ground that it was illegal and irrelevant, and because the defendant, employing the language of the objection, -"was charged with stealing the quilts from Sanatt, and the evidence showed that said articles were taken from Simon P. Sarratt." If there was any illegality or irrelevancy in the witness' evidence, it was not all subject to such objection, for most of it was legal and relevant. The motion went to the exclusion of all of it on those two grounds, and was, as for these properly overruled. The court was not bound to separate the good from the bad, if any of it was subject to the objection interposed. Lowe v. State, 88 Ala. 8, 7 South. 97.

As to the other ground, there was no error in overruling it. The court inspected the indictment, which has not been certified here for our inspection, and the solicitor who wrote it, testified that the name of the owner of the property stolen was written S. P. Sarratt and not S. P. Sanatt. The court after inspecting the paper, so ruled. This court will not review such ruling in the absence of the original or a fac simile thereof properly authenticated. Bodine v. State, 129 Ala. 106, 29 South. 926.

S. P. Sarratt testified that at the time the offense was committed he was living at Alabama City; that when he moved to that place a year before the property was taken, he left at his home in Cherokee county, Ala., among other things, the four quilts and blanket, which are charged to have been stolen, for his bed on his farm; that he often returned there to attend to his business, and would remain a short time; that in July or March, 1901, he missed these articles out of his house on the farm, and they were found in the house of defendant, near the witness' house, in said county; that the quilts and blanket were the property of witness.

Mrs. Sarratt, the wife of S. P. Sarratt, testified that she made the quilts and blanket alleged to have been stolen from S. P. Sarratt, after she married him, and that they were her property. She stated, also, "they

are also my husband's property, for what is mine is his, and what is his is mine. I made the quilts for the family."

Charge 1 requested by defendant and refused, states a mere abstract legal principle, in the nature of an argument, which the court was not bound to give.

Refused charge 2 was misleading, and there was no error in refusing it on that account. Under it the jury might have found the property to be that of the wife of S. P. Sarratt, and yet that her said husband had such possession of it as made it his property for all the purposes of the indictment. Morningstar v. State, 52 Ala. 405; 3 Greenleaf on Evidence, § 161.

The other refused charges 3 and 4, after what has been said in other connections, need not be considered.

Affirmed.

(139 Ala. 568)

the petition it is not alleged or claimed that the former appeal was taken, or that the transcript therefor was made, after the enactment of the latter law referred to; and therefore, in determining the merits of the petition, it may well be assumed that the costs in question accrued under the former law. So assuming, it appears that the petition fails to disclose even prima facie that the costs were excessively taxed. Section 1369 of the present Code is not retroactive, and does not govern the taxation as costs of fees earned prior to its adoption. 23 Am. & Eng. Ency. Law, 397, 398.

The decree is not shown to be erroneous, and whether the chancellor's reasons therefor were good is immaterial. Affirmed.

(139 Ala. 535)

1. A petition to retax costs for making a transcript, because in taxing costs a charge for each figure appearing in the transcript was made, instead of a charge for each amount or number expressed in figures, as required by Code 1896, § 1369, is insufficient, for failing to allege that the costs accrued after the adoption of that section, it not being retroactive.

Appeal from Chancery Court, Limestone County; William H. Simpson, Chancellor.

Action between E. J. Russell and others and E. F. Puryear, administrator. There was a judgment against the former, and they filed a motion to retax the costs for making the transcript on appeal, which costs they paid under protest. From an order denying the motion, they appeal. Affirmed.

W. R. Francis, Milton Humes, and Alex Troy, for appellants. Thos. McClellan, for appellee.

SHARPE, J. As appears from the petition disposed of by the decree appealed from, the only ground upon which is sought a restoration of the money claimed to have been paid in excess of proper costs is that on account of the transcript used on the appeal, wherein the costs were taxed, the register charged for each figure appearing in the transcript as for a word, in contravention of section 1369 of the Code of 1896, which provides, among other things, that, in estimating the cost of copying, "each amount or number expressed in figures shall constitute one word regardless of the number of figures therein." That provision first became a law by its adoption into the present Code, and, until the same was put in force, fees for copying were regulated by the Code of 1886, § 3683, which allowed to the register 15 cents "for every hundred words," without regard to the character or characters used to represent such words. In

1. Where plaintiff's cause of action is on an account which he claims as assignee, an amendment declaring on an account stated immediately between the parties, independent of the assignor, is a departure from the original cause of action.

2. A contract with reference to the sale of lands may be constituted of an employment to sell land for another, and, not being for the sale of land, will not be offensive to the statute of frauds because not in writing.

3. An account stated involves a promise to pay a real indebtedness, and a promise to pay a claim not founded on such an obligation is not conclusive, and may be shown to be without consideration.

4. Where, in an action for commissions on the sale of land, which accrued to a third person and was transferred to plaintiff, no proof was produced from which the value of any services rendered outside the special contract could have been found chargeable to defendant, it was not error to instruct that the performance of the contract was a prerequisite to the right to compensation.

5. Where a claim sued on is absolutely unsustainable, its compromise will constitute no sufficient legal consideration, and any promise made to compromise is void for want of consideration.

6. In an action on an account for commissions transferred to plaintiff, an instruction to find for defendant if the assignor or plaintiff accepted a sum paid on the claim by defendant in full settlement is erroneous, in assuming that the assignor could settle after the transfer to plaintiff and notice to defendant.

7. In an action on an account for commissions transferred to plaintiff, it was proper on crossexamination to question the assignor, who rendered the services, relative to the negotiations between the purchasers of the lands, the plaintiff, and himself, and as to the transaction as consummated.

8. In an action on an account for commissions transferred to plaintiff, a witness for defendant may be questioned as to the interest the purchasers had in the land, and as to