considered, where no errors are assigned.- out all the evidence, the evidence will be pre- McNeill v. Kyle, (Ala.) 461. Practice-Bill of exceptions.
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.
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.
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.
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.
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.
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.
In criminal cases, killing prisoner to prevent escape, see Homicide, 5-7. Resisting officer, see Obstructing Justice.
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,
Assessment.
Of taxes, see Taxation, 1-3.
2. Where a draft is sent to a bank for col lection, and the agent of the bank, through a mistake known to the drawee, collects only a portion of the draft, marking it "Paid," and the bank pays the entire amount of the draft
Of decedents, see Executors and Adminis- to the holder, taking the agent's notes for the trators, 1.
Of contract for sale of land, rights of assignee, see Vendor and Vendee, 4-6. errors, see Appeal, 13-18. mortgage, see Mortgages, 4-6.
Rights of assignee.
Where a person has contracted to do work for another, and has assigned the contract and whatever may be payable to him there- under for the performance of the work to a third person as collateral security for moneys advanced and to be advanced to enable the as- signee to perform his contract, and after such assignment the parties to the original contract have adjusted their differences as to the amount payable under the contract, the fact of the assignment will not avoid such adjust- ment either in favor of the assignor or of the assignee in a suit in equity instituted by them against the other party to the contract if the amount fixed by the adjustment exceeds that due the assignee by the assignor.-Howard v. Pensacola & A. R. Co., (Fla.) 356.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
Redemption by judgment creditors. Code Ala. § 1879, providing that where land is sold under execution, or under a decree in chancery, or under any deed of trust or power of sale in a mortgage, the debtor may redeem, and section 1883, providing that judgment creditors of the debtor may redeem in like manner, do not authorize judgment creditors to redeem land which has passed under a gen- eral assignment by the judgment debtor for benefit of creditors, including such judgment creditors, and has been sold by the assignee. -Comer v. Constantine, (Ala.) 773.
ASSUMPSIT.
Goods sold and delivered.
1. B. and S. traded buggies, and it was agreed that S. should take B.'s new buggy at $250, $100 to be paid by S. to B. in S.'s old buggy, and the boot in money. S. took pos- session of the new buggy, but never delivered the old buggy to B., nor paid for the new buggy. Held, that B. could recover the value of the new buggy on the count for goods sold and delivered by the plaintiff to defendant at his request.-Sullivan v. Boley, (Fla.) 244.
amount, which he failed to collect, an action by the agent for money paid will lie against the drawee.-Beard v. Horton, (Ala.) 207.
ATTACHMENT.
See, also, Garnishment.
Intervention, see Fraudulent Conveyances, 7. To enforce landlord's lien, see Landlord and Tenant, 9.
1. In Louisiana, the hour of the day at which an attachment is levied is taken as determin- ing the priority in rank of the privilege con- ferred thereby in respect to others levied up- 548. on the same day.-Gomilla v. Milliken, (La)
2. Rev. St. U. S. § 5044, providing that an adjudication in bankruptcy and an assign- ment of the bankrupt's estate shall vest the title in the assignee, though it is already at- tached on mesne process against the bank- rupt, and shall "dissolve any attachment made within four months next preceding the com- mencement of the bankruptcy proceedings," has the effect to dissolve an attachment levied within the time mentioned, though no order of dissolution is entered in the court wherein the attachment is pending.-Sullivan v. Rabb, (Ala.) 746.
Wrongful attachment.
3. Sureties on an indemnifying bond are not liable for injury to goods attached resulting from the negligence or misconduct of the Calhoun Co., (Miss.) 632. sheriff in keeping them.-Smokey v. Peters &
4. One whose goods were intermixed with those of an attachment debtor, but who claimed the whole, and refused to designate what belonged to him, cannot recover of the sheriff, or of the sureties on his indemnity bond, damages for the seizure and detention of his goods.-Id.
5. Creditors of an insolvent attached his
stock of goods, which were claimed by a third person as a bona fide purchaser. Other cred- itors placed attachments on the goods while in the hands of the marshal awaiting sale on the first attachment. The amount of the at- tachments exceeded the value of the goods, and none of the proceeds went to the previous purchaser. Held, that the creditors first at- taching, if liable to the vendee at all, were liable for the whole damages.-Stix v. Keith, (Ala.) 184.
ATTORNEY AND CLIENT.
Arguments of counsel, see Criminal Law, 14; Trial, 6.
Privileged communication, see Witness, L
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.
See Arbitration and Award.
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.
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
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.
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.
Omission to point out line, see Specific Per- formance, 3.
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.
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.
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.
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
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