(100 So.)

"Thanking you for your attention and trust-, issue of fact for the judge trying the case ing that you can take care of the new notes without a jury. when they mature without any inconvenience or embarrassment, we are.'

The record further shows the nonpayment and protest of these notes, the bankruptcy of the maker thereof, the G. W. Phalin Lumber Company, the proof of claim, allowance, and payment thereon of a small dividend ($150) by the trustee in bankruptcy, of the Geo. W. Phalin Lumber Company.

The question recurs: Did the giving to plaintiff by the Phalin Lumber Company of its notes constitute payment or novation of the original debt against defendant? .

[6] The mere taking of the notes was not sufficient for payment, extinguishment, or novation as to the original debt; without more, the presumption of the law is that the same were taken conditionally, on payment only. McWilliams v. Phillips, 71 Ala. 80. The evidence tended to show the Lumber Company, the defendant, was worthy of credit given, and that the Phalin Lumber Company was not so regarded by plaintiff before and at the time the sale was consummated by the shipments and receipt of same by the defendant. The financial condition and business association of the Tuscaloosa Lumber Company and the Phalin Lumber Company were known to the debtor, yet the indebtedness of the Phalin Lumber Company to the defendant company, and the terms of an agreement or understanding between the two latter companies by which the defendant is said to have received the materials purchased from plaintiff, and to have given the Phalin Lumber Company a credit on their account for the purchase price thereof, were facts unknown to plaintiff when the goods were delivered to and received by defendant. In other words, the defense, for all practicable purposes, is to carry out, at the expense of the plaintiff, the agreement between

[2, 3] The essential characteristics of a novation were dealt with in Hopkins v. Jordan, 201 Ala. 184, 77 South. 710. There was proof required that the creditor, the original debtor, and the promisor intended to accept the new promise in discharge of the original debt-that the creditor, in accordance with this intention, agreed to the new promise in discharge of the original debt. This follows from the settled rule that novation is never to be presumed, and that it must appear that the original debt has been extinguished. Armstrong v. Walker, 200 Ala. 364, 76 South. 280; Wallace v. Myrick, 1 Ala. App. 572, 55 South. 259; Mills v. McMillan, 78 Fla. 294, 82 South. 812; Montgomery B. & T. Co. v. Jackson, 190 Ala. 411, 67 South. 235; Mc-defendant and the Phalin Lumber Company Williams v. Phillips, 71 Ala. 80; 29 Cyc. 1123, 1130, 1131; McDonnell v. Ala. Ins. Co., 85 Ala. 401, 5 South. 120. He who asserts novation or payment has the burden of proving that this was the fact and intention of the parties. McWilliams v. Phillips, 71

Ala. 80.

In Barnes v. Hekla Fire Ins. Co., 56 Minn. 38, 41, 57 N. W. 314, 315, 45 Am. St. Rep. 438, 440, it is said:

for the discharge of the latter's debt to the former, and it is a conceded fact that the plaintiff was not a party to such arrangement between defendant and the Phalin Lumber Company. The testimony of plaintiff, and its correspondence, rebuts such agreement on its part, and the mere acceptance of the notes did not amount to accord and satisfaction, payment, or novation of the original debt of the defendant to the plaintiff.

against the bankrupt estate of Phalin Lum[7] Did the proof and filing of the claim ber Company, and acceptance by plaintiff of

"It is frequently the case that the creditor consents to the arrangement as a favor or for the convenience of his debtor; and we apprehend it would be a surprise to the parties, as a small dividend, have the effect of a novawell as an injustice, in many cases, if it were tion or payment of debt as to the defendheld to operate as a release of the original lia- ant? We think not. There was no election bility; and therefore it should distinctly ap- of inconsistent rights or remedies, or estoppear, from the express terms of the agree-pel by suit, that would defeat plaintiff's judgment, or as a necessary inference from the situation of the parties, and the special circumstances of the case, that such was the intention and understanding of the parties, of which the creditor was chargeable with notice, and this is the generally accepted doctrine of the courts. 11 Am. & Eng. Ency. of Law, 889, 890."

ment. Mobile Towing & Wrecking Co. v. Hartwell, 208 Ala. 420.1 Its failure to prove the claim against the bankrupt estate of the Phalin Lumber Company would have rendered plaintiff liable for the failure of due diligence to the original debtor for any div idends that might have been received in reduction of the original debt. There is anal[4, 5] When there is no express contract of novation, the declarations and acts of the Ogy to be found in Buck v. Gimon, 201 Ala. creditor must be inconsistent with an inten-619, 621, 79 South. 51; Anderson v. Timbertion to hold the original debtor. The evidence must clearly show or be tantamount to an agreement to release the original debtor of liability. If the testimony is in conflict as to whether the plaintiff had accepted the notes of the Phalin Lumber Company in discharge of defendant's liability, that was an

lake, 114 Ala. 377, 389, 22 South. 431, 62 Am. St. Rep. 105; McWilliams v. Phillips, 71 Ala. 80, 83; May v. Sharp, 49 Ala. 140, 142; Powell's Adm'r v. Henry, 27 Ala. 612, 615, and Russell v. Hester, 10 Ala. 535.

The record failing to show that the plaintiff creditor agreed to accept the Phalin Lum195 South. 191.

ber Company's notes in satisfaction and discharge of the pre-existing original debt of defendant to plaintiff, the judgment of the circuit court is affirmed.

Aturmed.

"Plaintiff claims of the defendant the sum of, to-wit, twenty-five thousand dollars as damages for an assault and battery committed by defendant's agent, to wit, one Bob Milligan, who was then and there acting within the line and scope of his employment, on plaintiff on, to wit, the 8th day of April, 1922, at or near

ANDERSON, C. J., and SOMERVILLE and defendant's mines at or near Coalmont, Shelby BOULDIN, JJ., concur.

BROOKSIDE-PRATT MINING CO. v.
BOOTH. (7 Div. 426.)

(Supreme Court of Alabama. April 17, 1924.
Rehearing Denied May 15, 1924.)

1. Pleading-Subsequent pleadings must refer to or support complaint and plea. Whatever the parties respectively allege in their subsequent pleadings must be referred to, fortify, and support, respectively, the complaint or declaration of plaintiff and the plea of defendant.

2. Pleading 173, 183, 184, 185-Requisites of pleadings subsequent to complaint and plea stated.

The replication must so answer a plea as to support the complaint, and the rejoinder must so answer the replication as to support the plea, and likewise the surrejoinder must support the replication, the rebutter the rejoinder, and the surrebutter the surrejoinder.

county, Alabama. And plaintiff avers that the said, to wit, Bob Milligan, who was then and there acting within the line and scope of his employment, kicked plaintiff, shot hole through plaintiff's trousers with pistol, and struck plaintiff on forehead with pistol, cutting gash in plaintiff's forehead, to wit, three and a half inches long and to the bone. Plaintiff avers that by reason and as a proximate consequence of said assault and battery described above, plaintiff was greatly wounded and bruised on his head and body, and was caused to suffer great mental pain and physical pain, and was subjected to great humiliation, indignation and shame, and was made sick and was caused to lose much time from his work, all to plaintiff's damage as aforesaid; wherefore plaintiff sues.'

Pleas D and E are as follows:

"Plea D. For further plea and answer to each count of plaintiff's complaint says: That the defendant on the occasion complained of was operating a commissary at Coalmont, Ala., for the sale of divers goods, wares and merchandise, and the plaintiff on the said 8th day of April, 1922, came to and entered defendant's commissary as aforesaid, which was located in

the town of Coalmont, Ala., and failed or refused without legal cause or good excuse, to imme

3. Assault and battery 15-Merchant may withdraw invitation to trade and thereafter eject person from whom invitation with-diately leave on being ordered or requested to

drawn.

Merchant or storekeeper may withdraw invitation to trade from such persons as he may desire, and thereafter, if such persons come into his store or commissary, he may eject them by the use of no more force than is reasonably necessary if such persons refuse to leave after notice and a reasonable time in

which to do so.

4. Licenses 58(1)—Gratuitous license to go on lands of another is revocable at will. Every gratuitous license to go upon or pass over the lands of another is revocable at the mere will of the person granting it.

5. Assault and battery 2-Licensee wrongfully ejected may recover for an assault committed upon him.

One rightfully in the place at the time when he is ejected therefrom may recover for the assault committed.

do so by the duly authorized agent of this defurther avers that its said agent Milligan emfendant, to wit, Bob Milligan; and defendant ployed no more force than was reasonably necessary in ejecting or attempting to eject the plaintiff from defendant's said commissary."

"Plea E. For further plea and answer to each count of plaintiff's complaint, separately and severally, defendant says that for some years prior to April 8th, 1922, and on said date defendant was operating a commissary at which it sold divers wares, goods and merchandise at Coalmont, Ala., that within six months prior to the occasion complained of to wit, April 8th, 1922, the plaintiff had been warned to stay off the premises of the defendant at ⚫ Coalmont, Ala. by defendant's duly authorized agent, but that notwithstanding such warning plaintiff on said April 8th, 1922, voluntarily came on and into the defendant's said commissary at Coalmont, Ala., and defendant avers that after plaintiff came into said commissary he was requested by defendant's duly author

Appeal from Circuit Court, Shelby Coun- ized agent, Bob Milligan, to leave the premises ty; W. M. Lackey, Judge.

Action for damages for assault and battery by John T. Booth against the Brookside-Pratt Mining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The second count of the complaint is as follows:

of said commissary, and plaintiff failing and refusing to leave within a reasonable time after such request, defendant's authorized agent as aforesaid ejected or attempted to eject the plaintiff from said commissary, using no more force than was reasonably necessary to do so."

Leeper, Haynes & Wallace, of Columbiana, and Tillman, Bradley & Baldwin and John

(100 So.)

S. Coleman, all of Birmingham, for appel- necessary, under the circumstances of the lant. particular case, if such persons refuse to Longshore, Koenig & Longshore, of Co- leave after notice and a reasonable time in lumbiana, for appellee.

THOMAS, J. The suit was to recover damages for an assault and battery alleged to have been committed by defendant's agents upon plaintiff while he was at defendant's commissary. The trial was had on the second count of the complaint to which demurrer was overruled. The assignment of error challenging the ruling on demurrer is not insisted upon. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 South. 158.

The second, third, and fourth assignments of error challenge the sustaining of demurrers to pleas A, B, and E. Demurrers were overruled to pleas C and D. The insistence of appellant is that the latter pleas were drawn under section 7827 of the Code of 1907, while the pleas to which demurrers

were sustained are not so drawn.

which so to do. There is slight analogy in Ashworth, Adm'r, v. A. G. S. R. R. Co. (Ala. Sup.) 99 South. 191.

The rule is stated in 2 R. C. L. p. 557, § 36, as follows:

"The right of a person to protect his property necessarily includes the right to eject persons trespassing thereon. To permit all persons at their will to enter and to remain in the house or the close of another, would practically destroy the dominion of the owner over his property, and would render it almost useless as well as worthless. Such has never been the law, and so long as there is such a thing as individual ownership of property, it is not probable that it ever will be. However, in an action for assault and battery a plea of justification, based on the right of the defendant to eject a trespasser, is good only where the ejection was no more than that which was it appears that the force used in effecting reasonably necessary under the circumstances of the particular case."

enter and remain therein, and to expel therefrom "any one who abuses the privilege which has been given," is well supported by the authorities. Of the exercise of this right, it is said in 2 R. C. L. p. 559, § 37:

* While the entry by one person on

[1, 2] A rule of good pleading long prevailing is that whatever the parties respectively allege in their subsequent pleadings must The right of the occupant of a house or be referred to, fortify, and support, respec-store-and other public or semipublic places tively, the complaint or declaration of the to control it and admit whom he pleases to plaintiff and the plea of the defendant. The observance of this rule is imperative to prevent an entire change of the "foundation of the action and of the defense" by "successive stages of the pleadings" and thus defeat the primary object of pleading. That is to say, the replication must so answer the plea as to support. the complaint, and the rejoinder must so answer the replication as to support the plea. In the same manner, the surrejoinder must support the replication, "the rebutter the rejoinder, and the surrebutter the surrejoinder." The result of this rule, as said by Mr. Gould, the process being thus conducted, is that which is last pleaded on either side necessarily goes in support of what was first pleaded on the same side. Ex parte Hines, Sir. Gen. (Hines v. McMillan), 205 Ala. 17, 87 South. 691; Wills' Gould on Pleading (6th Ed.) p. 93.

We take as illustrations pleas D and E; the latter was eliminated by demurrer, probably on the ground that defendant's commissary was a public place for the retail sale of goods, wares, and merchandise usually sold to the public in such commissaries, and that plaintiff had the right to go there to buy (smoking tobacco, as he says in his replication), even though he had been previously warned not to do so or not to come upon the defendant's premises.

[3] The merchant, as proprietor of a commissary, or a storekeeper has the right to withdraw the express or implied invitation to trade from such persons as he may desire, and thereafter if such persons come into his store or commissary he may eject them by the use of no more force than is reasonably 100 SO.-16

the premises of another may be lawful, by rea-
son of express or implied invitation to enter,
his failure to depart, on the request of the
owner, will make him a trespasser and justify
the owner in using reasonable force to eject
him. The most common cases involving the
right of an owner to eject one from his prem-
ises who entered lawfully are those where a
person enters a hotel or business place or
the conveyance of a common carrier, and
while therein forfeits his right to remain by
his misconduct or failure to comply with the
reasonable rules and regulations. On the for-
feiture of his right he becomes a common tres-
passer and may be forcibly ejected on failure
Where the
to depart after a request to do so.
nature of the business of the owner of property

is such as impliedly to invite to his premises
persons seeking to do business with him, he
may nevertheless in most instances refuse to
allow a certain person to come on his premis-
es, and if such person does thereafter enter his
premises he is subject to ejection although his
the particular occasion is not
conduct on
wrongful."

In 5 C. J. p. 632, § 27, the text is that a lawful owner or occupant of premises, or one claiming title and rightfully in possession, may retain possession and use such force as may appear to be reasonably necessary to remove therefrom the trespassers as intruders, after allowing them a reasonable time to depart after notice so to do. Jones v. Bynum, 189 Ala. 677, 66 South. 639; Ash

worth, Adm'r, v. A. G. S. R. R. Co., supra; [ferred from Court of Appeals under Acts Bynum v. Jones, 177 Ala. 431, 59 South. 1911, p. 449, § 6. Affirmed.

65; Hyde v. Cain, 159 Ala. 364, 47 South. 1014; Thomason v. Gray, 82 Ala. 291, 3 South. 38; New Morgan County, B. & L. Ass'n v. Plemmons, 210 Ala. 286, 98 South. 12; Motes v. Bates, 74 Ala. 374; Miller v. McGuire, 202 Ala. 351, 80 South. 433; L. R. A. 1918E, 1054, 1055, note; Cooley on Torts, 167, 168; 3 Cyc. 1045, 1046.

[4, 5] Every license of this kind, by which one is permitted, without a consideration, to go upon or pass over the lands of another, is revocable in its very nature, its dependence being "upon the mere will of the person by whom it is created or granted." Motes v. Bates, 74 Ala. 374. The contrary must be true, that one rightfully in the place at the time when he is ejected may recover for such an assault committed upon him. 5 C. J. p. 634, § 27.

George Pegram, of Faunsdale, for appellant.

W. F. Herbert, of Demopolis, for appellee.

MILLER, J. This is a suit by G. W. Griffin against W. E. Bailey for $400. The action is stated in the complaint under the common counts. The defendant pleaded general issue, statute of limitations of three years, and by special plea claims of plaintiff $724.50 for the conversion of certain property by plaintiff, belonging to defendant, which property is described in the plea. The jury returned a verdict in favor of the plaintiff; judgment was rendered on it by the court, and from that judgment defendant prosecutes this appeal.

[1] The defendant before entering on the trial appeared specially and moved to quash There was error in sustaining demurrer to the summons and process, and to strike the Plea E.

It is unnecessary to consider the other questions presented. They may not arise on another trial.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

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

BAILEY v. GRIFFIN. (2 Div. 836.)

(Supreme Court of Alabama. May 1, 1924.)

1. Appeal and error

677-Overruling me tion to quash summons and process presumed proper, where record discloses no evidence In support of motion.

cause from the docket, because the summons issued and served on the defendant is defective in failing to summon the defendant to appear in any certain court: It fails to state or show in what court the defendant should appear; it fails to notify the defendant to appear in any special court.

The judgment entry of the court states: "Defendant files motion to quash the summons, which said motion being considered by the court, it is the order and judgment of the court that the same be and is hereby overruled."

The judgment does not show any exception reserved by the defendant to the ruling of the court. Neither the motion nor the ruling of the court on it is mentioned in the bill of exceptions. There is nothing in the record to indicate that any evidence was offered to sustain the averments of the motion. We find no introduction in evidence of the Where there is no evidence in record to copy of the summons served on the defendsustain facts averred in motion to quash sum-ant, and find no proof offered as to its conmons and process because summons failed to summon defendant to appear in any certain court, trial court cannot be put in error for overruling motion.

2. Witnesses 255(2)-Permitting witness to refresh memory from memorandum of articles sold to defendant held without error.

tents to sustain the motion; the copy served on the defendant is not in the record. The original summons, but not the copy, is in the record. The motion and facts averred there

There

in to sustain it are not evidence. must be some proof offered to sustain the motion. That burden rested on the movant, the defendant. This court will presume the judgment of the court overruling the motion is free from error until the contrary appears in the record in a proper way. We find in the record no evidence introduced by the defendant to sustain the facts averred in the grounds of his motion; so we must hold the Appeal from Circuit Court, Marengo Coun- Beadle v. Davidson, 75 Ala. 494; McCord v. court did not err in overruling the motion. ty; John McKinley, Judge.

Where itemized statement of goods sold was made by witness who stated he sold each article in it to defendant, which were delivered, that he knew it was correct, and had personal knowledge of items sold and mentioned in it, there was no error in permitting him to refresh memory therefrom.

Action on the common counts by C. W. Griffin against W. E. Bailey. Judgment for plaintiff, and defendant appeals. Trans

Bridges, 207 Ala. 376, 92 South. 447; Torrey v. Bishop, 104 Ala. 548, 16 South. 422.

[2] The plaintiff filed with the complaint an itemized statement of the account, veri