ing improper or unfit edibles. The court in that case said: "The principle which governs in this case is that every one ought to know the qualities, good or bad, of the things which he fabricates in the exercise of the art, craft, or business of which he makes public profession. * It is easily possible for the keeper of such a place to know in all cases whether the eggs, milk, and butter he sells, or the articles of food he has made out of them, are fresh and fit for human consumption. He is therefore at fault if these articles prove to be vitiated and deleterious. ** * It is common knowledge, to which the keeper of a public eating place must be held, that food in which the process of decomposition has begun is liable to make the person who eats it ill." Excerpts from a wide range of cases are appended to the opinion in support of the court's holding. See 129 La. 840, 56 South. 907. [2] Whether or not the defendant or his servants, for whose acts the defendant was responsible, were negligent in failing to use due care in seeing to it that the food served to the plaintiff in the defendant's restaurant or café was not tainted or unfit for human consumption, under the facts and the tendencies afforded by the evidence in this case, was, we think, for the jury to determine. In reasoning from the effect produced back to the cause producing it, the case presents the simple proposition wherein it is shown that the plaintiff was rendered sick, and that his illness was probably due to eating tainted brains cooked and served to him by the defendant or his servants at the defendant's public eating place. As a natural corollary to this, the principal controversy is presented in the question of whether or not the defendant or his employés or servants, for whose acts the defendant was responsible, were negligent in not using due care in preparing or serving the food to the plaintiff for consumption. The evidence shows that the harmful effects of taking such food into the system may often be removed by proper cooking, and that before cooking the taint is easily detected by any one, by the peculiar attending odor. The inferences that might easily and reasonably be drawn from this evidence, it seems to us, are that, if the plaintiff was made sick from eating tainted brains, the defendant or his servants, for whose acts the defendant is liable, were negligent either in not using due care in properly cooking the brains or in failing to discover that they were tainted or in an unfit and dangerous condition to cook and serve to patrons for consumption; for it was established by the testimony that the taint was easily and readily detected by any one giving ordinary attention to the matter, and a want or failure to observe this duty and exercise due care in this regard would constitute that negligence for which the defendant would be held liable. The testimony show that the brains were purchased from a reliable dealer as being a first-class article, and were properly inspected and were apparently in good condition, and the other direct and circumstantial evidence having a tendency to disprove negligence as attributable to the defendant, does not alter the situation, as this testimony in behalf of the defendant did not relieve the conflict in the evidence produced by the testimony from which a different inference as to the defendant's negligence might reasonably be drawn, and it then necessarily became a question for the jury to determine, from a consideration of the whole evidence, whether they would believe the tendencies of the evidence going to establish a want of due care, or negligence, on the part of the defendant, or the contrary evidence and its tendencies adduced in behalf of the defendant, to disprove negligence. [3] It was not for the court to pass upon the conflicting, probable or reasonable inferences to be drawn from the evidence, nor to weigh or balance one inference that could be so drawn against another contra inference deduced from other testimony, and thus determine and pass upon these different and conflicting inferences afforded by the evidence for or against one or the other of the parties to the suit; for this, under our system, is exclusively the province of the jury. And as negligence, and the failure to exercise due care and ordinary caution, like any other fact, may be inferred from circumstances, the court would not have been justified in taking the case from the jury unless, as a matter of law, no recovery could have been had in the case upon any view which could properly have been taken of the evidence and of the reasonable tendencies afforded by it. The rule, as we have stated it, on this proposition, is settled beyond cavil to be the law in this state in quite a large number of well-considered opinions. Smoot v. M. & M. Ry. Co., 67 Ala. 16; Culver, Adm'r, v. A. M. Ry. Co., 108 Ala. 330, 18 South. 827; M. J. & K. C. R. R. Co. v. Bromberg, 141 Ala. 258, 37 South. 395; B. R. L. & P. Co. v. Enslen, 144 Ala. 343, 39 South. 74; McCormack Co. v. Lowe, 151 Ala. 313, 44 South. 47; Haden v. Troy, 155 Ala. 270, 46 South. 753; W. U. Telegraph Co. v. Louisell, 161 Ala. 231, 50 South. 87; B. R. L. & P. Co. v. Murphy, 2 Ala. App. 588, 56 South. 817; B. R. L. & P. Co. v. Camp, 2 Ala. App. 649, 57 South. 50; So. Ry. Co. v. Noah Ellis, 60 South. 407. As we view the evidence and the tendencies afforded by it, in the light of the authorities, the court very properly, in our opinion, submitted the question of the defendant's negligence to the jury. [4, 5] The written charges given at the instance of the plaintiff are not presented by the bill of exceptions, and the fact that they are set out in the record proper does not authorize a review here of the rulings by the Co., 170 Ala. 590, 54 South. 507; Marsicano v. Phillips, 60 South. 553, and authorities there cited. The first of these charges belongs to that class, however, which the court may give or may refuse without being put in error. C. of G. Ry. Co. v. Hyatt, 151 Ala. 355, 43 South. 867. If the defendant apprehended that the charge had a prejudicial tendency to mislead, he should have requested an explanatory charge. Edmondson v. Anniston City Land Co., 128 Ala. 589, 29 South. 596. The second and third charges state correct propositions of law as referred to the evidence. [6] The court properly refused to allow questions propounded to witnesses calling for their general knowledge as to the products and their inspection bought by the defendant for use in his restaurant, but not reasonably limited to the time or to the articles in question involved in the inquiry before the court. The proof offered by this testimony had no logical or necessary connection with the facts in issue, and the questions could only have elicited evidence of facts too remote to the issues before the court to have been admissible as having any proper effect in establishing or disproving any matter involved in the trial. An examination of the evidence set out in the bill of exceptions shows that the court permitted all questions having any logical tendency to elicit evidence to prove or disprove the facts in issue, and we find no error in the court's rulings on the AMERICAN SALES BOOK CO. v. S. H. POPE & CO. (Court of Appeals of Alabama. Jan. 14, 1913.) 1. APPEAL AND Error (§ 680*)—RECORD-RULING ON DEMURRERS-JUDGMENT ENTRY. Where demurrers were filed to eight pleas, a judgment entry showing that the court sustained demurrers to five pleas "and overruled as to all other pleas" was insufficient to support assignments of error based on the overruling of such demurrers. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2880-2882; Dec. Dig. 8 680.*1 2. APPEAL AND ERROR ($ 171*)—REVIEW— ADOPTION OF THEORY BELOW. Where an action of assumpsit is tried to its conclusion below on the theory of the issue made by the plaintiff's replication, the Supreme Court will consider the case on the same theory. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1053-1069, 1161-1165; Dec. Dig. 171.*] 3. TRIAL (251*) — INSTRUCTIONS-ISSUES – THEORY OF CASE. Where, in an action of assumpsit, the defendants denied liability under a contract because not notified, as required by its terms, that plaintiff had accepted it, and the case was tried to its conclusion on the theory of the issue made by plaintiff's replication, which stated that deunder the contract, it was error to refuse plainfendants waived such notice by receiving goods tiff's requested instruction that, if defendants received the goods sold them by plaintiff, they waived notice of the acceptance of their contract by plaintiff. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 587-595; Dec. Dig. § 251.*] 4. SALES (8 124*)-CONTRACT-RIGHT TO RE SCIND. Where a buyer retained part of the goods bought, he could not avail himself of any right to rescind for fraud, since he could not at the same time assail the contract and retain its fruits. [Ed. Note. For other cases, see Sales, Cent. Dig. 88 303-312; Dec. Dig. § 124.*] Appeal from Circuit Court, Coosa County; S. L. Brewer, Judge. Assumpsit by the American Sales Book Company against S. H. Pope and R. O. Richards, individually, and as partners. Judgment for defendants, and plaintiff appeals. Reversed and remanded. The first count claims for balance due on second count claims for balance due for cergoods, wares, and merchandise sold. The tain goods sold, naming them specifically. The third count claims on a special contract which is in the nature of an order to the which is made an exhibit to the complaint, plaintiff from the defendant to ship certain goods mentioned therein, agreeing to pay $100, $5 upon delivery, and the balance in six equal monthly payments or 5 per cent. be a failure to pay any drafts or execute cash 10 days. It is agreed that, should there should at once become due and payable, notes for deferred payment, the full amount anything in the notes to the contrary notwithstanding, and, in default of any payment, that the goods might be removed, and the amount paid thereon be taken and deemed to be payments for the use of the goods therein specified. The pleas 1 and 2 were the general issue. (3) "No consideration, in that the goods were entirely worthless, and of no value, and that the said goods constitute the sole and only consideration for the contract." (4) "Failure to mail an acceptance of said contract as provided in said contract, by the plaintiff." (5) "That the sole consideration for the demands sued on is the purchase price of the goods mentioned in the contract, and that under the contract the title to said goods remained in the plaintiff until fully paid for, and the defendant says that it delivered back to the plaintiff all the goods therein mentioned and that plaintiff accepted the same." (6) Same as 5. (7) "The sole consideration for the demand sued on was the articles mentioned in the contract, and that said contract was not proved in writing by the plaintiff, and was not accepted and acknowledged and mailed from the factory as provided by the terms of the contract." (8) "Alleges representations made by the agent of the plaintiff that the goods were useful and valuable instruments to be used in defendant's mercantile business, and that the contract was made on the face of said representation, and that the goods were not suitable for the purpose for which they were purchased, said purpose being known to the plaintiff at the time said contract was made, and that said representations were false, etc., of which fact defendant was not aware at the time of signing the contract." (9) Fraud based on the same facts as set out in plea 8. Bessemer L. & I. Co. v. Dubose, 125 Ala. 442, 28 South. 380; Speer v. Crowder, 32 South. 658; Dantzler v. Mill Co., 128 Ala. 410, 30 South. 674; Reese v. Fuller, 132 Ala. 282, 31 South. 601. [2] It is also shown by the judgment entry with respect to the ruling in this particular that after the court sustained the demurrers to pleas 2, 5, 6, 8, and 9, the defendant filed amendments to these pleas, and the plaintiff refiled demurrers to them but did not refile demurrers to pleas 3, 4, and 7. The judgment on the plaintiff's demurrers filed to amended pleas 5, 6, 8, and 9 is a joint judg The replications are: (1) "That defendant received the goods shipped under the contract without having received an acknowl-ment, and no separate ruling seems to have edgment and acceptance of the same in writing, and thereby waived plaintiff's written acceptance." (4) “Answering pleas 8 and 9: (1) That defendant had knowledge of the facts at the time of the execution of the contract, as shown by the contract, that plaintiff's salesman had no authority to make any agreement, verbal or otherwise, except as written in said contract. (2) That plaintiff's salesman had no authority to make any of the alleged false or fraudulent representations to the defendant, to secure their contract for the goods purchased by defendant, and that plaintiff is not bound by same when such was made." Charge 4 was refused to the plaintiff, and is as follows: "I charge you that, if you be lieve to your reasonable satisfaction from the testimony that the defendants received the goods sold them by plaintiff, then defendants waived notice of acceptance of their contract by plaintiff in writing as set out in the contract." John A. Darden, of Goodwater, for appellant. Riddle, Ellis, Riddle & Pruett, of Goodwater, for appellees. PELHAM, J. [1] The appellee, defendant below, filed pleas numbered from 1 to 9, inclusive, to the plaintiff's complaint, claiming on account and special contract in its different courts. The plaintiff filed demurrers to pleas 2, 3, 4, 5, 6, 7, 8, and 9, and the judgment entry set out in the record shows that the court sustained demurrers to pleas 2, 5, 6, 8, and 9, "and overruled as to all other pleas." The judgment entry further shows that the defendant by leave of the court amended pleas 5, 6, 8, and 9 by filing separate paper writing setting out the amendments, and that the plaintiff refiled all demurrers theretofore filed to the original pleas to these pleas as amended, and the demurrers so filed to amended pleas 5, 6, 8, and 9, were overruled, and a judgment of the court is shown to that effect. It will be observed, however, that under the rulings of the Supreme Court the judgment entry does not show a sufficient judgment on the demurrers to pleas 3, 4, and 7 to support the assignments of error based on such rulings. Here been invoked or made, or judgment entered, on the demurrers to these pleas separately, so far as appears, or is shown by the judgment entry. While it is true, as contended by the appellee, that a reversal of the case would not be authorized on the joint judgment on the demurrers to these pleas because all of them are not subject to the demurrers interposed, it is also true that the case was tried to its conclusion on the theory of the issue made by the plaintiff's replication as set out in the record, and this court will consider the case on the same theory. Planters' & Merchants' Independent Packet Co. v. Webb, 156 Ala. 551, 46 South. 977, 16 Ann. Cas. 529; Gainer v. So. Ry. Co., 152 Ala. 186, 44 South. 652; Hardeman v. Williams, 150 Ala. 415, 43 South. 726, 10 L. R. A. (N. S.) 653; R. & D. R. Co. v. Farmer, 97 Ala. 141, 12 South. 86; Avery & Co. v. Turner, 3 Ala. App. 627, 57 South. 255. [3, 4] Treating the case on this theory, the court was in error in refusing charge No. 4 to overrule the plaintiff's motion for a new requested by the plaintiff. It was also error trial on the ground that the verdict for defendants was contrary to the evidence. The evidence without conflict showed that, while the defendants shipped back to the plaintiffs the recapitulator they retained supplies furnished with it under the contract to the value of about $20 and made no payment of any amount aside from the $5 paid to the agent when entering into the contract. One cannot exercise his right of rescission because of misrepresentation and fraud practiced on him, and still retain part of the benefits of the contract and escape liability therefor. He must make restoration of what he has received-put the other party in statu quo. He cannot both assail the contract and retain its fuits. Rabitte v. Ala. Gt. So. Ry. Co., 158 Ala. 431, 47 South. 573; Jones v. Anderson, 82 Ala. 302, 2 South. 911; Walker v. L. & N. R. R. Co., 111 Ala. 233, 20 South. 358; Young v. Arntze, 86 Ala. 116, 5 South. 253; Hoyt v. Turner, 84 Ala. 523, 4 South. 658; Wilcox v. San Jose Co., 113 Ala. 519, 21 South. 376, 59 Am. St. Rep. 135; Wellden v. Witt, 145 Ala. 605, 40 South. 126: Royal v. Goss, 154 Ala. 117, 45 South. 231; Harrison v. Ry. Co., 144 Ala. 246, 40 South. Under the issues and theory upon which |er than banks, gives the shareholders a deducthe case was tried, the verdict for the defendants was not authorized by the evidence, and the plaintiffs' motion to set aside the verdict should have been granted. For the errors pointed out the case must be reversed. Reversed and remanded. TARRANT, Tax Collector, v. BESSEMER NAT. BANK. (Court of Appeals of Alabama. Dec. 17, 1912. Rehearing Denied Jan. 13, 1913.) 1. BANKS AND BANKING (§ 232*)-NATIONAL BANKS NATURE. National banks are agents of the general government to aid in the administration of a branch of the public service, and are constitutionally authorized as a proper exercise of the incidental or implied powers of Congress. [Ed. Note.-For other cases, see Banks and Banking, Dec. Dig. § 232.*] tion from the value of their shares of not only the value of the taxable real estate of the corporation, but also of the value of the taxable personal property thereof, does not render subdivision 8, imposing a tax on shares of banks, including national banks, at their market value, subject only to the deduction of the assessed value of the real estate of the banks, invalid as authorizing discriminations in the taxation of national banks, in violation of Rev. St. U. S. § 5219 (U. S. Comp. St. 1901, p. 3502), authorizing the taxation of national banks, subject to the restriction that the taxation shall not be at a greater rate than is assessed on other moneyed capital of individual citizens, since the business of other corporations does not come in competition with the business of banks, and since there is no substantial differmethod, either to the state, corporations, banks, ence in the result in the application of either or stockholders. [Ed. Note.-For_other cases, see Taxation, Cent. Dig. § 30; Dec. Dig. § 12.*] 6. TAXATION (8 12*) - NATIONAL BANKS — STATUTES-VALIDITY. Code 1907, § 2082, subd. 8, providing that stock of banks shall be assessed at actual market value, subject to a deduction of the assess2. TAXATION (§ 10*)-NATIONAL BANKS-CAP-ed value of the real estate of the banks, though ITAL STOCK-POWER OF STATE. construed so as not to allow a further deduction of the amount invested by banks in exempt bonds of the state, does not discriminate in favor of private individuals owning exempt bonds, and competing with national banks in carrying on a banking business, since the bank itself, owning the bonds, obtains the benefit of the exemption in that its personal property is not taxable. The power of the state to tax the property or stock of a national bank is derived from Rev. St. U. S. § 5219 (U. S. Comp. St. 1901, p. 3502), authorizing the taxation of shares of national banks, provided the taxation shall not be at a greater rate than is assessed on other moneyed capital of individual citizens of the state, which not only furnishes the authority of the states to tax, but also prescribes the limitations on the exercise of the power. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 23-26; Dec. Dig. § 10.*] 3. TAXATION (§ 386*)-NATIONAL BANKSCAPITAL STOCK-POWER of State. Code 1907, § 2082, subd. 8, providing that every share of stock of any bank shall be assessed at its actual market value to the owner, and prohibiting any deductions from the value thereof, except the assessed value of the real estate owned by the bank, does not permit a deduction from the value of the capital stock of the amount invested by the bank in exempt bonds of the state, and the statute so construed is a lawful exercise of the power to tax national banks and the shares thereof, conferred by Rev. St. U. S. § 5219 (U. S. Comp. St. 1901, p. 3502), permitting the taxation of shares of national banks, subject to the restriction that the taxation shall not be at a greater rate than is assessed on other moneyed capital of individual citizens. [Ed. Note. For other cases, see Taxation, Cent. Dig. 8 637-647; Dec. Dig. § 386.*] 4. TAXATION (§ 11*) NATIONAL BANKS STOCK-STATUTORY PROVISIONS. Code 1907, § 2082, subd. 8, providing that shares of national banks shall be assessed for taxation, in the municipality where the bank is located, to the person in whose name the share stands on the books of the bank, and making the bank liable for the tax assessed, does not impose a tax on the banks, and does not conflict with Rev. St. U. S. 8 5219 (U. S. Comp. St. 1901, p. 3502), providing that shares of national banks may be taxed against the see Taxation, [Ed. Note.-For other cases. Cent. Dig. § 30; Dec. Dig. § 12.*] Appeal from City Court of Birmingham; C. C. Nesmith, Judge. Action by the Bessemer National Bank against George B. Tarrant, Tax Collector, to recover taxes paid. From a judgment for plaintiff, defendant appeals. Reversed and remanded. The complaint is as follows: "The plaintiff, the Bessemer National Bank, which is a banking association, organized under the laws of the United States, claims of the defendant, George B. Tarrant, the sum of $260 for that heretofore, to wit, on the 22d day of December, 1910, taxes amounting to $957.78 were assessed by the tax assessor of Jefferson county against plaintiff on the shares of its capital stock for the year 1910, and the assessed value upon said shares was $73,675; that the aggregate amount or sum at which the whole of such shares were assessed was $83,000; that, in arriving at the assessed value of such shares, the sum of $9,325, being the sum at which the real property of the plaintiff was returned for taxation for the year 1910, was deducted from said sum of $83,000, and plaintiff avers that plaintiff returned for taxation, for the said year of 1910, certain real property of the value of $9,325; and that in making a return of this property to the said assessor, to enable him to ascertain the amount at which its shares of stock should be assessed, and on, to wit, the 22d day of December, 1910, the plaintiff against the separate elements which in the "(6) It does not appear from said complaint that plaintiff is assessed with any tax. "(7) The tax assessed is not a tax against plaintiff, but a tax against the shareholders of plaintiff. "(8) It does not appear that plaintiff is in any position to complain of the assessment." R. C. Brickell, Atty. Gen., and T. H. Seay, Asst. Atty. Gen., for appellant. Campbell & Johnston, of Birmingham, for appellee. 1 The THOMAS, J. The complaint follows substantially that in Elmwood Cem. Co. v. Tarrant, 170 Ala. 459, 54 South. 186. It states the facts, and the reporter will set it out, together with the demurrers thereto. overruling of the latter is the only ground of error assigned. They raise, as conceded by both sides in brief, substantially but two questions, only one of which, in the view we take of the case, is necessary to be decided. This involves a construction of our revenue laws. showed and stated to the said assessor that it held $20,000 of the bonds of the state of Alabama, and claimed and insisted that these bonds were not subject to taxation, and that the amount thereof should be deducted from the amount at which said shares should be assessed. And plaintiff avers that, in ascertaining the amount at which said shares should be assessed, there was included by the said assessor the amount of said bonds, to wit, $20,000, held and owned by the plaintiff, and no exemption was made in said assessment of said shares of capital stock for and on account of said bonds, and that the said sum at which the said shares of stock were assessed included the said sum of $20,000 of Alabama state bonds, and that no exemption was allowed in assessing said shares for or on account of the said Alabama state bonds, which aggregated the said sum of $20,000. And plaintiff avers that after the said assessment had been made, as aforesaid, and without the allowance of any exemption for or on account of the said bonds, and on, to wit, the 2d day of February, 1912, plaintiff, under protest and under duress, paid to defendant, who was then and is now tax collector of the said county of Jefferson, in the state of Alabama, the said sum of $1,079, which included $121.22 as taxes on the real estate of plaintiff, assessed as aforesaid, and $957.78 as taxes on the said shares of capital stock of plaintiff; and the defendant re-ed States. The question here considered is fused to allow any exemption on account of said state bonds, and required payment of the whole tax assessed, as aforesaid, by the assessor upon said shares of the capital stock, which said payment of tax was made by the plaintiff under protest and under duress, as aforesaid; and plaintiff then and there gave notice and warning to the said defendant tax collector, as aforesaid, that it would enter suit to recover back the said sum of $260, which was the amount of taxes assessed upon the $20,000 of value, being the amount and value of said bonds, included in the said assessment of said shares by the said asses sor, and for which no exemption had been or was allowed, the same being, at all the several times aforesaid, invested in Alabama state bonds, and held and owned by plaintiff at the time of said assessment, and at the time of said payment; and said amount sued for is not in the hands of said defendant." The demurrers were as follows: "(1) It appears from said complaint that the value of the shares of plaintiff assessed by defendant was properly assessed. "(2) It nowhere appears from said complaint that any tax was assessed against the bonds of the state of Alabama owned by the complainant. "(3) It appears that the tax assessed was a tax against the value of the shares of the complainant company. "(4) The tax assessed against said shares It will be observed that the appellee. plaintiff below, is a banking corporation organized under and chartered by the laws of the Unit whether or not that portion of its capital stock, which is invested in exempt bonds of the state of Alabama, should, in the assessment for taxation of its shares of stock against the respective shareholders under section 2082, subd. 8, of the Code, be deducted from the total value of those shares first, before assessing such shares for taxation, so that the assessment would be on the value of those shares, as reduced by such deduction. The tax assessor and collector declined to permit the reduction, but assessed and collected, under protest from the bank, who, under the statute cited above, is required to pay it for the shareholders, the tax upon the value of the shares, unreduced, as that value was, by any deduction for the value of the said exempt state bonds. Hence this suit by the bank to recover back so much of the tax as they contend should have been taken off on account of the value of such exempt state bonds, held and owned by the bank as such, and not by the shareholders. Said subdivision 8 of said section 2082 of the Code of Alabama, under which the assessment was made and by which it is to be justified, if at all, thus provides: "Every share of any incorporated bank of this state, etc., or of the United States, shall be assessed and collected in the city, town, or village where such bank is located, and such share shall be assessed at its actual market value to the person in whose name such share |