it issued, and had it been issued against the crops grown on the rented premises so as to show its nature, the constable would have been authorized to disregard the claim of exemption. Ex parte Barnes, 84 Ala. 540, 4 South. Rep. 769. The attachment fails to describe the affidavit with sufficient fullness to authorize the constable to look beyond it to the affidavit.

In considering the question of injury, it should be observed that this is an action, brought by a party claiming to be aggrieved by the sale of his property, on an official bond, against the principal and his sureties. To entitlethe plaintiff to recover, he must, under the statute prescribing the extent of the obligation of the bond on the principal and sureties, show injury, either by a wrongful act of the constable committed under color of his office, or by his failure to perform, or the improper performance or neglectful performance of, some duty imposed by law. Code 1886, § 273. The attachment is not void. Though issued against the estate of the tenant generally, it is merely irregular; and having been levied on the crops only, and not having been abated, is capable of enforcing the landlord's lien. Ellis v. Martin, 60 Ala. 394. It is well-settled that the lien of a landlord for rent and advances is su perior to all other liens, and will prevail against a claim of exemption, as regards the crops grown on the rented premises. Ex parte Barnes, supra. The declaration of exemption not only makes a general claim, but also recites the attachment and its levy, and claims the property levied as exempt particularly from the attachment. If the relation of landlord and tenant in fact existed between the plaintiffs and defendant in the attachment, and the indebtedness is for rent and advances, and the attachment was issued for the enforcement of the landlord's lien, and the crops levied on were grown on the rented. premises, they are subject to the attachment, and the claim of exemption is frivolous and unavailing. If these substantive facts, when appearing on the face of the process, authorize the officer to disregard the claim of exemption, they also, when established by reference to the affidavit and other evidence in an action on his bond, make manifest that his disregard of the claim could work no injury to the plaintiff; his property having been sold for the payment of a debt which was a paramount lien. This is on the same principle that a sheriff, when sued on his official bond for failure to make the money on an execution, may show in defense that the property of the judgment debtor is incumbered by mortgage or other lien, superior to the lien of the execution, to an amount in excess of its value, and in consequence the plaintiff has sustained no injury. Abbott v. Gillespy, 75 Ala. 180; Wilson v. Strobach, 59 Ala. 488. A disregard of a claim of exemption by selling the property in satisfaction of a lien, which prevails against it, when the claim is, in law and fact, frivolous and unavailing, is not of the classes of breaches of the official bond which entitles the party to recover nominal damages, in the absence of proof of actual damages; such as failing to return an execution as required by law, or to perform like duties. For the purpose of showing that the plaintiff had not been injured by the sale of the crops, it is permissible for the defendants to prove that the attachment was in fact issued for the enforcement of a valid and subsisting landlord's lien; and, as the initial step, the affidavit was admissible to show its nature, and the ground on which it issued. We presume it was properly identified, as the bill of exceptions recites, in terms, that it was the affidavit on which the attachment was based.

The court did not err in the charges given and refused. Charge numbered 4, requested by defendants, asserts a correct proposition of law, but there was no evidence before the jury on which to base it.

For the error mentioned the judgment is reversed, and cause remanded.

ROBINSON et al. v. HOLT.

(Supreme Court of Alabama. February 5, 1889.)

1. LANDLORD AND TENANT-LANDLORD'S LIEN-ENFORCEMENT-DEMAND OF RENT. Code Ala. 1876, § 3472, provides that a landlord may enforce his lien for rent and advances when due, and the tenant fails or refuses, after demand made, to pay the same, or, whether the rent and advances are due or not, when the tenant has removed any part of the crop from the premises without such payment, and without the consent of the landlord. Held, that an affidavit which fails to aver demand of the rent and advances alleged to be due and unpaid, and to negative the consent of the landlord to the removal of the crop, is fatally defective.

2. PLEADING AMENDMENT OF AFFIDAVIT.

The attachment having been issued before the Code of 1886 took effect, section 2998 of that Code, permitting an amendment before or during trial of any defect of form or substance in the affidavit, does not entitle the plaintiff to leave to amend his affidavit in these respects, as section 10 provides that "this Code shall not affect any existing right, remedy, or defense.

Appeal from circuit court, Macon county; JAMES W. LAPSLEY, Judge. This action was brought by Robinson & Ledyard, suing as partners, against P. S. Holt, and was commenced by attachment sued out on the 3d November, 1887, before the clerk of the circuit court. The affidavit for attachment was made out by W. Thompson, "agent and attorney for said plaintiffs," and stated that "P. S. Holt is indebted to Robinson & Ledyard in the sum of two hundred dollars for rent and advances for the year 1887; that said amount is due by said P. S. Holt to said Robinson & Ledyard as landlords of said Holt for the rent of land belonging to the said Robinson & Ledyard, known as the Clanton Place,' in Macon county, Ala., and for advances, said Holt having rented said place from said Robinson & Ledyard; that said sum of $200 due said Robinson & Ledyard as landlords for rent and advances by said P. S. Holt, is now due, and remaining unpaid, and said Holt refuses to pay the same; and affiant further says on oath, that the crop, or a part of it, has been removed from the place without paying the rent, and that the said Holt refuses to pay said rent and advances." On the trial of the case at the March term, 1888, the defendant pleaded in abatement of the attachment, on account of specified defects in the affidavit. The court sustained the plea, and rendered judgment quashing the attachment; and also refused to allow plaintiffs to file a sufficient affidavit, as they proposed to do. The judgment entry recites that the plaintiffs excepted to this refusal, and they here assign it as

error.

Code 1876, § 3472, provides that "the landlord or his assignee may have process of attachment for the enforcement of his lien for rent and advances or either, when such rent and advances, or either, as the case may be, are due, and the tenant fails or refuses, after demand made, to pay the same; and also in the following cases, whether such rent and advances, or either, are due or not: When the tenant has removed from the premises, or otherwise disposed of any part of the crop without paying such rent and advances, or either, and without the consent of the landlord." Code 1886, § 2998, provides that "the attachment law must be liberally construed, * * and the plaintiff, before or during the trial, must be permitted to amend any defect of form or of substance in the affidavit, bond, or attachment." W. F. Foster, for appellants. J. A. Bilbro, for appellee.

STONE, C. J. We feel constrained to affirm the judgment of the circuit court in this case. The affidavit for attachment is fatally defective in substance. It avers a failure to pay rent, and for the advances, after they had matured, but fails to aver that demand had been made. It avers that the crop, or a part of it, had been removed from the place or premises without

paying the rent and advances, but fails to negative the consent of the landlord. Code 1876, § 3472; Code 1886, § 3961; Fitzsimmons v. Howard, 69 Ala. 590; Bell v. Allen, 76 Ala. 450. The attachment was sued out in November, 1887, before the Code of 1886 went into effect. After December 25, 1887, when that Code became the law of the state, plaintiffs asked leave to amend the affidavit, by supplying the omissions above pointed out. Code 1886, § 2998. The court did not err in denying this motion. Code 1886, § 10; State v. McBride, 76 Ala. 51. That section expressly declares that "this Code shall not affect any existing right, remedy, or defense." It emphasizes this provision by adding: "As to all such cases the laws in force at the adoption of this Code shall continue in force." Both the right and the remedy were in existence at that time, and hence were not affected by the change in section 2998, (3315.) Affirmed.

TOWNSEND v. STEEL.

(Supreme Court of Alabama. February 5, 1889.)

1. EXECUTORS AND ADMINISTRATORS-SALE OF DECEDENT'S LANDS-APPLICATION. Code Ala. 1886, § 2106, provides that an application to sell the lands of a decedent must be made by the executor or administrator in writing, and must state, inter alia, "the names of the heirs or devisees." Held, that an application by an administrator to sell lands of his decedent, which averred that "L. and N. claim to be the lawful heirs" of said decedent, and that they are the only heirs "to the best of his [the administrator's] knowledge, information, and belief, and after diligent search, was prima facie sufficient on that point.

2. SAME DISMISSAL OF APPLICATION-PROOF OF HEIRSHIP.

It is error to dismiss such an application on motion of one claiming to be the sole heir of the decedent, in the absence of evidence that she or any other than the two named, is a lawful heir.

Appeal from probate court, Madison county; THOMAS J. TAYLOR, Judge. Thomas W. Townsend, as administrator of the estate of Thomas Dorse, deceased, filed his petition in probate court for an order to sell lands for distribution or equitable division. The original petition alleged "that the heirs of said decedent are not fully known to the administrator. Lewis Novell and Nancy Novell claim to be the lawful heirs and distributees of said Thomas Dorse, who are over twenty-one years, of sound mind, and reside in Madison county. The administrator is not able to give a full and satisfactory list of the heirs of said decedent; and that said lands cannot be fairly and equitably divided among said alleged heirs without a sale of the same." On the day appointed for the hearing, as the judgment entry recites, Mary Steel appeared by attorney, "who avers herself to be the only heir at law of the said decedent, and moved the court to strike the administrator's said petition and application from the files, because it shows that said court is without jurisdiction in the premises." Thereupon the administrator amended the petition, striking out the words above italicized, and inserting these words: "He states to the best of his knowledge, information, and belief, and after diligent search, that the said Lewis Novell and Nancy Novell are the only heirs at law and distributees of the said Thomas Dorse." The bill of exceptions adds: "There being no other evidence submitted, the petition as amended, and the motion to dismiss it, were submitted to the court for decision;" and the court thereupon dismissed the petition. The administrator excepted to this ruling and judgment, and he here assigns the same as error.

William Richardson, for appellant. Lawrence Cooper, for appellee.

SOMERVILLE, J. The only error assigned is based on the action of the probate court in dismissing the application of the administrator to sell the lands for distribution among the heirs of the decedent. The whole inquiry is

whether the statement of facts in the application conferred jurisdiction on the court to make the order of sale authorized by the statute.

The only objection urged to the sufficiency of the amended petition is that it fails to state the names of the heirs with reasonable certainty. The averment made by the administrator on this point is that "Lewis Novell and Nancy Novell claim to be the lawful heirs and distributees of the said Thomas Dorse," the decedent, and he further states that "to the best of his [the administrator's] knowledge, information, and belief, and after diligent search, the said Lewis Novell and Nancy Novell are the only heirs at law and distributees of the said Thomas Dorse." This averment, in connection with other requisite allegations, as to the sufficiency of which no objection is taken, was in full compliance with the statute providing that the names of the heirs must be stated, and was prima facie sufficient to confer jurisdiction on the probate court to hear and determine the matters alleged in the petition. Code 1886, § 2106. The only basis of knowledge in such cases must be either what is personally known to the petitioner, or such information as he may derive from others on inquiry. If the names of the heirs had been stated, without more, it would have been implied that the statement was made only to the best of the petitioner's knowledge and information. To verify it by the additional confirmation of his "belief" that the fact stated was true, could in no manner detract from the force of the allegation. It rather strengthens it. The judgment will be reversed on the authority of Lyons v. Hamner, 84 Ala. 197, 4 South. Rep. 26, and the cases cited and reviewed at length in the opinion of the court in that case. There is nothing in the case of Bingham v. Jones, 84 Ala. 202, 4 South. Rep. 409, cited by appellee's counsel, which countenances a different view of the case.

The record shows that the appellee appeared in the court below, claiming to be the sole heir at law of the decedent, and on her motion the petition of the administrator was dismissed. The bill of exceptions, however, which purports to set out all the evidence, fails to show that she was an heir at all, or had any interest in the estate of Dorse. If she had appeared and satisfied the court prima facie that she was an heir, the proper practice would be to permit her to be made a party defendant, with permission to controvert the application, including the statement as to who were the real heirs of the decedent. We have often held in such cases that an heir, whose name is omitted from the application, may appear even after judgment, and be made a party to the record, on petition and proof of interest, in order to sue out an appeal to this court, this being the only mode in which the interest of such heirs can be properly protected, after the order of sale is made. Lyons v. Hamner, 84 Ala. 201, (4 South. Rep. 26,) supra, and cases cited on page 202. It follows necessarily that they may become parties during the pendency of the proceeding in the court below, on like application and proof; otherwise the right of reversal would be futile, and without any benefit to the successful appellant. Where such proof is made to the satisfaction of the court, it defeats the application by disproving an essential averment as to who the heirs are, unless the petition be amended to correspond with such proof. The allegata and probata must correspond as to all matters material, as well in the probate as in the chancery court.

The court erred in dismissing the application in view of the fact that there was no evidence showing that the appellee, or any other person than the two named, was the lawful heir of the decedent. Reversed and remanded.

"The application for the sale of lands, either for payment of debts or for division, must be made by the executor or the administrator in writing, verified by affidavit, to the probate court having jurisdiction of the estate, must describe the lands accurately, must give the names of the heirs or devisees," etc.

RICKETTS v. BIRMINGHAM ST. RY. Co.

(Supreme Court of Alabama. January 23, 1889.)

1. HORSE AND STREET RAILROADS-TRANSFER OF FRANCHISE LIABILITIES.

Where a street-railway company transfers its property and franchises, without legislative consent, to another company, it is still liable for injuries to a passenger; and such passenger, having sued the original company, need not show that the railroad was actually operated by such company at the time of the injury.

2. SAME-INJURIES TO PASSENGERS-CONTRIBUTORY NEGLIGENCE.

Stepping unnecessarily from a moving street car, with a keg of lead in hand, when danger and injury would have been avoided by remaining on the car, is negligence which will defeat recovery because of prior negligence of the servants of the car company.1

8. SAME EVIDENCE OF OWNERSHIP-PAROL TESTIMONY.

Ownership of a street railway cannot be proved by oral testimony that it has been conveyed by a written contract, which the witness has seen, and to which he was a party.

4. CORPORATIONS-DECLARATIONS AND ADMISSIONS OF OFFICERS EVIDENCE.

Declarations of a street-railway president as to the ownership of the railway, which are not shown to have been made while in performance of his duties as such officer, or while acting for the company, or while doing business contemporaneous with the declarations which they serve to explain, are not binding on the company. 5. APPEAL-REVIEW-INSTRUCTIONS NOT IN WRITING.

Charges requested and refused, but not shown to have been in writing, as required by Alabama statutes, will not be reviewed.

6. SAME-RECORD-PRESUMPTIONS.

When the bill of exceptions fails to set out all the evidence, it will be presumed to have been sufficient on which to predicate a charge objected to.

Appeal from city court of Birmingham; H. A. SHARPE, Judge. Action by William A. Ricketts to recover damages for personal injuries inflicted while attempting to step from a street car. The testimony of plaintiff tended to show that he started from his shop with a 50-pound keg of white lead, and got on the street car, putting the keg on the front platform, by the consent of the driver; that he soon stopped the car, and, while removing the keg, the car suddenly started forward, struck him, and threw him on the ground, injuring him. A witness for defendant, who was a director of the Pratt Mines Street-Railway Company, another corporation, was asked "who was owning and operating the Birmingham Street Railway on the 4th of March, 1887; and answered that the Pratt Mines Railway Company was the owner of and was operating said railway at that time; and that he knew the fact from having seen the written contract of sale to said Pratt Mines Railway Company, and from having been one of the parties to said contract of sale, which was made on the 4th of February, 1887." The testimony of O. W. Underwood, a witness for plaintiff, tended to show that, after the plaintiff was injured, he met George L. Morris on the street car, who, as plaintiff's testimony tended to show, was the president of the defendant corporation on the 4th of March, 1887, and asked him "if he was still in control of said street railway; and that said Morris replied that he was, and that he would turn over the management to the new company on a certain date, which said witness did not remember." The bill of exceptions does not purport to set out all of the evidence. Plaintiff asked several charges, and excepted to their refusal, but they are not shown to have been asked in writing. He also excepted to the following charges, which were given at the instance of the defendant: “(1) If the jury believe from the evidence that the plaintiff was

1See, as to the liability of horse and street railway companies for negligent injuries to passengers, their duties as carriers, and what is negligence on the part of the passenger and of the company, Railway Co. v. Robinson, (Ill.) 18 N. E. Rep. 772, and note; Hitchcock v. Railroad Co., 3 N. Y. Supp. 218; Franklin v. Railroad Co., Id. 229; McCann v. Railroad Co., Id. 418; Briggs v. Railway Co., (Mass.) 19 N. E. Rep. 19, and

note.

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