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table, a statement made to the police officer |
by one who was arrested with defendant for
participating in the game, that each of the
players paid defendant a stated sum for the
privilege of playing in defendant's house,
such statement being made in an ordinary
tone, and near enough to defendant to have
been heard by him, is admissible.-Lowe v.
State, (Ala.) 435.
Instructions.

6. On a prosecution for keeping a gambling
house, where the court fails to charge the
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
from the evidence, they should acquit him,
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
they were found are kept for gambling pur-
poses, did not remove the presumption re-
ferred to, a new trial should be granted.-
Houston v. State, (Fla.) 48.

Gambling contracts.

7. Where one transfers certain bonds in his

sion of any property belonging to him. The
mother intervened in the suit, and asserted
her right to the fund. On a traverse of gar-
nishee's answers judgment was rendered
against him, but simply ordering him to de-
liver the fund into the sheriff's hands, there
to abide the decision of the case. Held, that
garnishee had no right to appeal from the
judgment, he having no interest in the mat-
ter, and the judgment correctly maintaining
the seizure of the fund subject to the rights
of parties concerned.-Germania Sav. Bank
v. Peuser, (La.) 75.

Gifts.

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

Governor.

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

GRAND JURY.

Summoning and impaneling.

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 session becomes the first day of the
that any cotton shall be delivered, but simply regular jury erm for that month, within the
that the difference in price shall be settled ac-
contemplation of act 1877, No. 44, § 6, requir
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
hold the bonds as against the real owner, al-
though he has no notice of the defect in the
title of his assignor; and the rule is the same

whether the transaction be considered a sale
or a pledge of the bonds.-Lee v. Boyd, (Ala.)
489.

GARNISHMENT.

Persons and property subject to pro-

cess.

1. A balance due on a subscription to the
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.

2. One who had entered into four distinct
and separate contracts for the delivery of a
specified quantity of corn to another at differ-
ent dates, fulfilled the two first maturing, and
defaulted on the other two. Held, that the
contractor was entitled to payment of the
price at the instant of complete fulfillment of
two, and the amount due him could be gar-
nished by his creditors. The contractor could
not hold it for his reimbursement for loss of
profits on the two remaining contracts, occa-
sioned by the contractor's default.-Gomilla
v. Milliken, (La.) 548.

21.

2. Code Ala. 1886, § 4445, is not repealed by
the later statutes regulating the drawing and
impaneling of juries. -Murphy v. State, (Ala.)

432.

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-
vided he does not take part in their delibera-
tions as to their conclusions and findings.-
State v. Aleck, (La.) 639.

GUARDIAN AND WARD.
Powers of guardian.

1. A tutor has no authority in making dis-
bursements for insurance, repairs, taxes,
board, and lodging, etc., however necessary,
to spend more than the revenues, and thus en-
croach on the ward's capital, without the as-
sent of a family meeting, approved by the
court.-Mahony v. Mahony, (La.) 645.
Actions-Right to represent ward.

2. In a rule to cancel the inscription of a
mortgage in favor of minors against their
natural tutor, and to invest the community to
which the latter was a party with ownership
of immovable property which stands in the
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--Ashbey v. Ashbey, (La.) 546.

Claims of third persons.

Liabilities.

Conveyance.

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 sufficient 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 v. Mahony, (La.) 645.
by statute for ordinary conveyances, without
any separate examination of the wife.-Jones
v. Roper, (Ala.) 459.

Accounting.

4. While a tutor is liable for the revenues
yielded by the property of his wards, under
his control and administration, and which he
has collected, he is entitled to be credited, in
a statement with them, with all disburse-
ments for insurance, repairs, taxes, board, and
lodging, etc., made by him in his official ca-
pacity.-Id.

Habeas Corpus.

When lies, see Criminal Law, 52.

Harmless Error.

See Appeal, 27, 28.

HEALTH.

Quarantine charges against vessels.
1. The quarantine act Fla. 1885, c. 3603, tak
en by itself alone, does not by virtue of the
general powers it confers on county boards of
health, authorize charges to be made against
a vessel for quarantine purposes, but, con-
struing that act in connection with the quar-
antine acts of 1879 and 1883, such boards are
authorized to make such charges, if under the
authority given by the latter act they have
made proper provision therefor.—Ferrari v.
Board of Health, (Fla.) 1.

2. A reasonable charge, according to ton-
nage 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
for the purpose of disinfection, but it is not
proper to base any charge on the tonnage of
the vessel. RANEY, J., dissenting.—Id.

Hearsay Evidence.

See Evidence, 8.

Highways.

Effect of dedication, see Dedication, 3.

HOMESTEAD.

3. When a conveyance of a homestead ex-
pressly states that the wife joins therein
dower interest in the land," the conveyance
"solely for the purpose of relinquishing her
is not effectual as an alienation of the home-
stead, though the requisite certificate of ex-
amination and acknowledgment of the wife
to constitute such alienation is appended.-
Thompson v. Sheppard, (Ala.) 334.

Enforcement of right.

4. On bill to enforce a vendor's lien, where
it appears that the land conveyed was a home-
stead exceling in value the statutory limit,
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
$2,000 in value, and the husband has aliened
it without such signature and assent of the
wife, the husband, or, if he fails to act, the
wife or children may by bill in equity have
the land sold, and the homestead interest sep-
arated from that of the alienee, the court, to
prevent multiplicity of suits and render full
relief, will decree a sale of the land, and award
to the vendor $2,000 of the proceeds as his
homestead interest.-Id.

Murder.

HOMICIDE.

1. It was not error to charge that if ac-
cused, when he saw the deceased, on purpose,
and without any circumstances of mitigation
or justification, pulled out his pistol and shot
deceased, this would be a willful and deliber-
ate murder.-Kennedy v. State, (Ala.) 300.

2. A charge that, if a person had time to
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
and premeditation, is correct.-Cleveland v.
State, (Ala.) 426.

Manslaughter.

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

1. Where commissioners have allotted a
judgment debtor as homestead two tracts of
80 acres each, instead of a single 80, the court
shoud direct a new allotment; and it is error
in such case for the court to restrict the home-
stead to a designated tract, and direct the
other tract to be subjected to the judgment.-
Ferguson v. Ferguson, (Miss.) 514.

first degree, because prompted by sudden
heat of passion, excited by such recent and
reasonable provocation as to rebut the exist-
ence of malice or formed design in the act of
killing, the evidence showing that the insult-
ing words used by the deceased to defendant
had been uttered a considerable time before
the killing; that the deceased made no as-
sault whatever on the accused, and that the
accused armed himself, and by his own con-
duct brought on the difficulty by putting him-

self in the way of being attacked by the de- | presumption is that passion made him regard-
ceased. Kennedy v. State, (Ala.) 300.

4. It was shown that defendant had cruelly
whipped his child, and that the child after
wards died; but the physician who attended
the child said that he could not swear that the
death was the result of the punishment.
Held, that a verdict of guilty would be set
aside.-Bourn v. State, (Miss.) 626.

Justifiable homicide.

less of his act, and, if the jury believe this,
they may find him guilty of an assault and
battery merely.-Smith v. State, (Ala.) 478.
11. The evidence showing an assault with a
loaded gun, an instruction that "it is the in-
tent unlawfully and maliciously to kill the per-
son assaulted, which constitutes the crime of
assault with intent to murder," is not errone-
ous as asserting that mere intent, without
ability to accomplish, completes the offense.-
Lawrence v. State, (Ala.) 33.

12. It is immaterial whether the offense, if
completed, would have been murder in the first
or second degree, as, if either, a conviction
warranted.-Id.

13. Proof of the discharge of a loaded gun at
the prosecuting witness, if the jury believe it
was fired intentionally, unexplained and un-
rebutted, authorizes a conviction for assault
with intent to murder.-Crawford v. State,
(Ala.) 651.

5. Where defendant justifies as an officer
necessarily taking life to prevent the escape
of a felon for whom he had a warrant of ar-
rest, it is an invasion of the province of the
jury to charge that if defendant, though hav-is
ing a warrant, lay in wait for deceased, and
killed him merely because he refused to stop
when told that defendant had a warrant for
him, and deceased made no actual resistance
to his arrest, but only declined to stop, the
killing was wanton, and constituted murder,
as the question should be submitted whether
there was necessity to kill deceased to prevent
his escape, with no reference to facts which
in the opinion of the court might show the
absence of such necessity.-Jackson v. State,
(Miss.) 690.

6. Under Code Miss. § 2878, making homi-
cide justifiable when necessarily committed
in arresting a felon fleeing from justice, which
is declaratory of the common law, it is error
to refuse to charge that if defendant in good
faith was attempting to arrest deceased on a
charge of felony, and the killing was probably
necessary to prevent deceased from escaping,
it was justifiable, and to charge that homicide
is not justifiable merely to prevent the escape
of a felon.--Id.

7. Evidence that when the warrant was

given to defendant and read and explained to
him he was told to arrest deceased, and that
nothing was then said about killing him, is
inadmissible on behalf of defendant.-Id.

Self-defense.

14. Evidence that defendant presented his
gun at F. in carrying distance, but which does
not show that he fired the gun, or attempted
to fire it, nor that the gun was loaded, will not
sustain a conviction of assault with intent to
murder.-Davis v. State, (Fla.) 803.

15. Evidence was introduced as to a fight
between defendant and the prosecuting wit-
ness, and of a second fight shortly after,
brought on by defendant, in which he shot at
the witness, but, as he claimed, accidentally.
Held, that no question of election of offenses
was raised, and the evidence as to the first
fight was properly introduced as introductory
to the latter act, and to show malice and de-
sign on the part of defendant.-Crawford v.
State, (Ala.) 651.

Drunkenness as a defense.

16. Though drunkenness may be so excess-
ive as to preclude malice, and reduce the crime
to manslaughter, it cannot require an acquit-
tal.-Cleveland v. State, (Ala.) 426.*
Evidence.

17. Evidence that deceased had frequently
engaged in fights in which he used deadly
weapons is properly excluded.-King v. State,
(Miss.) 97.

18. Where the defense is that defendant
supposed he was shooting another, who had
struck him, and gone into a neighboring shop,
and, so believing, was acting in self-defense,
evidence of another assault by such assailant
on defendant, after the homicide, is properly
excluded.-Cleveland v. State, (Ála.) 426.
Declarations.

8. Where defendant testifies that deceased
made demonstrations of attacking him with
deadly weapons, when he shot him, and there
is evidence of prior threats by deceased
against defendant, it is error to charge that
no mere spoken words by deceased justified
or excused killing him, nor can threats be
considered unless the jury have reasonable
doubt as to who began the conflict, in which
event they may consider the threats with the
other evidence.-Johnson v. State, (Miss.) 95.*
9. Where defendant alleges that he acted in
self-defense, a charge placing on the state the
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 declara-
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
inadmissible as part of the res geste.-Hall
V. State, (Ala.) 491.

Assault with intent to kill.

10. A charge is proper that, to reduce the
offense to an assault and battery, it is not nec-
essary that defendant, at the time he struck
the blow, should have been unconscious of
what he was doing; but, if there was sufficient
provocation to excite sudden passion, and de-
fendant acted under such passion, then the

20. The declarations of defendant directly
after the shooting, as to why he had shot de-
ceased, are not part of the res gestoe, and are
inadmissible.-King v. State, (Miss.) 97.

Dying declarations.

21. A charge of the court that dying dec-

ROADS.

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" was
not erroneous.-Kennedy v. State, (Ala.) 300.
Threats.

22. Where it appears that deceased had
threatened to kill defendant, to whom the
threats had been communicated; that de-
ceased was a violent and dangerous man; and
that in the quarrel that resulted in the homi-
cide deceased said, "I will kill you, " and put
his hand to his pocket as if to draw his pistol,
when defendant shot him,-it is admissible to
show that deceased habitually went armed,
and that defendant knew it.-King v. State,
(Miss.) 97.

23. Where the defense is that defendant
supposed he was shooting another, who had
struck him, and gone into a neighboring shop,
and, so believing, was acting in self-defense,
evidence that such assailant, while in the
shop, tried to obtain a weapon, and threatened
defendant's life, is inadmissible, where it is
not shown that defendant saw or heard what
such assailant did or said, but there is testi-
mony that he could not hear nor see it.
Cleveland v. State, (Ala.) 426.

-

24. There being evidence that the injured
person made the first hostile demonstration,
it was error to exclude previous uncommuni-
cated threats by the injured person against
defendant.-Bell v. State, (Miss.) 389.*

25. On trial for assault with intent to
murder, evidence of a previous assault and
threats by defendant against the injured
person is admissible to show the intent with
which the last assault was made.-Lawrence
v. State, (Ala.) 33.*
Instructions.


26. An instruction that if defendant did not
bring on the difficulty, but was talking to de-
ceased quietly and orderly, and the latter
called defendant a "blamed, lying son of a
b," and placed his hand on his pocket in
such a way as reasonably to indicate that his
purpose was to draw a weapon, defendant was
authorized to strike first, was properly re-
fused, where defendant testified that he could
safely have prevented deceased from drawing
a weapon, as authorizing an acquittal, with
out taking into consideration defendant's duty
to retreat or disarm deceased.-Fallin v. State,
(Ala.) 423.

27. The court charged that the burden was
on defendant to show that he was justified, or
that he acted in self-defense. Held, that the
charge asserted the proper rule as to the bur-
den of proof; and, if defendant thought that
it did not sufficiently charge as to a blow given
under provocation and sudden passion, he
should have requested a further instruction.-
Smith v. State, (Ala.) 478.*

28. Instructions that, "if no motive is found,
this is a very strong circumstance in favor of
defendant's innocence," and that, if defend-
ant and deceased were friendly, "this is a cir-
cumstance the jury may look at as tending to
show that there was no malice, are properly
refused, being argumentative, and giving un-
due prominence to special portions of the evi-
dence.-Goley v. State, (Ala.) 167.

Transfer of franchise.

1. Where a street-railway company trans-
legislative consent, to another company, it is
fers its property and franchises, without
still liable for injuries to a passenger; and
such passenger, having sued the original
company, need not show that the railroad
was actually operated by such company at
the time of the injury.-Ricketts v. Birming-
ham St. Ry. Co., (Ala.) 353.
Injuries to passengers.

2. Stepping unnecessarily from a moving
street-car, with a keg of lead in hand, when
danger and injury would have been avoided
by remaining on the car, is negligence which
will defeat recovery because of prior negli-
gence of the servants of the car company.-
Id.*

3. Ownership of a street railway cannot be
proved by oral testimony that it has been con-
veyed by a written contract, which the wit-
ness has seen, and to which he was a party.-
Id.

Ejection of passengers.

4. Where a passenger stricken with apo-
plexy while riding on a street car, attended
and great discomfort of other passengers, is
with severe vomiting, to the inconvenience
removed by the servants of the carrier, while
laid in the open street, on a bleak, drizzling
in a speechless and helpless condition, and
December day, and there abandoned with no
liable for resulting damage.-Conolly v. Cres-
effort to procure him attention, the carrier is
cent City R. Co., (La.) 259.

5. The mistake of the driver in supposing
that the passenger was drunk, when the lat
ter had ridden a considerable distance with-
out misbehavior, and had been guilty of none
except the vomiting occasioned by his illness,
cannot excuse the company.-Id.

6. Where the defense admits the absence of
any attempt whatever of the company to care
for the ejected passenger, and rests on a de-
nial of any such duty, the kind and degree of
the care to be exercised under the peculiar
conditions which attend the operation of
street railways in the city are not involved.-
Id.

HUSBAND AND WIFE.

See, also, Divorce; Homestead.
Conveyance of homestead, joinder of wife, see
Homestead, 2, 3.

Conveyances between, see Execution, 2.
Divorced wife as witness, see Witness, 2.
Liability of wife for debts of husband, see
Partnership, 5.

Misjoinder of husband as party to partition,
see Partition, 4.

When trust implied, see Trusts, 3-6.

Debts of wife-Liability of husband.

1. In an action against a husband for the
price of goods bought by him in the name of
his wife for a mercantile business conducted
in her name, a refusal to give an instruction

based on the common law, as to the husband's
right to the profits of the business, and his
liability for its debts, without reference to the
statutes of the state, which change the com-
mon law in regard to the rights and liabilities
of husband and wife, when she has property
of her own, and also without reference to
whether the credit for the goods was given to
the husband or the wife, was not error.-Mc
Quaid v. Fontane, (Fla.) 274.
Mortgage of homestead
tion of payments.

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chase until after the levy, and then only so
much as was necessary to repay the amount ad-
vanced for the cash payment, and there being
no way of distinguishing goods purchased for
cash from those bought on time.-Liddell v.
Miller, (Ala.) 571.

Liability for improvements.

9. When a married woman, who is the legal
owner of real estate, purchases, with the con-
sent and co-operation of her husband, mate-
Applica-rials to be used for the construction of im-
provements thereon, and the materials have

Husband acting as agent.

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 pay
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-
ment with the husband. Held, that the wife.
had no such legal right in the homestead that
she could compel the mortgagee to apply the
cotton to the discharge of the mortgage
thereon.-Wetherington v. Mason, (Ala.) 679.
Wife's separate estate.

3. Real estate purchased by a married wo
man, and to whom a deed thereof is made, is
her separate legal property.-O'Neil v. Perci-
val, (Fla.) 809.

4. Ordinary and necessary clothing provided
for a wife by the husband, in discharge of his
duty growing out of the marital relation, does
not constitute a gift from the husband, within
the meaning of Code Ala. § 2351, defining
property which may become the wife's sep:
arate estate, and including property acquired
by "gift from a contract with the husband."
Richardson v. Louisville & N. R. Co., (Ala.)

308.

10. Code Miss. 1880, § 1177, declaring that a
husband doing business with his wife's means
acts as her agent, as to persons dealing with
him without notice, unless the contract be
tween husband and wife is filed, etc., does not
prevent the wife from making the agency of
that provided for by the statute.-Ross v.
the husband, by her conduct, broader than
Baldwin, (Miss.) 111.

11. Under Florida statutes, providing that
her husband, and that the husband and wife
a wife's property shall be under the care of
shall join in all sales of her property, though
the wife may conduct a mercantile business,
and the husband may act as agent for her in
that business, yet she cannot make a contract
herself, or by him as agent, on which she will
be personally liable; and charges of the court,
in a case concerning the husband's liability,
from which the jury may infer that if he pur-
chased goods for her she is so liable, are mis-
leading and erroneous.—McQuaid v. Fontane,
(Fla.) 274.*

5. The equitable title to personal property
for which other property, the separate estate
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 fide purchaser.-Meyer v. Cook, the credit for the purchase price was given
(Ala.) 147.
to him or to her. It should be shown that
the fact was known to the vendor, or that be-
tween him and the husband there was a clear
and distinct understanding that the credit
was given to her, else the husband will be
liable.-Id.

6. In Alabama all property owned by a mar-
ried woman is presumptively regarded as her
statutory separate property, and the burden
of proof is on one asserting her estate to be
equitable.-Bolman v. Overall, (Ala.) 455.

7. Where a married woman uses her sepa-
rate statutory property to purchase real es-
tate, and has the same conveyed to her "sole:
and separate use," she does not thereby
change the character of her estate so as to
make it equitable.—Id.

8. On the purchase of a stock of goods by a
partnership, a cash payment was made with
funds advanced by one of the members, and
notes were given for the balance of the pur-
chase money. L. participated in the purchase,
asserting, however, that he was acting as the
agent of his wife, the notes being signed by
him as "L., Agent," and his share of the cash
payment being so charged to him. Held, that
a levy upon an interest in the partnership ef-
fects as the property of L. would be sustained,
it appearing that the wife had not contributed
from her separate estate towards such pur-

Liability for husband's debts.
13. Under Code Ala. 1876, § 2706, by which
the husband, as trustee of the statutory sepa
rate estate of the wife, had the right to con-
trol it without liability to account to the wife
for the rents, etc., but by which such rents,
etc., were not subject to his debts, land pur-
chased in the name of the wife with such
rents could not be subjected to the husband's
debts.-Long v. Efurd, (Ala.) 482.

14. Code Miss. 1880, § 1177, provides that a
husband and wife shall be incapable of con-
tracting with each other so as to make either
liable to the other for compensation for labor
done, and that the husband shall not rent the
wife's plantation, houses, horses, wagons, or
other implements, nor do business with them
or with any of “her means," but all business

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