Page images
PDF
EPUB

Dismissal of appeal because no final judg-1 averment, defendant pleaded, but did not a

ment entry nunc pro tunc, see Appeal, 18. pear at the trial, and verdict and judgment
Res adjudicata, see Ejectment, 2.

were rendered for plaintiffs. Helil that, ud-

der Code Ala. 1806, § 2835, providing that ou
Default-Assessment of damages by judgment can be arrested, annulled, or se:
jury.

aside for any matter not previously objecte!
1. An action on a fire insurance policy not to, if the complaint contains a substantial
being “founded on an instrument in writing cause of action, it is too late after judgment
ascertaining the plaintiff's demand, ” within to raise objections.-Home Protection of North
the meaning of Code Ala. 2740, judgment Alabama v. Caldwell, (Ala.) 338.
cannot be rendered without the intervention Action on judgment—Evidence.
of a jury to ascertain the amount of plaintiff's
damage.--Home Protection of North Alabama of the proceedings in which the judgment was

9. In an action on a judgment a transcript
v. Caldwell, (Ala.) 338.

rendered was offered in evidence, which con-
Res adjudicata.

tained the complaint of plaintiff asking for
2. Neither a judgment of nonsuit nor one damages against defendant, and the answer of
dismissing a suit for want of proper parties the latter, and which set out that after trial by
will sustain the plea of res adjudicata. a designated court a verdict was rendered for
Weinberger v. Merchants' Mut. Ins. Co., (La.) plaintiff, and that it was adjudged that plain-
729.

tiff have judginent. The names of the parties
3. A judgment dismissing an action at law were set out in full on the margin of the judg-
as to one of the defendants therein because ment entry. Held, that the transcript suffi-
the court of law had no jurisdiction of the ciently showed that a judgment had been ren.
cause, and as to the other defendant on ac- dered against defendant, and that its exclu-
count of an improper joinder of defendants, sion from evidence was error.-Flack v. AR-
is not a bar to a subsequent suit in equity drews, (Ala.) 452.
brought to subject the property of the former
defendant to the payment of the same cause

Judicial Notice.
of action. Such judgment at law is not a
judgment on the merits of the plaintiff's claim See Evidence, 1-3.
as to either of the defendants. -O'Neil v. Per-
cival, (Fla.) 809.

4. In a suit between vendor and purchaser, JUDICIAL SALES.
involving the validity of title, the former ven-
dor and warrantor, having notice thereof, and of decedents' estates, see Esecutors and Ad-
participating in the case through counsel, ministrators, 7-20.
though not a party, is not bound by the judg-
ment to the title as technical res ajudicat; Reversal of decree.
but in a subsequent suit against hiin as war-

1. A bill to set aside a judicial sale, on the
rantor of the same title the former adjudica- ground that the decree ordering it, though not
tion will be followed unless manifestly er superseded, had been reversed on appeal, al-
roneous, or unless the issue is changed by new leged that the solicitor of record of the party
evidence.--Elder v. Farrell, (La.) 71.

in whose favor the decree was rendered was
- Parties affected by.

in fact the purchaser. The record showed

that the register made a conveyance to B., and
5. A mortgagee is not bound by a judgment reported that B. was the purchaser, and the
erasing his mortgage when not a party to the sale to B. was confirmed. The register testi-
rule to erase it, though he may be injured fied that T., who bid off the land, told him io
thereby, at least in restoring his mortgage, make the deed to the solicitor, and call at the
which may, under the judgment, have been bank and get his money. This was denied by
released by the recorder of mortgages.-Ash- both T. and D., who testified that T. bid off the
bey v. Ashbey, (La.) 516.

land for D., who paid the register's costs, and
6. Where plaintiff in trespass, in which judg- had given his note to the solicitor for the pur-
ment has been obtained against defendant, chase money, and that there was no arrange
is not the same as the plaintiff in a second ment with the solicitor in regard to the pur.
suit for the statutory penalty, against the chase. Held, that the sale would not be set
same defendant for the same trespass, de aside.-Phillips v. Benson, (Ala.) 78.
fendant cannot set up the recovery in the
former suit as a bar to the latter.-Allison v. Inadequacy of price.
Little, (Ala.) 221.

2. Where the one-half interest of a decen
Modification.

dent in land worth $900, and incumbered by
7. When a decree is so framed as to cover there is no such inadequacy of price as would

tax-liens amounting to $243, is sold for $305,
certain charges made by the bill and put in justify a resale, though the complainant, :
issue, but not sustained by testimony, it creditor, offers, at the hearing, to give a
should be modified so as to make it cover only for the land.—Glennon v. Mittenight, (Ala)
issues sustained by testimony, if such moditi-

772.
cation is essential or material to defendant.
Edwards v. Thom, (Fla.) 707.

Jurisdiction.
Opening and vacating.

See Injunction, 1, 2.
8. In a suit on a fire insurance policy, where In criminal cases, see Criminal Laac, L.
the complaint contained every necessary Of justice, see Justices of the Peace.

443. *

On appeal, see Appeal, 1.

ed, except that, the key of the box not being
To remove cloud from title, see Quieting Ti- obtainable, it was opened with another key.
tle, 1.

Held that, under Acts Ala. 1882-83, p. 501;
JURY.

Acts 1884-85, p. 534; and Acts 1886–87, p. 201,

regulating the mode of drawing jurors, this
See, also, Grand Jury.

was a substantial compliance with the stat-

utes in force at the time of trial.-Long v.
Correction of jury minutes, see Records. State, (Ala.) 443.
Intervention of, to assess damages on default,
see Judgment, 1.

Challenges.
Misconduct, see Criminal Law, 53–56, 6. In Alabama, there being no statute au-

thorizing peremptory challenges of jurors in
Competency of juror.

condemnation proceedings, no challenges can
1. A juror, in response to the question wheth- be made except for cause. --Brown v. Rome &
er he had a fixed opinion which would bias D. R. Co., (Ala.) 195.
bis verdict, replied, he knew nothing but what 7. Act Gen. Assem. Ala. Feb. 28, 1887, $ 17,
he read, that he had an opinion to a certain repealed all laws in conflict with it, and pro-
extent, and “I am afraid I would go into the vided that “all laws now in force in relation
jury with a biased opinion, but after being to jurors, their drawing, selecting, or qualifi-
sworn as a juror, I could say that opinion cation, not in conflict with this act, are hereby
aside, and find a verdict upon the evidence continued in full force and effect;” but con-
alone, without reference to any opinion I now tained no provisions as to jurors in capital
have.Held, that there was no error in hold cases. Held not a re-enactnient of that date
ing the juror competent.-Long v. State, (Ala.) of the provisions of the act of 1885, allowing a

defendant in a capital case 12 peremptory
2. ·By Code Ala. 1886, $ 4335, “the court may challenges, so as to affect Code Ala. 1886, $ 4330,
excuse from service any person summoned as under which such a defendant is entitled to 21
a juror, if he is disqualified or exempt, or for peremptory challenges, under Const. 1875, art.
any other reasonable or proper cause, to be 1, $ 2, providing that, in order to re-enact or
determined by the court, "and by section 4325 confer the provisions of an older act, such part
it is made the imperative duty of the court, as is re-enacted shall be published at length.
before administering the oath, to ascertain —Todd v. State, (Ala.) 275.
that the juror possesses the qualifications re.
quired by law. Held, that the court had
power to excuse one summoned who could not JUSTICES OF THE PEACE.
understand the English language sufficiently
to qualify him as a juror.-Id.

Jurisdiction, separate claims, amount in-
Summoning and impaneling.

volved, see Action, 1.
3. An objection that the names of persons Jurisdiction.
summoned as tales jurors were not written on
ballots and placed in the venire box, and

Plaintiff filed with a justice three claims
drawn therefrom, but were called from a list against defendant railroad company for dam-
made out and furnished to the counsel by the ages for injuries to his stock on three differ-
sheriff, will not prevail, in case it appears

ent occasions. The justice docketed three ac-
that the entire list was exhausted before the tions, but issued only one writ. Defendant
panel was completed. ---State y. Dorsey, (La.) appeared to one action only, and moved to
26.

consolidate all the actions, which was denied,
4. Acts Ala. 1886–87, p. 151, § 10, provides and after trial judgment was rendered for
that at least one day before that on which a plaintiff for $35. Defendant refused to appear
capital case is set for trial the court shall draw to the other actions. A single judgment by
not less than 25 nor more than 50 jurors, who, two cases,

and an appeal was taken from both

default was rendered against it in the other
together with the panel organized for the
week, shall constitute the venire from which judgments as in one case only. Defendant
the jury shall be selected. Section 11 pro: amount greater than $150, the maximum ju.

moved to dismiss the action, as involving an
vides that the court may tix the trial for any risdiction of the justice, but the motion was
day of a subsequent week, and that it shall be overruled, the actions consolidated, and a tri-
sufficient to serve a copy of the special jury, al had, resulting in a judgment for plaintiff
together with a copy of the jurors drawn and
summoned for such week. Held that, where for $125. Held, that no jurisdiction was ob-
the trial is set for a day of the same week in tained over defendant 'except in the first
which the order is made, the list served case, if there were three actions; if there
should contain only the names of the special ceeded the justice's jurisdiction, and the cir-

were but one, the amount in controversy ex-
list drawn for that case, and the panel organ-cuit court acquired no jurisdiction by the ap-
ized for that week.-Goley v. State, (Ala.) 167peal as to the actions in which no appearance

3. On a prosecution for arson, in the city was entered. On either theory, its judgment
court of Mobile, Ala., the original venire hav.
ing been exhausted without completing the was erroneous.-Louisville & N. R. Co. v. Mc-

Collister, (Miss.) 695.
jury, the city court directed the judge of pro-
bate to bring into court the city court jury.
box,” from which 50 names were drawn as Justifiable Homicide.
talesmen, in open court. The jury still being
incomplete, the same proceeding was repeat. I See Homicide, 5-9.

Killing Stock,

5. Plaintiffs made certain advances to a ten-

ant on the strength of the deposit with them
See Railroad Companies, 12–23.

as collateral security of a rent-note executed

by the tenant to the landlord. The latter in-
Laborers' Liens.

dorsed the same in blank, and wrote that he

had surrendered the note to the tenant, to use
On crop, see Liens, 1.

as he should see fit. Held, that there was an

assignment of the note to the plaintiffs, and
Laches.

they were entitled to subject to the payment

of such pote the crops of the leased premises.
See Equity, 14–16.

-Id.

6. Code Ala. 1876, 3472, provides that a

landlord may enforoe his lien for rent and ad-
LANDLORD AND TENANT. vances when due, and the

tenant fails, after
Separate actions for rent, see Action, 1.

demand, to pay it, or, whether the rent and

advances are due or not, when the tenant has
Validity of lease, see Frauds, Statute of, 3.

removed any part of the crop from the pren-
When relation exists.

ises without such payment, and without the
1. Complainant held a deed of trust on land which fails to aver demand of the rent and

landlord's consent, Held, that an affidavit
of A., which was presently subject to fore advances alleged to be due and unpaid, and to
closure. A. made a contract to sell the land
to B. Complainant's attorney, at their in- negative the consent of the landlord to the re-
stance, drew an agreement, by which A. inson v. Holt, (Ala.) 350.

moval of the crop, is fatally defective.-Rob-
leased the land to B. for the year 1887, for a
certain sum to be paid as rent November 1,

7. The attachment having been issued be
1887; and if the rent-note, and also another fore Code Ala. 1886, took effect, section 2998 of
note for a certain sum due November 1, or during trial of any defect of form or sub-

that Code, permitting an amendment before
1888, should be paid promptly, the land was to
be conveyed by A. to B.; but, if either note stance in the affidavit, does not entitle plain-
should not be so paid, A. or the assignee

of tiff to leave to amend his affidavit in these re-
the note should have the right to declare the spects, as section 10 provides that this Code
lease and sale void. The notes were made shall not affect any existing right, remedy, or
payable to A. or bearer, and were intended defense. "-Id.
beforehand by all the parties to be transferred
to complainant, which was done. Held, that

Attachment.
the relation of landlord and tenant was cre- 8. An assignee of a note given by a tenant
ated between complainant and B., and that in payment of rent is not entitled to the
the former was entitled to an attachment for remedy by attachment given by Code Miss.
rent.-Houston v. Smythe, (Miss.) 520. $$ 130:2, 1324, to a landlord, grantee of demised
Rent.

premises, or of the reversion thereof, their
2. In an action on a bill of exchange provid- v. Bartley, (Miss.) 225.

heirs, executors, and administrators. - Gross
ing for the payment of the agreed rent month-
ly, an instruction that if the lessor complied to be made upon the erops of M., or of his ten-

9. A writ of attachment commanding a levy
with his agreement he can recover for the ants, raised on his premises, issued to enforce
full term, though the lessee abandoned the the lien of a mortgage given by M. on the
premises before the expiration of the lease, crop to secure advances made to him to enable
does not amount to a direction to disallow an him to raise it, as provided by Code Ala. 1876,
undisputed payment of one month's rent.

$ 3286, is void on its face as to a tenant of M.,
Espalla v. Wilson, (Ala.) 867.

not a party to the attachment, as said statute
Landlord's lien.

gives no authority to a landlord to bind the
3. Code Miss. & 1301, provides that every crop of his tenant. - Albright v. Mills, (Ala.)
lessor of lands shall have a liep on all the

591.
crops of the leased premises, however and by
whomsoever produced, to secure the rent,

LARCENY.
and advances made by him for supplies for
the tenant, and for his business carried on on What constitutes.
the leased premises; that such lien shall be
paramount to all other liens or demands on 1. Defendant's lessor sold him two calres,
such products; and that the claim of the the title in them to remain in the lessor until
lessor for supplies may be enforced in the same they were paid for. A dispute arose as to the
manner as his claim for rent maybe. Chapter debt, and the lessor broke open defendant's
51 provides that such lien shall be superior to corn-crib, and appropriated the corn, where-
the rights of a mortgagee. Held, that such upon defendant, after consultation with an
lien can be enforced against the crops of the attorney, openly, and in the day-time, sold the
leased premises after their removal therefrom, calves. Held, that he was not guilty of lar-
and must prevail against a bona fide pur ceny.-Buchanan v. State, (Miss.) 617*
chaser for value.-Newman v. Bank of Green-

2. One who has the bare custody of prop-
ville, (Miss.) 753.

erty as the employé or servant of the owner,
4. Such lien will pass to an assignee of the is guilty of larceny, if he fraudulently appro-
claim of the landlord against the tenant for priates such property to his own use. --Croch-
rent and supplies.-Id.

eron v. State, (Ala.) 649.

Instructions.

ing, and ginning the cotton grown thereon, is
3. On indictment for larceny the court prop- entitled to a lien on the cotton, under Code
erly refused to instruct the jury to find for Miss. $ 1360, providing that every employé,
defendants, if from the evidence there ap- etc., who may aid by his labor to make, gath-
peared to be a question, no matter how slight, er, or prepare for sale any crop, shall have a
as to the ownership of the property.-Robin lien on the interest of the person who con-

tracts with him for his wages, paramount
son v. State, (Fla.) 6.

to all other liens except the landlord's lien for
Verdict.

rent and supplies. — Lumbley V. Thomas,
4. On indictment for larceny the jury may, (Miss.) 823.
under Rev. St. La. $ 1056, return a verdict of 2. A contract by which a merchant agrees
“not guilty of larceny but guilty of embezzle- to make advances to a cotton planter, and the
ment."-State v. Williams, (La.) 16.

latter agrees to ship all cotton grown by him

to the merchant, does not create a lien on the
Lease.

cotton in favor of the merchant.-Newman v.

Bank of Greenville, (Miss.) 753.
Validity, see Frauds, Statute of, 3.

Life Insurance.
Legacy.

See Insurance.
See Wills.

LIMITATION OF ACTIONS.
LIBEL AND SLANDER.

Of action on insurance policy, see, Insurance,
Words actionable per se.

15.
Under Code Ala. $ 2726, providing that ev- Running of statute, see Corporations, 12.
ery accusation importing the commission of a
crime must be held to mean what the language Application of statute,
ordinarily imports, and section 3795, making

1. An action by a vendee against a vendor
it embezzlement for a clerk to convert to his for reimbursement for taxes paid by vendee
own use, or secrete with such intent, money since sale, but which existed prior thereto, is
is his hands by virtue of his employment, a a personal action only, prescribed by 10 years
publication commencing, “C.'s clutch on his under the Louisiana statute. Sandidge v.
friends, which caused them to trust him and Hunt, (La.) 55.
get left, "and stating that C., a shipping clerk, 2. An instrument under seal, containing
collected a bill due his employer, and se- covenants, is governed, as to the period of
creted it till he was discovered; that he bor- limitation, by Code Ala. $ 2614, barring actions
rowed money and went away leaving bills un-

on contracts or writings under seal in ten
paid; and that he caught a number of friends years; and demurrers to pleas setting up the
who had confidence in him,-is a libel per se.

one and six year statutes of limitations are
-Iron Age Pub. Co. v. Crudup, (Ala.) 332.*

properly sustained.-Mobile & M. Ry. Co. v.

Gilmer, (Ala.) 138.
LICENSE.

3. An action for account of the usufruct is

barred by the prescription of 10 years only,
To keep boarding-bouse-Construc. usufruct. Cochran v. Violet, 38 La. Ann. 525.

to be completed from the termination of the
tion of statute.

-Ashbey v. Ashbey, (La.) 539.
In a prosecution for keeping a private board-
ing-house in Mississippi City (which the evi. Running of statute.
dence showed was not an incorporated town)

4. Where one conveys land with warranty
without paying a privilege tax as required by of title, and debts owing by him are after.
a statute making it a misdemeanor to keep a wards charged on the land by decree, and the
private boarding house in a “town” without land is sold therefor, and purchased by the
paying such tax, the question whether Mis- grantee, the grantee's right of action against
sissippi City was a “town" or not, within the the grantor for the amount paid at the latter
meaning of the statute, was a question of sale accrues, and the statute of limitations be.
fact for the jury, and the court erred in charg- gins to run, from the time of payment. He
ing that it was a town. - Murphy v. State, need not delay suit until confirmation of the
(Miss.) 626.

sale.--Hebron v. Yerger, (Miss.) 110.

5. Code Ala. $ 2627, provides that where
LIENS.

there are mutual accounts between persons

who are not merchants, time must be com-
Extinguishment, see Mortgages, 3.

puted from the date of the last item, unless
Of attachment, see Attachment, 1.

the account is liquidated and a balance is
landlord, see Landlord and Tenant, 3-7. struck. Held, that where all the items of an
mortgage, see Chattel Mortgages, 3-5. account are on one side, though the other par-
vendor, see Sale, 6; Vendor and Vendee, ty has cross-demands in the shape of certain
12-20,

notes, the entire account is not taken out of
the statute of limitations because one or more

of the items may not be barred.--Ware v.
1. A person employed to do general work on Manning, (Ala.) 682.
a plantation, who assists in making, gather- 6. There being no actionable breach of a con-

[ocr errors]

On crop.

tract by a wife to make a will in favor of her

Liquor Selling.
husband until the death of the wife, the stat-
ute does not begin to run until her death.-- See Intoxicating Liquors.
Manning v. Pippen, (Ala.) 572.

7. The plea cannot be affected by an action
as suspending the statute, if it appears that

LIS PENDENS.
such action was dismissed for the reason that
the party who had brought it had no interest When notice imputed.
in the matter, and was not a creditor of the Where a person applies to be made a party
debtor, whose act was assailed as being a to a suit in equity, and an order is made that
fraudulent preference of one creditor over an. the cause stand over, with liberty to the com-
other.-Ashbey v. Ashbey, (La.) 539.

plainant to amend his bill by adding proper
Disabilities and exceptions.

parties, if he should be so advised, such order

does not make the applicant a party to the bill,
8. The extension of five years in which in- nor create a lis pendens, as to him, prior to
fants may sue “after the termination of their his being made a party.-Bigelow v. String-
disabilities,” given by act Ala. Feb. 7, 1813, fellow, (Fla.) 316.
prescribing a limitation of ten years in which
to sue for the recovery of real estate, enlarges
the ten years only to the extent necessary to LOGS AND LOGGING.
secure to the suitor the five years after reach-
ing majority. If during the ten years there Liability for obstruction of stream.
have been five years of majority, the period is 1. Where defendants, having a right to
not enlarged beyond the ten years.-Black v. construct a boom for logging purposes, in a
Pratt Coal & Coke Co., (Ala.) 89.

stream that had been made a public highway
9. In Alabama, the period from January 11, for the purposes of logging, continue it area
1861, to September 21, 1865, is to be deducted, sonable time, they are not liable for damages
in any computation covering that period in caused by an obstruction made by a log jam,
which the time necessary to perfect the stat if they exercise due care to prevent it, or to
utory bar is the subject of inquiry.--Id. break it when formed.—Harold v. Jones,

10. From the 20 years necessary to raise the (Ala.) 438.
presumption against claims suffered to slum- 2. If plaintiffs, knowing of such obstruc-
ber for that length of time, the period during tion, drive their rafts on it without allowing
the war is not deducted.--Id.

defendants time to remove it, they cannot re-
11. A prayer for the nullity of a mortgage, cover damages for loss of lumber caused
in so far as relates to the complaining credit- thereby.-Id.
or's rights, characterizes the suit as a revoca-
tory action. The lapse of time within which

Lost Instruments.
a revocatory action must be brought is a for.
feiture of action by delay, and not affected by Proof of lost deed, see Evidence, 5-7.
the rule of law which provides that prescrip-
tion does not run against minors. Hence the
rule of article 1987, Civil Code La. fixing the

Magistrate.
delay of one year as a forfeiture of the right See Justices of the Peace.
of action therein conferred, applies to minors
as well as to persons of age, and is a proper
plea for defendant in a revocatory action

Malice.
brought by a tutor for his ward, as judgment
creditor of the common debtor. -Ashbey v. See Malicious Prosecution, 1.
Ashbey, (La.) 539.

Instructions as to, see Assault and Battery.
Acknowledgment.

12. An admission of a debt made by defend- MALICIOUS PROSECUTION.
ants in their answer to a bill to set aside their
assignment, and to vacate judgments con- | Malice.
fessed by them, is not a sufficient acknowl- 1. The inference of malice drawn from want
edgment.--Holberg v. Jaffray, (Miss.) 94.* of probable cause may be rebutted by proof
Pleading.

that the prosecutor, though not able to show
13. Courts cannot supply the plea of pre- under an honest belief that plaintiff was guilty

probable cause, instituted the prosecution
scription, and an averment by the pleader that, of the offense charged; provided such belief is
in the same matter, between the same parties, founded on facts and circumstances, whieb
but in a different suit and in another court, he would produce in the mind of a reasonable
nad pleaded prescription, is not sufficient as a and prudent man such serious suspicion of
plea in the latter case. --Ashbey v. Ashbey, plaintiff's guilt as to repel the idea that the
(La.) 539.

prosecutor was actuated by malice. — Luns-

ford v. Deitrich, (Ala.) 461.
Limiting Liability.

Evidence.
See Carriers, 1.

2. Plaintiff, an architect, when prosecuted

at the instance of defendant, for larceny from
Liquidated Damages. the latter of plans for a building, could show,

in an action for malicious prosecution, that
See Damages, 2.

the property of the drawings was in him by

« PreviousContinue »