two minds come together, and agree on the terms of a contract, and a mistake is made, not in the terms agreed, but in their expression, or the memorial made and kept to furnish evidence of them, chancery, as a rule, will reform the memorial or evidence so as to make it express their real agreement. This is the general rule, and the averments in the present bill bring it clearly within the rule. Alexander v. Caldwell, 55 Ala. 517; Dozier v. Mitchell, 65 Ala. 511; Berry v. Sowell, 72 Ala. 14; Berry v. Webb, 77 Ala. 507; 1 Story, Eq. Jur. § 165; 2 Pom Eq. Jur. §§ 852 et seq., 866; Graham v. Berryman, 19 N. J. Eq. 29; Conover v. Wardell, 22 N. J. Eq. 492; Rowley v. Flannelly, 30 N. J. Eq. 612. And, having acquired jurisdiction to reform the writings, it will retain it, and grant full relief. Reese v. Kirk, 29 Ala. 406. The decree of the chancellor is affirmed.

FARMER V. FARMER.

(Supreme Court of Alabama. January 31, 1889.)

1. DEPOSITIONS-NOTICE OF WITNESSES' RESIDENCES-OBJECTIONS WAIVED. By Rule 62, Chancery Practice Ala., when a party files interrogatories, he must give the names and places of residence of the witnesses, or make affidavit that the same are unknown, otherwise no proceedings in the interrogatories shall be had except by consent. Held, that objection to the omission to give notice of residence is waived where no objection is noted and as to one of the witnesses consent is given that a commission issue at once, and the question is first raised by motion to suppress the depositions.

2. DIVORCE-DANGER OF VIOLENCE TO WIFE.

Evidence of conduct by the husband generating a reasonable apprehension of violence to the wife's person, attended with danger to life or health, makes a prima facie case for divorce, Code Ala. § 2324, permitting a divorce when the husband has committed actual violence on her person, attended with danger to life or health, or when from his conduct there is reasonable apprehension of such violence. 3. SAME EVIDENCE OF ADULTERY.

In a suit by a wife for divorce, a recriminatory charge of adultery is not estab lished by the husband's testimony to the contents of an alleged intercepted letter, which, he testifies, was purloined from him by the wife, and destroyed, where a witness, to whom he showed the letter, denies the alleged incriminating statements. 4. SAME-CONDONATION.

Adultery is condoned where no separation occurs for three months after knowledge of it.

Appeal from city court of Birmingham; II. A. SHARPE, Judge.

Bill by Regina Farmer against John Farmer for divorce for cruelty and habitual drunkenness. Decree for plaintiff on the former ground, and defendant appeals. By Code Ala. 1886, § 2524, the court of chancery has power to grant a divorce from the bonds of matrimony "in favor of the wife, when the husband has committed actual violence on her person, attended with danger to life or health, or when, from his conduct, there is reasonable apprehension of such violence."

Tolliaferro & Smithson, for appellant. S. D. Weakley, for appellee.

STONE, C. J. Rule (2 of chancery practice is the same in each of the Codes of 1876 and 1886. It requires that in chancery cases, “when a party files interrogatories to examine a witness or witnesses, he shall give the name or names of the witnesses, and place or places of their residence, or make affidavit that the same is unknown; and on failure to do so, no commission shall issue, nor proceedings be had on said interrogatories, except by consent of the opposite party, or his solicitor." Complainant filed separate interrogatories to five witnesses, but gave no notice of the residence of either. Nor did she make affidavit that the same was unknown. Defendant's solicitors accepted service of the interrogatories, and waived copy of same. To two of the wit

nesses he filed cross-interrogatories, and as to none of them did he note any objection on account of the failure to notify him of the residences of the witnesses, or on any other ground. As to one of the three the consent was that commission might issue at once. A motion was made, after the depositions had been taken, to suppress them, because there had been no notice of the residences of the witnesses. This motion was overruled, and this ruling is assigned as error.

We consider it unnecessary to announce any ruling as to the depositions of the witnesses Seguin and Le Grau. As to the other three, Abou, Coyne, and Cunningham, there was a waiver of the omission. Aicardi v. Strang, 38 Ala. 326. These witnesses clearly prove conduct of the husband, generating a reasonable apprehension of violence to the wife's person, attended with danger to life or health. Code 1876, § 2687; Code 1886, § 2324. This testimony makes a prima facie case for divorce. The defense is a recriminatory charge of adultery, committed by the wife. The sole testimony tending to prove this charge is that of the husband, and the most damaging part of his testimony is an alleged intercepted letter from her to another. That letter, he testifies, was purloined from him by his wife, and was destroyed. He testifies to its alleged contents. His testimony, however, is very much weakened by that of Cunningham, to whom he showed the letter. The latter, in his attempt to give the contents, denies all those expressions, which, if proved, would very seriously complicate the complainant. We cannot find, on this state of the proof, that the defendant has made good his charge of adultery against his wife. But if the charge had been sustained by proof, it is shown that he knew of this letter and its contents as early as June, 1887. The final rupture occurred September 19th, afterwards. The proof falls very far short of establishing adultery between those dates, while, if it existed, it is satisfactorily established that it was condoned by him. 5 Amer. & Eng. Cyclop. Law, 821. Affirmed.

LOWE v. STATE.

(Supreme Court of Alabama. January 31, 1889.)

1. CRIMINAL LAW-EVIDENCE ON FORMER TRIAL-ABSENT WITNESS.

In a criminal prosecution, testimony given on a former prosecution for substantially the same offense, by a witness who has since gone to another state for an indefinite period, is admissible, especially as under Code Ala. 1886, § 4465, defendant could have the witness' deposition taken.

2. SAME-GAMING-JURISDICTION OF RECORDER-SAME OFFENSE.

The recorder of the city of Montgomery having jurisdiction of violations of the ordinances, and also the authority of a justice of the peace in criminal matters, (Acts Ala. 1880-81, p. 496, § 2,) and it being a violation of both the ordinances and the state law to keep a gaming table, the recorder, on a prosecution under the ordinances for keeping a gaming table, may be considered as a committing magistrate, with power to hold defendant to answer in the state courts, and, having done so, testimony given before him may be regarded in the state court as having been given in a prosecution for substantially, if not identically, the same offense. 3. GAMING-EVIDENCE-COMPETENCY.

In a prosecution for keeping a gaming table, a statement made to the police officer by one who was arrested with defendant for participating in the game, that each of the players paid defendant a stated sum for the privilege of playing in defendant's house, such statement being made in an ordinary tone, and near enough to defendant to have been heard by him, is admissible.

Appeal from circuit court, Montgomery county; THOMAS M. ARRINGTON, Judge.

Defendant and 10 or 12 others were arrested at his house by police officers, who found them engaged in playing "craps." One of the officers testified, over objection, that, while the prisoners were being carried to the guard-house,

walking in couples, one of them, Frank Lake, stated that each of the players paid defendant 25 cents for the privilege of playing at the game in his house; that this remark was made in an ordinary tone; that defendant could not have been more than five or six feet in the rear at the time; and that he made no reply. Afterwards defendant, testifying in his own behalf, stated that he did not hear the remark of Lake, and denied that the players paid him anything for the use of his room; and he moved to exclude the testimony. The day after his arrest defendant was charged in the recorder's court of the city of Montgomery with a violation of section 600 of the City Code, (which declares a fine of not more than $100 against any person "who keeps a gaming saloon, or house for gaming, or who keeps or has in his possession any table, cloth, box, or other device used for the purpose of gaming,") and was found guilty, and fined. The recorder, acting ex officio as justice of the peace, also bound him over to answer any indictment that might be preferred against him "for the offense of keeping a gaming table." Defendant appeals.

J. G. Winter, for appellant. T. N. McClellan, Atty. Gen., for the State.

SOMERVILLE, J. The defendant is charged with the offense of keeping or exhibiting a gaming table for gaming, contrary to the provisions of the statute. It was proposed by the state to introduce secondary evidence of what had been sworn to by one Jake Munter, an absent witness, who had testified in a former prosecution pending against the defendant, before the recorder of the city of Montgomery, for violation of a municipal ordinance prohibiting the keeping of a gaming saloon, or house for gaming, or table, or other device used for gaming. The evidence, in our opinion, clearly proves that Munter. the absent witness, had gone, about two weeks previously, to the state of Kansas, or to Washington territory, being thus out of the state of Alabama at the time of the trial, and beyond the jurisdiction and process of the state courts. We are satisfied, further, that his absence was for an indefinite period, if it was not presumptively permanent.

The recorder, being clothed by statute with not only jurisdiction of violations of the city ordinances, but also with “"all the powers and authority that belong to justices of the peace in criminal matters, by the laws of this state," he was invested with the full jurisdiction of a justice as a committing magistrate. Acts 1880-81, p. 496, § 2. The act of keeping a gaming table being a violation of both the municipal and state law, the recorder may be regarded, not only as sitting as judge of the municipal court, and investigating the alleged violation of the city ordinance, but also, incidentally, as a committing magistrate, with power to bind the defendant over to answer for the same offense in the state courts. The procedure, therefore, before the recorder's court, and the present prosecution, are for substantially, if not identically, the same offense, and, if there be no other valid objection to the testimony of Munter than the fact of its rendition before the recorder, we must hold it admissible. Harris v. State, 73 Ala. 495. Whart. Crim. Ev. (8th Ed.) § 227. The main objection urged to the admissibility of this witness' testimony is that, this being a criminal prosecution, the defendant generally has the right to be confronted by the witnesses, and secondary evidence of what an absent witness swore to on a former prosecution is not admissible, unless it is clearly proved that he had permanently removed from the state. Where the witness is deceased, the authorities hold, in uniform accord, that his testimony upon a second trial is admissible.

In Horton v. State, 53 Ala. 488, such testimony, taken before a committing magistrate, was admitted on trial of the same cause in the circuit court, the witness being satisfactorily proved to be dead; following a like ruling in Davis v. State, 17 Ala. 354. The basis of the rule is the necessity of the case, to prevent the defeat of justice; the constitutional objection being obviated by the fact that the defendant has already had the opportunity to con

front and cross-examine the witness in the prior procedure involving the same issue. Marler's Case, 67 Ala. 55; Summons v. State, 5 Ohio St. 324. In Marler v. State, 67 Ala. 55, on a trial for a felony, the testimony given on the former trial, by a witness who had since become insane, was allowed to be introduced in evidence; the necessity and reason of the case being regarded the same as if he were dead. The authorities are fully reviewed in that decision, and the true reason upon which they are based, stated to be the necessity of preventing the miscarriage of justice, applies with equal force to a witness who is shown to be absent from the state for an indefinite time, so that he cannot be reached by the process of the court at the time of the trial. We can see no difference between the two cases in principle, nor in the reasons alleged, why the rule should not be applied as well to criminal as to civil cases. It is possible, it is true, that the absent witness may return at some day in the future, just as it is possible that an insane man may be restored to his reason, but the courts cannot be expected to delay the administration of justice waiting for the happening of so indefinite a contingency. Mr. Greenleaf says that such testimony may be received “if the witness, though not dead, is out of the jurisdiction, or cannot be found after diligent search, or is insane or sick, and unable to testify, or has been summoned, but appears to have been kept away by the adverse party." 1 Greenl. Ev. (14th Ed.) § 163. It is observed in a note to this section that, "if the witness has gone, no one knows whither, and his place of abode cannot be ascertained by diligent inquiry, the case can hardly be distinguished in principle from that of his death, and it would seem that his former testimony ought to be admitted."

The following language is used on this subject by Mr. Starkie: "It is an incontrovertible rule that, when the witness may be produced, his deposition cannot be read, for it is not the best evidence. But the deposition of the witness may be read, not only when it appears that the witness is actually dead, but in all cases where he is dead for all purposes of evidence; as where diligent search has been made for him, and he cannot be found, where he resides in a place beyond the jurisdiction of the court, or where he has become lunatic or attainted." 1 Starkie, Ev. *409, *410.

In Long v. Davis, 18 Ala. 801, such testimony of a non-resident witness was allowed in a civil case, and in many of the American states its admissibility has been confined to cases of this character.

1

In England the practice on this point, in criminal cases, does not seem to have been uniform; the general rule, however, being not to admit the deposition, or secondary evidence of any witness, while any reasonable hope remained that the witness would be able to attend on some future occasion. Starkie, Ev. (Shars wood's Ed.) *411, note y. The more recent decisions in this country, however, support the contrary view, and they seem to us to better comport with both reason and analogy, as well as to more efficiently promote the convenient administration of justice. It is the settled rule that, when the subscribing witness to an instrunsent is out of the state, his handwriting may be proved, whether in a civil or criminal proceeding. The party has already cross-examined the witness after being sworn, or has had the opportunity to do so; and it may be added that, under our statute, defendants can take the deposition of such absent witness, even in a criminal case, if they so elect, which obviates any supposed injustice arising from the admission of such testimony as to them. Crim. Code, (1886,) § 4465.

The following authorities are directly in point on this question in criminal cases: Sullivan v. State, 6 Tex. App. 319; People v. Devine, 46 Cal. 45; Shackelford v. State, 33 Ark. 539; Hurley v. State, 29 Ark. 17; 1 Greenl. Ev. (14th Ed.) § 163, and notes 1 and (a,) and cases cited. And the following in civil cases: Magill v. Kauffman, 4 Serg. & R. 317; Howard v. Patrick, 38 Mich. 795; Carpenter v. Groff, 5 Serg. & R. 162; Long v. Davis, 18 Ala. 801,

supra.

The reasoning and dicta in the following cases of absent, deceased, insane, and sick witnesses support the same view. Drayton v. Wells, 1 Nott & McC. 409; Reynolds v. U. S., 98 U.S. 145; Slusser v. City of Burlington, 47 Iowa, 300; Summons v. State, 5 Ohio St. 325; Marler v. State, supra; Rex v. Hogg, 6 Car. & P. 176; Emig v. Diehl, 76 Pa. St. 359; Miller v. Russell, 7 Mart. (N. S.) 266.

The testimony of Munter, taken before the recorder, in our opinion, was properly admitted in evidence.

The statement of Lake to the witness Taylor was made in an ordinary tone of voice, near enough to have been heard by the defendant, and it so far implicated the defendant in the offense charged as to have naturally called for a denial, had he heard it. It was therefore properly admitted in evidence. weakness of such testimony is no argument against its admissibility, although the rule requires it to be received with all proper caution. Williams v. State, 81 Ala. 1, 1 South. Rep. 179.

We discover no error in the record, and the judgment is affirmed.

The

HAROLD et al. v. JONES et al.

(Supreme Court of Alabama. February 4, 1889.)

1. LOGS AND LOGGING-OBSTRUCTION OF STREAM-NEGLIGENCE-DAMAGES. Where defendants, having a right to construct a boom for logging purposes, in a stream that had been made a public highway for the purposes of logging, continue it a reasonable time, they are not liable for damages caused by an obstruction made by a log jam, if they exercise due care to prevent it, or to break it when formed. 2. SAME-CONTRIBUTORY NEGLIGENCE.

If plaintiffs, knowing of such obstruction, drive their rafts on it without allowing defendants time to remove it, they cannot recover damages for loss of lumber caused thereby.

Appeal from circuit court, Escambia county; JOHN P. HUBBARD, Judge. This action was brought by Jones and others against Harold Bros. & Scott for damages caused by obstructing the navigation of a stream. The defendant asked the following charge, which was in writing: "The court charges the jury that the defendants had a reasonable time in which to remove any obstruction caused by their reasonable and proper use of the stream, and if the plaintiffs negligently run into said obstruction, without giving time for defendants to remove it, and thereby suffered loss or injury, they cannot recover, because of their own contributory negligence." The court refused to give this charge, whereupon the defendants duly excepted. There was verdict and judgment for the plaintiffs, and the defendants appeal. M. A. Rabb, G. R. Farnham and John Gamble, for appellants.

CLOPTON, J. The plaintiffs and defendants were engaged in the business of floating and rafting timber over the waters of the Sepulga creek, to the Conecuh river, and thence to Ferry Pass, Fla., which was the place of market. When the water in the creek was at low stage, the timber was prepared and placed in booms for safe-keeping and preservation, until the water was in condition fit for floating. Plaintiffs' boom was above the boom of defendants. The defendants had several thousand pieces of timber in the creek, which had jammed, or, as the witnesses designate it, had formed "jacks." Early in July, 1887, the plaintiffs began to raft their timber, there being a rise of the water in the creek, and were delayed in reaching the point of destination by reason of the jams, which had to be broken. They claim that they were put to expense in breaking the "jacks," and that the price of timber declined during the delay, whereby they suffered damages, to recover which they bring this action. The gravamen of the action is that the defendants obstructed