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manufacture machines, where defendant was
informed, pending negotiations for the con-
tract, that many of the machines were for
sale and use in another state, evidence of
their market value in that state is admissible.
-Alabama Iron-Works v. Hurley, (Ala.) 418.
15. The evidence was harmless also, where
such value was the same as the domestic
market value, plus cost of transportation.-Id.
Actions-Instructions.

by contract, with the use of county convicts
sentenced to hard labor for that county, au-
thorize the court of county commissioners to
hire such convicts to contractors for work on
the public roads, and to appoint a "superin-
tendent of public works" to carry out their
orders, and to see that the convicts are prop-
erly treated, etc.; each commissioner to visit
the convicts at least once every 30 days. Held,
that these special acts do not supersede, as to
Jefferson county, the jurisdiction of the state
board of inspectors and governor, under the
above section of the Code.-Jefferson County
v. Truss, (Ala.) 86.

16. Where the evidence tends to show that
a brick kiln was worthless, when done, for
the uses intended, but it is in dispute whether
such worthlessness was due to defects in the 2. Convicts are none the less "hired out by
plans furnished by defendant, or to the want the county," within the meaning of the stat-
of skill of plaintiff in building it, an instruc-ute, because hired out under contract to work
tion is properly refused to the effect that, if certain public roads of the county.-Id.
plaintiff contracted to build the kiln in first-
class manner, and it was not so built because
of his lack of skill, then he cannot recover.-
Birmingham Fire Brick Works v. Allen, (Ala.)

454.

17. Plaintiff, in an action for breach of con-
tract to manufacture machines, being unable
to learn that defendant would violate his con-
tract until it was probably too late to make
other arrangements, and having made dili-
gent effort to have the machines supplied by
others, as shown by the uncontradicted testi-
mony, instructions seeking to raise the ques-
ion of his duty to make such effort are prop-
erly refused.-Alabama Iron-Works v. Hurley,
(Ala.) 418.

Contributory Negligence.

See Negligence, 2, 8.

Conversion.

See Trover and Conversion.

Conveyances.

See Chattel Mortgages; Deed; Fraudulent
Conveyances; Mortgages; Sale; Vendor
and Vendee.

Between husband and wife, see Husband
and Wife, 21-24.

Of wife's separate estate, see Husband and
Wife, 16, 17.

CONVICTS.

Hiring out convicts.

1. Crim. Code Ala, 1886, § 4591, provides
that when convicts are sentenced to hard
labor for the county, and hired out by the
court of county commissioners, the inspectors
of state convicts shall visit such convicts, and
report to the probate judge as to their condi-
tion and treatment. Whenever the board of
inspectors shall notify the governor that such
convicts should be removed from the place
where they are at labor, or from the control
of the person who has hired them, the gov-
ernor shall order the probate judge to remove
them, or to annul the contract, Sp. Acts Feb.
17, 1885, and Feb. 18, 1887, relating to the
working of public roads in Jefferson county

Annulling contract.

3. A contract for hiring convicts, made
after the adoption of the Code, being subject
to the statutory condition that it might be an-
nulled by order of the governor, acting on
information from the board of inspectors, un-
der section 4591, no judgment of a court is
required to authorize the governor's action,
nor are the parties entitled to notice or a day
in court. His decision, in the absence of
fraud, is final.-Id.

CORPORATIONS.

See, also, Banks and Banking; Carriers;
Horse and Street Railroads; Insurance;
Municipal Corporations; Railroad Com
panies.

Service of process on, see Writs, 1.
Stock certificate not negotiable instrument,
see Negotiable Instruments, 3.

Estoppel to deny corporate existence.

1. Stockholders and organizers of a life in-
surance company are estopped, as against
policy-holders who are suing to enforce the
individual liability of the stockholders for the
debts of the company, from setting up the
illegality or irregularity of the corporate or-
ganization. McDonnell v. Alabama Gold Life
Ins. Co., (Ala.) 120.*

sociation assuming to be, and believed by the
2. A person who has contracted with an as-
person to be, incorporated and acting in a cor-
porate capacity, cannot, after having received
the benefit of the contract, set up as a defense
to an action brought by the company or its as-
signee that the company was not legally in-
corporated.- Booske v. Gulf Ice Co., (Fla.)
247.

Contracts-Ratification.

3. An instrument containing covenants hav-
ing been executed by the president of a rail-
road company, which is the grantee of a right
of way, on the execution of the conveyance,
and being in reference to the same subject-
matter, constitutes with the conveyance a sin-
gle instrument; and the company is charge-
able with notice of the act of the president,
and ratifies it by an acceptance of the deed
and its benefits.-Mobile & M. Ry. Co. v. Gil-
mer, (Ala.) 138.

Authority of officer to bind corpora- taken away by a subsequent change in the
tion.
constitution.-Id.

4. Declarations of a street-railway president
as to the ownership of the railway, which are
not shown to have been made while in per-
formance of his duties as such officer, or
while acting for the company, or while doing
business contemporaneous with the declara
tions which they serve to explain, are not
binding on the company.-Ricketts v. Bir-
mingham St. Ry. Co., (Ala.) 353.

5. In ejectment against a railroad company
for land claimed by plaintiff by adverse pos-
session, plaintiff cannot prove that an officer
of the company recognized her title to the
land, by offering to purchase from her, unless
such officer's authority, or a ratification by
the company, is first shown.-Mobile & G. R.
Co. v. Cogsbill, (Ala.) 188.

Liability of stockholders.

6. An agreement was entered into by sever
al persons to convey designated lands to a
trustee, and to form a land company, to which,
when incorporated, the lands should be con-
veyed by the trustee, and stock issued to each
subscriber to an amount equaling the land
conveyed. At that time stock could be made
payable in money, or in property at its money
value. Code Ala. 1876, 1805. Prior to the
incorporation of the company, by Code 1886,
§ 1662, it was declared that all subscriptions to
capital stock of such a corporation must be
payable in money, which might be discharged
by a conveyance of property at a reasonable
value. Held that, as the agreement to sub-
scribe had become illegal before it was ac-
cepted by the act of incorporation, it could
not be enforced.-Knox v. Childersburg Land
Co., (Ala.) 578.

7. An original stockholder who signs with
out qualification a subscription for new stock
to increase the original stock is not entitled
to cancellation of his subscription and repay;
ment of the amount paid in, on the ground
that all the new shares were not subscribed
for. In the absence of any stipulation or lim-
itation to the contrary, his subscription is not
contingent or dependent upon the taking of
all the shares, but is absolute, and binds him
accordingly.-Avegne v. Citizens' Bank, (La.)

537.

To creditors.

8. The phrase "liable to the amount of his
stock," as used in Const. Ala. 1868. art. 13, 88
2, 3, and in Code 1867, § 1760. relating to the
liability of stockholders for the debts of the
corporation, means not simply the amount re-
maining unpaid on the stock, but an additional
sum equal to the amount of the stock.-
McDonnell v. Alabama Gold Life Ins. Co.,
(Ala.) 120.

9. Neither the constitution nor the statute

sued on no new consideration, and in pursu-
11. A "paid-up" policy of life insurance is-
ance of an express agreement in the original
policy to issue it, is not a new contract, so as
made between the time of its issue and that
to be affected by a change in the constitution,
of the original, abolishing individual liability
of stockholders for debts of the company.-Id.

12. The cause of action against the stock-
holders of a corporation by creditors, to en-
force the stockholders' individual liability
under the Alabama statute, does not accrue
until dissolution, and the statute of limita-
tions then begins to run.-Id.
Dissolution.

13. A corporation is dissolved, within the
meaning of the Alabama statute relating to
the personal liability of stockholders, when it
makes an assignment for benefit of creditors,
and ceases to do business.-Id.

COSTS.

In action to remove officer, liability of state,
see States and State Officers, 1, 2.
On bill to redeem, see Mortgages, 17.
dismissal of bill, see Equity, 23.
Security for costs.

1. A motion for security for costs, under
act La. No. 136, 1880, § 4, is not an appearance
which goes to the merits of the suit, but is an
ex parte proceeding, which the court has no
legal discretion to refuse, and the purpose of
which is to relieve defendant from making
any appearance for a contest of any kind until
his demand has been satisfied.-Collier v.
Morgan's L. & T. R. Co., (La.) 537.
Taxation.

2. In Louisiana, a rule to tax costs, and
judgment thereon, are interlocutory, and form
parts of the original proceedings.-State v.
Lazarus, (La.) 289.

Tax paid on bringing suit.

3. Act La. No. 136, 1880, a general statute
fixing the fees of sheriffs and constables in
suits in the district and city courts of New
Orleans, does not repeal act No. 90, 1877, which
is a special statute relative to the bringing
of suits by the city of New Orleans before
licenses, and to the tax to be paid by the city
justices of the peace for the collection of
Second City Court, (La.) 525.
on instituting such suits.-State v. Judge of

4. Under the act of 1877, stamps for $150 on
a license suit for $50 by the city is sufficient,
and the city judge should issue process.-Id
Counter-Claim.

of Alabama, relating to the liability of stock- See Set-Off and Counter-Claim.

holders for the debts of the corporation, limits
the remedy to judgment creditors, and it in-
ures to all creditors.-Id.

10. The personal liability imposed upon
stockholders in corporations by Const. Ala.
1863, art. 13, §§ 2, 3, and Code 1867, § 1760, is a
part of every corporate contract thereafter
made, and, as to existing contracts, cannot be

5.

COUNTIES.

Breach of county treasurer's bond, see Bonds,
Liability for defective bridge, see Bridyeɛ, 1,
2.

Power to fill vacancy in office, see Office and Actions for breach.
Officer, 1, 2.

Tax collectors-Liabilities.

1. Under Code Ala. 1876, § 3396, on default
of a tax collector to pay on demand to the
county treasurer money collected or received
by him for the county, judgment may be ren-
dered against such officer and his sureties, on
10 days notice, by motion in the name of the
county of such treasurer.-Stamphill v. Frank-
lin County, (Ala.) 487.

4. At common law, and under the laws of
Texas, an evicted purchaser may sue a remote
without first exercising his recourse against
vendor for recovery of his purchase price
his immediate vendor. Under that system "a
covenant of warranty runs with the land."-
Succession of Cassidy, (La.) 292.

enants by which a railroad company agreed
5. Where a complaint, in an action on cov-
to stop trains on the land of the grantor of a
vate the right of way, sets out the covenants
right of way, and to allow the latter to culti-
and shows a breach, it is not demurrable for
want of an allegation that the stopping of the
trains would not interfere with the running
vation would not interfere with the require-
ments of the road; these being matters of de-
fense, to be averred and proved.-Mobile &
M. Ry. Co. v. Gilmer, (Ala.) 188.

2. The lien created by Code Ala. 1876, § 403,
providing that "the bond of the tax collector
shall operate from its execution as a lien in
favor of the state and county on the property
of such collector for the amount of any judg-of the company's schedule, and that the culti-
ment which may be rendered against him in
his official capacity for the state or county
taxes," extends to property acquired by him
after the execution of the bond.-Baker v.
Scheusler, (Ala.) 328.

COURTS.

See, also, Judge; Justices of the Peace.
Adjournment by judge, see Judge, 2.

6. A union of claims for breaches running
through several years is proper, as avoiding
a multiplicity of suits.-Id.

Damages.

7. The measure of damages for breach of
Judicial powers, see Constitutional Law, 3, 4. covenants entered into by a grantee of a right
Mandamus to, see Mandamus, 1–3.

Appellate jurisdiction.

The court of appeals of the city of New Or-
leans has no jurisdiction in a suit to annul a
judgment discharging an insolvent from lia-
bilities exceeding $2,000.-State v. Judges of
the Court of Appeals, (La.) 527.

COVENANTS.

Action for breach, see Parties, 1.
Against incumbrances.

1. Where, after an exchange of lands by
deeds containing convenants of warranty and
against incumbrances, it appears that one of
the tracts is subject to a vendor's lien, equity
will compel the grantor to pay off or remove
the incumbrance, or give the grantee suit-
able indemnity.-Thomas v. St. Paul M. E.
Church, (Ala.) 508.
Warranty.

2. In Texas, a purchaser may sue his vendor
for a breach of warranty without showing
eviction under legal process, but the purchas-
er must, under proper averments, establish
the validity of the title which he recognizes as
paramount to that transferred to him by his
vendor, and must show an actual disposses-
sion by virtue thereof.-Succession of Cassi-
dy, (La.) 292.

Running with the land.

3. Covenants entered into by a separate in-
strument under seal, on a conveyance of a
right of way to a railroad company, whereby
it undertakes to establish a flag station on the
grantor's land, and stop trains for passengers
and freight, and to permit him to cultivate
the right of way, run with the land, and bind
an assignee of the company taking with no-
tice.-Mobile & M. Ry. Co. v. Gilmer, (Ala.)
138.

|

of way is the difference between the value of
the grantor's land without performance of the
covenants and its value in case they had been
performed.-Id.

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State's evidence.

another person, who, it was alleged, had cir-
2. When no promise is made to an accom-culated petitions to have defendant denied
plice for testifying against his associate, his bail, as member of the legislature, but it did
right not to be subsequently prosecuted is not not appear that the former had qualified, or
even equitable, and he cannot avail himself of had anything to do with drawing and sum-
the fact that he did testify against his asso-moning the jury, or that the latter did any-
ciate by motion to dismiss the prosecution thing after his election; nor was it shown
against himself.-Long v. State, (Ala.) 443.
Complaint-Amendment.

3. Code Miss. § 1581, as amended by act 1886,
p. 85, authorizes an affidavit made in a jus-
tice's court for a prosecution for vulgar and
indecent language to be amended after appeal
to the circuit court.-Garmon v. State, (Miss.)

885.

Motion to quash indictment.

that defendant did not know the facts relied
on when the time was fixed for trial. Held,
that the application was properly denied.-
Fallin v. State, (Ala.) 423.

Continuance.

9. Seven days before the day fixed for trial,
defendant, in an indictment for murder, filed
his petition, properly verified and setting
forth facts expected to be proved by a witness
residing in an adjoining parish, and praying
4. Under Code Ala. 1886, § 4445, declaring that he be summoned to testify. On the day
that no objection can be taken to an indict-fixed for trial the witness did not respond to
ment on any ground going to the formation of the calling of his name, and defendant filed
the grand jury, except that the jurors were motion for continuance, setting forth the facts
not drawn in the presence of the proper off- he intended to prove by the witness, and
cers, it is proper to overrule a motion to quash which, if proved, might have sustained a plea
an indictment because a sufficient number of of self-defense; next, due diligence, and his
names to form both the grand and petit juries inability to prove the same facts by any
were drawn, and the grand jurors were then known witness; and that the summons which
drawn from them, instead of drawing the had been regularly issued to the sheriff of the
names for the grand jury and then the names parish of the witness had not been returned.
for the petit jury, as required by Acts Ala. Held, that a continuance should have been
1586-87, p. 151, § 4.-Murphy v. State, (Ala.) granted.-State v. Adam, (La.) 30.

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Former acquittal.

10. Where defendant filed an affidavit for
continuance on account of absent witnesses,
not stating their names, nor what he intended
to prove by them, and refused on request of
the court so to do, the continuance was prop-
erly refused.-White v. State, (Ala.) 674.
Conduct of trial.

11. On a trial for a felony, it is error to com-
pel defendant, if he wishes to testify, to do so
before other witnesses.-Bell v. State, (Miss.)
389.

12. A joint defendant in a trial for a mis-
7. Where one indicted for unlawful cohab demeanor, who is himself a witness, cannot
itation with his daughter, E., was acquitted be compelled to leave the court-room with
because the proof showed that E. was his step- other witnesses during progress of the trial.
daughter, a plea of former acquittal to a sub--Garmon v. State, (Miss.) 355.
sequent indictment for unlawful cohabitation
with his step-daughter, E., constituted no de-
fense.-Sims v. State, (Miss.) 525.

Change of venue.

13. Defendant obtained subpoenas, but some
of his witnesses were absent at the trial. It
was not shown that he asked for attachments
or other compulsory process, and it did not
appear that the witnesses were not absent by
defendant's consent or procurement. Held,
that defendant's rights were not disregarded
by his being required to put in writing what
he expected to prove by such witnesses, and
putting the state on the admission that they
would so testify.-Childress v. State, (Ala.)
775.

Remarks of prosecuting attor-

ney.

8. Code Ala. 1886, § 4485, provides that an
application for change of venue must be made
as early as practicable before trial, or that it
may be made, after conviction, on new trial
granted. Defendant was convicted August,
1887, which conviction was reversed, on ap-
peal, in January, 1888, and at the February
term, 1888, the case was continued at defend-
ant's instance. On August 7, 1888, defendant
being present in court, the trial was set for
August 15th. On the latter day, after the 14. Statements of the prosecuting attorney
state had announced "ready for trial," defend- in the argument do not require a reversal,
ant first applied for change of venue, assign- where they appear to be strictly in reply to
ing as an excuse for the delay that he had been allusions of counsel for defendant, and it does
in jail until May 3, 1888, and unable to secure not affirmatively appear that his privilege
the information on which his application was was abused, or that it was the duty of the
based. It appears that all the facts alleged in court to interfere, and the court charged of
support of the application occurred before its own motion that the jury must look for the
February, 1888, except the election of a broth-facts to the testimony, and not to statements
er of the murdered person as sheriff, and of of counsel.-Id.

v.5so.-57

Evidence.

fendant, relative to the circumstances of the
15. On trial for murder, where the defense homicide, to a newspaper reporter, is admis-
was that the deceased had assaulted defend-sible when the latter testifies that he took the
ant, inflicting a slight wound on his neck, the statement down accurately, and read it to de-
conductor of the train on which the act was fendant, who agreed to its correctness, though
committed testified that, on defendant's com- the witness does not remember, independent-
plaining that his throat hurt him, just after ly of the article, what defendant said.-Jack-
the killing, he made an examination in the son v. State, (Miss.) 690.
night-time. using a lantern. He was asked
23. Evidence of a confession made by de
what he used the lantern for, and answered fendant when he was arrested, there having
that he used it "for all purposes,-to examine been no threats or inducements made, except
tickets, money, etc." Held admissible, since, that in response to his request for advice he
if the lantern was suitable to examine money
was told that, if he was guilty, he had better
and tickets in the dark, the jury might well "tell all about it, "but if not guilty he "ought
infer that it was equally suitable for the ex-
not to own it," is admissible, as having been
amination of the alleged injury on the defend-made voluntarily.-Dodson v. State, (Ala.)
ant's neck.-Kennedy v. State, (Ala.) 300.

16. The conductor of the train on which

485.*

24. A witness for the state testified that,
the murder was committed, who testified for when arrested, defendant wore new shoes
the state, was in another coach at the time of and was asked, on cross-examination, what
the shooting, and, upon learning of the diffi- kind of shoes they were, and answered that
culty, went into the car where it had occurred. defendant said that they cost a certain sum.
Held, that an objection to the question pro-Held, that this rendered admissible evidence
posed to the defendant, "What did he say?" of the entire conversation with defendant as
was properly sustained, such conversation to what he had done with the stolen money,
not constituting a part of the res gesta.-Id. the shoes having been bought with a part
17. In a criminal prosecution, testimony thereof, on redirect examination.-Id.
given on a former prosecution for substan-
tially 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.-Lowe v. State,
(Ala.) 435.

25. An instruction which requires the jury
to discard all evidence of defendant's confes
sions properly admitted in evidence, in deter-
mining whether or not a crime had been com-
mitted is erroneous.-Id.

Of accomplices.

been introduced as a witness for the state,
26. The testimony of an accomplice, who has
need not be first attacked by the defense, to
render corroborative evidence admissible.-
State v. Banks, (La.) 18.*

jury to discredit the testimony of an accom-
27. The court properly refused to charge the
plice, unless corroborated by unimpeached

18. The recorder of the city of Montgomery
having jurisdiction of violations of the ordi-
nances, 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 prosecu-
tion under the ordinances for keeping a gamevidence.-Id.
ing 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 re-
garded in the state court as having been given
in a prosecution for substantially, if not iden-
tically, the same offense.-Id.

that a witness is an accomplice before cor-
28. The jury must be reasonably satisfied
roboration becomes essential to a conviction.
-Childress v. State, (Ala.) 775.

Character.

29. After the accused has introduced evi
19. When defendant has introduced irrele-dence of good character, the state may intro-
vant evidence, the state is justified in intro- duce rebutting evidence, but such evidence
ducing, by way of rebuttal, evidence which must be confined to the general character of
would otherwise be equally irrelevant.-Gan-accused; and it is reversible error to allow
dy v. State, (Ala.) 420.

20. Defendant's conviction of petit larceny
may be shown by the trial docket, where that
is the only book of record kept by the county
court, and the one in which the final record of
judgments is kept.-Id.

Confessions and admissions.
21. The credibility to be attached to confes-
sions admitted by the court is exclusively for
the jury, and it is not error to refuse a re-
quest to charge that "if the jury, in view of
the evidence, are not satisfied that the state-
ments made by the defendant
made freely and voluntarily, they should be
rejected as wanting in credibility, or as not
entitled to weight in determining the ques-
tion of guilt or innocence.-Long v. State,
(Ala.) 443.*

* *

*

were

the state to show that the accused, on trial
for homicide, had previously been pursued out
of the state by a deputy-sheriff with a warrant
for his arrest on the charge of assauit with
intent to murder.-Reddick v. State, (Fla)

704.

30. In an attempt to prove general character,
evidence that witness had shot two men in the
ticular acts of violence.-Davenport v. State,
neighborhood is inadmissible as showing par-
(Ala.) 152.

Weight and sufficiency.

31. It is not proper for the trial judge to
charge that if one witness swears positively to
the occurrence of a certain fact, and other wit-
nesses, who had equal facilities of witnessing
it, swear that if same had occurred they
would have seen it, the latter must prevail.
22. A statement, voluntarily made by de-It is necessary that the court should charge,

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