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manufacture machines, where defendant was by contract, with the use of county convicts
informed, pending negotiations for the con- sentenced to hard labor for that county, au-
tract, that many of the machines were for thorize the court of county commissioners to
sale and use in another state, evidence of hire such convicts to contractors for work on
their market value in that state is admissible. the public roads, and to appoint a “superit-
-- Alabama Iron Works v. Hurley, (Ala.) 418. tendent of public works” to carry out their
15. The evidence was harmless also, where orders, and to see that the convicts are prop-
buch value was the same as the domestic erly treated, etc. ; each commissioner to visit
market value, plus cost of transportation.--Id. the convicts at least once every 30 days. Hell,
that these special acts do not supersede, as to
Jefferson county, the jurisdiction of the state
16. Where the evidence tends to show that board of inspectors and governor, under the
a brick kiln was worthless, when done, for above section of the Code. --Jefferson County
the uses intended, but it is in dispute whether v. Truss, (Ala.) 86.
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 Annulling contract.
of his lack of skill, then he cannot recover. - 3. A contract for hiring convicts, made
Birmingham Fire Brick Works v. Allen, (Ala.) after the adoption of the Code, being subject
to the statutory condition that it might be an-
17. Plaintiff, in an action for breach of con- nulled by order of the governor, acting on
tract to manufacture machines, being unable information from the board of inspectors, un-
to learn that defendant would violate his con- der section 4591, no judgment of a court is
tract until it was probably too late to make required to authorize the governor's action,
other arrangements, and having made dili- nor are the parties entitled to notice or a day
gent effort to have the machines supplied by in court. His decision, in the absence of
others, as shown by the uncontradicted testi fraud, is final.-Id.
mony, instructions seeking to raise the ques-
ion of his duty to make such effort are prop-
erly refused.-Alabama Iron-Works v. Hurley,
See, also, Banks and Banking; Carriers;
Horse and Street Railroads; Insurance;
Municipal Corporations; Railroad Com-
See Negligence, 2, 8.
Service of process on, see Writs, 1.
Stock certificate not negotiable instrument,
see Negotiable Instruments, 3.
See Trover and Conversion.
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
See Chattel Mortgages; Deed; Fraudulent individual liability of the stockholders for the
Conveyances; Mortgages; Sale; Vendor debts of the company, from setting up the
illegality or irregularity of the corporate or-
Between husband and wife, see Husband ganization.-McDonnell v. Alabama Gold Life
and Wife, 21-24.
Ins. Co., (Ala.) 120.*
Of wife's separate estate, see Husband and
Authority of officer to bind corpora- taken away by a subsequent change in the
4. Declarations of a street-railway president sued on no new consideration, and in pursu.
11. A “paid-up” policy of life insurance is-
as to the ownership of the railway, which are
not shown to have been made while in per- policy to issue it, is not a new contract, so as
ance of an express agreement in the original
formance of his duties as such officer,, or to be affected by a change in the constitution,
while acting for the company, or while doing made between the time of its issue and that
business contemporaneous with the declara: of the original, abolishing individual liability
tions which they serve to explain, are not of stockholders for debts of the company.-Id.
binding on the company.-Ricketts v. Bir-
12. The cause of action against the stock-
mingham St. Ry. Co., (Ala.) 353.
holders of a corporation by creditors, to en-
5. In ejectment against a railroad company force the stockholders individual liability
for land claimed by plaintiff by adverse pos- under the Alabama statute, does not accrue
session, plaintiff cannot prove that an officer until dissolution, and the statute of limita-
of the company recognized her title to the tions then begins to run.-Id.
land, by offering to purchase from her, unless
such oficer's authority, or a ratification by Dissolution.
the company, is first shown.-Mobile & G. R. 13. A corporation is dissolved, within the
Co. v. Cogsbill, (Ala.) 188.
meaning of the Alabama statute relating to
the personal liability of stockholders, when it
Liability of stockholders.
makes an assignment for benefit of creditors,
6. An agreement was entered into by sever and ceases to do business.-Id.
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 in action to remove officer, liability of state,
conveyed. At that time stock could be made see States and State Officers, 1, 2.
payable in money, or in property at its money On bill to redeem, see Mortgages, 17.
value. Code Ala. 1876, & 1805. Prior to the dismissal of bill, see Equity, 23.
incorporation of the company, by Code 1886,
$ 1662, it was declared that all subscriptions to Security for costs.
capital stock of such a corporation must be
1. A motion for security for costs, under
payable in money, which might be discharged act La. No. 136, 1880, $ 4, is not an appearance
by a conveyance of property at å reasonable which goes to the merits of the suit, but is an
value. Held that, as the agreement to sub. ex parte proceeding, which the court has no
scribe had become illegal before it was ac- legal discretion to refuse, and the purpose of
cepted by the act of incorporation, it could which is to relieve defendant from inaking
not be enforced.-Knox v. Childersburg Land any appearance for a contest of any kind until
Co., (Ala.) 578.
his demand has been satisfied.-Collier v.
7. An original stockholder who signs with Morgan's L. & T. R. Co., (La.) 537.
out qualification a subscription for new stock Taxation.
to increase the original stock is not entitled
to cancellation of his subscription and repay, l judgment thereon, areinterlocutory, and form
2. In Louisiana, a rule to tax costs, and
ment of the amount paid in, on the ground parts of the original proceedings.-State v.
that all the new shares were not subscribed Lazarus, (La.) 289.
for. In the absence of any stipulation or lim-
itation to the contrary, bis subscription is not Tax paid on bringing suit.
contingent or dependent upon the taking of 3. Act La. No. 136, 1880, a general statute
all the shares, but is absolute, and biods him fixing the fees of sheriffs and constables in
accordingly.-Avegne v. Citizens' Bank, (La.) 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
8. The phrase "liable to the amount of his of suits by the city of New Orleans before
stock," as used in Const. Ala. 1868, art. 13, 58 justices of the peace for the collection of
2, 3, and in Code 1867, $ 1760, relating to the licenses, and to the tax to be paid by the city
liability of stockholders for the debts of the on instituting such suits.
--State v. Judge of
corporation, means not simply the amount re.
Second City Court, (La.) 525.
maining unpaid on the stock, but an additional a license suit for $50 by the city is sufficient,
4. Under the act of 1877, stamps for $150 on
sum equal to the amount of the stock.-
McDonnell v. Alabama Gold Life Ins. Co.,
and the city judge should issue process.-IN
9. Neither the constitution nor the statute
of Alabama, relating to the liability of stock. See Set-off and Counter-Claim.
holders for the debts of the corporation, limits
the remedy to judgment creditors, and it in.
ures to all creditors.-Id.
10. The personal liability imposed upon
stockholders in corporations by Const. Ala. Breach of county treasurer's bond, see Bonds,
1863, art. 13, &$ 2, 3, and Code 1867, $ 1760, is a 5.
part of every corporate contract thereafter Liability for defective bridge, see Bridges, 1,
made, and, as to existing contracts, cannot be 2.
Power to fill vacancy in office, see Office and Actions for breach.
Officer, 1, 2.
4. At common law, and under the laws of
Texas, an evicted purchaser may sue a remote
1. Under Code Ala. 1876, $ 3396, on default without first exercising his recourse against
vendor for recovery of his purchase price
of a tax collector to pay on demand to the his immediate vendor. Under that system a
county treasurer money collected or received covenant of warranty runs with the land."-
by him for the county, judgment may be ren- Succession of Cassidy, (La.) 292.
dered against such officer and his sureties, on
10 days' notice, by motion in the name of the enants by which a railroad company agreed
5. Where a complaint, in an action on cor-
county of such treasurer.--Stamphill v. Frank-to stop trains on the land of the grantor of a
lin County, (Ala.) 487.
2. The lien created by Code Ala. 1876, $ 403, vate the right of way, sets out the covenants
right of way, and to allow the latter to culti-
providing that “the bond of the tax collector and shows a breach, it is not demurrable for
shall operate from its execution as a lien in want of an allegation that the stopping of the
favor of the state and county on the property trains would not interfere with the running
collector for the amount of any judg of the company's schedule, and that the culti-
ment which may be rendered against him in vation would not interfere with the require-
his official capacity for the state or county ments of the road; these being matters of de-
taxes,” extends to property acquired by him fense, to be averred and proved. - Mobile &
after the execution of the bond.--Baker v.
M. Ry. Co. v. Gilmer, (Ala.) 138.
Scheusler, (Ala.) 328.
6. A union of claims for breaches running
through several years is proper, as avoiding
a multiplicity of suits.-Id.
See, also, Judge; Justices of the Peace.
Adjournment by judge, see Judge, 2.
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.
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
The court of appeals of the city of New Or- performed.-Id.
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.
Remedy at law.
In Mississippi, a judgment creditor may sue
in equity to remove obstructions to a fair sale
of the debtor's property liable to execution,
Action for breach, see Parties, 1.
though he has not exhausted his remedy at
law.-Lewis v. Cline, (Miss.) 112.
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 See, also, Bail; Grand Jury; Indictment
will compel the grantor to pay off or remove and Information; Witness.
the incumbrance, or give the grantee suit- Appellate jurisdiction, see Intoxicating Liz
able indemnity. - Thomas v. St. Paul M. E.
Church, (Ala.) 508.
Criminal trespass, see Trespass, 8–10.
Enticing away servant, see Master and Serv-
2. In Texas, a purchaser may sue his vendor ant, 1.
for a breach of warranty without showing Necessity of indictment, see Constitutional
eviction under legal process, but the purchas-
er must, under proper averments, establish Particular crimes, see Adultery; Arson;
the validity of the title which he recognizes as
Assault and Battery; Burglary; Carry
paramount to that transferred to him by his ing Weapons; Disorderly Conduct; Dis-
vendor, and must show an actual disposses-
turbance of Public Worship; False Pre-
sion by virtue thereof.-Succession of Cassi-
tenses; Forgery; Gaming; Homicide; In-
dy, (La.) 292.
toxicating Liquors; Larceny; Perjury;
Running with the land.
Penalty changed after indictment, see Con-
3. Covenants entered into by a separate in. stitutional Law, 6.
strument under seal, on a conveyance of a Violation of election laws, see Elections and
right of way to a railroad company, whereby Voters.
it undertakes to establish a flag station on the
grantor's land, and stop trains for passengers Jurisdiction.
and freight, and to permit him to cultivate 1. A mere grant of jurisdiction to one court
the right of way, run with the land, and bind to try a certain class of criminal offenses, is
an assignee of the company taking with no- not a withdrawal from another court of an
tice.- Mobile & M. Ry. Co. v. Gilmer, (Ala.) existing jurisdiction to try the same offenses.
-State v. Butt, (Fla.) 597.
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.
that defendant did not know the facts relied
on when the time was fixed for trial. Held,
that the application was properly denied.-
3. Code Miss. $ 1581, as amended by act 1886, Fallin v. State, (Ala.) 423.
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 9. Seven days before the day fixed for trial,
to the circuit court.-Garmon v. State, (Aliss.) defendant, in an indictment for murder, filed
his petition, properly verified and setting
forth facts expected to be proved by a witness
Motion to quash indictment.
residing in an adjoining parish, and praying
4. Under Code Ala. 1856, 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 summops 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
1986–87, p. 151, $ 4.-Murphy v. State, (Ala.) granted.--State v. Adam, (La.) 30.
10. Where defendant filed an affidavit for
continuance on account of absent witnesses,
5. A special plea tendering an issue covered to prove by them, and refused on request of
not stating their names, nor what he intended
by the plea of not guilty is improper and de- the court so to do, the continuance was prop-
murrable. - Pensacola Gas Co. v. Pebley, erly refused.-White v. State, (Ala.) 674.
6. A plea in abatement to an indictment, Conduct of trial.
setting up the pendency of another indictment
against defendant for the same offense, can- pel defendant, if he wishes to testify, to do so
11. On a trial for a felony, it is error to com-
not be maintained. -White y. State, (Ala.) | before other witnesses. -Bell v. State, (Miss.)
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
13. Defendant obtained subpænas, but some
with his step-daughter, E., constituted no de- of his witnesses were absent at the trial. It
fense.-Sims v. State, (Miss.) 525.
was not shown that he asked for attachments
or other compulsory process, and it did not
Change of venue.
appear that the witnesses were not absent by
8. Code Ala. 1856, : 4455, provides that an defendant's consent or procurement. Held,
application for change of venue must be made that defendant's rights were not disregarded
as early as practicable before trial, or that it by his being required to put in writing what
may be made, after conviction, on new trial he expected to prove by such witnesses, and
granted. Defendant was convicted August, putting the state on the admission that they
1357, which conviction was reversed, on ap- would so testify.-Childress v. State, (Ala.)
peal, in January, 1858, and at the February 775.
term, 1888, the case was continued at defend-
ant's instance. On August 7, 1858, defendant
Remarks of prosecuting attor-
being present in court, the trial was set for ney.
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 attirmatively 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 lof counsel.-Id.
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, independeut-
plaining that his throat hurt him, just afterly 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 be
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 weil “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 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, that
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 gestæ.--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-
25. An instruction which requires the jury
tially the same offense, by a witness who has to discard all evidence of defendant's confes
since gone to another state for an indefinite sions properly admitted in evidence, in deter.
period, is admissible, especially as under Code mining whetħer or not a crime bad been com-
Ala. 1886, $ 4465, defendant could have the mitted is erroneous.-Id.
witness' deposition taken.-Lowe v. State, of accomplices.
18. The recorder of the city of Montgomery been introduced as a witness for the state,
26. The testimony of an accomplice, who has
having jurisdiction of violations of the ordi- need not be first attacked by the defense, to
nances, and also the authority of a justice of render corroborative evidence admissible. -
the peace in criminal matters, (Acts Ala. State v. Banks, (La.) 18.*
1880–81, p. 496, & 2,) and it being a violation of
both the ordinances and the state law to keep jury to discredit the testimony of an accom.
27. The court properly refused to charge the
a gaming table, the recorder, on a prosecu- plice, unless corroborated by unimpeached
tion under the ordinances for keeping a gam- evidence.--Id.
ing table, may be considered as a committing
magistrate, with power to hold defendant to that a witness is an accomplice before cor-
28. The jury must be reasonably satisfied
answer in the state courts, and, having done roboration becomes essential to a conviction.
so, testimony given before him may be re---Childress v. State, (Ala.) 775.
garded in the state court as having been given
in a prosecution for substantially, if not iden- Character.
tically, the same offense.--Id.
29. After the accused has introduced eri
19. `When defendant has introduced irrele- dence of good character, the state may intro-
vant evidence, the state is justified in introduce 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.
the state to show that the accused, on trial
20. Defendant's conviction of petit larceny for homicide, had previously been pursued out
may be shown by the trial docket, where that of the state by a deputy-sheriff with a warrant
is the only book of record kept by the county for his arrest on the charge of assauit with
court, and the one in which the final record of intent to murder.-Reddick v. State, (Fla.)
judgments is kept.-Id.
Confessions and admissions.
30. In an attempt to prove general character,
21. The credibility to be attached to confes. evidence that witness had shot two men in the
sions admitted by the court is exclusively for ticular acts of violence.-Davenport v. State,
neighborhood is inadmissible as showing par-
the jury, and it is not error to refuse å re-
quest to charge that "if the jury, in view of
the evidence, are not satisfied that the state-
- Weight and sufficiency.
ments made by the defendant
31. It is not proper for the trial judge to
made freely and voluntarily, they should be charge that if one witness swears positively to
rejected as wanting in credibility, or as not the occurrence of a certain fact, and other wit-
entitled to weight in determining the ques. nesses, who had equal facilities of witnessing
tion of guilt or innocence.—Long v. State, it, swear that if same had occurred they
would have seen it, the latter must prevail
22. A statement, voluntarily made by de-I It is necessary that the court should charge,