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.)
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.
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.)
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.
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
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.
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.
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.
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.)
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.
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.
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.
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-
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.
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
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.
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.
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.*
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)
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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