[Yerby, Treasurer &c. v. Cochrane.] The opinion renders it unnecessary to set out the pleas or the demurrer thereto. FOSTER & OLIVER, for appellant. WILLIAM G. COCHRANE, contra. MCCLELLAN, J.-Act No. 418 passed at the session of 1892-93 of the General Assembly-Acts 1892-93, pp. 934-936-is entitled "An act to provide for and regulate the pay of State witnesses in Tuscaloosa county." The subject of the enactment thus expressed in its caption is provided for in the body of the act, but in addition to provisions cognate, germane and properly referable to a scheme for the payment of State witnesses in said county there are incorporated in the text of the act provisions and regulations for the payment of the fees of the circuit court clerk and the sheriff of that county earned in criminal cases, of which obviously there is no intimation, much less an expression, in the caption. Thus : Section 1 of the act provides, "that one-half of all the fines and forfeitures collected in the circuit or county courts, or any other courts of Tuscaloosa county, and all the proceeds of the hire of all county convicts of Tuscaloosa county, is hereby set apart and appropriated to the payment of witnesses for the State in all criminal prosecutions in said courts. Clerk of the circuit court and sheriff, who shall be summoned and required to appear in criminal prosecutions after the approval of this act. The remaining one-half of the fine and forfeiture fund shall be held to pay present outstanding claims against said. fund, as now provided by law;" and by section 8 it is provided: "That when any convict is sentenced to hard labor for the county to pay the fine and costs, the hirer of such convict shall pay to the proper officer the costs due the State's witnesses, and officers of the court, which accrued in such conviction in behalf of the State, in advance, and such sum shall be placed to the credit of the fine and forfeiture fund, and shall be disbursed by the treasurer, or person acting as such according to the provisions of this act. The italicization in these excerps is ours. The purpose of the legislature to provide in this act for and regulate the payment of the costs due the clerk and sheriff is further accentuated by the require [Yerby, Treasurer &c. v. Cochrane.] ment of section 7, that all fines and forfeitures should "be collected in lawful money of the United States, and none other," and that such money should be paid into the county treasury to the credit of the fine and forfeiture fund, so that the claims of officers could not be utilized by them in the payment of fines and forfeitures as they might have been under the law theretofore existing; and also by reference to the provision of the first section quoted above, to the effect that the remaining one-half of the fine and forfeiture fund shall be held to pay present outstanding claims against said fund as provided by existing law; the conclusion being inevitable that the officers could receive nothing except under this act, and it being equally manifest the legislature intended they should in some way receive payment of their claims. It is, therefore, clear that the body of this act contains and undertakes to provide for and regulate not only the subject matter expressed in its caption-the payment of "State witnesses in Tuscaloosa county"-but also subject matter the payment of officers' costs accruing in behalf of the State-which is not expressed or even hinted of in the caption, and which is wholly separate and distinct from the subject expressed therein. It can not be doubted that the text of the enactment is violative of the inhibition of section 2, Art. IV of the constitution, that "Each law shall contain but one subject, which shall be clearly expressed in its title," &c.; nor, at least, in so far as the subject not expressed in the caption is attempted to be provided for, that the act is void.-Ex parte Cowert, 92 Ala. 94, 9 So. Rep. 225; Montgomery v. State, 88 Ala. 141, 7 So. Rep. 51; Ballentyne v. Wickersham, 75 Ala. 533; Stein v. Leeper, 78 Ala. 517; Er parte Reynolds, 87 Ala. 138, 6 So. Rep. 335. Whether the whole enactment is void depends upon a further inquiry, namely: Can the provisions in relation to the payment of officers' costs be separated from those in reference to the payment of State witnesses so that the former may be stricken from the act and leave an enactment "complete within itself, sensible, capable of being executed, and wholly independent of that which is rejected?" We do not think the provisions in question can be so separated. They are so interlaced, so dependent upon each other, that we feel great violence would be done to the legislative intent, indeed to the [Yerby, Treasurer &c. v. Cochrane.] letter in which that intent is expressed, by the emasculation of the provisions of the act so far as they relate to officers and the enforcement of those provisions in respect of witnesses. In reality the provisions of chief importance in the enactment, with respect to these subjects, severally, are not in form or substance severable provisions at all. For instance, section 1 sets apart and appropriates one-half of the fine and forfeiture fund, not to witnesses alone nor to officers alone, but jointly to both classes. The act provides that witnesses shall receive a part and a part only of this moiety, and that court officers shall receive a part of it. To strike out the provision so far as it conferred a benefit on officers would be not to eliminate a provision made separately for them, but to strike out in part the provision having reference to State witnesses, and to give them the whole of a fund which the legislature never intended and has not provided that that they should have, except in common with the clerk and sheriff. The one set of beneficiaries can not be deprived of the provisions attempted to be made for them without at the same time radically changing the provisions attempted and intended to be made for the other. If the act should stand at all so far as it relates to witnesses, it would stand not as it was enacted but as it is changed even in respect of such witnesses by the judicial elimination from it of provisions which not only had relation to the costs of court officers, but which bore aiso upon the fund for the compensation of witnesses, and limited its amount. Moreover, while the legislature might perhaps have denied to officers all participation in the fine and forfeiture fund, it has most clearly evinced a contrary intention by this enactment, and this intention would be entirely defeated if this act is upheld as to the subject expressed in its title and adjudged bad, as it must be, in respect of the clerk and sheriff, for with one moiety of the fund appropriated to witnesses and the other to the payment of "present outstanding claims,' there is not and could never be any part of it or any other fund available for the payment of officers' costs. For these reasons-and others, growing out of preexisting law on the subject, might be given-we conclude that the provisions of the statute in their application to officers and witnesses are not separable, that to strike out its references and attempted provisions for 101 546 107 608 [Lewis v. Simon & Co.] officers' costs would not leave the act to operate according to its terms and clear intent even as to witnesses, and that, of consequence, the whole act is unconstitutional and void. Plaintiff expressly claimed under this void act, the complaint in terms counts upon the provisions of it which we have discussed. The demurrer raised the question of the constitutionality of the enactment. It should have been sustained. For the error committed in overruling the demurrer the judgment of the circuit court must be reversed. Other questions presented by the record need not be considered. The cause is remanded. Reversed and remanded. 110 299 101 546 115 232 101 546 117 422 101 546 142 709 Lewis v. Simon & Co. Statutory Action of Detinue. 1. Pleadings; want of consideration, and not fraud in execution of the note-A plea alleging that the defendant executed the note and mortgage on the representation by their agent that plaintiffs would lend him a certain sum of money, which they failed to do, does not . show fraud in the execution of the note and mortgage, but the want of consideration therefor. 2. Joinder in issue; waiver of insufficiency.—Where plaintiffs do not interpose demurrers to special pleas, but their replication thereto is, in legal effect, a mere joinder in issue upon such pleas, they will be presumed to have waived any defects therein, and the trial must be had without reference to any insufficiency of said pleas. 3. Abstract charges; not reversible error to give them.-There is no reversible error in giving charges which assert correct propositions of law, but which, in the particular case given, may be abstract. 4. Charge to jury.-When issue is joined on a plea of the failure of consideration, and the defendant testifies that the note and mortgage, which formed the basis of the claim to the property sued for, were executed upon a promise by the plaintiffs' agent that they would lend defendant a certain sum, that plaintiffs had refused to make the loan, and that defendant had received nothing in consideration of the note and mortgage, it is error to refuse a charge asked by the defendant which asserts "If the promise was in fact made by plaintiffs, through their agent, to let defendant have five hundred dollars in money on the mortgage and note, then plaintiffs can not recover." [Lewis v. Simon & Co.] 5. Action of detinue; want of consideration for the mortgage as a defense.—Where the plaintiffs' title in a detinue suit depends upon a mortgage, the defendant mortgagor may, under the provisions of section 2720 of the Code, as amended by act approved February 21, 1893, (Acts 1892-93, p. 1127), defend on the ground of the want or failure of consideration for the mortgage. APPEAL from the Circuit Court of Montgomery. This was a statutory action of detinue brought by the appellees, Laz. Simon & Co., against the appellant; and sought to recover certain described personal property. To the complaint the defendant pleaded 1st, The general issue; 2d, want of consideration; and 3d, that the plaintiffs had no right, title, interest or claim in the property sued for, nor any possession or right of possession thereto at the commencement of the action. The defendant's fourth plea was as follows: "Fraud in the execution of the note and mortgage, which are the foundation of this suit. And defendant avers that on or about the 23d day of March, 1892, Jake Simon, representing himself to be the agent of Laz. Simon & Co., and being the agent of plaintiffs, of Louisville, Ky., falsely and fraudulently promised and agreed for them and in their name to let defendant have $500 in money, at that time having no intention to keep said promise, provided defendant would execute a promissory note for $500, payable at the banking house of Josiah Morris & Co. to the order of plaintiffs and secure the same by a mortgage upon certain property, viz., the property sued for in this action. That relying upon this false and fraudulent representation and promise of the said Jake Simon as herein above particularly recited, defendant thereupon on, to-wit, the 23d day of March, 1892, did execute a note for $500, payable to the order of Laz. Simon & Co. at the banking house of Josiah Morris & Co. on the 1st day of September, 1892, and did thereupon execute a mortgage bearing even date with said note on the following described personal property, towit, all the bar fixtures, glass ware, cash register and an iron safe which defendant was then using in a certain store-house on the west side of Commerce street in the city of Montgomery, Alabama, to secure the payment of said note at the maturity thereof, and defendant avers that said note and mortgage are the foundation of this |