(190 So.)

cover back usurious payments stated.

Contracts to pay interest on loan of money at more than 8 per cent. per annum are voidable, under Code 1907, §§ 4619, 4623, as to usurious interest, which cannot be recovered back in assumpsit, without express promise to repay it, but valid as to principal, unless made in Jefferson or certain other counties, to which Loc. Acts 1900-01, pp. 2685, 2688, §§ 1, 5, 8, under which usurious payments on such concipal and interest, may be recovered in assumptracts, which are declared void as to both prinsit for money had and received without express promise to repay, applies.

"The considerations which underlie the doc-| 2. Usury 102(1)-Rule as to right to retrine that the pendency of a previously instituted suit is good ground for abatement of another suit between the same parties and upon the same cause of action take no account of the puissance of, or the want of it in the former action. As was said in Foster v. Napier, 73 Ala. 603: 'It is the pendency of two suits for the same cause, their existence simul et semel, the law deems vexatious, and discounteWhether the prior suit is capable of being made effectual, is, in the second suit, a collateral and incidental inquiry; however it may be then decided, the defendant is not by its decision relieved from its burdens. There is a continuing necessity that he should remain before the court, prepared to make defense against it. These are, in our judgment, the evils against which the principle is directed.'"

nances.

We think, therefore, it clearly appears that the plea as to the pendency of the former suit in no manner concerned the inquiry as to whether or not such former suit could be successfully maintained by the plaintiff; and that such a plea was not inconsistent with the plea interposed to the first suit, and the defendant was guilty of no such conduct as would create against him an estoppel. By the plea in the second suit the defendant merely sought to relieve himself of the burden and vexation of a multiplicity of suits concerning the same subject-matter; but by the assertion of this right the defendant in no manner acknowledged that the prior suit could be prosecuted to a succèssful termination. As said in the quotation above, that was a matter of purely collateral and incidental inquiry.

We are of the opinion, therefore, that no estoppel is set up in the replication and that the trial court committed error in overruling the demurrer thereto.

3. Trial 260(1)—Refusal of charge substantially and fairly given by court's oral charge not error.

Refusal of charge substantially and fairly given by court's oral charge is not error, in view of Code 1907, § 5364, as amended by Acts 1915, p. 815.

4. Trial 143-General affirmative charge refused where evidence is in sharp conflict.

When evidence is in sharp conflict on material issues, court should refuse general affirmative charge with hypothesis.

6. Trial 295 (5)-Charge as to invalidity of usurious contract held sufficient.

Court's oral charge, including statement that usurious contract in Jefferson county by one in business of lending money at greater

Let the judgment be reversed, and the than legal rate of interest is usurious and void,

cause remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.

COOLEDGE et al. v. COLLUM. (6 Div. 91.) (Supreme Court of Alabama. April 24, 1924.) 1. Appeal and error 1040 (7) Appellant held not injured by ruling sustaining demurrers to pleas alleging matters proved under general issue.

Where evidence of matters alleged in pleas demurred to was introduced under general is sue, defendants were not injured by and could not complain of court's ruling sustaining demurrers as alleging matters provable under general issue.

held sufficient compliance with statute (Loc. Acts 1900-01, pp. 2685, 2688, §§ 1, 5, 8), when considered as whole.

Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.

Action by Jeff Collum against A. H. Cooledge and another, composing the firm of the Southern Finance Company. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

D. D. Trimble, of Birmingham, for appellants. Nesbit & Sadler, of Birmingham, for appellee.

MILLER, J. This is a suit by Jeff Collum to recover of the Southern Finance Company, a partnership, and the individuals composing the firm, under the common counts for usurious interest paid by him on

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

a loan made in violation of section one of an act known as the Money Lenders Act (Local Acts 1900-01, p. 2685).

There were two counts in the complaint, submitted to the jury: One was on account; and the other was for money had and received by defendant for use of the plaintiff. The cause was tried on general issue. The jury returned a verdict in favor of the plaintiff, and this appeal is prosecuted by the defendants from a judgment thereon by the court.

[1] Demurrers of plaintiff to pleas 4 and 5 were sustained by the court. The plaintiff demurred to each of the pleas, because the matters alleged were provable under the general issue. They were availed of, and evidence introduced to prove them under the general issue, and if the court erred in these rulings the defendants were not injured thereby, and cannot complain.

The evidence for the plaintiff tended to show that plaintiff borrowed from the defendants $50 in November, 1919, and agreed to pay them 10 per cent. interest for every two weeks or $10 per month interest thereon, and transferred to them his salary from the Louisville & Nashville Railroad Company as security for the loan. He paid them $5 as interest on this loan every two weeks for 18 months; and six or seven times during the 18 months the principal was "cut," reduced down, by payments of from $5 to $10 thereon by the plaintiff. The evidence also tended to show that this was in Jefferson county, Ala., and defendants were engaged in the business of loaning money and taking security therefor by conveyances or mortgages on personal property or personal effects or other personal security, in Jefferson county. Every two weeks when plaintiff would pay the $5 interest on the $50, he would make a new application to sell his wages, which had been earned, and would transfer them in writing to the defendant. The evidence tended to show this was intended by the parties as security for the original loan and the $5 interest for the next two weeks. Copies of these two papers which plaintiff would sign are set out in the evidence and marked Exhibits "A" and "B." They do not state the interest charged, and they were not recorded.

(Ala.

The contracts are not invalid and void, but voidable as to the usurious interest and

valid and legal as to the principal; and not be recovered in an action of assumpsit, usurious interest paid on such contracts canwithout an express promise to repay it. Ala. 468, 20 South. 428. However, a different Code sections supra; Gross v. Caffey, 111 principle applies to contracts for the payment of interest upon a loan of money at a violation of the Act of 1900-01, p. 2685. usurious rate made in Jefferson county in Such contracts are invalid and void as to the principal and usurious interest. of the act provides that all contracts for the Section 5 loan of money made in violation of this act shall be invalid; and section 8 of the act declares that any contract made for the loan of money in violation of this act shall be void. Any usurious payments made on such contracts, in excess of the principal and legal interest, may be recovered in an action of assumpsit, money had and received, without p. 269, § 72, headnote 14; Local Acts 1900-01, an express promise to repay it. 27 R. C. L. Ala. 468, 20 South. 428; Bullard Inv. Co. v. p. 2685, §§ 1, 5, and 8; Gross v. Caffey, 111 Ford, 18 Ala. App. 167, 89 South. 837; Carlisle v. Gray, 10 Ala. 302.

ten charge 26, requested by the defendants. [3] The court did not err in refusing writIts meaning is not clear; it is confusing and calculated to mislead the jury, and the principle of law attempted to be stated by it jury by the court in its oral charge. Section was substantially and fairly given to the 5364, Code 1907, as amended Acts 1915, p.

815.

[4] Written charge 4, requested by the dethe general affirmative charge with hypothfendant, was refused by the court. It was

The evi

esis in favor of the defendants. The following is all the evidence offered ters in issue, and when this is the case the dence is in sharp conflict on material matby the defendant:

"My name is C. R. Dorsett, and I was employed as manager by the Southern Finance Company during the year 1921. I am familiar with their manner of doing business, and they are engaged [in] the business of buying earned wages and salaries. We require each one of our customers to sign a paper at each transaction in a separate and distinct transaction. Jeff Collum never did borrow any money from the company while I was manager. All the transactions that I had with Jeff Collum were

court should always refuse such a charge. McMillan v. Aiken, 205 Ala. 35, headnotes 9-11, 88 South. 135; Bullard Inv. Co. v. Ford, 18 Ala. App. 167, 89 South, 837.

fendants, were each refused by the court. [5] Charges 1 and 12, requested by deThey are as follows:

"(1) If the jury believe from the evidence that the contract under which plaintiff paid the interest he is attempting to recover was valid, then the plaintiff cannot recover."

(100 So.)

that under the law in the state of Alabama, | 3. Pleading 123-Plea of not guilty of matusurious interest paid voluntarily upon a legal ters alleged held general issue and not decontract is not recoverable." murrable.

The court did not err in refusing these charges; they fail to define a valid or legal contract under this Act of 1900-01, p. 2685. They left it for the jury to decide and pass upon the validity or legality of the contract without reference to any rules of law. Bullard Ins. Co. v. Ford, 18 Ala. App. 167, 89 South. 837.

[6] The court in its oral charge to the jury stated:

"There is an act applicable to this county approved March 9, 1901, applicable to Jefferson, Morgan, Walker and Etowah counties which is a policy regulation; in other words, it undertakes to regulate the matter of persons who engage in money lending as a business and prescribe certain things, and things that are done in violation of that act are not only interdicted but the contract is pronounced void, and not voidable as was ordinarily the rule at one time before this act. In other words, a usurious act in Jefferson county by a man engaged in the business of lending money at greater than the prescribed amount for the forbearance of a loan in Alabama is usurious and void."

The defendants excepted to the last sentence in the above oral charge. The defendants cannot justly complain at this charge. It complies with the statute, when it is considered as a whole. Sections 1, 5, and 8 of Acts 1900-01, p. 2685; Bullard v. Ford, 18 Ala. App. 167, 89 South. 837; 27 R. C. L. p. 269, § 82, headnote 14, and authorities supra. The judgment is affirmed. Affirmed.

Plea of not guilty of matters alleged held general issue almost verbatim in Code form No. 34 (Code 1907, p. 1201), and hence not demurrable (Code 1907, § 5383, form 4). 4. Appeal and error 843 (4)—Overruling of demurrers to pleas mentioned in single assignment of error in like rulings thereon not considered if proper as to any.

If court properly overruled demurrers to any pleas mentioned in single assignments of like rulings on different demurrers to different pleas as error, rulings on demurrers to other pleas need not be considered on appeal. 5. Appeal and error 1078(3)-Rulings not insisted on and argued in appellant's brief treated as waived..

Rulings on demurrers to pleas will be treated as waived, where not insisted on and argued in appellant's brief,

Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.

Action by A. H. Cooledge and H. M. Mauch, composing the partnership of the Southern Finance Company, against Frank McArdle. Judgment for defendant, and plaintiffs appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

D. D. Trimble, of Birmingham, for appellants.

William S. Pritchard, of Birmingham, for appellee.

MILLER, J. This suit was commenced by the Southern Finance Company, a partnership composed of A. H. Cooledge and H. M.

ANDERSON, C. J., and SOMERVILLE Mauch, against Frank McArdle in the muand THOMAS, JJ., concur.

COOLEDGE et al. v. MCARDLE. (6 Div. 98.) (Supreme Court of Alabama. April 24, 1924.) 1. Courts 190(4)-Motion to quash writ and voluntary appearance held waiver of statutory

notice.

By filing motion in circuit court to quash writ of certiorari for review of judgment in municipal court and voluntarily appearing movants waived five days' notice required by Code 1907, § 4720, and submitted to court's jurisdiction.

2. Payment 60(1)-Plea alleging payment of debt before suit in practically Code form held good defense.

That defendant paid debt or demand on which suit was brought before commencement thereof held good defense, as plea of payment practically in Code form No. 35 (Code 1907, p. 1202).

nicipal court of Birmingham. That court rendered judgment in favor of the plaintiff, and it was brought by writ of certiorari and supersedeas bond from said municipal court to the circuit court. The cause was tried de novo in the circuit court by the court without a jury, and judgment was rendered in favor of the defendant, from which judgment the plaintiffs prosecute this appeal.

[1] The plaintiffs insist the court erred in trying this cause because this municipal court is a court with the jurisdiction of a justice of the peace, and no notice of the appeal by the defendant from the judgment by certiorari was given to them as section 4720 of the Code of 1907 requires. The five days' notice of the certiorari required by this section does not affirmatively appear from the record to have been given to the plaintiff; but the plaintiffs waived this notice by voluntarily appearing in the circuit court and prosecuting the suit.

The plaintiffs on June 14, 1921, filed in the circuit court written motion to quash the writ of certiorari. This motion does not

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 SO.-10

mention plaintiffs had not been served with notice of the certiorari; but on October 11, 1922, the plaintiff's amended the motion to quash the writ of certiorari by adding additional grounds in which they state "no notice of the certiorari was served upon them." However, it appears the plaintiffs prior to this, on June 14, 1921, filed in the cause in the circuit court a complaint containing two counts, which was signed by their attorney. The plaintiffs by filing this motion on June 14, 1921, and the complaint on June 14, 1921, in the circuit court in this cause, both signed by their attorney, voluntarily appeared in the circuit court, waived thereby the five days' notice allowed them under the statute (section 4720, Code 1907), and submitted to the jurisdiction of the court. Milazzo v. Comm. Finance Co., 202 Ala. 328, 80 South. 410; Hightower v. Crow, 102 Ala. 584, 587,

15 South. 350.

as originally filed and as amended. It is a This plea sets up good defense to count 1 (No. 35, p. 1202, Code 1907), and is not subplea of payment practically in Code form ject to the grounds of the demurrer assigned to it (section 5383, Code 1907; Barbour v. Washington Fire & Marine Ins. Co., 60 Ala. 433; Stull v. Daniel Mach. Co., 207 Ala. 544, headnote 4, 93 South. 583). Plea 3 has the then reads: "(3) That he is not guilty of same general heading as 2 down to "2," and the matters and things alleged therein." in Code form (No. 34), and the court did not This plea is general issue, almost verbatim err in overruling the demurrers to it (section

5383, Code 1907, form No. 4).

[4] It is not necessary for us to discuss and decide whether the court erred in overruling demurrers to pleas 8 and 9. The apand 2, copied above, assigns in each as one pellant by assignments of error numbered 4 error four separate rulings of the court on four different demurrers to four different pleas. If the court properly overruled the demurrers to any one of the pleas mentioned in the assignments of error numbered 4 or 2, then this would render it unnecessary for us to consider the rulings of the court on the demurrers to the other pleas. The court must err in all the rulings on the demurrers to all the pleas (Nos. 2, 3, 8, and 9), mentioned therein, to sustain the error in assignment numbered 4 or 2, as assigned by appel

There are two counts in the complaint. Plaintiffs claim in count 1 $32.25. They aver they are engaged in business of buying wages of railroad men; that defendant made written application to them to sell his account for wages already earned for July and August, 1920, from the Tennessee Coal, Iron & Railroad Company; and they aver they accepted the application. The defendant transferred and assigned the account for wages in writing to them, and the defendant collected this said money due him from the Tennessee Coal, Iron & Railroad Company, which belonged to the plaintiffs, and the defendant failed and refused to turn it over to plaintiffs. This count contains a copy of the written application, and the written transfer of the account for the wages, which were signed by the defendant. In count 2 plaintiffs claim of the defendant $30 damages for money obtained by the defendant from the plaintiffs by means of false representa-lant. Pleas 2 and 3 are sufficient. The court tions. The counts of the complaint were amended by adding these words, "and that said defendant has wrongfully and willfully converted the same to his own use"; and the complaint was amended by stating the names of the individuals composing the firm or partnership of Southern Finance Company.

The defendant filed pleas numbered 2, 3, 8, 9, and 11 to count 1 before and after it was amended. The plaintiffs filed demurrers to each of these pleas, and these demurrers to each plea were overruled by the court as filed to this count numbered 1 before and after it was amended.

properly overruled the demurrers to each of them, as hereinbefore shown, so we will not consider and pass on the rulings of the court on the demurrers to pleas 8 and 9. Ashford v. Ashford, 136 Ala. 631, headnote 9, 34 South, 10, 96 Am. St. Rep. 82; City of Montgomery v. Moon, 208 Ala. 472, headnote 3, 94 South. 337; Hall v. Pearce, 209 Ala. 399, headnote 6, 96 South. 608; Beason v. S. C. W. O. W., 208 Ala, 276, headnote 6, 94 South.

123.

[5] The court overruled the demurrers of plaintiffs to plea 11 filed to count 1 before

The fourth assignment of error reads as and after it was amended. These rulings of

follows:

"The court erred in overruling plaintiffs' demurrer to plea 2, 3, 8 and 9, as addressed to

count 1 of the complaint as amended."

The second assignment of error is the same as the fourth, except it does not contain the last two words, "as amended."

the court are assigned as errors, separately, in assignments of error numbered 3 and 5; but they are not insisted on and argued in brief of appellant, so this court will not consider them. They will be treated as waived. Henry v. Hall, 106 Ala. 86, headnote 10, 17 South. 187, 54 Am. St. Rep. 22; Memphis, etc., R. R. Co. v. Martin, 131 Ala. 270, head

(100 So.)

v. Counts, 166 Ala. 550, headnote 2, 51 South. 6. Municipal corporations 938.

rights may not be injured by exercise of police power.

In the exercise of the police power, property and individual rights may be interfered and with or injured or impaired only in the manner and to the extent that is reasonably necessary to conserve the public good.

Reckless driving of fire trucks on the streets of a city is manifestly not essential to efficiency in fire fighting, and such conduct needlessly and unreasonably and consequently unlawfully impairs the private rights of those who are lawfully upon the streets with their property. Such conduct renders the streets unsafe, Any exertion of municipal authority or of and when permitted by the city, liability of the the police power is subject to the provisions of city may arise therefrom if persons and proporganic law that are designed to conserve erty lawfully on the street are injured in conprivate rights.

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