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table, a statement made to the police officersion of any property belonging to him. The
by one who was arrested with defendant for mother intervened in the suit, and asserted
participating in the game, that each of the her right to the fund. On a traverse of gar-
players paid defendant a stated sum for the nishee's answers judgment was rendered
privilege of playing in defendant's house, against him, but simply ordering him to de-
such statement being made in an ordinary liver the fund into the sheriff's hands, there
tone, and near enough to defendant to have to abide the decision of the case. Held, that
been heard by him, is admissible.--Lowe v. garnishee had no right to appeal from the
State, (Ala.) 435.

judgment, he having no interest in the mat-

ter, and the judgment correctly maintaining

the seizure of the fund subject to the rights
6. On a prosecution for keeping a gambling of parties concerned.-Germania Sav. Bank
house, where the court fails to charge the v. Peuser, (La.) 75.
jury that the law presumes every man inno-
cent until he is proven guilty by proper evi-

dence, and that if they had any reasonable
doubt of the guilt of the defendant, arising Between husband and wife, see Husband and
from the evidence, they should acquit him,

Wife, 21-24.
and refuses to instruct them that the fourth
section of act Fla. June 7, 1887, making the

finding of implements used in gambling prima
facie evidence that the premises on which Power to fill vacancy in office, see Ofice and
they were found are kept for gambling pur- Officer, 1, 2.
poses, did not remove the presumption re-
ferred to a new trial should be granted.—
Houston v. State, (Fla.) 48.

Gambling contracts.

Summoning and impaneling.
7. Where one transfers certain bonds in his

1. On adjournment of the court by the
possession, but of which he is not the owner, judge, by written order to the sheriff under
to A. to obtain money for the purpose of buy. Rev. St. La. 1870, $ 1934, the first day of the
ing "cotton futures, "there being no intention actual sepsion becomes the first day of the
that any cotton shall be delivered, but simply regular jury rerm for that month, within the
that the difference in price shall be settled ac- contemplation of act 1877, No. 44, $ 6, reçuir-
cording to the market fluctuations, and A. ad- ing the grand jury to be drawn on the first
vances the money with knowledge of the pur day of the regular term.--State v. Pate, (La.)
pose for which it is to be used, he cannot 21.
hold the bonds as against the real owner, al-

2. Code Ala. 1886, $ 4445, is not repealed by
though he has no notice of the defect in the the later statutes regulating the drawing and
title of his assignor; and the rule is the

same impaneling of juries. -Murphy v. State, (Ala.)
whether the transaction be considered a sale

or a pledge of the bonds.-Lee v. Boyd, (Ala.)

Assistance of district attorney.

3. The district attorney is the legal adviser
of the grand jury, and may be present at, and

assist them in their examination of cases, pro-
Persons and property subject to pro- vided he does not take part in their delibera

tions as to their conclusions and findings.-
1. A balance due on a subscription to the State V. Aleck, (La.) 639.
capital stock of a corporation, to be paid when
calls should be made therefor, is not liable to
garnishment on a claim against the corpora-

tion when no call has been made.-Teague v.
Le Grand, (Ala.) 287.

Powers of guardian.
2. One who had entered into four distinct 1. A tutor has no authority in making dis-
and separate contracts for the delivery of a bursements for insurance, repairs, taxes,
specified quantity of corn to another at differ- board, and lodging, etc., however necessary,
ent dates, fulfilled the two first maturing, and to spend more than the revenues, and thus en-
defaulted on the other two. Held, that the croach on the ward's capital, without the as
contractor was entitled to payment of the sent of a family meeting, approved by the
price at the instant of complete fulfillment of court.-Mahony v. Mahony, (La.) 645.
two, and the amount due him could be gar:
nished by his creditors. The contractor could Actions-Right to represent ward.
not hold it for his reimbursement for loss of 2. In a rule to cancel the inscription of a
profits on the two remaining contracts, occa- mortgage in favor of minors against their
sioned by the contractor's default.-Gomilla natural tutor, and to invest the community to
v. Milliken, (La.) 548.

which the latter was a party with ownership

of immovable property which stands in the
Claims of third persons.

name of the minors alone, their interests are
3. The garnishee admitted receiving a sum in opposition to those of their tutor, and he is
of money from the defendant, and alleged that not competent to represent them in that liti-
he received it for his mother, and therefore gation; their under-tutor should be notified
denied indebtedness to defendant, or posses. 1-Ashbey v. Ashbey, (La.) 516.


3. A tutor who has in good faith taken 2. In a conveyance of homestead executed
charge of his wards, and administered their prior to act Ala. April 23, 1873, (Code 1886,
property as well as could have been done 2508,) requiring the signature and separate
under straitened circumstances, cannot be examination of the wife in conveyances of the
charged with maladministration simply be- homestead, it is suficient that the wife vol-
cause, in the course of time, the buildings untarily signed the deed, and that it was at-
have become more or less dilapidated.-Ma- tested and probated in the form prescribed
hony y. Mahony, (La.) 645.

by statute for ordinary conveyances, without

any separate examination of the wife.-Jones
4. While a tutor is liable for the revenues

v. Roper, (Ala.) 459.
yielded by the property of bis wards, under

3. When a conveyance of a homestead ex-
bis control and administration, and which he pressly states that the wife joins therein
has collected, he is entitled to be credited, in dower interest in the land,” the conveyance

solely for the purpose of relinquishing her
a statement with them, with all disburse is not effectual as an alienation of the home-
ments for insurance, repairs, taxes, board, and stead, though the requisite certificate of ex-
lodging, etc., made by him in his official ca- amination and acknowledgment of the wife

to constitute such alienation is appended.-

Thompson y. Sheppard, (Ala.) 334.
Habeas Corpus.

Enforcement of right.
When lies, see Criminal Law, 52.

4. On bill to enforce a vendor's lien, where

it appears that the land conveyed was a home-
Harmless Error.

stead exceding in value the statutory limit,
See Appeal, 27, 28.

that it cannot be divided, and that the requi-
site signature and assent of the wife were not

obtained, under Code Ala. 1886, $ 2538, provid-

ing that when the homestead, after being re-

duced to the lowest practicable area, exceeds
Quarantine charges against vessels. $2,000 in value, and the husband has aliened

1. The quarantine act Fla. 1885, c. 3603, tak- it without such signature and assent of the
en by itself alone, does not by virtue of the wife, the husband, or, if he fails to act, the
general powers it confers on county boards of wife or children may by bill in equity have
health, authorize charges to be made against the land sold, and the homestead interest sep-
a vessel for quarantine purposes, but, con- arated from that of the alienee, the court, to
struing that act in connection with the quar- prevent multiplicity of suits and render full
antine acts of 1879 and 1883, such boards are relief, will decree a sale of the land, and award
authorized to make such charges, if under the to the vendor $2,000 of the proceeds as his
authority given by the latter act they have homestead interest.-Id.
made proper provision therefor.-Ferrari v.
Board of Health, (Fla.) 1.
2. A reasonable charge, according to ton-

page of the material, for the use of a crib

erected by the board for receiving ballast, is
proper, where the discharge of the ballast is

1. It was not error to charge that if ac-
for the purpose of disinfection, but it is not cused, when he saw the deceased, on purpose,
proper to base any charge on the tonnage of an, without any circumstances of mitigation
the vessel. Raney, J., dissenting.-Id.

or justification, pulled out his pistol and shot
deceased, this would be a willful and deliber.

ate murder.-Kennedy v. State, (Ala.) 300.
Hearsay Evidence.

2. A charge that, if a person had time to
See Evidence, 8.

think, and did think, and after having thought
struck the blow as the result of a determina-

tion produced by the operation of the mind,

then that would be a sufficient deliberation
Effect of dedication, see Dedication, 3.

and premeditation, is correct.-Cleveland v.

State, (Ala.) 426.


3. Charges were properly refused that the
Mortgage of, rights of wife, see Husband and killing was reduced to manslaughter in the
Wife, 2.

first degree, because prompted by sudden

heat of passion, excited by such recent and

reasonable provocation as to rebut the exist.
1. Where commissioners have allotted aence of malice or formed design in the act of
judgmeat debtor as homestead two tracts of killing, the evidence showing that the insult-
80 acres each, instead of a single 80, the court ing words used by the deceased to defendant
shou. a direct a new allotment; and'it is error had been uttered a considerable time before
in such case for the court to restrict the home- the killing; that the deceased made no as-
stead to a designated tract, and direct the sault whatever on the accused, and that the
other tract to be subjected to the judgment.- accused armed himself, and by his own con-
Ferguson v. Ferguson, (Miss.) 514.

duct brought on the difficulty by putting him-

self in the way of being attacked by the de-i presumption is that passion made him regard-
ceased.-Kennedy v. State, (Ala.) 300. less of his act, and, if the jury believe this,

4. It was shown that defendant had cruelly they may find him guilty of an assault and
whipped his child, and that the child after battery merely. -Smith v. State, (Ala.) 475.
wards died; but the physician who attended 11. The evidence showing an assault with a
the child said that he could not swear that the loaded gun, an instruction that "it is the in-
death was the result of the punishment. tent unlawfully and maliciously to kill the per:
Held, that a verdict of guilty would be set son assaulted, which constitutes the crime of
aside. ---Bourn v. State, (Miss.) 6:26.

assault with intent to murder," is not errone-
Justifiable homicide.

ous as asserting that mere intent, without
5. Where defendant justifies as an officer Lawrence v. State, (Ala.) 33.

ability to accomplish, completes the offense.
necessarily taking life to prevent the escape 12. It is immaterial whether the offense, if
of a felon for whom he had a warrant of ar-completed, would have been murder in the first
rest, it is an invasion of the province of the or second degree, as, if either, a conviction
jury to charge that if defendant, though hav; is warranted.-10.
ing a warrant, lay in wait for deceased, and
killed him merely because he refused to stop the prosecuting witness, if the jury believe it

13. Proof of the discharge of a loaded gun at
when told that defendant had a warrant for was fired intentionally, unexplained and un-
him, and deceased made no actual resistance rebutted, authorizes a conviction for assault
to his arrest, but only declined to stop, the with intent to murder.-Crawford v. State,
killing was wanton, and constituted murder, (Ala.) 651.
as the question should be submitted whether

14. Evidence that defendant presented his
there was necessity to kill deceased to prevent gun at F. in carrying distance, but which does
his escape, with no reference to facts which not show that he fired the gun, or attempted
in the opinion of the court might show the to fire it, nor that the gun was loaded, will not
absence of such necessity. -Jackson v. State, sustain a conviction of assault with intent to
(Miss.) 690.

murder.-Davis v. State, (Fla.) S03.
6. Under Code Miss. $ 2878, making homi-
cide justifiable when necessarily committed between defendant and the prosecuting wit-

15. Evidence was introduced as to a fight
in arresting a felon fleeing from justice, which ness, and of a second fight shortly after,
is declaratory of the common law, it is error brought on by defendant, in which he shot at
to refuse to charge that if defendant in good the witness, but, as he claimed, accidentally.
faith was attempting to arrest deceased on a Held, that no question of election of offenses
charge of felony, and the killing was probably was raised, and the evidence as to the first
necessary to prevent deceased from escaping, fight was properly introduced as introductory
it was justifiable, and to charge that homicide to the latter act, and to show malice and de.
is not justifiable merely to prevent the escape sign on the part of defendant.--Crawford F.
of a felon..-Id.

State, (Ala.) 651.
7. Evidence that when the warrant was
given to defendant and read and explained to Drunkenness as a defense.
him he was told to arrest deceased, and that 16. Though drunkenness may be so excess-
nothing was then said about killing him, is ive as to preclude malice, and reduce the crime
inadmissible on behalf of defendant.--Id. to manslaughter, it cannot require an acquit-

tal. -Cleveland v. State, (Ala.) 496.*
8. Where defendant testifies that deceased

made demonstrations of attacking him with

17. Evidence that deceased had frequently
deadly weapons, when he shot him, and there engaged in fights in which he used deadis
is evidence of prior threats by deceased weapons is properly excluded.-King v. State,
against defendant, it is error to charge that (Miss.) 97.
no mere spoken words by deceased justified

18. Where the defense is that defendant
or excused killing him, nor can threats be supposed he was shooting another, who had
considered unless the jury have reasonable struck him, and gone into a neighboring shop,
doubt as to who began the conflict, in which and, so believing, was acting in self-defense,
event they may consider the threats with the evidence of another assault by such assailant
other evidence. -Johnson v. State, (Miss.) 95.* on defendant, after the homicide, is properly

9. Where defendant alleges that he acted in excluded.-Cleveland v. State, (Ala.) 4:28.
self-defense, a charge placing on the state the Declarations.
burden of proving that he had some other 19. Where the evidence showed that the
reasonable mode of escape from the encoun- homicide had grown out of a quarrel between
ter, without increasing his peril, real or ap- the defendant and the deceased, the decisra.
parent, is properly refused. The burden in tions of one, on finding a pistol near the scene
that respect is on defendant.--Cleveland v. of the killing, two days after such homicide.
State, (Ala.) 426.*

that such pistol belonged to deceased, were
Assault with intent to kill.

inadmissible as part of the res gestæ.-Hall
offense to an assault and battery, it is not nec- after the shooting, as to why he had shot de-
10. A charge is proper that, to reduce the v. State, (Ala.) 491.

20. The declarations of defendant directly
essary that defendant, at the time he struck ceased, are not part of the res gestop, and are
the blow, should have been unconscious of inadmissible.-Ring v. State, (Miss.) 97.
what he was doing; but, if there was sufficient
provocation to excite sudden passion, and de- Dying declarations.
fendant acted under such passion, then the 21. A charge of the court that dying dec-
see Partition, 4.
defendant's innocence," and that, if defend. When trust implied, see Trusts, 3-6.
ant and deceased were friendly, “this is a cir-
cumstance the jury may look at as tending to Debts of wife-Liability of husband.
show that there was no inalice, ” are properly 1. In an action against a husband for the
refused, being argumentative, and giving un- price of goods bought by him in the name of
due prominence to special portions of the evi- his wife for a mercantile business conducted
dence.-Goley v. State, (Ala.) 107.


larations were to be considered by the jury|HORSE AND STREET RAIL-
** just as though deceased had been sworn and
put on the stand and testified as a witness to

the words used in his dying declaration”
not erroneous.-Kennedy v. State, (Ala.) 300. Transfer of franchise.

1. Where a street-railway company trans-
22. Where it appears that deceased had legislative consent, to another company, it is

fers its property and franchises, without
threatened to kill defendant, to whom the still liable for injuries to a passenger; and
threats had been communicated; that de such passenger, having sued the original
ceased was a violent and dangerous man; and
that in the quarrel that resulted in the homi- / company, need not show that the railroad
cide deceased said, “I will kill you," and put the time of the injury.-Ricketts v. Birming.

was actually operated by such company at
his hand to his pocket as if to draw his pistol, ham St. Ry. Co., (Ala.) 353.
when defendant shot him, --it is admissible to
sbow that deceased habitually went armed, Injuries to passengers.
and that defendant knew it.-King v. State, 2. Stepping unnecessarily from a moving
(Miss.) 97.

street-car, with a keg of lead in hand, when
23. Where the defense is that defendant danger and injury would have been avoided
supposed he was shooting another, who had by remaining on the car, is negligence which
struek bim, and gone into a neighboring shop, will defeat recovery because of prior negli-
and, so believing, was acting in self-defense, gence of the servants of the car company.-
evidence that such assailant, while in the id.*
shop, tried to obtain a weapon, and threatened 3. Ownership of a street railway cannot be
defendant's life, is inadmissible, where it is proved by oral testimony that it has been con-
not shown that defendant saw or heard what veyed by a written contract, which the wit-
such assailant did or said, but there is testi- ness has seen, and to which he was a party.-
mony that he could not hear nor see it.-Id.
Cleveland v. State, (Ala.) 426.

Ejection of passengers.
24. There being evidence that the injured

4. Where a passenger stricken with apo-
person made the first hostile demonstration,
it was error to exclude previous uncommuni- plexy while riding on a street car, attended
cated threats by the injured person against and great discomfort of other passengers, is

with severe vomiting, to the inconvenience
defendant.-Bell v. State, (Miss.) 389.*

25. On trial for assault with intent to removed by the servants of the carrier, while
murder, evidence of a previous assault and laid in the open street, on a bleak, drizzling

in a speechless and helpless condition, and
threats by defendant against the injured December day, and there abandoned with no
person is admissible to show the intent with effort to procure him attention, the carrier is
which the last assault was made.- Lawrence liable for resulting damage.-Conolly v. Cres-
v. State, (Ala.) 33. *

cent City R. Co., (La.) 259.

5. The mistake of the driver in supposing
26. An instruction that if defendant did not that the passenger was drunk, when the lat
bring on the difficulty, but was talking to de- ter had ridden a considerable distance with-
ceased quietly and orderly, and the latter out misbehavior, and had been guilty of none
called defendant a "blamed, lying son of a except the vomiting occasioned by his illness,
b," and placed his hand on his pocket in cannot excuse the company.--Id.
such a way as reasonably to indicate that his 6. Where the defense admits the absence of
purpose was to draw a weapon, defendant was any attempt whatever of the company to care
authorized to strike first, was properly re- for the ejected passenger, and rests on a de.
fused, where defendant testified that he could nial of any such duty, the kind and degree of
safely have prevented deceased from drawing the care to be exercised under the peculiar
a weapon, as authorizing an acquittal, with conditions which attend the operation of
out taking into consideration defendant's duty street railways in the city are uot involved. -
to retreat or disarm deceased.-Fallin v.State, Id.
(Ala.) 423.

27. The court charged that the burden was HUSBAND AND WIFE.
on defendant to show that he was justified, or
that he acted in self-defense. Heid, that the See, also, Divorce; Homestead.
charge asserted the proper rule as to the bur. Conveyance of homestead, joinder of wife, see
den of proof; and, if defendant thought that Homestead, 2, 3.
it did not sufficiently charge as to a blow given Conveyances between, see Execution, 2.
under provocation and sudden passion, he Divorced wife as witness, see Witness, 2.
should have requested a further instruction.- Liability of wife for debts of husband, see
Smith v. State, (Ala.) 478.*

Partnership, 5.
28. Instructions that, “if no motive is found, Misjoinder of husband as party to partition
this is a very strong circumstance in favor of

in her name, a refusal to give an instruction

based on the common law, as to the husband's chase until after the levy, and then only so
right to the profits of the business, and his much as was necessary to repay the amount ad.
liability for its debts, without reference to the vanced for the cash payment, and there being
statutes of the state, which change the com- no way of distinguishing goods purchased for
mon law in regard to the rights and liabilities cash from those bought on time. -Liddell 6.
of husband and wife, when she has property Miller, (Ala.) 571.
of her own, and also without reference to
whether the credit for the goods was given to

Liability for improvements.
the husband or the wife, was not error.-Mc

9. When a married woman, who is the legal
Quaid v. Fontane, (Fla.) 274.

owner of real estate, purchases, with the con-

sent and co-operation of her husband, mate-
Mortgage of homestead - Applica- rials to be used for the construction of im-
tion of payments.

provements thereon, and the materials have
2. A husband gave a mortgage of his home-been thus used, a court of equity may apply
stead and personal property, including the the rents and income of the property to pas.
entire crop of 1886, in which his wife joined. ment for such materials, and appoint a re-
He turned over to the mortgagee three balesceiver for this purpose. “O'Neil v. Percival,
of cotton of the crop of 1886, which the latter

(Fla.) 809.
applied to some future advances under agree- Husband acting as agent.
ment with the husband. Held, that the wife

10. Code Miss. 1880, $ 1177, declaring that a
had no such legal right in the homestead that husband doing business with his wife's means
she could compel the mortgagee to apply the acts as her agent, as to persons dealing with
cotton to the discharge of the mortgage him without notice, unless the contract be
thereon.-Wetherington v. Mason, (Ala.) 679. tween husband and wife is filed, etc., does not
Wife's separate estate.

prevent the wife from making the agency of
3. Real estate purchased by a married wo that provided for by the statute.-Ross F.

the husband, by her conduct, broader than
man, and to whom a deed thereof is made, is Baldwin, (Miss.) 111.
her separate legal property.-O'Neil v. Perci.

11. Under Florida statutes, providing that
val, (Fla.) 809.
4. Ordinary and necessary clothing provided her husband,

and that the husband and wife

a wife's property shall be under the care of
for a wife by the husband, in discharge of his shall join in all sales of her property, though
duty growiug out of the marital relation, does the wife may conduct a mercantile business,
not constitute a gift from the husband, within and the husband may act as agent for her in
the meaning of Code Ala. $. 3351, defining that business, yet she cannot make a contract
property which may become the wife's sep; herself, or by him as agent, on which she will
arate estate, and including property acquired be personally liable; and charges of the court,
by “gift from a contract with the husband." in a case concerning the husband's liability,

Richardson v. Louisville & N. R. Co., (Ala.) from which the jury may infer that if he pur-
5. The equitable title to personal property leading and erroneous. -MOQuaid v. Fontane,

bchased goods for her she is so liable, are mis-
for which other property, the separate estate

(Fla.) 274.*
of a wife, has been exchanged by her husband

12. 'If a married woman is engaged in mer-
with her approval, she having no paper evi- cantile business, and the husband as agent
dences of title, but claiming

the property as purchases goods for her, the fact that it is
her own, is in the wife, and she can recover it her business, and that the purchase was made
from the husband's mortgagee, if the latter is for her, is not enough to determine whether
not a bona fule purchaser.-Meyer v. Cook, the credit for the purchase price was given
(Ala.) 147.
6. In Alabama all property owned by a mar- l the fact was known to the vendor, or that be-

to him or to her. It should be shown that
ried woman is presumptively regarded as her tween him and the

husband there was a clear
statutory separate property, and the burden and distinct understanding that the credit
of proof is on one asserting her estate to be

was given to her, else the husband will be
equitable. --Bolman v. Overall, (Ala.) 455.

7. Where a married woman uses her sepa-
rate statutory property to purchase real es-

Liability for husband's debts.
tate, and has the same conveyed to her “sole 13. Under Code Ala. 1876, $ 2706, by which
and separate use, ” she does not thereby the husband, as trustee of the statutory sepa-
change the character of her estate so as to rate estate of the wife, had the right to con-
make it equitable.-Id.

trol it without liability to account to the wife
8. On the purchase of a stock of goods by a for the rents, etc., but by which such rents,
partnership, a cash payment was made with etc., were not subject to his debts, land pur.
funds advanced by one of the members, and chased in the name of the wife with such
notes were given for the balance of the pur- rents could not be subjected to the husband's
chase money. L. participated in the purchase, debts.-Long v. Efurd, (Ala.) 482.
asserting, however, that he was acting as the 14. Code Miss. 1880, $ 1177, provides that s
agent of his wife, the notes being signed by husband and wife shall be incapable of con-
him as “ L., Agent, " and his share of the cash tracting with each other so as to make either
payment being so charged to him. Held, that liable to the other for compensation for labor
å levy upon an interest in the partnership ef- done, and tbat the husband shall not rent the
fects as the property of L. would be sustained, wife's plantation, houses, horses, wagons, or
it appearing that the wife had not contributed other implements, nor do business wiih them
from her separate estate towards such pur- or with any of "her means,” but all business

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