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quo modo, or specify the particular acts of diligence omitted, yet, when simple negligence constitutes the cause of action, it is incumbent upon the plaintiff to bring himself within the protection of the negligence averred by alleging such a relationship as would enable him to recover for simple negligence." L. & N. R. R. Co. v. Holland, 164 Ala. 73, 51 South. 365, 137 Am. St. Rep. 25; Gadsden R. R. Co. v. Julian, 133 Ala. 373, 32 South. 135; Ensley Ry. Co. v. Chewning, 93 Ala. 25, 9 South, 458.

[1] For ought that appears from count 1, the intestate was a trespasser, and the only duty that the defendant owed him was not to willfully or wantonly run over him or not to negligently do so after discovering his peril, and which said averment is utterly wanting in said count 1. The case of Highland Ave. R. R. Co. v. Robbins, 124 Ala. 113, 27 South. 422, 82 Am. St. Rep. 153, cited by counsel, is not only not in conflict with this holding, but supports us in deciding that count 1 makes the intestate a trespasser.

[2] The trial court did not commit reversible error for refusing to strike so much

of the answer of the defendant as was not responsive to the twelfth interrogatory. So far as we can judge, as the only count upon which the case was tried is not before us, the answer was pertinent, and whether responsive or not it should not have been stricken. Sullivan Timber Co. v. L. & N. R. R. Co., 163 Ala. 134, 50 South, 941, wherein the cases of First Nat. Bank v. Leland, 122 Ala. 289, 25 South. 195, and Garrison v. Glass, 139 Ala. 512, 36 South. 725, were expressly overruled.

[3] Since the record does not disclose count 4, the only one under which this case was tried, we cannot review the action of the trial court in ruling upon the evidence or in giving or refusing charges.

The judgment of the circuit court is affirmed.

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The law presumes that injury results from the erroneous admission of evidence, unless the injury, and, where the court erroneously admitentire record affirmatively shows absence of ted evidence of items of damages for which plaintiff could not recover under the complaint, the judgment must be reversed, though there amount ascertained, since the court cannot is sufficient proper evidence to justify the know that in arriving at the verdict the jury did not consider the improper evidence.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 4153-4166; Dec. Dig. § 1050.*]

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Action by J. D. Parks and another against the Tallassee Falls Manufacturing Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

J. M. Chilton and G. A. Sorrell, for appellant. James W. Strother, for appellees.

DE GRAFFENRIED, J. The appellant filed a bill in chancery to enjoin appellees "from selling, leasing, or disposing of, and from attempting to sell, lease, or otherwise dispose of," certain lands described in the bill. A temporary injunction was granted, and, as a preliminary thereto, appellant was required to execute a bond to appellees in the sum of $300, conditioned "to pay all damages and costs which any person may sustain by the suing out of such injunction if the same is dissolved." The bill was demurred to by the appellees, and a motion to dissolve the injunction was also filed by them in the

cause. The chancellor overruled the demurrer and refused to dissolve the injunction, but, upon appeal to the Supreme Court, the bill was held to be without equity and was dis

Affirmed. All the Justices concur, except missed for that reason, and thereupon an DOWDELL, C. J., not sitting.

(2 Ala. App. 278)

TALLASSEE FALLS MFG. CO. v. PARKS et al.

(Appellate Court of Alabama. Nov. 14, 1911.) 1. INJUNCTION (§ 252*)-BONDS-PLEADINGS DAMAGES.

A complaint in an action on an injunction bond conditioned on the payment of damages and costs sustained by the injunction in a suit to restrain disposition of real estate, if the injunction is dissolved, which alleges the dissolution of the injunction and the incurring of expense in employing counsel in procuring the dissolution and defending against the injunction, assigns as breach only the failure to pay counsel fees and costs incurred in court, and evidence of losses incurred on account of rents lost or on account of a failure to sell the

order was made dissolving the injunction. This suit was brought by appellees against appellant for the damages sustained by them by reason of the suing out of said injunction.

[1] The complaint sets out the bond, and then charges as follows: "And the plaintiffs say the condition of said bond has been broken by the defendants, in this: that the said injunction has been dissolved, and the defendants have failed to pay the plaintiffs all such costs and damages as they have sustained by the suing out of said injunction, and the plaintiffs aver that they have been put to great expense in employing counsel, in attending court, etc., in procuring a dissolution of said injunction, and defending against the same, all of which is to the great damage of the plaintiffs, in the said sum of $300."

It is manifest that the only breaches of | mother, who has been deserted by her husband, the bond assigned in the complaint are as must give paramount consideration to the child's to counsel fees and the costs incurred in welfare, notwithstanding the prima facie right of the mother to the custody. attending court. To be specific, there is no assignment of a breach of the bond in so far as any loss in the depreciation of the market value of the property or the loss of rents is concerned. "An averment of a

breach of a bond only entitles a plaintiff to recover what he is legally entitled to by reason of the breach." Ansly v. Mock, 8 Ala. 444. "Where the plaintiff in an action of covenant specifies breaches in his declaration, he cannot recover for other breaches not particularly stated." Governor v. Wiley, 14 Ala. 172; Kirby v. Forbes, 141 Ala. 294, 37 South. 411.

Having assigned the failure to pay counsel fees and the expense of attending court as the only damages suffered by reason of the breach of such bond, the appellees, under their complaint, were only entitled to recover such damages. It follows, therefore, that the court committed error in permitting appellees against the objection of appellant to offer any evidence as to any losses incurred by them on account of any rents lost by them, or on account of a failure to sell the lands or any part of them, by reason of said injunction.

[2] There was sufficient evidence in the case for the jury to have found that the appellees were entitled to the amount ascertained by their verdict to be due them for their counsel fees and costs incurred by them in obtaining the dissolution of the injunction, but this court does not know that in arriving at that verdict the jury did not consider the evidence which the court had permitted to go before them tending to show some loss on account of the depreciation in the value of the real estate, loss of rents, etc. When error is shown, the law presumes that injury thereby resulted, unless the entire record shows affirmatively that no injury was done thereby. In this case we cannot hold that the record affirmatively shows that no injury was done appellant by reason of the introduction of the illegal evidence above referred to. Railroad Co. v. Vaughan, 93 Ala. 209, 9 South. 468, 30 Am. St. Rep. 50; Marsh v. Fricke, 56 South. 110.

For the error pointed out, this cause is reversed and remanded.

Reversed and remanded.

(2 Ala. App. 461)

BROWN v. BROWN.

(Appellate Court of Alabama. June 30, 1911. Rehearing Denied Nov. 28, 1911.)

1. HABEAS CORPUS (§ 99*)-CUSTODY OF INFANT CHILDREN-DETERMINATION OF QUES

TION.

The court on habeas corpus by the paternal grandfather of an infant child for the custody of the child, in the possession of the

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99;* Parent and Child, Cent. Dig. §§ 4-32.] 2. HABEAS CORPUS (§ 14*)-SCOPE OF REME

DY.

the custody of an infant child in a contest beHabeas corpus may be used to determine tween the paternal grandfather of the child and the mother, who has been abandoned by her husband.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 14; Dec. Dig. § 14.*1 3. HABEAS CORPUS (§ 99*)-RIGHT TO CUSTO

DY OF CHILD.

Under the obligation to maintain and educate a child, where the father has abandoned the child without providing means for its support, he forfeits his right to its custody, and the duty of support and the right of control devolve on the mother, who is prima facie entitled to the child's custody.

[Ed. Note.-For other cases, see Habeas Corpus, Dec. Dig. § 99.*]

4. HABEAS CORPUS (§ 99*)—CUSTODY OF CHILD -EVIDENCE.

On habeas corpus by the paternal grandfather for the custody of an infant child in the possession of the mother, deserted by her husband, evidence held to show that the best in terests of the child required that it be placed in the custody of the grandfather, justifying a conditional judgment remanding the child to his custody, subject to the right of the mother after reasonable lapse of time to recover the custody where subsequent conditions warrant it. [Ed. Note.-For other cases, see Habeas Corpus, Dec. Dig. § 99.*]

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Petition for habeas corpus by W. A. Brow against Mataline Brown for the custody or From a judgment denying a minor child. Reversed, and conrelief, petitioner appeals. ditional judgment rendered.

F. E. Blackburn, for appellant. J. Q. Smith, for appellee.

PELHAM, J. The petition for habeas corpus filed in this case by W. A. Brown seeks to recover the possession or custody of a minor child about 31⁄2 years of age, Eugene Brown, Jr., by name, who is in the custody of his mother, Mataline Brown; the petitioner being a paternal grandparent of the child.

[1] The petition was denied by the judge of the circuit court of Jefferson county, by whom it was heard, and petitioner brings this appeal for review of the ruling of the lower court; and the question here presented for review is whether, in deference to the infant's welfare, which all the authorities recognize as the paramount consideration, the prima facie right of the parent to the custody of the infant should be interfered with by an order of this court.

[2] The office of the writ of habeas corpus is to release one illegally restrained of

liberty and generally is used as a "writ of liberty," but in this case the writ is used for the purpose of contesting private rights; the illegal restraint complained of being only in the sense that the custody or restraint is illegal, in that it is not for the child's best interest or welfare.

and custody (Neville v. Reed, supra; Winslow v. State, 92 Ala. 78, 9 South. 728), and, this duty and obligation of support and the rights of control having devolved upon the mother (Englehardt v. Yung's Heirs, 76 Ala. 534), she became prima facie by the fact of maternity entitled to the custody of the child (Kirkbride v. Harvey, 139 Ala. 231, 35 South. 848).

The respondent, Mataline Brown, married the son of the petitioner, W. A. Brown, in June, 1906, and lived with her husband at [4] The mother, thus having the prima the home in Birmingham of the petitioner facie maternal right to care for and have the and his wife, the parents of her husband, custody and control of this infant child, until after her baby, Eugene, Jr., for whose transferred the custody of the child, as custody the petition is filed, was born. shown by the undisputed evidence in the recThe father was improvident, intemperate, ord, to petitioner and his wife, the grandand addicted to other bad habits, and shortly father and grandmother of the child, during after the child was born family differences a period of the child's illness in June, 1909, arose that resulted in the young couple and for two or three weeks, having sent the child their baby leaving petitioner's home and go-to them to be cared for during its sickness, ing to live to themselves in a home provided thus recognizing that, when the child was by petitioner in Graymont, a suburb of Birmingham. While living in this home the husband's habits did not improve, nor did he provide for his family, and, after living thus unhappily together for some eight months in the house at Graymont, the husband deserted the wife and child, leaving them entirely unprovided for, and went first to New York, and afterwards, returning through Birmingham and staying there a short period only, went to California, or somewhere in the West, where he had been for about two years at the time this petition was filed. After deserting his wife and child and leaving them unprovided for, the father has contributed nothing to the support of the deserted wife and child, and the wife and mother is without property, income, or means of support other than that she may derive from her daily labor, and the child has no estate of any kind.

The evidence, while in conflict with respect to the cause and details of the family troubles, and whose fault occasioned them, as is to be expected in a narration of domestic differences by the parties, yet leaves standing out in bas relief practically uncontroverted one wholesome fact, and that is that either party to these proceedings may properly be intrusted with the care and custody of this infant child and that both are fit, proper, and suitable persons in so far as their good moral character is to be considered. There are, however, other matters of grave importance vitally affecting the infant's present and future welfare that must be considered. [3] The status of the parties to the proceedings is fixed by settled principles of law. The general doctrine of the common law is established and followed by an unbroken line of decisions that the obligation to maintain, support, care for, and educate the child rests primarily upon the father (Ex parte Boaz, 31 Ala. 425; Neville v. Reed, 134 Ala. 317, 32 South. 659, 92 Am. St. Rep. 35), but, having abandoned the infant without providing means for its support, he thereby, through

sick, the grandparents were more capable than herself of caring for it. The child, having been returned to its mother by its grandparents after recovering from its illness, was again a few days afterwards in July, 1909, sent by its mother to its grandparents, the petitioner and his wife, together with a basket containing the child's clothes. On this occasion the child and its clothes were sent to the grandparents without any solicitation upon their part, and without any explanation upon the mother's part. The grandparents on the initiative of the mother and without objection on her part kept the child about 16 months, or until in November, 1910, giving it kind and affectionate treatment, and caring for its wants and treating it as tenderly and providing for it as if it was their own child, until November, 1910, when the brother of the respondent requested the grandparents to allow him to take the child to see a street parade, representing that the mother would see the child at the parade, and that, after the parade was over, he would return the child to the grandparents. This was not done, but, on the contrary, the child was turned over by the respondent's brother to the respondent, who kept the child and refused to give it up, whereupon its grandfather files the petition in this case, seeking custody of the child.

The petitioner, the grandfather of the child, and its grandmother, petitioner's wife, are both people of good character and habits, past the meridian of life, and reasonably endowed with this world's goods, their fortunes being shown to aggregate about $150,000, of which the petitioner possesses the greater amount, or about $100,000. The infant child of the respondent is the only grandchild of petitioner and his wife, and has become very dear to their hearts during the time they have had its care and custody intrusted to them by the mother. The respondent, the mother, the unfortunate victim of a marriage to a thriftless man of bad habits, who was cruel in his treatment of

child.

arms to care for without means wherewith to | temporary and uncertain, even speculative, provide for herself and child. The evidence with respect to the future welfare of the shows her moral character to be beyond reproach, and her efforts to earn a livelihood by her daily labors as a seamstress, and her willingness to share her scant earnings in the maintenance and support of her child, deserve commendation. But it is not the interests of the grandparents nor those of the mother, but the best interests of the child and its present and future welfare, that is the principal consideration for the court. Saunders v. Saunders, 166 Ala. 351, 52 South. 310. We find from the evidence in the record that the grandparents were loath to take the child and allow it to gain a stronghold in their hearts' affection unless they were to be allowed to keep and rear the child. They have a comfortable home, an ample income, and are anxious and capable of bestowing on the child the attention, advantages, and opportunities that its mother cannot. The grandmother is a hale, hearty woman of domestic character, who seldom goes from her home, and is so situated that she can give the infant care and attention throughout the day and night, and constantly, if need be, minister to its childish needs. That she, together with her husband, has formed a deep and lasting attachment for the child, there can be no question, and every act of hers while the infant was in the custody of herself and her husband bears testimony to this fact, and we doubt not, as she states, that she feels an attachment for and loves the child as if it were her own, having had its almost constant care and training since it was learning to walk until the time of separation from her, when it was about 31⁄2 years of age. Both of these grandparents by their acts and statements consistently show a tender, loving affection that augurs well for the infant's present and future welfare, and their capacity to care for the child in the present and provide for its future is far beyond the possibilities of the mother, who is compelled to leave the child during the long hours of the day, when she is engaged with her work away from home, to the care of a negro servant who does the general housework, and to subtenants in her house who are comparative strangers, and can give the child only such attention as they gratuitously can spare from their own children and household duties; and the mother, when she gets home "usually late and always tired," is necessarily unfitted to give the child the care and attention it should have. What if the child should be taken sick? The respondent is dependent upon her daily labors for her livelihood and support of the child, and could not leave her work to minister to the child without sacrificing her means of livelihood. What if she should become too unwell to work? Who would then care for the child? The present arrangement of leaving the child during the work hours with ten

The proposition for the court to determine, put in question form, is this: "Will the best interests and welfare of the infant child, which we have seen are to be the primary considerations in controlling the court's action, be sufficiently advanced and served by remanding its custody to the petitioner to outweigh the prima facie maternal right of the respondent to have the custody of the infant? When we consider the comforts, care, attention, and advantages that petitioner is anxious to bestow upon the child, and the superior opportunities that are assured as a staple and continuing condition as tending to the health, happiness, and general well-being on the one hand, and the absence of any permanent arrangement and the impossibility of providing other than temporary arrangements of an unsatisfactory character upon the other hand, and when we take into consideration, also, that the maternal feeling for possession was not so strong but that the child was sent to the petitioner's home by the respondent in recognition of the fitness and superior capability of petitioner to care for it, and that the respondent visited and inquired about the child not more than five or six times during the entire seventeen or eighteen months it was left with petitioner, and that, when respondent regained possession, she did not do so, as she admits, with any intention of keeping the child permanently, or even have such an idea in mind (or impulse in the heart, so far as the evidence discloses), until after the child was brought up to see the street parade by her brother; when we weigh these matters, together with all the other facts presented, in the light of the child's well-being as of paramount consideration-the question presented answers itself, for the circumstances and conditions are such, as shown by the evidence in the record, that there is no escape from the conclusion that during the period of helpless infancy the care and custody of the child should be committed to the petitioner. The conclusion reached on the merits makes it unnecessary to pass upon the court's rulings on the pleading. Whether or not the letters of apprenticeship issued by the probate court were void because no notice was given the mother, or voidable only, and not subject to collateral attack, is also unnecessary to determine under the ruling made on the petition and answer.

The judgment appealed from will be reversed and judgment here rendered granting the petition of appellant in so far that the custody of the minor child, Eugene Brown, Jr., is remanded to the petitioner on the condition that the respondent shall have the right, if she desires to exercise it, of visiting the child on one day in each week.

would not be estopped, after a reasonable | said Mrs. Denson executed the following inlapse of time, from having the rights of the strument: parties and welfare of the child passed upon under such subsequent conditions and circumstances as might arise. In re King, 66 Kan. 695, 72 Pac. 263, 67 L. R. A. 783, 97 Am. St. Rep. 399.

Reversed and conditional judgment rendered remanding custody of minor to appellant.

(2 Ala. App. 297)

SNEAD V. BARCLIFT. (Appellate Court of Alabama. June 30, 1911. Rehearing Denied Nov. 23, 1911.)

1. BILLS AND NOTES (§ 383*)-PAYMENT BEFORE MATURITY-SUBSEQUENT TRANSFER TO BONA FIDE PURCHASER FOR VALUE.

A maker of a note who pays it before maturity, and who fails to take up the note which thereafter passes, before maturity, to an innocent purchaser, may not rely on the payment to defeat a recovery.

[Ed. Note.-For other Notes, Cent. Dig. § 956;

cases, see Bills and Dec. Dig. § 383.*]

2. APPEAL AND ERROR (§ 843*)-QUESTIONS REVIEWABLE-IMMATERIAL QUESTIONS. Where all the testimony of a witness could be excluded without affecting the recovery, the competency of the witness will not be considered on appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. § 843.*]

3. BILLS AND NOTES (§ 361*) — BONA FIDE PURCHASER-DEFENSES.

An indorsee of a note before maturity with notice of payment to a third person pursuant to an order of the payee may transfer the note to an innocent purchaser for value before maturity, who may enforce the note notwithstanding such payment.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 824; Dec. Dig. § 361.*] Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by Thomas M. Barclift against John H. Snead. From a judgment for plaintiff, defendant appeals. Affirmed.

"State of Alabama, Marshall County. Know all men by these presents: This is to certify that J. H. Snead owes me a note for one hundred dollars, the note being in possession of G. D. Jackson, and due on or about Dec. 15th, 1908, and that I do hereby authorize the said J. H. Snead to pay the said note held of mine by G. D. Jackson to Mrs. T. B. Hays, and not to the said G. D. Jackson, and when the said amount is paid to Mrs. T. B. Hays to hold and keep this paper which shall serve him (J. H. Snead) as a receipt against the said note if ever presented for collection. This March 20, 1908.

her

"A. J. X Denson. [Seal.] mark

"H. O. Sparks, J. P. "Dr. W. T. Gillispie."

That Mrs. Hays never received possession of the note, but that she collected from the maker, by virtue of the above instrument, the amount due on the note before its maturity, and gave the maker a receipt in full against the note. That on September 2, 1908, Mrs. Denson transferred and assigned the note by proper indorsement to said G. D. Jackson. That Jackson, before the maturity of the note, for a valuable consideration, indorsed the note to the appellee. There was no evidence tending to show that appellee had any notice of the payment made by appellant to Mrs. Hays, or that she claimed the note or any interest in it until long after the note had been indorsed to him as above stated.

[1] It is a general rule that, when the maker pays a negotiable promissory note before its maturity and fails to take it up, he does so at his peril. If, when such payment is made, the note is in the hands of an innocent holder thereof for value, or if, after such payment, the note is indorsed before maturity to an innocent purchaser for val

Street, Isbell & Bradford, for appellant. ue, without notice of such payment, such payJohn A. Lusk, for appellee.

DE GRAFFENRIED, J. The appellee, plaintiff in the court below, sued the appellant, defendant in the court below, for the sum of $100 due by a promissory note made by the appellant to Mrs. A. J. Denson on January 7, 1908, and due and payable on De.cember 1, 1908. The appellant filed to the complaint pleas of payment and set-off, and also a plea denying appellee's ownership of the note.

The evidence, without conflict, showed: That the appellant, for a valuable consideration, executed to Mrs. A. J. Denson on the date above mentioned the note sued on. That she delivered it to her son, G. D. Jackson, who had it, without indorsement to him, on March 20, 1908, and that on said day the

ment is, as to such owner, no payment, and such innocent holder for a valuable consid| eration is entitled to enforce its payment. Capital City Ins. Co. v. Quinn, 73 Ala. 558.

[2] It is not necessary for us to consider the question as to whether or not the witness Jackson was competent to testify to the facts to which he did testify as a witness in this case. The fact that the note was transferred and assigned by Mrs. A. J. Denson to the said Jackson was proven by A. H. Walden, one of the witnesses to the transfer, and as the evidence also showed that Jackson was in possession of the note at the time it was transferred by him to appellee, and as the transfer which was made by Jackson to appellee was, confessedly, made to appellee for a valuable consideration, and as he delivered to appellee the note at the time of its in

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