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suddenly and cross the track, and that, the original complaint and the amended comtherefore, it was conclusively shown that plaint was not materially variant from the orig

inal. there was no negligence on his part. It was, however, open to the jury to infer Error, Cent. Dig. 88 4089-4096; Dec. Dig. $

[Ed. Note. For other cases, see Appeal and that the engineer, if he saw deceased when 1040.*] he flagged, knew that deceased desired to 2. MASTER AND SERVANT (8 330*)—ToBTS OF board the train, and that he must board it SERVANT-NEWS AGENT ON TRAIN. from the south side, that he must cross the

In an action against a news company for track so to do, and that when he saw him damages and loss suffered to the estate and feel

ings of a passenger compelled by a news agent to running toward the track, and toward the pay an extra dime for lemons purchased, it is road, in a path which terminated at the road, error to admit, over plaintiff's objection, the and that the road crossed the track at right company's rule that on complaint of conductors angles, he was chargeable with notice that tiff knew nothiy of such rule.

news agents would be discharged, where plaindeceased would cross the track at the point [Ed. Note. For other cases, see Master and at which the road crossed. It was not rea- Servant, Dec. Dig. $ 330.*] sonable to suppose that he would continue 3. MASTER AND SERVANT (8 302*)—Tort of in a straight line, when the path he was SERVANT-SCOPE OF EMPLOYMENT. traveling terminated at the road, and it wa

A news agent on a train is acting within not at all unreasonable that he would turn the scope of his employment, so as to bind his

employer, when he tortiously demands of a pasacross the track when he reached the road. senger an extra dime for lemons purchased. Under the circumstances, that was the very [Ed. Note.--For other cases, see Master and thing to be expected. It was not shown that Servant, Cent. Dig. $8 1217-1221, 1225, 1229; deceased did anything but that all others did Dec. Dig. $ 302.*] who desired to flag west-bound trains and to 4. MASTER AND SERVANT ($ 332*)_TORT OF take passage thereon. It does seem that if

SERVANT-QUESTION FO3 JURY.

Where a news agent on a train tortiously the engineer saw deceased when he flagged demands and exacts from a passenger an extra the train, and as he ran to cross the track to dime for lemons purchased, it is for the jury take passage, he must have known he would to say, under all the evidence, whether plaintiff cross the track at the road crossing; and, it has suffered actual damages in addition to the

extra dime exacted. he did, it was certainly his duty not to kill

[Ed. Note.-For other cases, see Master and him.

Servant, Dec. Dig. $ 332.*] Under all the evidence in this case, as shown by this record, the liability of the de

Appeal from Circuit Court, Coosa County; fendant for the death of plaintiff's intestate A. H. Alston, Judge. was a question of fact for the jury, and not

Action by Mrs. Nellie Cleaney against T.

C. Parker and others.

Wood's a question of law for the court.

From a judgment Case, 129 Ala. 483, 29 South. 775; Boyd's for defendant, plaintiff appeals. Reversed and

remanded. Case, 124 Ala. 525, 27 South. 408; Foshee's Case, 125 Ala. 199, 27 South. 1006; Shirley's

The oral charge of the court is as follows: Case, 128 Ala. 599, 29 South. 687; Shelton's "If you find after this transaction he (Elrod) Case, 136 Ala. 191, 34 South. 194; Crenshaw's said nothing more to her about the payment Case, 136 Ala. 573, 34 South. 913; Martin's until she, after receiving the lemons, and payOase, 117 Ala. 367, 23 South. 231; Id., 131 ing the dime which had been received, said Ala. 279, 30 South. 827; Stewart's Case, 128 to Elrod, the news agent, 'Was that a suffiAla. 330, 29 South. 562.

cient sum to pay you?' and Elrod by that inIt therefore follows that the general af- quiry was induced to practice a fraud upon firmative charge was improperly given for her by saying "No,' and she after that paid defendant. But in accordance with the views him another dime, then I charge you that in of the majority the judgment of the lower the collection of the second dime Elrod was court is affirmed.

not acting within the line and scope of his Affirmed.

authority. If you believe from the evidence

that he was collecting the second dime, inDOWDELL, C. J., and SIMPSON, AN-tending to appropriate it to his own use, and DERSON, MCCLELLAN, SAYRE, and EV- not to the use of the Parker Railway News ANS, JJ., concur. JAYFIELD, J., dissents. Company, the defendant would not be respon

sible; for in that event the fraudulent col

lecting of the dime was Elrod's individual (167 Ala. 134)

tort." Further charging the jury, the court CLEANEY V. PARKER et al.

said, that "if you believe from the evidence (Supreme Court of Alabama. Feb. 26, 1910.) that after the sale of the lemons and the re1. APPEAL AND ERROR ($ 1040*)—HARMLESS ceipt of the dime Elrod, the defendant's agent, ERROR-DEMURRER TO COMPLAINT.

was talking to a lady in the car, and then Error in sustaining demurrers to an orig- turned to Mrs. Cleaney and said that she had inal complaint is harmless, where the evidence not paid for those lemons and demanded the practically undisputed would have supported a verdict under either count as amended, if it money a second time, I charge you that in would have supported one under either count of the receipt of the money the first time Elrod

was acting within the line and scope of his shown to have any knowledge, actual or CODauthority, and that his authority ended after structive, of such rule, nor was it binding upcollecting the dime, and that if you believe on her, and it could not tend to exculpato from the evidence that, after collecting the the defendants from the wrong of the agent. first dime, he turned back to Mrs. Cleaney Such a rule as was shown, of discharging and demanded the money a second time, he agents upon the complaint of conductors, was not acting within the line and scope of could not exe the defendants from lia. his authority as the defendant's agent, and bility for the acts of agents before they were the defendant would not be liable for his so so discharged. doing.” Further charging the jury, the court We also think the trial court erred in those said: “I charge you that, if the plaintiff was parts of its oral charge to which exceptions entitled to recover at all, the only damages were reserved, in so far as the court instructshe sustained would be the extra dime she ed the jury that the agent of defendants was paid for the lemons."

not acting within the line and scope of his D. H. Tiddle, for appellant. Lackey & authority in collecting the second dime from Bridges, for appellee.

plaintiff. While, in collecting the second dime, he may have exceeded-probably did

exceed-his authority and violated instrucMAYFIELD, J. The appellant, a woman, tions from his principals, yet it was clearly was a passenger on board the train of the within the line and scope of his authority in Central of Georgia Railway Company. The such manner as to render the defendants liaappellees were conducting what is commonly ble to plaintiff for such tort of the agent; known as a “news butch business" on said while it was the tort of the agent, as between train. Appellant bought some lemons from him and his principals, it was the tort of the “butch," appellees' agent, in charge of both, as between them and the plaintiff. their business on said train, and, as she claims, paid the price of 10 cents therefor. the court in its instructions to the jury, that

While it is true and correct, as stated by Appellant claims that she was not certain the damage to plaintiff's estate was only one that she had paid the “butch” for the lemons, dime, yet it was a question for the jury, unand again asked him the price; that he re- der all the evidence, as to whether she was plied 10 cents; that the “butch” again de entitled to any other actual damages. manded of her the price, which she declined

The effect of the court's instructions was to pay, saying she had paid him once; that that plaintiff could only recover back the he denied this, and insisted upon her paying dime which she was wrongfully required to the dime, which she refused to do; that the pay by the defendants' agent. This was probe “butch" then attempted to take the lemons ably an invasion of the province of the jury. from her; that she thereupon threw up her

The judgment is reversed, and the cause hands to ward him off, telling him she would

remanded. pay him the dime rather than have him take

Reversed and remanded, the lemons from her; that she then paid him the dime, and he, putting it in his pocket, replied that he was in a dime and that this was DOWDELL, C. J., and SIMPSON and Me his profit. The appellant sued to recover the CLELLAN, JJ., concur. damages and losses suffered to her estate and feelings. The loss to her estate was one dime, which,

(166 Ala 35) under all the evidence, if true, she was enti

PETERS V. STATE. tled to recover. Whether she was entitled to recover as for an assault, insult, or injury to (Supreme Court of Alabama. Jan. 20, 1910. her pride or feelings was clearly a question

Rehearing Denied Feb. 26, 1910.) for the jury, and they seem to have decided 1. BREACH OF THE PEACE (8 1*)—"ABUSIVE" it against her.

LETTER. If there was any error in sustaining de Within Code 1907, § 6218, making it an of. murrers to the original complaint, it was clear-fense to send a threatening or abusive letter,

may tend to provoke a breach of the ly without injury, because the same evidence, peace, a letter is "abusive” which is offensive, which is practically without dispute, would and charges the sendee with a degradation of have supported a verdict under either count character, or a moral obliquity; as is a letter as amended, if it would have supported one calling the attention to an unpaid bill, stating

that, if the sendee knew how contemptible be apunder either count of the original complaint. peared in the matter, he would pay the bill at The complaint as amended, and as to which once, and that, if he did not pay it in a short demurrers were overruled, was not practical-time, the sender would have to proceed in some

way to collect it, and concluding, "I know how ly or materially different from the original as

worthless and contemptible you are, but this is to which the demurrers were sustained. news to you." The trial court erred in allowing defend

(Ed. Note.–For other cases, see Breach of the ants to prove, over plaintiff's objection, their Peace, Dec. Dig. $ 1.* rule with news agents, where a complaint is For other definitions, see Words and Phrases, made by a conductor. The plaintiff was not I vol. 1, pp. 48, 49.]

was C.

2._ATTORNEY AND CLIENT ($ 33“)—PRIVILEGE- an effort to collect said bill for the Eclipse LETTER OF LAWYER.

Paint & Manufacturing Company." That a letter is sent by a lawyer in an effort to collect an account does not make it priv W. M. Lackey, John R. Tyson, and M. Pe ileged, so as to relieve him from the penalty ters, for appellant. Alexander M. Garber, prescribed by Code 1907, 8 6218, for sending a threatening or abusive letter, which may tend Atty. Gen., for the State. to provoke a breach of the peace. [Ed. Note. For other cases, see Attorney and

SIMPSON, J. The appellant was indicted Client, Cent. Dig. 8 46; Dec. Dig. $ 33.*]

and convicted, under section 6218 of the 3. BBEACH OF THE PEACE (8 5*)—INDICTMENT Code of 1907, for sending a threatening or AND PROOF-VARIANCE.

A conviction under Code 1907, § 6218, of abusive letter which tended to provoke a sending a threatening or abusive letter, may be breach of the peace. The first count in the had under an indictment charging the sending indictment charged that the letter was sent of it to C., on proof that it was sent to C. & Co., and that c. did business under the name to W. M. Conine, and the other three counts of C. & Co., and consequently that C. & Co. charged the sending of the letter to W. M.

Conine & Co. The bill of exceptions shows (Ed. Note.--For other cases, see Breach of the that four letters were sent, but only one Peace, Cent. Dig. $ 5; Dec. Dig. § 5.*]

within 12 months before the finding of the 4. · BREACH OF THE PEACE ($ 4*)—SENDING LET- indictment, which letter was addressed to

TERS — TENDENCY TO PROVOKE BREACH OF
PEACE–INDICTMENT.

W. M. Conine & Co. As to whether the lanAn indictment under Code 1907, § 6218, guage used in the letter is "abusive" within making it an offense to send a threatening or the meaning of the statute, the word "abuse" abusive letter, which "may tend" to provoke a breach of the peace, is sufficient in charging the is from the Latin, "ab,” from, and “utor,” to sending of a threatening and abusive letter, use, and abuse is defined as: “To use imwhich "tended” to provoke a breach of the properly, or excessively, • to treat peace.

ill, use injuriously, hurt; to wrong in speech, [Ed. Note.-For other cases, see Breach of the reproach coarsely, disparage, revile, malign." Peace, Cent. Dig. $ 5; Dec. Dig. § 4.*]

And "abusive" is defined as: “Employing 5. INDICTMENT AND INFORMATION (147*)— harsh words, or ill treatment, hurtful, harsh, DEMURRER TO INDICTMENT.

A demurrer to an entire indictment, vituperative scurillous, wrongly used, imcount of which is good, is properly overruled. proper.”

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. fi 490_494; Dec. which is offensive, and which charges the

We hold that any language, in a letter, Dig. § 147.*]

sendee with a degradation of character, or Appeal from Circuit Court, Tallapoosa Coun

a moral obliquity, is "abusive,” within the ty; S. L. Brewer, Judge. Matthew Peters was convicted under Code 1908 (which will be set out by the reporter)

The letter of 4/1/

meaning of the statute. 1907, § 6218, for sending a letter, and ap

comes within the meaning of the statute, and peals. Affirmed.

the fact that it was sent by a lawyer in an The letter referred to is as follows: "Alex. effort to collect an account does not make it ander City, Ala., 4/1/99. In re Eclipse Paint "privileged," so as to relieve the writer of & Mfg. Co. v. W. M. Conine & Co. $37.50. the penalty prescribed by the statute. The Messrs. W. M. Conine & Co.-Dear Sirs : law does not confer on a lawyer any privI wish to call your attention to the above ilege to use abusive language in attempting matter and to remind you that it is unpaid to collect an account. The high ideals of If you knew how contemptible you appear in the profession demand of him that "sauviter this matter, you would pay this bill at once. in modo" which dignifies his calling and If you do not pay this bill in a short time, I which is not inconsistent with “fortiter in shall have to proceed in some other way to re." Consequently the demurrer to plea 2 collect it. I know how worthless and con was properly sustained. temptible you are, but this is news to you. The evidence shows that W. M. Conine did Yours very truly, M. Peters." The second business under the name of W. M. Conine & plea referred to in the opinion is as follows: Co., and consequently W. M. Conine & Co. "That defendant is a regularly licensed law was W. M. Conine. Things that are equal to yer under the laws of the state of Alabama, the same thing are equal to each other. A engaged in the practice of the legal profes-letter addressed to "W. M. Conine & Co." sion in Talla poosa county, Alabama, in the would not be delivered to any one except W. town of Alexander City; that he was engaged M. Conine. It is insisted that the first count in the practice of law at the time he wrote in the indictment is not sufficient for a conthe document the grand jury has indicted viction under the statute, because the lanhim for; that he held a bill for collection guage of the statute is, “which may tend to amounting to $37.50 for the Eclipse Paint & provok breach of the peace," and said Manufacturing Company, engaged in the count charges that the language "tended to manufacture and sale of paint; that the doc- provoke a breach of the peace." In the case uments indicted for are duns sent or mailed of Johnson v. State, 152 Ala, 46, 44 South W. M. Conine & Co. at Camp Hill, Ala., in 670, objection was made to the indictment,

com

and it was contended that the language of doer of compensation for services in the manthe statute implied that the abusive or agement thereof. threatening language used may have a ten

[Ed. Note.-For other cases, see Appeal and

Error, Cent. Dig. $ 4704; Dec. Dig. & 1208.*] dency to provoke a breach of the peace at a time subsequent to the finding of the indict- 3. APPEAL AND ERROR (8 1208*)—REVERSAL

RESTITUTION-NATURE OF REMEDY. ment; but the court held that the words

Restitution to a party obtaining the reused in the statute "are not only descriptive versal of a judgment against him is for the purof what may result in the future, from the pose of restoring to him his own, or its equiva.

lent, as near as may be, of which he has been sending of the letter, but which, in fact, may deprived by an erroneous judgment reversed, never happen, but of the character or qual- and the decree may be a part of the reversed ity of the letter”; also, that, “if the language judgment, or a separate judgment based on the

one of reversal. of the letter has any tendency towards pro

(Ed. Note.-For other cases, see Appeal and voking it, the offense is

Error, Cent. Dig. $8 4705, 4706; Dec. Dig. § plete.” The indictment in the language of 1208.*] the statute was sufficient. Johnson v. State, | 4. APPEAL AND ERROR (8 1208*)-DECISIONS 152 Ala, 46, 48, 44 South. 670. It is evident REVIEWABLE-EFFECT OF JUDGMENT OB DEthat the tendency referred to in the statute

CREE RESTORING PROPERTY. relates to the time of the sending of the let- party

obtaining a reversal of a judgment against

A judgment or decree of restitution to a ter, and, while it might have been sufficient him does not necessarily finally determine the to allege that the language might have tend- rights of the parties to the subject-matter reed to provoke a breach of the peace, yet the

stored. language of the present count 1, that it

(Ed. Note.–For other cases, see Appeal and Er

ror, Cent. Dig. 88 4701-4709; Dec. Dig. $ 1208.*) “tended” to provoke a breach of the peace, certainly covers the charge that it might

Appeal from Chancery Court, Montgomery have had that tendency, and the language of County ; L. D. Gardner, Chancellor. the indictment is sufficient, whether the let

Bill by the Lehman-Durr Company against ter did, or not, actually produce a breach of George A. Folmar and others. From a decret the peace.

in favor of respondent Folmar, complainant It results that a conviction could be had

appeals. Affirmed. under the first count, on the proof of send

See, also, 154 Alà. 480, 45 South. 289. ing the letter to W. M. Conine & Co. The J. M. Chilton, for appellant. Gunter & demurrer being to the entire indictment, it is Gunter, for appellee. unnecessary to determine whether there was any error in overruling the demurrer to the thus correctly and succinctly stated by coun

MAYFIELD, J. The case on appeal is other counts. Weems v. Weems, 69 Ala. 104;

sel for appellant: Ala. Nat. Bank v. Halsey, 109 Ala. 196, 19 South. 522; K. C., M. & B. R. Co. v. Lackey, aside a fraudulent conveyance executed by

“Lehman-Durr Company filed a bill to set 114 Ala. 152, 21 South. 444.

There was no error in the refusal to give Folmar to his children. There was a final either of the charges requested by the de- decree in favor of the complainant, and the fendant.

property alleged to have been fraudulently The judgment of the court is affirmed.

conveyed was put up for sale under the de

George A. Folmar fled a cross-bill in Affirmed.

the main cause, in which he alleged that,

when he executed the notes on which the suit DOWDELL, C. J., and McCLELLAN and was founded, to Lehman-Durr Company, the MAYFIELD, JJ., concur.

latter had agreed to transfer to him all the

collaterals which it had held for a certain (166 Ala. 325)

debt, and amongst those collaterals was a

note for a large sum, which they had not surLEHMAN-DURR CO. V. FOLMAR et al.

rendered. He prayed an offset of the amount (Supreme Court of Alabama. Nov. 18, 1909. of this note. There was a demurrer to the

Rehearing Denied Feb. 26, 1910.) cross-bill, which was sustained by the chan1. APPEAL AND ERROR (8 78*)—DECISIONS RE-cellor, and it was dismissed. This court held VIEWABLE-FINALITY OF DECREE.

that the lower court erred in dismissing the A decree, restoring to a party land of which cross-bill, and reversed the case. After the he had been deprived by a reversed decree, is reversal, George A. Folmar made a motion in final in such sense as to support an appeal under Code 1907, § 2837 (426).

the court below, praying that Lehman-Durr [Ed. Note.–For other cases, see Appeal and Company be compelled to restore the lands, Error, Cent, Dig. 88 464-483; Dec. Dig. 878.*] and to account for the rents thereof pending 2. APPEAL AND ERROR ($ 1208*)-REVERSAL- the time possession of the same had been de RESTITUTION-SCOPE OF RELIEF.

tained under said purchase (Record, pp. 33, A party entitled to restoration of lands of 34). There was a demurrer to the petition which he was deprived by a reversed decree was (Record, pp. 35, 36). The chancellor sustainentitled to the rents received, with interest thereon, during the time they were wrongfully ed the demurrer, but made a decretal order held, without making allowance to the wrong-1 of reference. Lehman-Durr Company ap

cree.

pealed to this court, and the appeal was dis-, 10 per cent. commissions on the rents collectmissed (154 Ala, 480, 45 South. 289) on the ed therefrom; that the charge was a reasonground that the order of reference was mere- able charge for the service; and that Lehly interlocutory, and that, until it had ripen-man-Durr Company paid the commissions to ed into a decree for money, an appeal could him as stated in the account. The account, not be taken from it.

itself, rendered by Lebman-Durr Company, "After the dismissal of the appeal, the reg- was attached as Exhibit A to the report, and ister proceeded to hold the reference. The appears on pages 47-50 of the Record. The lands had already been delivered up pursu- register allowed these commissions paid to ant to a notice from the solicitors of Lehman- Sentell, and calculated the interest on the Durr Company to the solicitors for said Fol. balance, refusing to make annual rests in the mar (Record, pp. 41, 42), so that the question calculation of the interest. Folmar excepted before the register was simply one of rents to the report of the register, on these two and profits for which Lehman-Durr Company grounds, and the chancellor sustained the should account during the period of its pos- exception, reversed the register, and proceedsession. In the decree of reference (Record, ed to render such decree as should have been p. 37) the chancellor held that the rule ap- rendered on the evidence before the register, plying on an accounting by and between mort- decreeing that Lehman-Durr Company pay to gagor and mortgagee, after default and be- Folmar the sum of $994.97. This was nearly fore foreclosure, as to the liability of the $300 more than the register ascertained to be mortgagee to account for rents and profits, due, as shown by his report (Record, p. 50). does not apply. The mortgagee is regarded The chancellor, in overruling the register, as a trustee and must use due diligence in proceeded to calculate the interest on the renting the property. Here there is no such yearly rents, after giving credit for the taxes, relation, and the court merely gives back to and refused to allow any of the commission the petitioners what has been received from paid." them, and not such as might have been re The decree appealed from in this case is ceived under certain conditions, The court final in such sense as to support an appeal then rendered a decree sustaining the demur- under section 2837 (426) of the Code. Black rers to the petition of Folmar and his asso- on Judgments, vol. 1 (2d Ed.) § 41; Walker ciate respondents (who had joined in the v. Crawford, 70 Ala. 567. same amendment); but, notwithstanding the We find no reversible error in the decree fact that it sustained the demurrers, it pro- of the chancellor appealed from, ordering ceeded to render a decree directing the reg- Lehman-Durr Company to pay over to the ister to state an account, in which he should defendants the sum of $994.97. This appears ascertain, and report: (1) What rents and to have been the amount of the rents, with profits had been received by the complain the interest thereon, received from the lands ants, of the property and of each parcel sep- during the time they were wrongfully held arately, and when so received separately; by Lehman-Durr Company and for which (2) what taxes had been paid out by the com- restitution was made by the decree. Rents plainants on the lands and on each parcel are incident to the lands, and follow them; separately, and when paid; and (3) what re-interest is incident to the principal, and folpairs had been made on the property, and lows it. The decree of restitution rendered when made, and the nature of the same, to- only restored that which was wrongfully acgether with the condition of the repairs (Rec- quired (certainly wrongful, so far as concerns ord, pp. 37, 38).

this appeal). It only made Folmar whole "The register held the reference as requir- only gave him that which he would have had ed, and stated the account, and reported a but for the wrongful holding. It only restorbalance owing by Lehman-Durr Company of ed the land taken and held, and its incidents. $994.97 (see page 53). On the reference Leh Lehman-Durr Company's acts being wrongman-Durr Company filed a statement show-ful, it was properly denied compensation for ing the amount of rents collected and when services in its wrongful assumption of concollected, and the taxes paid. They also trol and management of Folmar's land. Cerclaimed credit for certain expenses in the tainly this must be considered to be the atway of commissions charged by one Sentell, titude and condition of the parties so far as for renting out the property and collecting this appeal is concerned. the rents. There was an agreement of coun Restitution, such as this, is a remedy, the sel (shown on page 44 of the Record) that the purpose of which is to restore to an appellee place of business of 'Lehman-Durr Company his own or its equivalent, as near as may be, was in the city of Montgomery, Ala.; that of which he has been deprived by an erronethe lands sold were situated in Crenshaw ous judgment which is reversed. A decree county, Ala., where the plaintiff had no rep- of restitution is intended to restore to the resentative; that, after the lands were bought aggrieved party that which he lost in conseunder the decree, plaintiff employed Sentell, quence of the erroneous judgment reversed. who resided near the land, and who was a It may be a part of the reversed judgment, competent man for that purpose, to find ten- or it may be a separate judgment based on ants for the land and collect the rents; that the one of reversal.

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