from going down it was necessary to use iron pins laid across them; and that shortly before this accident complaints of their condition had been made to Ferguson.

not show an order fixing the number of the
venire.

Cent. Dig. §§ 365, 366; Dec. Dig. § 113.*]
[Ed. Note.-For other cases, see Courts,

3. JURY (§ 110*)—APPEAL-OBJECTIONS
JURY-WAIVER.

TO

[5] We think all this was competent evidence of notice to Ferguson of a more or less In view of Jury Law (Acts 1909, p. 317) general condition of the jacks, which would § 29, declaring that all provisions as to the sereasonably suggest inquiry on his part with lection, drawing, summoning, or impaneling of respect to the condition of any particular jurors, are merely directory, and that no objection shall be taken to any venire except for jacks which his men might have occasion to fraud in drawing or summoning the jurors, the use. And it was for the jury to say whether failure of the court to comply with section 32. such inquiry would have discovered a defec- directing that, in prosecutions for capital felotive condition, and whether the failure to nies, the sheriff shall be ordered to summon not less than 50 nor more than 100 persons, includmake it was negligence on his part; in short, ing those summoned on the regular juries for whether the negligence of Ferguson, express- the week, and that he shall summon all persons ing itself along these lines, proximately pro-waived by failure of accused to object, before named to appear on the day set for trial, is duced the fall of the car and the injury to the trial is begun, that the regular jurors were plaintiff. not ordered to be specially summoned as a part of the special venire.

[6] There was a motion for a new trial on the ground, among others, that the verdict was contrary to the evidence under the charges given to the jury for defendant; the charge referred to being: "That, if you believe all the evidence in this case, you cannot find for the plaintiff on account of any defective jack being the proximate cause of plaintiff's injury." This charge, however, must be construed in connection with the complaint, one count of which was framed under the first subdivision of the statute, and we think its logical effect was no more than an affirmative charge for defendant on that count.

[Ed. Note.-For other cases, see Jury. Cent. Dig. $$ 502-513. 515-523; Dec. Dig. § 110.*] 4. HOMICIDE ( 165*) - PROSECUTION - EVI

5. CRIMINAL LAW (8 807*) — TRIAL - ARGUMENTATIVE INSTRUCTIONS.

A charge that, in order to reduce the offense from murder in the first degree to a lower degree, it is not essential that accused should have been intoxicated to such a degree We find no prejudicial error in the record, as to be unconscious of his acts is properly reand the judgment will be affirmed.

[Ed. Note.-For other cases, see Jury, Cent. Dig. § 266; Dec. Dig. § 58.*]

L. COURTS (§ 113*)-MINUTES SELECTION OF
JURORS-STATUTE-CONSTRUCTION.

fused, being argumentative.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1805, 1959, 1960; Dec. Dig. § 807.*]

6. HOMICIDE (§ 28*)- DEFENSES ·

TION.

INTOXICA

Partial intoxication will not avail to disprove a specific intent in a prosecution for homicide; but it must be of such a character and extent as to render the accused incapable of consciousness that he is committing a crime, and a charge that, to reduce the offense from murder in the first degree to a lower degree, it is not essential that accused should have been so intoxicated as to be unconscious of his acts is properly refused.

Cent. Dig. 88 44-46, 133; Dec. Dig. § 28.*]
[Ed. Note.-For other cases, see Homicide,

Appeal from City Court of Anniston;
Thomas W. Coleman, Jr., Judge.

Alexander Waldrop was convicted of killing his wife, and sentenced to be hanged, and he appeals. Affirmed.

The following is the charge refused to defendant: "In order to reduce the offense from murder in the first degree to a lower degree, it is not essential that defendant should have been intoxicated to such a degree as to be unconscious of his acts."

In a prosecution for murder, where the minutes of the court recited that the court drew 50 names, making, with those of the regular jurors, 78 jurors from which the jury should be selected, and that the sheriff was ordered to summon the said 50 persons so drawn, there was a sufficient compliance with Jury Law (Acts 1909, p. 319) § 32, providing that, on an indictment for a capital felony, the court must order the sheriff to summon not less than 50 nor more than 100 persons, including those drawn and summoned on the regular juries for the week set for the trial of the case, and shall draw from the jury box the number of names required with the regular jurors drawn for the week set for trial, even though the record did for the State.

P. F. Wharton and Tate & Arnold, all of Anniston, for appellant. R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen.,

illustrative of defendant's sentiments to- 15. FRAUD (§ 50*)-PRESUMPTIONS. wards her, and of his probable motive in in

juring her.

[5, 6] The charge refused to defendant is argumentative, and also misleading, if not positively erroneous.

In Chatham v. State, 92 Ala. 47, 9 South. 607, it was said that "partial intoxication will not avail to disprove the specific intent; it must be of such character and extent as to render the accused incapable of consciousness that he is committing a crime.". This statement of the law was reaffirmed in White v. State, 103 Ala. 72, 16 South. 63, and in Brown v. State, 142 Ala. 287, 38 South. 268. The language of the refused charge would have been readily susceptible of an interpretation by the jury which rendered it inconsistent with the principle above stated, and it was properly refused.

Fraud must be proved and will not be pre

sumed.

Dig. 88 46, 47; Dec. Dig. § 50.*]
[Ed. Note.-For other cases, see Fraud, Cent.

6. BILLS AND NOTES (§ 525*)—ACTIONS-DE

FENSES.

In a suit on a note, evidence held insufficient to show that plaintiff was not a bona fide purchaser for value.

Notes, Cent. Dig. §8 1832-1839; Dec. Dig.
[Ed. Note.-For other cases, see Bills and
525.*] ́

7. APPEAL AND ERROR (§ 1067*) — REVIEW — HARMLESS ERROR.

could not have found otherwise than they did, Where the evidence was such that the jury the refusal of special charges requested by appellant was harmless.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.*] 8. EVIDENCE (§ 472*) — OPINION EVIDENCE — MATTERS DIRECTLY IN ISSUE.

In a suit on a note where defendant was We find no error in the record, and the allowed great freedom in showing that the note judgment will be affirmed.

Affirmed. All the Justices concur.

SAYRE, J., holds there is no error shown by the record.

(185 Ala. 221)

BRUCE v. CITIZENS' NAT. BANK OF
LINEVILLE.

(Supreme Court of Alabama. Nov. 27, 1913.)
RECORD

1. APPEAL AND ERROR (§ 664*)
CONFLICT.
Where the record proper and the bill of
exceptions differ in their recitals as to rulings
on demurrers, the record proper governs.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. § 664,*]

2. BANKS AND BANKING (8 116*)-KNOWLEDGE OF OFFICERS-NOTICE TO BANK.

For the knowledge or information of the agent to be binding on the principal it must be acquired by the agent while transacting his principal's business in the scope of his duties, and hence information acquired by the officers of a bank in their private capacity is not notice to the bank.

[Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 282-287; Dec. Dig. 8 116.*]

3. APPEAL AND ERROR (§ 194*)
QUESTIONS PRESENTED FOR REVIEW.
Where not attacked below, the sufficiency
of a plea cannot be raised on appeal.
[Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. §§ 1241-1246; Dec. Dig. §
194.*]

"HOLDER IN

had been obtained by fraud and without consideration, it was not improper to exclude his conclusions as to whether he ever received anything of value for the note.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. 472.*]

Appeal from Clay County Court; D. H. Riddle, Special Judge.

Assumpsit by the Citizens' National Bank of Lineville against John S. Bruce. Judgment for plaintiff, and defendant appeals. Affirmed.

The pleas were:

(1) The general issue.

(2) Failure of consideration.
(3) Failure of consideration.

(4) "The note which forms the foundation of this suit was procured from defendant for one share preferred stock to be issued by the Atlantic Furniture & Lumber Company of which the cashier of plaintiff bank was secretary and treasurer, and defendant avers that before said note was executed that plaintiff, through its cashier, fraudulently and falsely represented that said subscription in settlement of which the note was given would make the said Atlantic Furniture & Lumber Company a going concern, and in a safe condition, and defendant further avers

that the directors of plaintiff bank made the same representations to defendant, and in this manner induced defendant to execute the note which is the foundation of this suit, and defendant avers that, at the time said representations were made, the said Atlantic Furniture & Lumber Company, was hopelessly insolvent, and was due plaintiff's bank a large sum of money, and that the said false and fraudulent representations were made to defendant by the said officer and director of plaintiff's bank for the purpose of [Ed. Note.-For other cases, see Bills and saving said bank in the matter of the large Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-indebtedness due it by the said Atlantic 1687; Dec. Dig. § 497.*

4. BILLS AND NOTES (8 497*)
DUE COURSE"-PRESUMPTION.
Under Code 1907, §§ 5007, 5014, every
holder of a note is deemed prima facie to be a
holder in due course, which means that he is
deemed to have taken it before maturity in
good faith and for value without notice of any
defect.

For other definitions, see Words and Phras- | Furniture & Lumber Company, and defendant es, vol. 4, p. 3320.] avers that said stock has never been issued

by the secretary and treasurer who is also | urer of the corporation, and knew that no the cashier of plaintiff's bank, and defendant avers that the fraud practiced upon him by the cashier and director of plaintiff bank in securing said note from him which he averred was fraudulent and wholly without consideration, are acts which are chargeable to plaintiff bank, and defendant says plaintiff participated in said fraud, and should not recover from defendant on the note which forms the foundation of this suit."

stock or other consideration had been given for said note, and said directors knew that no consideration or stock had been given or received by defendant for said note; and defendant further says that the transaction whereby plaintiff bank bought or discounted the note in suit was had with said Eppes, or when Eppes was present as cashier and director of plaintiff bank, and that at the same time said Eppes was also secretary and treasurer of said corporation, and, that at the time said note was discounted to plaintiff bank, Eppes, cashier and director of said bank, and secretary, treasurer, and director of said corporation, knew that said stock had not been issued to the bank, and that both he and said above-named directors both of plaintiff bank and said corporation knew or were in possession of facts which, if followed up, would cause them to know that, at the time they procured defendant to execute said note, said corporation was hopelessly insolvent, and that said representations made to defendant in order to induce him to sign said note were false and fraudulent, and that in executing said note defendant relied entirely upon said representation, and defendant says that said false and fraudulent representations were made to defendant to enable plaintiff bank to realize on the indebtedness that said corporation was then due said bank. Wherefore, defendant says," etc.

Walter S. Smith, of Lineville, for appellant. Cornelius & Cornelius, of Ashland, for appellee.

(5) "Defendant says that the consideration for which said note was given has wholly failed, in this, that said note was given in payment for one share preferred stock in the Atlantic Furniture & Lumber Company, a corporation, organized under the laws of Alabama, and that two of directors of said plaintiff bank, to wit, W. D. Mitchell and R. A. Gaines, who were also directors of the said corporation, came to defendant and solicited him to buy one share of said alleged preferred stock in said corporation; at first, defendant refused to purchase any of said stock, whereupon the two directors named stated that they and M. M. Eppes, cashier of the Citizens' National Bank, and also secretary and treasurer and director of said corporation, had investigated the condition of said corporation, and that the same was solvent, and that the said corporation owed certain debts which must be paid, among which was a debt to the Citizens' National Bank, and the two first-named directors further represented to defendant that, if the stockholders of the corporation would increase their stock to about $4,200 in the aggregate, it would be able to move its stock SAYRE, J. [1] Plaintiff bank, appellee, of furniture, realize on indebtedness due it, sued as transferee of a promissory note for pay what it was due, and be saved from $100 made payable to the Atlantic Furniture bankruptcy, that, if defendant would take & Lumber Company, a corporation. The rec$100 of said preferred stock upon which they ord proper and the bill of exceptions differ would guarantee a dividend of 8 per cent. in their recitals of the rulings on demurrers per annum, defendant would save his stock to the several pleas filed. We are concluded of $1,000, which he had in said corporation, by the record proper. On demurrer, plea 3 that it would be better to pay $100, even if was held insufficient, leaving on the file a he was not able to buy said stock, than to so-called plea of the general issue, about lose $1,000 of stock defendant already had in which no question has been raised, and pleas said corporation, and before defendant ex- 2, 4, and 5. Plea 2 was that the note in ecuted said note for said stock he saw the suit was wholly without consideration. The cashier of plaintiff bank, and also secretary evidence showed without dispute that this and treasurer and director of said corpora- defense was untenable in fact, unless it tion, and that the cashier made the same was proved by the evidence offered in suprepresentation to defendant as made by the port of the charge of fraud, to be noticed, said two other named directors above detail- and it may be dismissed from consideration. ed; and defendant says that he relied upon Those questions which need to be considered said representation, and executed the note as bearing upon the merits of the controwhich is the foundation of this suit in pay-versy between the parties to this record ment of one share of the alleged preferred were brought into the case by two pleas: stock of said corporation, and that for said Plea 4, alleging in substance that defendant note said Eppes, as secretary and treasurer, had been induced to execute the note by the agreed to issue to defendant one share pre- fraud of plaintiff; and plea 5, saying in its ferred stock in said corporation, with a guar- introductory sentence that "the consideraanty of 8 per cent. dividend per annum; and tion for which said note was given has wholdefendant further says that, at the time said ly failed in this," and then following up this note was alleged to have been discounted to designation of the purpose and effect of the plaintiff's bank, the said Eppes was both plea with averments designed to show fraud

tiff.

As for any ground of demurrer assigned, the replication was good.

[5, 6] The jury found all issues for the plaintiff. On the evidence we think they might have been instructed by the court so to find. The furniture company was in financial straits. Its creditors, the bank included, were pressing the collection of their debts. Mitchell, Gaines, and Eppes, who were stockholders and directors in both the bank and the furniture company, the last named being also cashier of the bank and secretary and treasurer of the furniture company, advised

conjunctively that the bank in the negotia-, L. & N. v. Walker, 128 Ala. 368, 30 South. tion of the note had notice of the fact that 738. It stated an unassailable title in plainno certificate of stock had been issued to defendant. To these pleas, which the reporter will set out, plaintiff replied by a special replication, alleging that the instrument sued upon was a negotiable note and that it had purchased the same for a valuable consideration before maturity and without notice of the facts alleged in the pleas. Demurrer to this replication was overruled, and that ruling is assigned for error. The points taken by the demurrer, wherein it was specific as the statute requires a demurrer to be, were that the replication failed to deny that the officers of the bank had notice of the fraud it may be conceded that he requestedalleged in the pleas, and failed to aver that the note was acquired "in the regular course of business," meaning by this last, as we may assume, that the note was not shown to have been acquired in due course, as the customary phrase is.

defendant to execute the note in suit for the face value of one share of the capital stock of the furniture company as part and parcel of a scheme by which the company was to dispose of an issue of preferred stock to its stockholders and so raise funds with which [2-4] Applied to the replication as an an- to tide over its difficulties. At a meeting of swer to plea 4, the demurrer hardly had any the stockholders, informally called it may apt meaning, and, though nominally it sought have been, Thomas G. Watts, a witness for to test the replication as a reply to both defendant, and who was the vice president pleas 4 and 5, we suppose its real purpose and general manager of the company, stated was to point out defects in the replication his judgment that, if $4,200 of additional as an answer to plea 5. We have so treat- stock could be disposed of within a week ed the demurrer. It is well settled that, in or ten days, the company could avoid bankorder for the knowledge or information of ruptcy. Mitchell, Gaines, and Eppes were an agent to be binding upon the principal, then appointed agents of the meeting to init must be acquired by the agent while trans- vestigate the affairs of the company with acting the business of his principal in the a view to a determination of the feasibility scope of his duties. It is not the private and wisdom of the scheme. They found in individual knowledge of the officer of a cor- favor of the scheme, and on the next day reporation, acquired in the transaction of his ported that it would enable the company to own business, while dealing as if he had no continue its operations. Afterwards they official relation to the corporation, that will stated to defendant, who seems not to have operate as notice to the corporation. Ter- been present at the meeting and was averse rell v. Branch Bank, 12 Ala. 502; Reid v. to any further investment in the company, Bank, 70 Ala. 199; Central of Georgia v. that the stock issue would save the company Joseph, 125 Ala. 313, 28 South. 35. We are and advised and requested him to subscribe. inclined to think this plea did not measure Defendant testified that they also guaranteed up to the rule laid down by the authorities that thereafter the company would pay 8 per in charging notice to the plaintiff. But that centum on its stock. As a guaranty this was, question was not raised in the court below of course, worthless. At best for defendant and is not presented for review. The rep- it was nothing more than an emphatic exlication denied notice in a way to meet pression of opinion, to be considered, howevery requirement of the law, and also exever, as a circumstance in connection with cluded by necessary inference the implied any evidence tending to support the charge of conclusion of the plea that the bank as a fraudulent purpose. Defendant gave the note corporate entity was originally responsible in suit. Other stockholders gave notes for for the fraud charged to its officers. In con- stock to the amount of $4,100. These notes nection with the complaint it showed that were subsequently discounted by the bank; plaintiff was the holder, the owner, of the $900 of the proceeds being used in paying instrument sued on, a negotiable promissory the company's debt to the bank, the rest put note. Every holder of such a note is deemed to the company's credit. The substance of prima facie to be a holder in due course, the fraud charged is that these persons knew which means that he is deemed to have tak- that the company was hopelessly insolvent, en it before maturity in good faith and for meaning in the circumstances that with the value, having at the time no notice of any addition to its resources of the funds to be infirmity in the instrument or defect in the provided by the stock issue it would still title of the person negotiating it. Code 1907, be insolvent, and that they advised and re§§ 5007, 5014. The replication stated plain-quested defendant to subscribe for one share tiff's right and title in a more circumstan- of stock of the face value of $100, with the tial manner and was a new assignment of real purpose of saving the bank the indebted.