your minds that the plaintiff tendered legal coin of the United States in payment of his fare, and the conductor refused to take it, and ejected the plaintiff, the plaintiff would be entitled to recover." The defendant separately excepted to the giving of this charge by the court, and also separately excepted to the court's giving at the request of the plaintiff the following written charges "(1) If the jury are reasonably satisfied from the evidence that the silver dime in evidence is the same dime offered to the conductor of defendant's car, that the said conductor declined to receive the said dime, and that plaintiff was thereupon compelled to leave the said car, they should find for the plaintiff. (2) If the dime introduced in evidence is the same dime tendered to the conductor of defendant's car, it was the duty of the said conductor to receive the same in payment of plaintiff's fare. (3) The court charges the jury that the dime introduced in evidence is legal-tender coin of the United States for the amount of ten cents." The defendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same as asked: "The court charges the jury that, if they believe all of the evidence, you ought to find a verdict for the defendant." There were verdict and judgment for the plaintiff, assessing his damages at $120.93. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Gregory L. & H. T. Smith and Phares Coleman, for appellant. Edward M. Robinson, for appellee.

SHARPE, J. By the fourth plea it is set up as a defense to the action that "the plaintiff got upon the car of defendant, and, when the defendant's conductor demanded his fare, he tendered to the conductor in payment of said fare a coin which was so much worn that the stamping thereon could not be seen with sufficient distinctness to enable the conductor to tell whether it had originally been a coin of the United States government or not; and, when the said conductor declined to receive this fare in compensation for its ride, the plaintiff declined to pay his fare with any other money, wherefore he was ejected." These averments do not put in issue the legality of the coin in question. A coin issued by authority of law, to circulate as money, is not deprived of the quality of legality merely by being worn in the process of circulation; nor does a silver coin by such wear lose its quality as legal tender, "so long as it is not appreciably diminished in weight, and retains the appearance of a coin duly issued from the mint." Railroad Co. V. Morgan, 52 N. J. Law, 60, 18 Atl. 904. But the plea does put in issue the coin's condition, together with the ability of the conductor to determine its genuineness. Wheth

er it presents a valid defense is not here in question. By the joinder of issue thereon, its averments were made material; and an is sue joined, whether on good pleading or bad, cannot properly be disregarded, but, when submitted to the jury, must be tried, and the verdict should respond thereto. Steed v. Knowles, 97 Ala. 573, 12 South. 75; Allison v. Little, 93 Ala. 150, 9 South. 388; Mudge v. Treat, 57 Ala. 1; Masterson v. Gibson, 56 Ala. 56; Hazard v. Purdom, 3 Port. 43. Here there was evidence tending to support this plea, in the conductor's statement, in testimony, that the coin produced in evidence, and testified to by plaintiff as being the one which was tendered for his fare, was not in fact the coin which was so tendered, and that, as to the latter, "you could not tell but what it was cut out of a piece of tin"; but the court instructed the jury, "If the evidence reasonably satisfies your minds that the plaintiff tendered legal coin of the United States in payment of his fare, and the conductor refused to take it, and ejected the plaintiff, the plaintiff would be entitled to recover." Without questioning the correctness of this instruction in its bearing on some of the issues, we are of opinion that it improperly ignored the particular plea above referred to. In effect, it withdrew from the jury the issue submitted concerning the conductor's ability to determine from the appearance of the coin its legaltender quality, which ability, rather than the real legal-tender quality, had, by the issue Joined upon that plea, become a vital question.

On the witness stand, the conductor, while denying that the dime exhibited in evidence was the same that was offered for plaintiff's fare, testified that the coin so exhibited was a good, visibly lettered dime. This evidence, being without contradiction, proved not only that this coin was good, but that the conductor was able to recognize it as being good. The court was therefore justified in charging the jury upon the assumption that the dime introduced in evidence was of legal-tender quality, as was, in effect, asserted in the written charges given at plaintiff's request.

Accompanying the transcript there is a coin which is certified as being the one used in evidence, doubtless for the purpose of having it inspected under rule 27 of supreme court practice. That rule, however, goes no further than to authorize the transmission here, for inspection, of original papers used in evidence in the trial court, and copied into the transcript. Neither that nor any other rule authorizes this court to look to the coin itself to determine its character or for any purpose. The question addressed to plaintiff by his counsel, as to where, after being put off the car, he got money to pay fare homeward, called for immaterial matter, and the objection to it should have been sustained.

For the errors mentioned, the judgment will be reversed, and the cause remanded.

1. A witness, for the purpose of impeaching another, had testified that his character was bad, and that he had heard that the witness sought to be impeached had been indicted for stealing. Held that, ou cross-examination of such witness, it was proper to ask him in what court the indictment was.

2. On a prosecution for assault with intent to murder, defendant had testified that prior to the assault he and the prosecutor had had a dispute over land. Held proper to sustain an objection to a question to defendant as to whether he had not been successful in the dispute.

3. It was proper to refuse to charge that the "humane provision" of the law is that, upon the evidence, there should not be a conviction unless, to a moral certainty, it excludes every reasonable hypothesis other than that of the guilt of the accused.

4. On a prosecution for assault with intent to murder, the defendant requested the court to charge that, if the defendant had established a good reputation as being a peaceable and quiet citizen, it was the duty of the jury to consider the same, and give him the benefit of any reasonable doubt which might be created by such proof, and that every man on trial for crime is permitted to introduce evidence of his general good character, and this evidence may alone be sufficient to generate a reasonable doubt of his guilt, and that the jury ought to consider such evidence in arriving at their verdict. Held properly refused.

5. It was proper to refuse to charge that, if the proof of an alibi reasonably satisfied the jury that the defendant was miles away from the scene of the crime, it was the duty of the jury to find the defendant not guilty, since whether the evidence tended to prove an alibi was for the jury, and the instruction assumed such tendency.

Appeal from city court of Mobile; O. J. Semmes, Judge.

Louis Bohlman was convicted of assault with intent to murder, and he appeals. Affirmed.

On the trial of the case, Martin Cochran, the person assaulted, testified that the defendant, who was his brother-in-law, shot him with a shotgun; that the shooting occurred about half past 7 o'clock on the evening of April 5, 1902. Martin Cochran's little son, who was 10 years old, and his two daughters, who were older, each testified to the defendant having shot said Cochran. The evidence for the defendant tended to prove an alibi, by showing that at the time designated by the state's witness the defendant was 21⁄2 miles away from the house of Martin Cochran, where the shooting occurred. The defendant, as a witness in his own behalf, testified that he was not at the house of Martin Cochran on the night he was alleged to have been shot, nor had he been there for three years prior to that time. Henry Bohlman, a brother of the defendant, was examined as a witness for the defendant, and testified that he knew Martin Cochran's reputation in the community where he

Ilved, and it was bad. On the cross-examination of this witness (Henry Bohlman), he testified that he had heard that Cochran had been indicted for stealing. The solicitor then asked the witness the following question: "Indicted where, and in what court?" The defendant objected to this question because it called for irrelevant, incompetent, and illegal evidence. The court overruled the objection, and the defendant duly excepted. The witness answered that he had heard that Cochran had been indicted in Mobile county. During the examination of the defendant as a witness, and after he had testified that prior to the shooting he and Martin Cochran had a dispute in regard to some lands, he was then asked by his attorney the following question: "In the land dispute, you were successful, weren't you?" The state objected to this question becuse it called for irrelevant, immaterial, and incompetent evidence. The court sustained the objection, and the defendant duly excepted. The court, at the request of the state, gave to the jury the following written charges: "(a) The court charges the jury that, in determining the weight they will give to the defendant's testimony, they should consider, along with all the other circumstances having any bearing on the matter, the fact that he is the defendant, and the fact, if they so find, that his testimony is in conflict with the other testimony in the case. (b) The court charges the jury that the interest the defendant has in the case may be considered by them in weighing his own evidence. (c) The court charges the jury that to prove beyond a reasonable doubt that the defendant is guilty does not mean that the state must make the proof by an eyewitness, or to a positive, absolute, mathematical certainty. This latter measure of proof is not required in any case. If, from all the evidence, the jury believe that it is possible, or that it may be, or perhaps, the defendant is not guilty, this degree of uncertainty does not amount to a reasonable doubt, and does not entitle defendant to an acquittal. All that is required is that the defendant is guilty, and if you so believe, beyond all reasonable doubt, from the evidence, that the shooting occurred in this county, before the finding of this indictment, you must find the defendant guilty, although you may also believe from the evidence that it may be he is not guilty, or that it is possible he is not guilty. (d) The court further charges the jury that in whatever form the question of reasonable doubt may be couched, and however it may be twisted by words, a reasonable doubt is no more than a reasonable doubt, and that in considering the case you are not to go beyond the evidence to hunt up doubts, nor must you entertain such doubts as are merely imaginary or conjectural. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case;

and if, after considering all the evidence, you can say that you have a fixed conviction of the truth of the charge, you are satisfied beyond a reasonable doubt." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following written charges requested by him: "(5) The humane provision of the law is that upon the evidence there should not be a conviction unless, to a moral certainty, it excludes every reasonable hypothesis other than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof which the law requires. (6) The court charges the jury that, if the defendant has established a good reputation as being a peaceable and quiet citizen, then it is the duty of the jury to consider the same, and give him the benefit of any reasonable doubt which may be created by such proof. (7) Every man on trial for crime is permitted to introduce evidence of his general good character, and this evidence may alone be sufficient to generate a reasonable doubt of his guilt. The jury ought to consider this evidence in arriving at their verdict." "(9) The court charges the jury that, if they believe the evidence, they should find the defendant not guilty." "(19) If the proof of an alibi reasonably satisfies the jury that the defendant was two miles or more away from the scene of the alleged assault, and that he was not implicated in the shooting of Cochran, it is the duty of the jury to find the defendant not guilty."

McAlpine & Robinson, for appellant. Chas. G. Brown, Atty. Gen., for the State.

TYSON, J. We do not understand from the record that the solicitor was attempting, by the cross-examination of witness Bohlman, to establish that Cochran had in fact been indicted, and in what court he had been indicted, for stealing. On the contrary, we think it quite clear that the inquiry was directed to ascertaining in what court he (the witness) had heard that Cochran was indicted. For the purpose of impeaching Cochran, who had testified in behalf of the state, Bohlman had testified on direct examination that he knew his general reputation, and that it was bad. On cross-examination the prosecution had a right to have the jury know all that he had heard derogatory to the character of Cochran, upon which the witness predicated his opinion of bad character.

Nor did the court commit an error in sustaining the objection to the question propounded to the defendant: "In the land dispute, you were successful, weren't you?" The merits of that controversy between Cochran, who was alleged to have been assaulted by defendant, and the defendant, were immaterial. Commander v. State, 60

Ala. 1; Gray v. State, 63 Ala. 66; 1 Mayfield, Dig. p. 331, § 377 et seq.

Charge 5 refused to defendant is a substantial copy of charge 13 in Gilmore v. State, 99 Ala. 154, 13 South. 536, which this court held should have been given. The court was influenced in so declaring by the principle announced in Ex parte Acree, 63 Ala. 234, which did not involve an instruction to a jury, but was simply a statement of the court arguendo in passing on the weight of the evidence in a habeas corpus proceeding. The court evidently overlooked the case of Shepperd v. State, 94 Ala. 102, 10 South. 663, where a similar charge was condemned as an argument. And in a subsequent case (Dennis v. State, 112 Ala. 65, 20 South. 925) it is said of a charge very much like the one under consideration: "We do not approve of the use of the word 'humane' in an instruction to the jury, as the jury are apt to conclude that the case before them is one which calls for the application of the principle. It is very proper in an argument to justify a conclusion of law." We think the cases of Shepperd and Dennis are right, and that of Gilmore wrong. So we are constrained to hold that the trial court committed no error in refusing the charge to the defendant.

Charges 6 and 7 requested by defendant have been so often condemned by this court that no further comment is necessary. 1 Mayfield, Dig. p. 174, § 206. Charge 9 requested by defendant was the general affirmative charge, and was, of course, properly refused. Charge 19 was also correctly refused. It assumed that there was proof of the alibi. Whether the evidence tending to prove an alibi amounted to proof of the fact. was for the jury.

We have examined the several written charges given at the request of the state, and find no error in the giving of either of them. McKleroy v. State, 77 Ala. 95. Affirmed.

1. Where, on appeal, the bill of exception fails to show any ruling on a motion to strike part of the complaint, no question on the motion can be considered.

2. Where, owing to the negligence of a telegraph company, a telegram sent by the father of a four year old boy to the grandmother of the child was not delivered, and she failed to reach the sender's home before the child's death, the parties were so related that, in an action by the sender, damages for mental anguish might be recovered.

3. It was proper not to permit defendant to show, on cross-examination of the grandmother, how many children and grandchildren she had, and how widely scattered they were.

4. A verdict for $225 was not excessive. Appeal from city court of Birmingham; Chas. A. Senn, Judge.

Action by William S. Crocker against the Western Union Telegraph Company for failure to deliver a telegram. From a judgment for plaintiff. defendant appeals. Affirmed.

During the examination of a witness for the plaintiff, he proved, against the separate objections and exceptions of the defendant, the close and tender relationship existing between the sendee, the grandmother of the infant child, and the child himself, and that while the child was dying he asked for his grandmother. There was also evidence introduced on the part of the plaintiff, against the objection and exception of the defendant, showing that the sendee of the message, the grandmother of the child, was accustomed to spend a great deal of time at the home of the plaintiff. Upon the introduction of all the evidence, the court gave, among others, the following written charges requested by the plaintiff: "(1) The court charges the jury that, if they believe the evidence, they must find for the plaintiff. (2) In determining whether plaintiff suffered pain or mental anguish on account of the nonattendance of the grandmother, the jury may look at all the facts in evidence, and from them, and their common experience in everyday affairs, determine whether there was any mental suffering, and the amount of the same." To the giving of these charges, the defendant separately excepted. The defendant also separately excepted to the refusal of the court to give the following written charges, among others, requested by it: "(1) I charge you that the measure of damages in this cause is the price paid by plaintiff for the transmission of the message. (2) I charge you that you cannot assess any damages in favor of the plaintiff in this cause, predicated upon his having suffered mental pain and anguish." "(7) The court charges the jury that they cannot award the plaintiff any damages for mental pain and anguish he may have suffered in not having the aid, comfort, and support of the plaintiff's mother-in-law at the moment of the death of his son." "(12) The court charges the jury that they cannot award the plaintiff any damages for mental pain and anguish he may have suffered by the absence of the comfort, aid, and support of the presence of his mother-in-law would have been to him during the last hour or hours of the life of his son, and at the time of the death of his son." "(14) I charge you that you cannot assess in favor of the plaintiff any damages in this case predicated upon any mental pain and anguish suffered by plaintiff in seeing his son die without the presence of his grandmother, and in the absence of the comfort, aid, and support her presence would have been to him on such a trying occasion, in the absence of proof that the grandmother could or would have rendered to plaintiff's said son aid in his illness." There were verdict and judgment for the plaintiff, assessing his damages at $225. The defendant made a motion for a new trial,

assigning as grounds therefor the several rulings of the trial court to which exceptions were reserved, and also that the verdict of the jury was excessive. The court overruled this motion, and to this ruling the defendant duly excepted.

Walker, Tillman, Campbell & Porter, for appellant. Ward & Houghton, for appellee.

DOWDELL, J. This is an action by the appellee against the appellant to recover damages for the negligent failure to deliver a telegraphic message. Damages are claimed for mental suffering and anguish. This is the main, and practically the only, question in the case. And it is sought in various ways to be raised,-by motions to strike out of the complaint certain averments, by demurrer, by objections to the introduction of evidence, and by written charges requested to be given to the jury. Questions on motions to strike will be considered on appeal only when properly presented by bill of exceptions. That was not done here. The bill of exceptions fails to show any ruling on the motion, and exception thereto. The question, however, as to whether damages for mental suffering can be recovered under the facts of this case, has been otherwise fairly presented on exceptions reserved to the introduction of evidence, and by charges requested and refused.

The telegram which it is alleged that the defendant negligently failed to deliver was as follows: "To L. C. Mullin, Gate City, Ala.: Walter is worse. Come on midnight train. W. S. Crocker." Walter was the four year old son of the sender, W. S. Crocker, and the grandson of the sendee, L. C. Mullin, who was the mother-in-law of Crocker. The message was written and delivered to the defendant at 1 p. m., and paid for in ample time for its transmission and delivery to the sendee, in order for her to take the train designated. The nondelivery of the telegram is not denied. In its transmission from the receiving office to the delivery office of the defendant, the name of the sendee was changed. This was the negligence or fault of defendant's agents or employés. The agent who received the message for transmission knew the sender and the sendee, and knew the relationship that existed between them, and knew that Walter, the person mentioned in the message, was the son of the plaintiff, and grandson of L. C. Mullin. In consequence of the failure to deliver the telegram, Mrs. Mullin did not reach the home of the plaintiff until after the death of his son; and then, after having been sent for by the plaintiff. In Telegraph Co. v. Ayers, 131 Ala. 391, 31 South. 78, where the relationship between the sender and sendee was that of brother-in-law, and the relationship of the sendee to the infant child mentioned in the message was that of uncle, we expressed an unwillingness to ex tend the doctrine of recoverable damages for

mental pain and suffering for the negligent failure to deliver a telegraphic message to that relationship. Here the relationship between the sender and sendee is nearer and stronger. It is the closest of all relationship by affinity, and from which, if love and affection do not naturally spring, it is on account of some exceptional reason or cause,a love, too, that is strengthened in the birth of the grandchild. The tender and doting love of the grandmother for her grandchild, and the reciprocal, confiding love of the little child, is a matter of common knowledge. The father, in sending the message, knew of the affection existing between his child and the grandmother, and would have been an unnatural father not to have been sustained and comforted by her presence, or pained and grieved by her absence, in the trying hour of the death of his son. We are of the opinion that the relationship between sender and sendee, and person named in the message, is such as to warrant the recovery of damages for mental suffering and anguish. The rulings of the trial court on the admission of evidence and in the giving and refusal of written charges, being in harmony with this view, were free from error.

The defendant, on the cross-examination of Mrs. L. C. Mullin, sought to show by her how many children and grandchildren she had, and how widely scattered they were, which the court, on plaintiff's objection, refused to permit. This evidence was wholly immaterial and irrelevant, and the court committed no error in sustaining plaintiff's objection to its introduction.

There was a motion for a new trial, which was denied. The grounds of the motion, with the exception of the one as to the verdict being excessive, raised the same questions raised on the trial, and which we have already considered. As to the verdict being excessive, we see no reason for differing with the finding of the jury and the trial court in sustaining the verdict.

We find no reversible error, and the judgment will be affirmed.

(109 La. 1)

Succession of BOTHICK. (No. 14,351.) (Supreme Court of Louisiana. Nov. 17, 1902.)

DISTRIBUTION OF ESTATE-PARTIES.

1. Owners of property in common should be made parties to a judgment looking to its partition.

2. A rule made absolute by judgment, which does not distribute funds among all the heirs, will be annulled, and the case remanded.

3. Although it may be that in the general distribution those heirs not made parties will not succeed in upholding any claim to any portion because of personal indebtedness, they should none the less be made parties, as they own at least a residuary interest in the funds to be distributed.

(Syllabus by the Court.)

1. See Executors and Administrators, vol. 22, Cent. Dig. 1283.

Appeal from civil district court, parish of Orleans; Thomas C. W. Ellis, Judge.

In the matter of the succession of Thomas W. Bothick. From the judgment of distribution William H. Bothick and the widow of John Walters appeal. Reversed.

John T. Whitaker and Charles Louque, for appellants Wm. H. Bothick and Mrs. Widow John Walters, née Bothick. Dart & Kernan, for appellees J. D. Bothick and others. Dinkelspiel & Hart, for appellee clerk of the civil district court. Benjamin Rice Forman, for appellee Mrs. Caroline Louise Hodding.

BREAUX, J. A number of questions have come up in the course of the attempts at settlement of the succession of Thomas W. Bothick. Appeals have been taken a number of times. Our learned brother, who became an honored and greatly useful member of the bench years ago, in a carefully prepared opinion says "that it was one of the cases on the docket of his court when he was promoted to the bench, and that it has there remained in one form or another since." It early became evident to us, after the case had been called on appeal, that it would again have to be remanded, at least as relates to a rule which had been sued out by seven of the heirs. There are in all nine heirs, only seven of whom joined in the rule to compel the clerk of the civil district court to pay to them the funds, amounting to $672.90. The rule was made absolute. Appellants, two of the heirs, who have the same right in the succession funds as their coheirs, and who were not made parties to the rule, urge that no partial distribution should be made of a particular fund. the distribution was not only partial, in so far as the record discloses, but the heirs not cited at all were ignored entirely in allotting the shares. Unquestionably, all the heirs being equally interested, each should be made party to a rule to distribute a common fund. The amount belongs to all the heirs. A fractional portion cannot be distributed unless all are notified. The judgment on the rule will therefore be reversed, in order that the rule may be heard contradictorily with all the parties concerned.

Here

It is therefore ordered, adjudged, and decreed that the judgment rendered on the rule in matter of this succession is annulled, avoided, and reversed. It is further ordered, adjudged, and decreed that the case be remanded to be proceeded with according to law. Costs of appeal to be taxed to appellees.

(109 La. 3)

STATE v. WINTERS. (No. 14,567.) (Supreme Court of Louisiana. Nov. 17, 1902.) JURY-DRAWING-PUBLICATION OF LISTS.

1. The provisions of Act No. 135 of 1898, requiring the publication of lists of jurors, relate to jurors originally drawn for service at the