upon the following grounds: (1) The bill does not show that any compensation was paid for the lands. (2) The bill shows that the lands were appropriated without paying any compensation to the owners or instituting any proceedings to condemn the lands. (3) The bill shows the lands were wrongfully and unlawfully entered on and held against the owners. (4) The bill contains no offer to do equity by paying just compensation for the lands. (5) The bill contains no offer to do equity.

Upon the submission of the cause upon these demurrers, the chancellor rendered a decree sustaining them. From this decree the complainant appeals, and assigns the rendition thereof as error.

Burnett, Hood & Murphy, for appellant. Dortch & Martin, for appellees.

HARALSON, J. Article 1, 24, of the state constitution provides, that "private property shall not be taken or applied for public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner: provided, however, that the general assembly may, by law, secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner."

Article 14, § 7, again, on the same subject, provides, that "municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury or destruction."

Agreeably with the provisions of the constitution on the subject, the general assembly long ago enacted legislation for the condemnation of the lands of another by a "corporation organized under the laws of this state, or any person, or association of persons, proposing to take lands, or to acquire an interest, or easement therein, for any uses for which private property may be taken." Code, § 1712 et seq. The corporation, person or persons proposing to take the lands of another for such uses, must become the mover or movers in any condemnation proceeding thus authorized. No provision is made for the owner of the land to initiate any such proceeding; and at law he cannot compel the payment of compensation for his property before it is taken, injured or destroyed. Falling back upon his constitutional rights, however, if his property has been taken, injured or destroyed, without his consent, he may treat the intruder as a trespasser, and bring

an action of trespass or an action of ejectment against him, or enjoin him by bill in equity from such unlawful interference, until just compensation has been ascertained and paid. Jones v. Association, 70 Ala. 227, s. c. 68 Ala. 48; Railroad Co. v. Matthews, 99 Ala. 27, 10 South. 267. Discussing the same principle in another connection, we held that "whenever any person, corporation, or authority, invested with the power of eminent domain, undertakes to exercise such power, by appropriating private property to its own use or benefit, without first complying with the constitution, a court of equity has jurisdiction to enjoin such undertaking, until compensation has been first paid to the owner, his title or interest being admitted or clear, and that, without regard to any questions of irreparable injury." Birmingham Traction Co. v. Birmingham Railway & Electric Co., 119 Ala. 129, 24 South. 368; Id., 119 Ala. 137, 24 South. 502, 43 L. R. A. 233.

.These well-recognized principles are in no sense qualified or shaded by that other doctrine so well settled in this court and in others, that while a railroad company has no right to enter upon and take possession of the lands of another,-without his consent or without having made just compensation therefor in proceedings for the condemnation of the land,-if it does enter and construct its track thereon, and the owner has knowledge that the company is proceeding to locate and construct its road on his land, and allows him to do so, and allows him to expend large sums of money on improvements for such purpose, he will be estopped from ousting the company by ejectment, if the company is willing to then make just compensation such as its taking involved. While this is clear, it works no estoppel against the owner from claiming just compensation. Nothing short of an acquiescence in an adverse, hostile possession of sufficient duration to toll the entry, will bar such a claim. South & N. A. R. Co. v. Alabama G. S. R. Co., 102 Ala. 236, 14 South. 747; Cowan v. Railroad Co., 118 Ala. 554, 23 South. 754; Thornton v. Railroad Co., 84 Ala. 114, 4 South. 197; East & West R. Co. v. East Tennessee, V. & G. R. Co., 75 Ala. 280.

The trespass in this case, as shown, was made in the beginning, by the Rome & Decatur Railroad Company, which entered on the land of respondents some of whom were and are infants, and constructed and operated its road. This company went into the hands of a receiver, who sold the road under orders of court, and the East Tennessee, Virginia & Georgia Railroad Company purchased, went into possession and operated the same, until it, also, went into the hands of a receiver, who sold under orders of court, when the complainant company purchased, went into and has continued since in possession, and is now, as owner, operating the road, carrying freight, passengers, and the United States mails. It is not shown that either of these companies ever paid anything for the right

promise to answer for the debt, default or miscarriage or another, and that neither such agreement nor any note or memorandum thereby [thereof] expressing the consideration is in writing subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing."

It has been settled, and is well understood, in cases like this, that if the goods were sold on the sole credit of defendant, his promise is original and not within the statute; but if any credit was given to the person to whom the goods were delivered, the promise is collateral and within the statute of frauds. Fuller v. Gray (Ala.) 27 South. 458; Webb v. Lumber Co., 101 Ala. 630, 14 South. 407. Whether the obligation of defendant was of the one or the other character, is a question of evidence.

The plaintiff testified, that Hudson desired to purchase some goods from him, and stated that defendant would "stand for them"; that witness saw defendant and informed him of what Hudson had said, and defendant said, "Yes, he would stand for as much as $50 for Hudson;" that thereupon he sold the goods to Hudson; that he refused to sell to Hudson until defendant agreed to stand for him; that he informed defendant that night, of the sale, and told him that Hudson had refused to sign an order on him for the amount, and defendant replied, “All right, he was safe, and would have Hudson to give him a rent note, if he had to pay, to secure him." He further testified, that Hudson was to give an order on defendant in payment for the goods, but that no order was presented to defendant, because Hudson would not sign it, and refused to give it, the day of the sale; that he had previously sold some other goods to Hudson, and included them, also, in this account, and charged all to defendant; that he did look to Hudson some for the payment of the account, and to his wife also, and tried to collect it from Mrs Hudson.

Hudson testified, that the goods bought in January were on a credit of 30 days, and were to be paid for by a 30-day draft.on defendant; that plaintiff had tried two or three times to collect the account from him, and had also drawn on Mrs. Hudson, once or twice, for the amount. He also stated, that in the account sued on were included goods that he had previous to this transaction purchased from plaintiff.

Defendant testified that in the latter part of December, 1896, or first of January, 1897, plaintiff stated that Hudson wanted to give him his (defendant's) 30-day acceptance, and asked him if it would be all right, and defendant said, "Yes, if for not over $50;" that plaintiff left immediately, no draft was ever presented to him, and he never agreed otherwise to pay. He also stated, that he had received from him a letter in April or May saying, that he had been unable to collect the account, and would look to him for it.

There is no conflict in the evidence, that we can discover. Plaintiff, defendant and Hudson testified, that for the goods sold, Hudson was to give a 30-day draft to plaintiff on defendant, and this draft was never drawn by Hudson. Defendant, according to plaintiff's own evidence, did not agree to be otherwise bound for the goods. The plaintiff further testified, and so did defendant, that the latter agreed to stand for Hudson with plaintiff for as much as $50. The words "to stand for," according to common understanding, and especially when taken in connection with the fact, upon which all agree, that Hudson was to give plaintiff a 30-day draft on defendant, which he agreed to accept, meant no more than that defendant would become guarantor or se curity to plaintiff for that amount. Besides, he was to become guarantor in a specified manner, which was not complied with by plaintiff. Under the agreement, plaintiff should not have sold and delivered the goods to Hudson, without the 30-day order on defendant, if he desired him to be responsible according to his promise. We may well understand that there was a consideration moving defendant to promise, in the event the order was given as directed. If it had been given, it would have been written evidence in his hands of the amount when paid, as owing to him by Hudson, and with this, he might the more certainly have procured a rent note from Hudson to secure it, as he expected to do.

The evidence also shows, without conflict, that plaintiff extended some credit to Hudson for the account. He says so, himself, and the other evidence in the case confirms the truth of the statement. If he did, the undertaking of defendant, at best, was merely collateral, and there being no agreement in writing to pay, expressing the consideration, the promise was void.

The general charge requested by defendant should have been given. Reversed and remanded.

(127 Ala 216)

KNOPE v. REEVES. (Supreme Court of Alabama. June 12, 1900.) APPEARANCE-AUTHORITY TO APPEAR-JUDGMENT BY DEFAULT-EQUITABLE RELIEF -INJUNCTION-DISSOLUTION.

1. An agent, who is not a licensed attorney, cannot make an appearance for his principal, whatever may be his authority in respect to other matters.

2. There is no statute or rule of practice requiring the trial court to have a defendant called at the door of the court house before entering judgment by default, and hence a bill to enjoin such judgment for such failure will not lie.

3. Where a defendant's failure to have an ap plication for a continuance presented, or to have an attorney appear to interpose a defense, is directly attributable to the negligence of her husband as her agent, to whom she intrusted such matters, a demurrer to her bill to enjoin the default judgment must be sustained.

4. It is error to deny a motion to dissolve an injunction on the sworn denials contained in the

answer.

Appeal from chancery court, Barbour county; W. L. Parks, Chancellor.

Bill by Lizzie G. Reeves against Emily U. Knope to enjoin a judgment entered by defendant. From a decree in favor of plaintiff, defendant appeals. Reversed.

On the filing of the bill a temporary injunction was issued. The defendant filed a sworn answer denying the material averments of the bill, and moved to dissolve the injunction upon the sworn denials contained in the answer. The defendant also moved to dismiss the bill for the want of equity, and demurred to the bill upon the grounds: (1) That the allegations of said bill show that the failure of complainant to defend said suit at law was attributable to her own negligence; (2) that the allegations of said bill fail to show that the failure of the said complainant to defend said suit at law was attributable to fraud, surprise, or accident, or some act on the part of the respondent; and (3) said bill seeks relief from a judgment by default at law, and shows that, if complainant had any defense to the original suit, such defense was available at law, and shows no excuse for not making same in the lower court. On the submission of the cause upon the demurrers and motion to dismiss the bill for the want of equity, and upon the motion to dissolve the injunction upon the sworn denials of the answer, the chancellor rendered a decree overruling each of said motions. The defendant appeals, and assigns the rendition thereof as

error.

G. L. Comer, for appellant. S. H. Dent, Jr., for appellee.

TYSON, J. This bill was filed for the purpose of enjoining a judgment at law. The facts, as alleged, upon which the equities of the bill are predicated, are these: On the day of the term of the court on which the judgment was rendered, complainant was sick, and had been for some time prior thereto. In consequence of this illness, she was unable to employ counsel to represent her; so she procured her husband, who is not a lawyer, to attend each day's sitting of the court for the purpose of making application for a continuance of the case, having with him a certificate of her physician as to her physical condition. He remained in the court room during the day on which, under the law, the case was to be called, until late in the afternoon. After dark on that day, and while the court was trying another cause, the husband left the court room, and went to a place on the steps leading into the court house, within calling distance of the court room, where he remained until the court adjourned for the day. While there the court called the case, and the judgment sought to be enjoined was taken by de

fault against her. It is averred that this judgment was entered by the court without first having her called from the door of the court room; also that the suit was upon a promissory note given by the complainant for the debt of her husband. It is further alleged in the bill that her husband, prior to the term of court at which the judgment was rendered, had spoken to an attorney in regard to the suit, and had agreed upon the terms upon which he would be employed, in case the suit came to a trial, but did not actually employ him. The principle invoked by the complainant is that, where a party has been deprived in a court of law of presenting a valid defense to an action therein by surprise, accident, mistake, or fraud on the part of the adversary, unmixed with negligence on his part, he will be afforded relief in a court of equity. It is conceded by complainant's counsel that her sickness did not excuse her from attending upon the court and having her defense interposed, or a proper application made for a continuance of the cause. The contention is that she was in court at the proper time, in the person of her agent; that this constituted an appearance; and the failure of the court to have her called at the door before entering the judgment acquits her of all negligence. No appearance as a fact is averred. The presence of her husband in the court room cannot be so construed. He, not being a licensed attorney, was wholly without authority to appear for her, whatever may have been his authority in respect to acting for and representing her in other matters. This she and her husband knew, or were bound to have known. Had he attempted to file a plea for her as agent, or to have represented her in the cause upon an application for a continuance, the court would doubtless, and very properly, have refused to permit the plea to be filed, or to hear the application. Nor would such refusal have involved an impairment of her constitutional right to defend the action either by herself or by counsel. The principle, "Qui facit per alium facit per se," has no application to the right of the complainant to appear for herself in her own defense through an agent who is not a licensed attorney. But, aside from this, her agent was not in the court room when the case was called. There is no statute or rule of practice which requires the trial court to have a defendant called at the door of the court house before entering judgment by default. The court was, therefore, under no duty to have the complainant or her husband called at the door of the court room before rendering the judgment against her. The failure on her part to have her application for a continuance presented, or to have an attorney appear for the purpose of interposing her defense, is directly attributable to the negligence of her husband, to whom she intrusted these matters. The demurrer to the . bill should have been sustained. Owen v.