execution plaintiff.-Bush v. Henry,. (Ala.) | the claim until after final settlement, the pub

See, also, Descent and Distribution; Wills. legatee to pay the principal to the remainder-

Sale under order of court, inadequacy of price, court, though the executor had ample funds
see Judicial Sales, 2.

9. Complaints made of an order directing
the sale of property to pay the debts of a suc-
cession alleged not to be due, after the sale is
perfected, and in a suit to which the adminis-
trator is not a party, do not go to the court's
want of jurisdiction, and to avail the same
must be seasonably urged.—Id.

Sales under order of court—Jurisdic-
tion.

16. The county court, as it existed under the
Const. Fla. 1868, viz., as a court of "full sur-
rogate and probate powers, "was, in its power
to sell the lands of decedents for the payment
of debts, a court of special and limited stat-
utory jurisdiction, as prescribed by the stat-
10. A purchaser at a probate sale, made un
utes, and not one of general and original con-
der an order of the probate court, to pay debts stitutional jurisdiction over the subject of
of a succession that are stated on a tableau Such sales.-Sloan v. Sloan, (Fla.) 603.
therein filed, is not bound to look beyond the limited jurisdiction for the sale of land of a
17. An order made by a court of special and
decree recognizing the necessity therefor.-Id.
11. A surviving partner in community of decedent is not of itself, independent of a re-
deceased is not prohibited by Louisiana stat-cital of the jurisdictional fact in it, or in the
that the court had jurisdiction of the subject
sale proceedings culminating in it, evidence
of such a sale.-Id.

ute from purchasing property at a probate
sale of the effects of the succession he repre-

sents.-Id.

12. A recital, in the record of proceedings
in the probate court for the sale of a dece-
dent's lands, that plaintiff, one of the heirs,
being a non-resident, was notified of the ap-
plication for the sale, and of the day set for
hearing, by publication in a newspaper pub-
lished in the county, is conclusive on collateral
inquiry, unless falsified by the record itself.
Goodwin v. Sims, (Ala.) 587.

13. The probate record contained a prelim-
inary order, dated December 4, 1878, reciting
that "on this day" a petition for an order to
sell decedent's lands was presented, and ap-
pointing January 15, 1878, as the day for hear-
ing the petition, on which date the hearing
in fact occurred, and the order of sale was
granted. The petition mentioned was verified
December 4, 1877. Held, that the record cor-
rects itself, and makes it manifest that the
date of the preliminary order was a mistake,
and should have December 4, 1877.-Id.

14. Code Ala. 1886, § 2114, provides that no
order for the sale of land belonging to any es-
tate shall be made when there are minors in-
terested in the estate, unless the probate
court has taken evidence by deposition as in
chancery proceedings, showing the necessity
for such sale; and that a sale made without
compliance with this provision shall be wholly
void. A decree of sale recited: "And it ap-
pearing to the satisfaction of the court,

* from the depositions of" certain
named witnesses, "which depositions are or-
dered to be filed of record," that a sale is
necessary, etc. It also appeared from the
record that on the same day on which the or-
der of sale was made a commission issued to
take the depositions of the same witnesses
named in the decree, and the commissioner
certified that the witness were examined on
the following day. Held, that the recitals of
the decree are, in effect, that the depositions
had been taken as in chancery cases, and are
therefore conclusive when collaterally at-
tacked, notwithstanding the commissioner's
certificate, and the depositions appearing in
the transcript.-Id.

15. Though affidavits, stating that the in-
terest of a decedent in land sold is only one-
half, are not the best evidence of the extent
of his title, when received upon exceptions to
a report of sale without objection, they will
be considered.-Glennon v. Mittenicht, (Ala.)
772.

18. Where an exhaustion of the personal es-
tate of the decedent is essential to the juris-
diction or power of the court to order a sale.
unless the fact of such exhaustion appears in
the order, or somewhere in the proceedings
upon which it is based, the order is coram
non judice and void, even upon a collateral
attack, but if the fact appears anywhere in
such proceedings, the order of sale, though it
may be silent upon the subject of exhaustion,
ence of the fact of such exhaustion.—Id.
is nevertheless an adjudication of the exist-

Application.

19. Code Ala. 1886, § 2106, provides that an
application to sell a decedent's lands must be
made by the executor or administrator in
writing, and must state, inter alia, "the
names of the heirs or devisees." Held, that
an application by an administrator to sell
lands of his decedent, which averred that "L.
and N. claim to be the lawful heirs" of said
decedent, and that they are the only heirs "to
the best of his [the administrator's] knowl-
edge, information, and belief, and after dili-
gent search," was prima facie sufficient on
that point.-Townsend v. Steel, (Fla.) 351.

20. It is error to dismiss such an application
on motion of one claiming to be decedent's
sole heir, in the absence of evidence that she,
or any other than the two named, is a lawful
heir.-Id.

Actions by.

21. Where parties financially irresponsible
without valid title, but claiming under a void
attachment sale, cut timber constituting the
principal value of the land purchased, of
which others, claiming under à purchase in
bankruptcy proceedings are in possession, a
bill to enjoin such trespass may be maintained
by the executors of the purchaser at bank-
ruptcy sale, they having taken possession
thereof, as under the statutes of Alabama they
had the right to do.-Sullivan v. Rabb, (Ala.)
746.

22. Whether the will was ineffectual to pass
real estate is immaterial to the question of the
right of the executors to maintain such an ao
tion, as by the probate of the will and the
qualification of the executors in a court of
competent jurisdiction they became vested
with at least such powers as an administrator
would have as to the decedent's realty, and
the fact that they were styled "executors,"

and gave no bond, would not render the ap- | incumbrance, could not defeat the right of
pointment void.-Id.

Right to.

EXEMPTIONS.

the broker to recover his commission from
defendant.-Birmingham Land & Loan Co. v.
Thompson, (Ala.) 473.

4. The fact that a contract made with a pro-
posed purchaser is voidable under the statute
of frauds is no defense to an action by the
brokers against the vendor for commissions,
where the purchaser has not shown any in-
tention to take advantage of the statute.—
Sayre v. Wilson, (Ala.) 157.

1. Under Code Miss. § 1244, providing that
certain things shall be exempt from seizure
on execution, the right to exemptions may be
asserted, though the title of the claimant to
the property claimed as exempt be only a pos-
5. An agreement by land-brokers, at the
sessory one. Stein v. Hamblett, (Miss.) 524. owner's request, that a certain lot might be
2. Code Miss. § 1261, providing that the withdrawn from market, made after they had
amount of any life insurance policy not ex-effected a sale of it, and under the mistaken
ceeding $10,000 on any one life, shall inure to belief that the lot proposed to be withdrawn
the party named as the beneficiary thereof, was a different one, would not prevent recov-
freed from all liability for the debts of the per-ery of commissions for the sale.-Id.
son paying the premiums thereon, has no ap-
plication where the person named as benefi-
ciary has paid the premiums.-Yale v. Mc-
Laurin, (Miss.) 689.
Filing of claim.

Action for commissions-Pleading.
6. In an action by real-estate brokers to re-
cover commissions, an averment that plain-
tiffs found purchasers at the prices fixed by
defendant, and that he refused to consum-
mate the sale, is fatally defective, on demur-
rer, in not alleging that such purchasers were
able, ready, and willing to carry out the sale.

-Id.

3. Code Ala. § 2521, relating to exemptions,
provides that defendant in person, or by his
agent, may, at any time after levy and before
sale, file with the officer making the levy a
claim in writing. Held, that a delivery by
the claimant of the verified claim to the wife
of the constable, with instructions to deliver 7. Where the correspondence by which
it to her husband, is a filing, within the mean- plaintiffs were employed as brokers to sell
ing of that section, where she actually deliv-land does not cover the question of compensa-
ers it to him.-Bryan v. Kelly, (Ala.) 346.

Ex post Facto Laws.

See Constitutional Law, 6.

Factorizing Process.

See Garnishment.

FACTORS AND BROKERS.
See, also, Principal and Agent.
Advances by commission merchant, see Usu-
ry, 2, 3.

Authority-Revocation.

1. Authority to sell land cannot be revoked
by a letter mailed to the brokers, but never
received by them.-Sayre v. Wilson, (Ala.)
157.

2. The testimony of one of two brokers,
who were partners in the business, that the
firm never received an alleged letter revok-
ing their authority, was competent to show
that neither he nor his partner had received
it.-Id.

Right to commissions.

3. A real-estate broker induced one P. to
enter into a contract for the purchase of cer-
tain land of defendant, nothing being said
about the title. Afterwards P. discovered
that there was a large amount of purchase
money due on the land. Held, that the fact
that P., who stated that he was able to com-
plete the purchase, refused to do so, on ac-
count of a defect in the title, although the
purchase money stipulated to be paid by him
would have enabled defendant to clear off the

Evidence.

tion, a prior oral agreement as to the com-
missions to be charged may be shown.-Id.

S. But where the contract by correspond-
ence refers to a sale of lots at specified prices
and terms, evidence of a prior oral agreement
that the sales should be made subject to de-
fendant's approval, and that the deeds should
contain certain conditions, is inadmissible.-
Id.

9. In the absence of an agreement for com-
missions, established and customary charges
for like services in the community are com-
petent evidence to prove what is a fair and
reasonable charge.-Id.

lay out and construct a fence under act Miss. See False Pretenses; Fraudulent Convey-
1878, and deflected from the lines designated
by them to take in other lands, the owners of
which agreed to pay the extra expense, an in-
junction obtained by the county supervisors
against the building of the fence was proper-
ly dissolved.-Freeman v. Supervisors, (Miss.)
516.

er person, when such action is brought by
the person to whom such representation was
made, unless the same was in writing, signed
by the party sought to be charged.-Clark v.
Dunham Lumber Co., (Ala.) 560.

5. This rule has no application where the
representations were fraudulently made, but
plaintiff's complaint was demurrable in not
alleging that defendant knew that his repre-

sentations at the time were untrue.-Id.
Pleading.

6. In order to set up the statute of frauds
as a defense by demurrer to a bill to enforce
a trust, it must affirmatively appear by the
bill that the contract was not in writing.
Manning v. Pippen, (Ala.) 572.

7. In an action on a bill of exchange the
defense that the instrument was given for a
debt of another, and does not express the con-
sideration, and is therefore invalid under the
statute of frauds, must be specially pleaded
to be available.-Espalla v. Wilson, (Ala.) 867.

the grantee understands the motive, the deed
is valid and binding between the parties.-
Brett v. Brett, (Miss.) 105.
Evidence.

to claimants of property attached was made
by the debtor with fraudulent intent, plaintiff
transfer the debtor conveyed other property
may show that on the day following such
in fraud of her creditors.-Bernheim v. Dib-
rell, (Miss.) 693.

7. On the issue as to whether the transfer

GAMING.

What constitutes offense.

1. The purpose of the first section of act
Fla. June 7, 1887, denouncing the crime of hav-
ing, keeping, exercising, or maintaining a
gaming-room, or a house or other place for
the purpose of gaming or gambling, is to pun-
ish the person whose establishment or enter-
prise or business the gambling-house is,
whether he operate or manage it in person or
"by himself," or by a servant, clerk, agent, or
in any other manner; and the object of the
second section is to punish any one acting as
the servant, clerk, agent, or employé of the
former person in carrying on, or operating, or

What constitutes - Change of pos- managing, the house or other place for the
session.

1. The retention of possession by the grant-
or of land is prima facie evidence that the
conveyance was fraudulent.-Cooper v. Da-
vison, (Ala.) 650.

2. A mortgage of a stock of merchandise
anthorizing the mortgagor to continue the
sale of the goods, which expressly stipulates
that such sale shall be exclusively for the
benefit of the mortgagee, is valid as against
the mortgagor's creditors, in the absence of
evidence of actual fraud.-Murray v. McNealy,
(Ala.) 565.*

Consideration.

3. In an action for the value of goods by a
vendee against attaching creditors of the ven-
dor, a charge that the vendee must prove an
adequate consideration when the fairness is
attacked, and that if the vendee paid $4,600
for a stock of goods worth $6,000, the jury
might consider such fact should have been
given.-Stix v. Keith, (Ala.) 184.

Knowledge of purchaser.
4. It is error to exclude testimony tending
to show that the debtor was insolvent at the
time of the sale to claimants of goods at-
tached, though there is no direct testimony
that the claimants knew of such insolvency

purpose of gambling.-Wooten v. State, (Fla.)

39.

2. In a prosecution under the first section
the jury must be satisfied beyond a reason-
able doubt that the defendant is the person
whose establishment or business the gamb-
ling-room is; but proof that there was an ar-
rangement between the defendant and his
agent, managing the business for him, by
which, as one of the terms of his employment,
the latter was to regulate or control the opera-
tion of the business in the room, and to use
his own judgment as to preventing persons
from playing, would not defeat a conviction;
and it is not error to refuse to charge the jury
able doubt that the defendant had the control
that they must be satisfied "beyond a reason-
or arrangement of the room; that is, he could
regulate and control what was done there, and
could have prevented the person or persons
from playing, if he had seen fit to do so."-Id.
Evidence.

3. The effect of section 4 of act Fla. June 7,
1887, providing that the finding of the imple-
ments and devices used in gambling, on any
premises, shall be prima facie evidence that
such premises were used for gambling pur-
poses, is to authorize the jury to infer from
and devices, that the room they were found in
the proof of the finding of such implements
5. A refusal to charge that a person acquir- was kept for the purpose of gambling, where
ing an interest in an established business, and there is nothing in the attendant circum-
afterwards purchasing the stock of goods, is stance, or in any of the evidence in the case,
under obligation to examine the books to pro-raising in their minds a reasonable doubt to
tect himself from the implication of notice of the contrary.-Id.
the insolvent condition of the vendor, was
correct. Stix v. Keith, (Ala.) 184.

-Bernheim v. Dibrell, (Miss.) 693.

Rights of grantee.

6. Where land is bought and taken in the
name of a third person for the purpose of de-
frauding the real purchaser's creditors, and
v.5so.-58

4. Such provision does not give to proof of
such finding the further effect of prima facie
proof of the actual use of the instruments as
another and independent evidence that the
house, room, or other place is kept for the pur-
pose of gambling.—Id.

5. In a prosecution for keeping a gaming