[Ray v. Jackson.] lapse of three years, during which time she had claimed it as her own, taking no note or receipt for it, and making no demand for it during the succeeding five years of his 1 fe; a charge instructing the jury that, if her father put the money in her possession, "then her mere possession of it does not raise the presumption of ownership," is not erro neous. 2. Charge objectionable as general proposition, but not when applied to particular case; qualifying or explanatory charge.-A charge which states a legal proposition in language too broad to be a correct general principle, but which is correct when applied to the facts of the particular case, can not be considered erroneous, since the other party might ask a qualifying or explanatory charge. 3. Declarations of person in possession. The declarations of a person in possession of property, asserting title or ownership in himself, are competent evidence on the principle of res gesta; but not his declarations as to the source of his title or the manner in which he acquired the property. APPEAL from the Circuit Court of Lauderdale. J. B. MOORE, for appellant. SIMPSON & JONES, contra. STONE, C. J.-This action was brought by the appellantagainst the appellees as administrators, and sought the recovery of $1,250, which, in the original complaint, was alleged to have been loaned to the defendants' intestate. The amendment to the complaint counted on the common counts. The defendants pleaded the general issue, and the statute of limitations of three years; and issue was joined on these pleas. On the trial of the case, there was but one witness examined, and this witness was the husband of the plaintiff. The evidence, as thus brought out, showed that the defendants intestate, who had been twice married, was the father of the plaintiff, she being a child by his first wife; that on the 15th October, 1882, A. E. Jackson, the intestate, came to the house of witness, and the plaintiff, who was sick in bed, directed witness to let said A. E. Jackson have the "money that was in a bag in her trunk," which amounted to $1,250; that witness delivered the money to said A. E. Jackson, who left without giving his note for the same, or giving any receipt therefor; that he never gave any note or receipt for said money; and nothing was said about the repayment of said money, or whether it was to be repaid at all. The witness further testified, "that said money had been in possession of plaintiff three years theretofore, she claiming it as her own." On cross-examination, the witness testified, that the plaintiff "told him that her father, the intestate of defendants, had given her the money [Ray v. Jackson.] with the request that she divide it between her full brothers and sisters." The witness further testified, that said A. E. Jackson lived five years after the money was delivered to him; and that, "so far as he knew, no demand or request had ever been made of said A. E. Jackson during his life-time, for the payment of said money, or any interest thereon;" that during the time the plaintiff had said money in her possession, it was never used by her or witness; and that he, witness, "managed her business for her, and if said money had been used by her, or any demand made upon said A. E. Jackson for the payment of said money, he would probably have known it;" and that he did not know of any effort on the part of plaintiff to distribute said money among her brothers and sisters, nor of any notice being given to them that she had said money. Upon this evidence, the court charged the jury, at the written request. of the defendants: "If the jury believe from the evidence that A. E. Jackson put the $1,250 sued for in the possession of the plaintiff, then the mere possession of the money does not raise the presumption of ownership." While the phraseology of this charge is not very certain, and the terms, as used, assert a proposition too broad to be regarded as a correct general principle; yet, when applied to the facts of this particular case, it can not be considered erro"Although a charge states the law too broadly to be a correct general proposition, yet, if correct as applied to the facts of the particular case, it can not be held erroneous.” Pepper & Co. v. Lee, 53 Ala. 34. It was the privilege of the plaintiff to ask a qualifying or explanatory charge, which she did not do. We have repeatedly held that, when either party can, by an explanatory or qualifying charge, restrict the meaning of a charge asked by the other party to the facts of the particular case, and fails to do so, the giving of the charge asked will not be considered a reversible error. It Upon the examination of the only witness introduced, the defendants, on cross-examination, asked him, "How did your wife, the plaintiff, obtain said money?" to which the witness answered: "Plaintiff told me, that her father gave it to her.” On motion of the defendants, and against the objection and exception of plaintiff, the court excluded this answer. did not appear that this was part of the same conversation which had been called out by defendants in evidence against plaintiff. There was no error in this ruling. This was clearly illegal testimony. It was hearsay evidence, and could not be admitted as res gesti. Declarations as to the source or manner of acquiring title are narrations of past transactions, and are, therefore, inadmissible. "A declaration as to how title [Ex parte Mayor and City Council of Anniston.] was acquired, is not admissible."- Vincent v. State, 74 Ala. 274; Daffron v. Crump, 69 Ala. 77, and cases cited; Rarles v. James, 49 Ala. 183. We discover no error in the record, and the judgment is, accordingly, affirmed. Ex parte Mayor and City Council of Certiorari to Probate Judge, in matter of Discharge on 1. Municipal corporation; power to enact ordinances against offenses punishable under general statutes.-A general grant of power to a municipal corporation "to provide for the punishment by fine or imprisonment for the commission of any offense punishable by the laws of the State," in its application to any particular offense or subjectmatter as to which there is a special grant of power, is limited and controlled by that special power, and does not extend its scope or operation. 2. Same; licensing and prohibiting retailing of spirituous liquors. Power to "license, tax and regulate retailers," given by charter to a municipal corporation, does not confer the power to prohibit the sale of spirituous liquors; and no ordinance having been passed regulating the granting of licenses, an ordinance which prohibits a sale without a license, under penalty of fine and imprisonment, is prohibitory in its nature, and therefore void. 3. Retailing liquors in Anniston.-The local statute of December 7, 1886, providing for an election in Calhoun county to ascertain the wishes of the people as to prohibiting the sale of spirituous liquors in the county, having become operative by the result of the election held under it in favor of prohibition, and the due publication thereof as required by its terms, the sale of liquors in said county is now prohibited by law; and the statute is of force within the corporate limits of Anniston, no ordinance having been there enacted, under the power granted by the subsequent charter, to regulate the grant of licenses to retailers; but, in the absence of such an ordinance, the municipal corporation can not punish for the sale of liquors without a license, although it is an offense under the general statutes. Application by petition in the name of the Mayor and City Council of Anniston, for a writ of certiorari, or other proper remedial writ, directed to Hon. EMMETT F. CROOK, the probate judge of Calhoun county, to procure a review by this court of certain proceedings had before him on habeas corpus at the instance of Mrs. L. Untreiner, which resulted in an order for her discharge from the custody of the town marshal of Anniston, under a charge for the violation of a municipal ordinance [Ex parte Mayor and City Council of Anniston.] against retailing spirituous liquors without a license. Mrs. Untreiner was arrested on the 12th February, 1890, charged with the violation of an ordinance which was enacted on the 14th June, 1889, and which is set out in the opinion of the court. On the hearing before Judge Crook, he held the ordinance null and void, and therefore discharged Mrs. Untreiner; and this application seeks to review his ruling. The statutory provisions involved are stated in the opinion of the court. AGEE & MICOU, for the petitioners. GORDON MACDONALD, contra. CLOPTON, J.—The ordinance, for the violation of which Mrs. Untreiner was arrested under a warrant issued by the Recorder of the city of Anniston, was passed June 14, 1889, and reads as follows: "Be it ordained by the Mayor and City Council of Anniston, That any person who, without license as a retailer, sells spirituous, vinous or malt liquors within the police jurisdiction of the city of Anniston, in any quantity less than a quart, or in any quantity if the same or any portion thereof is drunk on or about the premises, must on conviction be fined one hundred dollars, or be imprisoned not less than one, nor more than six months." It is contended, that the purpose of the ordinance is to punish the offense of retailing without a license, and power to pass it is claimed under a provision of the seventh section of the act of February 23, 1889, incorporating the city of Anniston, which confers on the Mayor and City Council general power "to provide for the punishment by fine or imprisonment for the commission of any offense punishable by the laws of the State of Alabama." Another provision of the same section confers special power "to license, tax and regulate auctioneers, grocers, merchants, retailers, and all other privileges."-Acts 1888-9, p. 601. The general power is limited and qualified by the special provision specifying the particular purposes for which an ordinance may be passed. In 1 Dillon on Mun. Corp. $316, the rule is stated as follows: "When there are both special and general provisions, the power to pass by-laws under the special or express grant can only be exercised in the cases and to the extent, as respects those matters, allowed by the charter, or incorporating act; and the power to pass by-laws under the general clause does not enlarge or annul the power conferred by the special provisions in relation to their various subject-matters, but gives authority to pass by-laws, reasonable in their character, upon all other matters within the scope of 90 518 96 261 [Wilson, Ingram & Martin v. Klein.] their municipal authority and not repugnant to the constitution and general laws of the State." On this principle, the authority to pass ordinances in respect to the subject-matter of retailing is derivable only from the special provision conferring power to license, tax and regulate retailers. The municipal authorities had not at the time of the passage of the ordinance, nor have they since, provided any legal mode by which a retailer can obtain a license. And in Olmstead v. Crook, 89 Ala. 228, we decided that the act of December 7, 1886, prohibiting the sale of spirituous, vinous or malt liquors in Calhoun county, took effect before the alleged violation of the ordinance, and arrest of Mrs. Untreiner, and is in force in the city of Anniston, no ordinance in respect to such matter having been passed by the municipal authorities, under the special power granted by the incorporating act. No mode having been provided by which she could have obtained a license to retail, the ordinance is prohibitory in its nature. Power conferred on a municipal corporation to grant licenses to retailers, and to regulate them, does not confer power to prohibit the sale of spirituous liquors.-Miller v. Jones, 85 Ala. 87. In reference to the charter of the city of Anniston, it is said in Ex parte Reynolds, 87 Ala. 138, "It confers the power to license, tax and regulate grocers, merchants, retailers,' &c. but it confers no power to prohibit the sale of liquors." The ordinance, being prohibitory, is invalid for want of power in the municipal authorities. Mrs. Untreiner was illegally restrained of her liberty, and was properly discharged on habeas corpus by the judge of probate.-Ex parte Burnett, 30 Ala. 461. Certiorari denied. Wilson, Ingram & Martin v. Klein. 1. Relevancy of evidence showing effort to perform.-Where plaintiffs sue to recover commissions agreed to be paid by defendant for effecting the sale of a lot for him, alleging that they procured a reliable purchaser, and that defendant refused to complete the sale, while the defendant insists that the sale was to be dependent on his prior purchase of another lot, which he failed to effect; if the defendant is not required to show reasonable effort on his part to consummate that purchase, evidence of such reasonable effort is certainly relevant and admissible, as tend'ng to show good faith on his part. |