sum of the June, 1903, assessment. It ap-ed by this contest. Under the evidence adpears that there was an error in the books duced on the trial, this statement, taken of the local agent's (a section secretary) of- from Supreme Lodge Krights of Honor v. fice whereby "H" was substituted for "M" in Davis, 26 Colo. 252, 261, 58 Pac. 595, 598, is the middle initial of Connelly's name. The apt: "Whether or not the July, 1890, asdefendant (appellant) controverted in the evi- sessments were, in fact, tendered to the dence the two major facts involved in the as- financial reporter, or to an employé, or his sertion of the avoidance of the forfeiture and daughter, who had been in the habit of coldenied the authority of the clerk or assistant lecting them, is immaterial, because, if the of its local agent to bind the order by the method of collecting assessments by the emdeclaration stated and by the refusal to ac- ployé or daughter was generally adopted by cept the sum tendered, if so, in payment of the reporter, a tender to those whom he the June, 1903, assessment. The section recognized as authorized to receive them secretary of the order was J. H. Heineke. would have the same effect as if tendered to The clerk or assistant was Mrs. Heineke, his him personally." wife.

[1] With reference to the question of Mrs. Heineke's authority in the premises, our conclusion is that the court was correct in submitting that inquiry to the jury for decision on the facts and circumstances shown in the evidence.

[2] It was ruled by this court in Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 189, 16 South. 46, that the powers usually (there enumerated) conferred on agents representing insurance companies are not of such personal nature, evincing personal trust and confidence only, as to invoke the maxim, "Dele gatus, non potest delegare.' On brief for appellee, a number of supporting citations are collated in addition to those set down in our mentioned decision.

There is evidence tending to show continued service of Mrs. Heineke in the office of her husband; her access to and control over the books containing the names of the insured in that jurisdiction; her receipt of, and receipting for in the name of the agent, assessments payable at that office, including those due before June, 1903, from Connelly; her declaration, after consulting the books kept in the office, that this John M. Connelly was not among those insured in that jurisdiction; and her refusal to receive the requisite sum tendered for John M. Connelly to satisfy John M. Connelly's June, 1903, assessment. Mr. Heineke testified, among other things, that Mrs. Heineke's only authority with reference to the business of the Knights of Pythias "was to receive from members money on the dues and give a receipt." (Italics supplied.) By reference to the books of the agent's office, she ascertained, and accordingly acted, that John M. Connelly was not among those insured. It was not possible, of course, for her to exercise this authority without in some way determining who were members; and in this instance she pronounced against John M. Connelly's membership as a result of her consultation of the record kept in the agent's office, whereat the assessments of John M. Connelly were payable and had long been tendered and received. Since the authority vel non, and the extent thereof, of Mrs. Heineke rested in parol, it was the duty of the court to submit these inquiries for the jury's determination.

United States Co. v.

[3] A by-law in force and effect during 1903, which was an element of the contract under the stipulations thereof, provided: "No person shall be agent of the endowment rank for the collection of assessments, or authorized to receive any money on account there of, until he shall have executed and delivered a bond as required by this section, and the same shall have been approved and accepted by the board of control." It is manifest, we think, that this by-law was only intended, and in fact effected, to safeguard the interest of the order in respect of assuring the accounting for and payment of the assessments. There is nothing in the by-law precluding the reliance by an insured upon the every indicia, as shown by phases of this evidence, of qualification of those in the local office at Birmingham to collect assessments against those who had policies in the order. Nor is there anything in the by-law restricting an agent like J. H. Heineke, who had qualified as the by-law requires to receive or collect assessments from persons due to pay them, to commit the exercise of his functions in that regard to a clerk or assistant of the character the evidence, in some of its phases, tended to show Mrs. Heineke was. No difIf the jury were reasonably satisfied from ference in construction of the by-law would the evidence of Mrs. Heineke's authority in or could result from the fact, which we as the premises, and also reasonably satisfied sume, that this insured knew of every pro- that the tender of the June assessment was vision in the quoted by-law. It is, of course, refused because John M. Connelly was not the terms alone of the by-law that affect the a member and was not among those insured

Lesser, 126 Ala. 568, 28 South. 646, among

others.

[4] It is urged for appellant that, even if the June, 1903, tender was made and re fused by Mrs. Heineke as, when and on the ground the evidence tends to show, it was incumbent upon John M. Connelly to subsequently continue the tender of the monthly assessment, and failing that, as was the case here, the forfeiture asserted was effected.

on John M. Connelly to make tenders of sub- [ therein, were properly received in evidence sequent assessments. 29 Cyc. p. 178, and on the issues stated. The questions of her notes; Supreme Lodge, etc., v. Davis, 26 agency, its authority and extent, were jury Colo. 252, 58 Pac. 595. The ground of the matters under the legal principles and issues refusal was such as to render entirely vain properly made by the pleading. There were any further tender. The insurer should have tendencies in the evidence which forbade the discovered the error and notified the insured giving of the affirmative charge on any of in order to oblige him to make payments of the issues thus made. What we have exassessments subsequent to the refusal of the pressed as the applicable substantive law conJune, 1913, tender. The placing of the re- firms the correctness of the court's action in fusal of the June assessment upon the refusing, to defendant, the special charges ground stated was a waiver of all other upon which assignments of error 63 to 66 grounds possible (if so) of assertion by the in- are predicated. sured. Dist. Grand Lodge v. Hill, 3 Ala. App. 483, 57 South. 147.

other ground of the motion is that one of the jurors was so intimately socially related to the succeeding (the beneficiary named in the policy died pending the suit)) beneficiary under the policy as to disqualify him to render an impartial verdict in the cause. The facts on which this insistence was rested were the subject of contest. We do not think the trial court incorrectly concluded from the evidence submitted that the asserted disqual

Only two grounds of the motion for new trial are insisted upon in brief. On the evi[5] It is also urged for appellant that dis- dence shown by the bill, it cannot be affirmed tinct imperative provisions of the contract that the trial court erred in its conclusion of insurance required the seasonable fur- that the preponderance of the evidence nishing of proof of John M. Connelly's death; | against the verdict was such as, under the and that there was a failure of compliance doctrine of Cobb v. Malone, 92 Ala. 630, 9 with this condition precedent by beneficiary | South. 738, would justify its annulment. The of the policy. The order having, as might have been found by the jury from phases of the evidence, repudiated the contract and denied, on the ground stated, obligation of any kind thereunder, the requirement for proof of death was not obligatory on the beneficiary under the policy. Supreme Lodge, etc., v. Davis, supra; Insurance Co. v. Smith, 3 Colo. 422; Insurance Co. v. Gracey, 15 Colo. 70, 24 Pac. 577, 22 Am. St. Rep. 376. The appellant assigns on the record 73 er-ifying relation was not established. rors. Many of these are not insisted upon in the brief; counsel being often content with the mere assertion that the court was in error in the action referred to. The trial ANDERSON, C. J., and SOMERVILLE court took proper account of the rules of law and DE GRAFFENRIED, JJ., concur. we have stated, particularly in respect of the rulings made on objections to units of pleading interposed by the respective litigants. We find no prejudicial error in any ruling touching the pleadings. There are 28 assignments that touch this phase of the trial. The general, applicable principles announced must suffice for a response to the argument on the substantive law argued by the respective counsel. It would be wholly impracticable to render a detailed treatment of each assignment in this category. Each has been examined, and no prejudicial error appears.

The judgment is affirmed.
Affirmed.

(185 Ala. 384) STATE ex rel. DRAGO et al. v. SMITH, State Auditor.

(Supreme Court of Alabama. Jan. 15, 1914.) 1. SHERIFFS AND CONSTABLES (§ 68*)-FEES IN CRIMINAL CASES-LIABILITY OF STATE. Though fees of a sheriff for subpoenaing witnesses before the grand jury, in cases in which no indictment is found, cannot be taxed against any one, and the county is not liable therefor, the state is not made liable therefor by Code 1907, § 6646, providing that fees for services in a criminal case must be taxed against defendant on conviction or may be taxed against the prosecutor, under section 7302; and if an execution is returned no property found, or if the costs are not otherwise taxed, such costs must be paid by the state, except when payable by the county; this not making provisions of law make payable by it absothe state liable for fees, except such as other

Thirty-two assignments complain of rulings on the admission or rejection of evidence. Those urged in brief have been carefully considered. No error appears to have been committed by the trial court in dealing with this feature of the contest. Further-lutely. more, it seems that objections, by defendant, to answers to questions propounded to the witness Eidge, who was examined by deposition, were not seasonably interposed. R. & D. R. R. Co. v. Greenwood, 99 Ala. 501, 14 South. 495, among others.

All the circumstances reasonably calculated to disclose Mrs. Heineke's authority in the premises, including her association with the office of the agent and her recognized acts

[Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. § 89; Dec. Dig. § 68.*] 2. SHERIFFS AND CONSTABLES (§ 57*)—FEES FOR TAKING BONDS-STATUTES.

act establishing the inferior criminal court of Under Acts 1898, p. 1168, § 14, part of the Mobile, providing that the judge thereof shall address all processes to the sheriff of Mobile county, who shall by himself or deputy execute the same, and that the sheriff shall receive no fees, but as compensation for the services required of him, and for furnishing a bailiff for

[Ed. Note. For other cases, see Sheriffs and Constables, Cent. Dig. § 81; Dec. Dig. § 57.*] Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Petition by John S. Drago, in the name of the State, for mandamus against C. Brooks Smith, State Auditor, to require him to issue his warrant, in favor of petitioner, for certain sheriff's fees. From a judgment denying the writ, petitioner appeals. Af firmed.

The accounts, one for $440, for services for serving subpoenas on 880 witnesses to appear before the grand jury of Mobile county, and one for $3,900, for returning to the inferior criminal court of Mobile, county of Mobile, state of Alabama, 3,900 bonds given to release from arrest persons in criminal cases, were itemized and verified and attached to the petition, and it is alleged that they were duly itemized and verified, as therein shown, when they were presented to and refused by the Auditor.

William H. & J. R. Thomas, of Montgomery, and Pillans, Hanaw & Pillans, of Mobile, for appellant. R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for appellee.

ANDERSON, J. [1] Section 6638 of the Code of 1907, in fixing the sheriff's fees in criminal cases, among other things provides: "For serving each subpoena or notice fifty cents." Section 6646 provides: "The fees

for services rendered in each criminal case must be taxed against the defendant on conviction, or may be taxed against the prose cutor, under the provisions of section 7302;

*

and if an execution is returned 'no property
found,' or if the costs are not otherwise tax-
ed, such costs must be paid by the state,
except when
payable by the coun-
ty." The appellant's insistance is that as
the fee of the sheriff for subpoenaing wit-
nesses before the grand jury, in cases in
which no indictment is found, cannot be tax-
ed against the defendant, or the prosecutor,
or otherwise taxed, and as the county is not
liable for same, said fees should be paid by
the state, under the terms of the above-quot-
ed part of section 6646 of the Code. This
identical part of said section was considered

and construed in the case of State ex rel. v.

Brewer, 59 Ala. 130, wherein the court said, speaking through Brickell, C. J.: "The next and concluding member of the clause is: 'And if an execution against either of them is returned "no property found," or if the costs are not taxed against either of them, such costs must be paid by the state, except when they are payable by the county.' It may be if these words stood alone they are

broad enough to charge the state with the payment of all costs, not payable by the county, or not taxed against and paid by a defendant, or by the prosecutor, or the foreman of the grand jury. The juster construction seems to us is to refer them to such costs as by other provisions of law are made payable by the state absolutely, and cannot be taxed against the defendant on conviction, or to such costs as may be taxed against the prosecutor or foreman of the grand jury, in the event of an acquittal, and which, if convicted, the defendant would be required to pay, and, if he was insolvent, the state would be liable to pay, excepting such costs as the county is liable to pay."

It is manifest that this statute, as thus construed, does not fix an absolute liability upon the state to pay the items in question, and it has been brought forward into several Codes, without material change, except as to the omission of the foreman of the grand jury as it now appears in the present Code. The trial court did not err in sustaining the demurrer to this feature of the appellant's petition.

[2] The local act of Mobile county establishing the inferior court (Acts 1898, p. 1164), by section 14 provides: "That the said judge of said inferior criminal court shall address all processes of whatever nature or kind to the sheriff of Mobile county, who shall either himself or by deputy execute the same. When required by the said judge, the sheriff shall furnish a bailiff for the said inferior criminal court. The sheriff shall receive no fees, but as compensation for the services required of him, and for furnishing the bailiff, he shall receive $1,800 per annum, to be paid monthly out of the county act evinces a legislative intent to exclude treasury." We are of the opinion that this the right of the sheriff to charge a fee for taking bonds from defendants under warferior court. The taking of a bond pertains rants issued out of or returnable to the into and is incident to the execution of process of said court, and the act excludes all idea of any fee for the service to be rendered by the execution and return of the process of the sheriff or his bailiff in connection with said court by giving him $1,800 per year as in connection with said court. This act has compensation for services to be performed been several times amended, but not as to entitled to these fees, he was not entitled to said section 14. Moreover, if the sheriff was collect them from the state for the reason

pointed out in discussing the first question.

the demurrer to this feature of the petition. The trial court did not err in sustaining The judgment of the circuit court is af

firmed.

Affirmed.

MCCLELLAN, SAYRE, and SOMERVILLE, JJ., concur.

The demurrers to plea 6a were as follows: "For that the probate court of said county is not the only court having jurisdiction of the same; for that the said administration may have been by bill filed in the chancery [Ed. Note. For other cases, see Pleading, court pending therein; said plea does not Cent. Dig. 88 1129-1146; Dec. Dig. § 360.*] show that the administration of said es6. PLEADING (§ 364*)-MOTIONS TO STRIKE-tate is not removed or attempted to be reALLOWANCE.

of his estate April 3, 1906. The judgment be- | pellants here) filed papers stating the nalow was in favor of the defendant. Apart ture, amount, etc., of the claim now sued on, from other questions argued for appellants, and also filed papers intending the joinder of the result on this appeal is determinable appellants in the petition of Magnus & Co. upon the considerations to be stated.

for a receiver in said cause, which papers fully described the said claim now sued on, and from this premise, in the first special replication, averred "that said account was presented to the said administrator, or filed in court as required by law, all of which was duly known to the said administrator, or the said administrator was charged with

[1] In response to every count of the amended complaint, the defendant interposed plea 6a. It will be set out in the report of the appeal. This plea was a partial assertion of the plaintiffs' failure to present, within 12 months, the claim against intestate's estate under the general requirement to that end prescribed in Code, § 2590. The chief asser-notice thereof," and from the like premise, tion of the plea is that the claim or a statement thereof was not filed in the probate office as Code, § 2593, allows to avert the bar provided in Code, § 2590. While the plea is not immaterial on its face, it is manifestly defective as a plea of nonclaim under the statutes noted above, for that its averments do not exclude personal presentation thereof to the administrator as decisions here have as considered effectual. But, as will later appear, there was no ground of demurrer taking this objection to the plea (6a).

and

and in reiteration of the averments appearing in the first special replication, in the second special replication, averred that there was much litigation in the cause, that the administrator appeared therein, as did the plaintiffs (appellants here), that appellants filed the said petition to join in the application for a receiver, "and that subsequently, and while said cause was pending therein, these plaintiffs further appeared in said court, and on, to wit, November 15, 1906, filled their petition and claim therein in man[2] The plaintiffs made a motion, which is ner and form required by law, set out alone in the record proper, to strike that thereby their said claim was duly preplea 6a on the ground that "the same matter sented to the said estate, and filed in manner has already been set up by pleas 3, 4, and and form as required by law." As exhibits 5a of defendant." It appears from the judg- to these replications, authenicated copies of ment entry alone that the motion was over- the papers, etc., referred to in them were ruled. The motion and ruling thereon not being shown in the bill of exceptions, the mat- tion these exhibits were stricken from the On defendant's (appellee) verbal moter is not reviewable on appeal. Lynn v. Bean, 141 Ala. 236, 244, 37 South. 515, and quired to be in writing, though in such cirpleading. Motions are not imperatively recases therein cited. See, also, Davis v. Lcumstances as here appear it is better that & N. R. R. Co., 108 Ala. 660, 18 South. 687. [3, 4] The demurrer to plea 6a consisted of four grounds. It is difficult to understand the theory the demurrant intended to point out in these grounds, unless it was that claims against estates of decedents might be presented in the chancery court as well as in probate court, since, for purposes of administration of estates, their jurisdictions

are concurrent. The statute (Code, § 2593)

contemplates, as an alternative, presentation by following a certain process "in the probate office." No provision for presentation to the "probate court" is made, and none for presentation to the chancery court, in the sense the demurrant seems to have had in mind. No ground of the demurrer took the point before indicated. Our statute (Code, § 5340) requires specification in respect of objections to pleadings. None of the grounds assigned were at all apt. The court did not err in overruling them.

[5] To plea 6a plaintiffs filed special replications 1 and 2. No general replication to plea 6a appears in the record. The substance of these special replications was that, in certain litigation (which will be found fully stated in Rensford v. Magnus, 150 Ala. 288, 43 South. 853, and in Weller v. Rensford, 164 Ala. 312, 51 South. 344) instituted by Magnus & Co. against Harry Rensford,

filed.

they be reduced to writing. Whether they should be written is a matter within the discretion of the trial court. Motions of the character here presented are not pleadings. Commissioners' Court of Chilton County v. State ex rel. Ry. Co., 146 Ala. 439, 442, 41

South. 463.

[6] The matter contained in these exhibits,

covering four pages of this transcript, was surplusage. The averments of the replicaters of fact relied on to show presentation tions drew no strength from them. The matwere as amply averred without as with the contents of the exhibits. There was no error in sustaining the motion to strike. Code,

5322.

The law of this state with respect to the proper presentation of claims against the estates of decedents has been too often stated to require extended repetition at this time. The annotated statutes and digests of decisions render it completely accessible.

[7] It is clear from the replications that no reliance was placed upon a filing in the probate office of the claim sued on. The only other means of presentation left to be availed of is that comprehended in the term,