considered, where no errors are assigned.- out all the evidence, the evidence will be pre-
McNeill v. Kyle, (Ala.) 461.
Practice-Bill of exceptions.

Rehearing.

16. A clerical error in the computation of
the amount of a debt, though formulated in
the decretal part of a judgment of the su-
preme court, may be rectified, and the correct
amount specified, in passing on an application
to review, without granting a rehearing.
Mahony v. Mahony, (La.) 645.

17. A rehearing will not be granted where
the questions which the petition alleges to
have been omitted to be decided by the court
are necessarily determined, though not in ex-
press terms, by the determination of an alter-
native question in the case.-State v. Barnes,
(Fla.) 703.

Dismissal.

sumed to have been sufficient on which to
predicate a charge objected to.-Ricketts v.
Birmingham St. Ry. Co., (Ala.) 353.

25. Where the record does not purport to
contain all the evidence, it will be presumed
that there was evidence before the trial court
to justify its rulings, if such rulings would be
correct on any state of legal proof.—Black v.
Pratt Coal & Coke Co., (Ala.) $9.

Weight of evidence.

26. Under Code Ala. 1886, §§ 2743-2745, pro-
viding that the parties in ejectment may
waive a jury, and submit the issue of fact to
the court, whose finding shall have the same
effect as a verdict, and may be either genera.
of facts the supreme court must, on appeal.
or special, and, "if there is a special finding
examine and determine whether the facts are
sufficient to support the judgment," the su-
preme court cannot review the sufficiency of
the evidence to support a judgment, in the
absence of a special finding entered on the
minutes.-Quillman v. Gurley, (Ala.) 345.

Harmless error.

27. When it is apparent that the defeated
18. When an appeal has been dismissed on party has no case, he is not prejudiced by er-
motion of appellee, because no final judg-rors of the trial court in rulings on the plead
ment has been entered in the lower court, the ings.-Houston v. Smythe, (Miss.) 520.
subsequent entry of judgment in the lower
court nunc pro tunc is no ground for vacating
the order of dismissal and reinstating the
cause in the appellate court. → Williams V.
Jacksonville, T. & K. W. Ky. Co., (Fla.) 847.
Review.

19. Charges requested and refused, but not
shown to have been in writing, as required
by statute, will not be reviewed.-Ricketts v.
Birmingham St. Ry. Co. (Ala.) 353.

20. Unless all the rulings to which a general
exception is reserved are erroneous, nothing
can be taken by the exception.-Black v. Pratt
Coal & Coke Co., (Ala.) 89.

28. A demurrer to a plea setting up affirma-
tive matters was sustained. The cause was
tried at another term, when plaintiff offered
to join issue on such plea, which defendant
facts did not show that error in sustaining the
declined. Held, that a record showing those

demurrer was harmless.-Graham v. Woodal,
(Ala.) 687.

Objections waived.

29. A demurrer will be presumed to have
been waived where it does not appear from
the record that the court made, or was re-
quested to make, any ruling thereon.-Bir-
mingham Flooring Mills v. Wilder, (Ala.) 307.

21. Where the bill seeks an account on al- 30. If a complainant amends his bill so as to
leged liability of defendant, and the court change materially its character after a plea
gives a decree for the plaintiffs, with direc- to it has been adjudged sufficient, he cannot,
tions to the master appointed to take the ac-
on appeal from a final decree, rendered on the
count, which are unsatisfactory to the plain-case made by the amended bill, plea, and an-
tiffs, and from which they appeal, the appel-
late court will consider the whole case, and
reverse the decree against the defendant, if
found to be erroneous in charging him with
any liability.-Foster v. Ambler, (Fla.) 263.

22. Upon an appeal taken by a complainant
from a final decree dismissing a bill in equity,
an interlocutory order adjudging certain of
the defenses urged against the bill to be in-
sufficient will be reviewed at the instance of
the defendants, though they have not ap-
pealed. O'Neil v. Percival, (Fla.) 809.

Presumptions.

swer, and replication thereto, and testimony,
assign as error the ruling on the plea to the
original bill.-Howard v. Pensacola & A. R.
Co., (Fla.) 356.

31. A material amendment of a bill, after a
decree pro confesso for default in pleading
has been opened, is a waiver by the complain-
ant of his right to assign as error on appeal
the opening of such decree.-Id.
Liability on appeal-bond.

32. Code Ala. 1886, § 2251, providing that, if
a judgment is rendered against an estate
shown to have been declared insolvent, an

23. Proof of identity of the affidavit, war-order shall be entered that no execution shal
rant of arrest, and docket in a criminal prose-issue thereon, but the same shall be certified
cution used in evidence in a subsequent action
for malicious prosecution, will be presumed
to have been made where nothing to the con-
trary appears in the bill of exceptions and
want of such proof is not specified as a ground
of objection.-Lunsford v. Deitrich, (Ala.) 461.
24. When the bill of exceptions fails to set

to the probate court, does not prevent judg
ment being rendered and execution being is
sued thereon against the sureties on a bond
taken on an appeal by the administratrix to
the circuit court, from a judgment rendered
by a justice of the peace, where the condition
of the bond is to pay such judgment as may be

APPEARANCE.

By attorney, authority of attorney, see Attor-
ney and Client.

Effect.

who was lodged therein, and the ownership
of which is unknown," were merely for the
purpose of identification, and were surplus-
age, and that the indictment charged arson in
the first degree.-Childress v. State, (Ala.)
775.

3. The averment, "which was occupied by
Alfred Phillips, who was lodged therein, " is
equivalent to the allegation in the statutory
1. A general appearance by a corporation is form for the indictment, viz., “in which there
a waiver of a defect in the service made by was at the time a human being," and is suffi-
leaving it with one who was no longer its officient; Code Ala. 1886, 4370, permitting the
use of words conveying the same meaning as
those of the statute.-Id.
Evidence and proof.

cer or agent.-Birmingham Flooring Mills v.
Wilder. (Ala.) 307.

2. Where a motion made for judgment
against a defaulting county tax-collector and
his sureties does not show that it was made in
the county where defendants reside, the error,
if any, is waived when defendants appear and
interpose no objection to such admission.-
Stamphill v. Franklin County, (Ala.) 487.

ARBITRATION AND
AWARD.

Submission.

1. The parties to a contract may submit their
differences to an employé of one of them for
arbitration or adjustment, and agree that his
decision shall be final as between them.
Howard v. Pensacola & A. R. Co., (Fla.) 356.
Validity of award.

4. The use of the building as a prison, not
being essential to a conviction, need not be
proved beyond a reasonable doubt.-Id.
5. Evidence of the relation existing between
the accused and the person whose property
was burned is admissible as tending to show
a motive on the part of the accused, and to aid
in identifying him as the wrong-doer.-Long
v. State, (Ala.) 443.

6. It was not necessary to prove the aver-
ment of the indictment that the ownership of
the building was unknown to the grand jury;
Code Ala. 1886, § 4377, providing that any fact
unknown to the grand jury, not an essential
ingredient of the offense, may be so charged.
-Childress v. State, (Ala.) 775.

7. The morning after the burning of a house,
certain furniture which had been in the house
was found in the possession of defendant. He
2. It is a good defense to an action at law claimed to have bought the furniture. But
on an award that the arbitrators, after hear- there was evidence that on the night the house
ing plaintiff's testimony, adjourned, inform-
was burned he left C., to go to his home in F.,
ing defendant that they would hear his testi- with an empty wagon, and that when he ar-
mony at another time of which he should have rived at F. the next morning the wagon was
notice, but rendered the award without hear-loaded with furniture: that the house was sit-
ing him, or giving him notice of any further
hearing.-Graham v. Woodal, (Ala.) 687.

Argument of Counsel.

See Criminal Law, 14; Trial, 6.

Arrest.

In criminal cases, killing prisoner to prevent
escape, see Homicide, 5-7.
Resisting officer, see Obstructing Justice.

Indictment.

14.

ARSON.

uated between C. and F., and wagon tracks
near by appeared to have come from the direc-
tion of C., and to lead towards F.; that there
were shoe tracks of different sizes between
the wagon tracks and the house, which ap-
peared to have been made by the same per-
son; and that at about that time the defendant
wore "odd" shoes; and that he had knowledge
of articles in the house. A statement made
by him that he carried the furniture to his
home the second day after the fire was con-
tradicted by two witnesses. Held sufficient
to sustain a conviction.-Whitfield v. State,
(Fla.) 805.

ASSAULT AND BATTERY.
With intent to kill, see Homicide, 10-15.
Malice.

1. Where a wife occupied and cultivated
premises, made and gathered corn, and had a
corn-pen built, during her husband's absence,
though the land was entered by him, an in-
dictment for arson of the pen properly laid the Under Rev. St. La. § 792, defining and pun-
ownership in the wife.-May v. State, (Ala.)ishing the offense of "assaulting another by
willfully shooting at him, " no other malice is
2. Code Ala. 1886, § 3780, provides that any made an ingredient of the offense, except that
person who willfully sets fire to "any prison legal malice which the law implies and pre-
or jail, or any other house or building which sumes from the doing of an unlawful and in-
is occupied by a person lodged therein, or any jurious act, without legal justification, and it
inhabited dwelling-house," etc., is guilty of is not for the judge, on advising the jury of the
arson in the first degree. Held, that the necessity of finding that the assault and shoot-
words "used as a prison," in an indictment ing were unlawful and willful, to charge them
charging the burning of "a house used as a that the law presumed such malice as the stat-
prison, which was at the time occupied by P.,ute contemplated.-State v. Aleck, (La.) 639,

Of decedents, see Executors and Adminis- to the holder, taking the agent's notes for the
trators, 1.

BAILMENT.

See, also, Carriers; Pledge; Warehousemen.
Action by bailee.

Authority of attorney-Appearance. | other defense, a surety on a bail-bond in pro-
Action was brought against the makers of ceedings for the forfeiture thereof, who has
a promissory note, and during its pendency of entered a special plea denying his signature,
about 6 years an attorney appeared for the de- which is proved to be genuine can set up no
fendants from time to time. Judgment was other defense.-State v. Hendricks, (La.) 24.
rendered against the defendants, and sales
were made in satisfaction of execution issued
thereon. The regularity of the proceedings
was not questioned till more than 20 years
after judgment, and after the death of the at-
torney. Held, in an action by one of the
makers to recover land sold under the execu-
tion, that he could not then, without offering
to show a meritorious defense to the note, or
that he had not previously known of the
pendency of the action and sales, prove by his
own oath that he had not been served with
process, and had never authorized the attor-
ney to appear for him.-Haddock v. Wright,
(Fla.) 813.

Autrefois Acquit.

See Criminal Law, 7.

Award.

See Arbitration and Award.

BAIL.

Right of sheriff to take.

for negligent injuries to the subject of the
A bailee for hire may maintain an action
bailment while in his possession.-Montgom-
ery Gas-Light Co. v. Montgomery & E. Ry.
Co., (Ala.) 735.

Bankruptcy.

See Assignment for Benefit of Creditors;
Insolvency.

Dissolution of attachment, see Attachment, 2.

BANKS AND BANKING.
Taxation.

*

*

*

*

*

Act La. 18:6, No. 98, § 28, provides that the
shares of a bank shall be assessed to the stock-
holders, and that "all property owned by the
bank
which is taxable under section
1 of this act shall be assessed directly to the
bank, *
rect property taxes, and of all exempt prop-
and the pro rata of such di▾
erty, proportioned to each share of capital
taxes assessed to that share under this section.
stock shall be deducted from the amount of
Held, that the words "exempt property," do
not apply to state and United States bonds.-
First Nat. Bank v. Board of Reviewers, (La.)

1. Under Const. Ala. art. 1, § 17, granting
bail, except for capital offenses "when the
proof is evident or the presumption great,"
one committed for murder is entitled to bail,
where the evidence shows that deceased was
the aggressor, was violent and boisterous, and
had struck defendant with sufficient force to
stagger him, when defendant shot him; and
that defendant first endeavored to allay de-
ceased's anger, though there was also evi-
dence that defendant had previously said that,
if deceased "ever made a break at him, he Mutual benefit insurance, see Insurance, 19.
would kill him. "-Ex parte King, (Ala.) 863.

2. Where a capias issued to a sheriff is re-
turnable forthwith, during the term of court

408.

Benevolent Societies.

Bills and Notes.

at which it is awarded, it is not proper for See Negotiable Instruments.
the sheriff to take bond for the appearance of
the accused, after he has arrested him.-Bour-
deaux v. Warren County, (Miss.) 227.

3. A verbal order of a justice of the peace,
directing the sheriff to take the bond of one
against whom he has a warrant of arrest, is
sufficient to authorize the sheriff to accept an
appearance, provided the amount thereof has
been fixed by the magistrate.-State v. Hen-
dricks, (La.) 177.

Rights of surety.

4. If the record shows that the accused was
in actual custody when he furnished an ap-
pearance bond whereby he secured his release,
his surety will not be heard to gainsay the
regularity of the proceedings in case of an
eventual forfeiture of the bond.-Id.

5. Under Code Pr. La. art. 324, and Rev.
Civil Code, art. 2244, providing that, when a
demand is founded on an act under a private
signature, defendant shall be bound to ac-
knowledge, or deny, such signature, and that
being proved, he shall be barred from any

purporting to be executed by the party sought
to be charged, is evidence of the existence of
the debt, or that the party undertook to per-
form the duty for which it was given, and was
made on sufficient consideration, but may be
impeached by plea. By section 2770 such con-
tract must be received in evidence without
proof of execution, unless its execution be de-
nied by plea. Held that, in an action on the
official bond of a constable, where the bond is
set forth in the complaint as the foundation
of the suit, and purports to have been executed
by defendants, and neither its consideration
nor execution is impeached by plea, it is ad-
missible in evidence, though it was executed
without statutory authority.-Bryan v. Kelly,
(Ala.) 346.

Boundaries.

Omission to point out line, see Specific Per-
formance, 3.

BRIDGES.

Liability of county for defects.

1. Code Ala. 1886, § 1456, requiring that
bridges erected by contract with the county
commissioners, shall "continue safe for the
passage of travelers and other persons:" that
a person injured by a defect in such bridge
may sue on the guaranty of the contractor;
and that if no guaranty is taken he may "sue
and recover damages of the county, "-makes
the liability of the county, when no guaranty
is taken, in all respects the same as the con-
tractor's when the guaranty is given.-Lee
County v. Yarbrough, (Ala.) 341.

2. A declaration in an action against the
obligors on a bond, setting up the bond, and al-
leging that the obligee furnished ice pursuant
to the agreement in the bond, and that A. B.,
the principal obligor, failed to comply with
the terms of the obligation, and to pay for
said ice, and that at the time of the obligee
ceasing to furnish ice to A. B., by reason of
his failure to comply with the said contract,
he was indebted to the obligee for ice fur- See Factors and Brokers.
nished to him under said agreement in a sum
stated, and that the same has not been paid,
and properly alleging an assignment of the
bond and indebtedness to the plaintiff, is not
demurrable.-Booske v. Gulf Ice Co., (Fla.)

2. A stray horse which has broken from an
inclosure and is running at large is not within
the statute.-Id.

247.

3. In an action on a bond, the parties to the
instrument are controlled by its statement of
the contract with reference to which the bond
was made, and a plea which sets up a contract
different from and contradictory to that stated

in the bond is bad on demurrer.-Id.

Breach.

Brokers.

BURGLARY.

Information.

1. An information for burglary is not fatally
defective for not asserting that the offense
The offense may consist merely in the entry
was committed in the day or in the night time.
with felonious intent, and is equally punisha-
ble whether committed in the day or in the
night time, under Rev. St. La. § 854, provid-
ing that whoever, with intent to rob, etc.,
shall in the night-time enter without break-
ing, or in the day-time break or enter, shall
be imprisoned, etc.-State v. Allen, (La.) 531.
Evidence.

4. A county superintendent of education,
without authority, borrowed money, and
transferred to the lender a portion of the
school fund to reimburse him; the sureties on
2. Evidence of unexplained possession of
the bond of the superintendent given for the stolen property soon after a burglary is ad-
faithful discharge of his duties having no missible, and it is error to charge that, while
connection with the loan. Held, that the fund such possession is prima facie evidence of
so obtained by the lender was held in trust larceny, vet, even if defendant had the stolen
for the county, and that the fact that he aft-money, he could not be convicted, unless the
erwards returned it to the county did not give sion of every reasonable hypothesis other than
evidence convinced the jury, "to the exclu-
him any right against the sureties of the su-
perintendent, although the money returned that the defendant broke and entered the
by him was used in making up a deficit in the dwelling-house with the intent to steal," as
school funds for which such sureties were lia- such charge is confusing and misleading.-
ble.-Collier v. Henderson, (Ala.) 488.
Dodson v. State, (Ala.) 485.

5. In an action on the official bond of a coun-
ty treasurer, deceased, it appeared that a pa-
per in the form of an "IOU" was given by
the treasurer to the collector for county war-
rants which the collector had received in pay-
ment of taxes and turned over to the treasur-
er, to be accounted for on the next settlement.
The treasurer received credit for all the war-
rants at the time of his death. Held, that
the sureties could not assert that they were
not chargeable with the warrants because
they were taken by the collector in payment
of taxes without authority of law, and because
the treasurer was also without authority in
taking them from the collector.-Coleman v.
Pike County, (Ala.) 481.

Cancellation.

Of contracts, see Equity, 8-12.

insurance policy, see Insurance, 4, 5.

CARRIERS.

See, also, Horse and Street Railroads; Rail-
road Companies.

Ejection of passengers, see, also, Horse and
Street Railroads, 4-6.

Limiting liability for loss of goods.
1. A stipulation in a bill of lading that the
carrier will not be "liable for damages (either