tained by the authorities, is, that in a suit against the sureties of a defaulting public officer, the reports of the officer and entries made by him in his books are prima facie but not conclusive evidence against his sureties, and are open to explanation and contradiction by the sureties: Broad v. City of Paris, 66 Tex. 119; Mann v. Yazoo City, 31 Miss. 574; Bissell v. Saxton, 66 N. Y. 55; Board of Supervisors v. Bristol, 99 Id. 316. A leading case in support of this view is United States v. Boyd, 5 How. 29, holding that the returns of a receiver of public moneys of the United States to the treasury department are not conclusive evidence in an action by the government against the sureties upon the receiver's bond. The accounts rendered to the department of money received, properly authenticated, are evidence, in the first instance, of the indebtedness of the officer against the sureties, but subject to explanation and contradiction: United States v. Boyd, 5 How. 29, 54; and see Williams v. United States, 1 Id. 290; Watkins v. United States, 9 Wall. 759; compare United States v. Girault, 11 How. 22. The doctrine that settlements made by a public officer are only prima facie evidence against his sureties is also maintained, in Nolly v. Callaway County, 11 Mo. 447; followed in State v. Smith, 26 Id. 226; 72 Ain. Dec. 204; and in a line with these decisions are State v. Newton, 33 Ark. 276; State v. Rhoades, 6 Nev. 352. In the latter case, Baker v. Preston, 1 Gilm. 235, holding the opposite doctrine, is severely criticised, and denied to be law. The same case has also been criticised and its soundness as authority questioned in later Virginia decisions: See Munford v. Overseers etc., 2 Rand. 313; Jacobs v. Hill, 2 Leigh, 393; Craddock v. Turner, 6 Id. 116; Crawford v. Turk, 24 Gratt. 176. So the earlier Indiana decisions, State v. Grammer, 29 Ind. 530, and State v. Prather, 44 Id. 287, following Baker v. Preston, supra, have been expressly overruled, so far as sureties on bonds of public officers are concerned, by the later cases of Lowry v. State, 64 Id. 421, Ohning v. Evansville, 66 Id. 59, the latter holding that entries made by a city treasurer in the books kept for that purpose, purporting to be a statement of the funds of the city on hand at the close of a preceding and the beginning of a new term, are not conclusive upon, but may be contradicted by, his sureties, in an action against the treasurer and his sureties on his official bond, executed by them at the commencement of the new term; and see State v. Haynes, 79 Ind. 294. An act of the Indiana legislature passed March 31, 1879, declared that settlements made by public officers should not be conclusive evidence against their sureties. And it is said to be "evident that the legislature meant to do what the court has done, overturn the doctrine of estoppel as declared in the case of State v. Grammer, 29 Id. 530, and leave the officers' account open for investigation in cases of fraud or mistake": Heagy v. State, 85 Id. 260, 262; see also 2 Ind. R. S., sec. 6507 (1888); Hunt v. State, 93 Ind. 321; Rogers v. State, 99 Id. 222. The rule as thus settled in Indiana is believed to be favored by the weight of authority independently of any legislation bearing upon the subject. In addition to the cases already cited as sustaining this view, see also Lipscomb v. Postell, 38 Miss. 477; 77 Am. Dec. 651; Governor v. Suton, 4 Dev. & B. 484; State v. Fullenwider, 4 Ired. 364; Hatch v. Inhabitants etc., 97 Mass. 533; Treasurers v. Bates, 2 Bail. 362; Townsend v. Everett, 4 Ala. 607, to which may be added the principal case.

As to the effect of judgments against principals as evidence against their sureties, see Charles v. Hoskins, 14 Iowa, 471; 83 Am. Dec. 378, and extended note on the subject 380; Stephens v. Shafer, 48 Wis. 54; 33 Am. Rep. 793, and note 802; Graves v. Bulkley, 25 Kan. 249; 37 Am. Rep. 249, and note 252.

PRATT COAL AND IRON COMPANY V. BRawley.

[83 ALABAMA, 371.]

FOR NEGLIGENCE CAUSING PERSONAL INJURIES TO MINOR CHILD, separate and concurrent actions may, in the absence of statute, be maintained by the child and its father.

IN ACTION BY CHILD FOR INJURIES CAUSED BY NEGLIGENCE of a third person, the contributory negligence of the child's father is no defense, and cannot be imputed to the child when it is of such tender years as to be legally presumed as incapable of judgment and discretion; but when the child is between the ages of seven and fourteen years, though prima facie incapable of judgment and discretion, evidence of capacity may be received, and contributory negligence imputed and shown in defense of the action.

IN ACTION BY FATHER FOR PERSONAL INJURIES TO CHILD CAUSED BY NEGLIGENCE, the contributory negligence of the child is a good defense, unless the child be within the age which raises the legal presumption of incapacity.

IN ACTION BY FATHER FOR PERSONAL INJURIES TO CHILD caused by negligence, the contributory negligence of the father is a complete defense, without regard to the age or capacity of the child.

IN ACTION FOR PERSONAL INJURIES TO CHILD CAUSED by the wanton, reckless, or intentional negligence of defendant, the contributory negligence of neither father nor child is available as a defense.

FATHER WHO KNOWINGLY PERMITS CHILD ABOUT SEVEN YEARS OF AGE to go unprotected upon the track of a railroad for the purpose of picking up coal at a place where trains are constantly passing is guilty of culpable negligence.

IF FATHER PERMITS GRANDMOTHER TO HAVE CARE AND CUSTODY OF CHILD, her negligence, whereby the child is injured, is to be imputed to the father.

ACTION by father for damages for personal injuries to his minor child. The opinion states the facts.

Hewitt, Walker, and Porter, and R. H. Pearson, for the appellant.

Smith and Lowe, for the respondent.

By Court, CLOPTON, J. Both the infant and the father may, in the absence of a statute, maintain separate and concurrent actions for personal injuries wrongfully done to his minor child. The principle on which the right to recover depends, and the elements of recoverable damages, are materially different in the two cases. When the infant sues for his own benefit, the application of the doctrine of contributory negligence depends on the capability of the plaintiff to exercise judgment and discretion. If the plaintiff is of such tender years that he is conclusively presumed incapable of judgment and discretion, and of owing a duty to another, neither con

tributory negligence on his part nor that of his parent can be set up to defeat a recovery: Gov. Street R. R. v. Hanlon, 53 Ala. 70. A child between seven and fourteen years of age is prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity. If capacity be shown, the general rule of contributory negligence is applicable, whether the action is prosecuted on behalf and for the benefit of the child, or by the father for his own benefit. Whenever the plaintiff derives his cause of action from an injury to a third person, the contributory negligence of such third person is imputable to him, so as to charge him with the consequences. The proof shows that the child was a few months over seven years of age, but there was no evidence tending to show the requisite capacity. In such case, the presumption of incapacity prevails. The special pleas which set up as a defense the contributory negligence of the child, disconnected from and unaccompanied by the negligence of the father contributing, are insufficient. The defect consists. in the want of an averment of capacity, the complaint alleging that the child was of an age when prima facie incapable.

The present action is brought by the father for his own benefit. The defendant filed other pleas, specially setting up the contributory negligence of the father, to which the court sustained a demurrer. When the father sues for an injury to his minor child, his neglectful conduct, proximately contributing to the injury, is a bar to the action, unless the injury was caused by the wanton, reckless, or intentional negligence of the defendant's employees, after having discovered the peril of the child, or when they ought to have discovered the peril: Beach on Contributory Negligence, 137; Frazer v. Louisville and Nashville R. R. Co., 81 Ala. 185; 60 Am. Rep. 145. This is only the application in such case of the general rule, that the plaintiff's contributory negligence is a full defense which does not depend in any wise upon the capacity or incapacity of the child. Two actions were brought for personal injuries to a minor child, one by the infant, and the other by the. father. The contributory negligence of the parent was set up as a defense in both actions. It was held, in the first case, that the negligence of the parent was not imputable to the child, and did not defeat a recovery; and in the latter case, that it was a bar to the action: Bellefontaine and Indiana R. R. Co. v. Snyder, 18 Ohio St. 399; 98 Am. Dec. 175; 24 Ohio St. 670; Glasse v. Hestonville R'y Co., 57 Pa. St. 172.

The father owes to his minor child the duty of due and proper protection against danger, as may be required by the circumstances and occasion; and the duty is the more imperative, in proportion to the indiscretion and helplessness of the child. Failure to extend such protection is negligence. If, by neglect of duty in this respect, he proximately contributes to the injury of his child, he will be regarded as a concurrent wrong-doer with the party doing the injury. Argument is unnecessary to show that a father is guilty of negligence, who knowingly permits a child of about seven years of age to go unprotected on the track of a railroad, to get coal at a place where trains are constantly passing. It may be said that the plea avers this was by the permission of her grandmother; but it also alleges that she was under the care of her grandmother, by permission of the plaintiff. A parent is responsible for the negligent and wrongful acts of the person to whom he intrusts the custody and care of his minor child. If the grandmother, thus having the care of the child, permitted her to trespass on the track for the purpose of getting coal belonging to the defendant, lying on or in dangerous proximity to the track, where trains were constantly passing, and such trespass contributed to her injury, the plaintiff is chargeable with the consequences: Bellefontaine R'y Co. v. Snyder, 24 Ohio St. 670; Moore v. Pennsylvania R. R. Co., 4 Am. & Eng. R. R. Cas. 569; 44 Am. Rep. 106. The demurrer to the plea was wrongfully sustained.

By the act of January 23, 1885, when any personal injury to any minor child is caused by the wrongful act or omission. of any person, or any officer or agent of an incorporated company, or association of persons, the father, if living, may maintain an action for such wrongful act or omission, and recover such damages as the jury may assess; provided, that but one suit shall be maintained for such injury: Acts 1884-85, p. 99. The statute does not abrogate the rule that either may maintain an action, but prohibits concurrent or successive suits for one and the same injury by both father and child; and giving it a liberal construction, its operation is to authorize, in a suit brought by the father, the recovery of the damages which, independent of statute, would be recoverable only in a suit by the child, so that the pendency of one suit, or judgment therein, would be sufficient in abatement, or bar, of the other. An election as to the party who shall sue is given; but if the father sues, he is not exempted from the consequences of his

AM. ST. REP., VOL. III.—48

own contributory negligence, or that of his child, if of suitable age or capacity. Whoever sues must take the burdens of an action brought by such party; and if the father be the plaintiff, the right to recover will depend on the principles we have declared. It may be well to remark that section 2588 of the code of 1886 materially modifies the act; but the modification does not affect this case.

As the defendant did not have the benefit of the defense of contributory negligence on the trial, and as the liability of the defendant will be governed by other considerations, if the truth of the plea be established, and the effect of the evidence may be thereby materially varied, it is unnecessary to review the conclusion and judgment of the city court on the evidence. Reversed and remanded.

WHO MAY SUE FOR INJURY TO CHILD: See Pittsburgh R. R. Co. v. Vining, 92 Am. Dec. 269; Fairmount R'y Co. v. Statler, 93 Id. 714, and notes.

NEGLIGENCE OF PARENT, WHETHER IMPUTED TO CHILD: See Erie C. P. R. R. v. Schuster, 57 Am. Rep. 474-479; Frazer v. Louisville & N. R. R. Co., 60 Id. 145; Mangam v. Brooklyn, 98 Am. Dec. 66, and cases cited in note.

WOOD v. WINSHIP MACHINE Co.

[83 ALABAMA, 424.]

JUDGMENT BY DEFAULT-WRITTEN INSTRUMENT SUFFICIENT TO Support. - A promissory note which obligates the maker to pay a specified sum as principal, with interest, "and ten per cent attorneys' fees," is construed to mean ten per cent on the amount of the note as attorneys' fees in any suit brought to enforce its collection, and such a demand will support a judgment by default for the entire amount due, including the attorneys' fees: Ala. Code 1886, sec. 2740.

ACTION by the Winship Machine Company against Wood and Brothers, on a contract of guaranty indorsed on a promissory note. The note contained a clause in which the makers and indorsers waived their right of exemption, and the guaranty executed by the defendants was in the following words: "For value received, we guarantee the payment of this note, and waive protest and notice." Other facts appear in the opinion. A judgment by default against the defendants was assigned by them as error.

Gardner and Wiley, for the appellants.

By Court, SOMERVILLE, J. The action is founded on a written instrument, ascertaining the plaintiff's demand, and the