averment, defendant pleaded, but did not ap- pear at the trial, and verdict and judgment were rendered for plaintiffs. Held that, un- der Code Ala. 1886, § 2835, providing that no judgment can be arrested, annulled, or set aside for any matter not previously objected to, if the complaint contains a substantial cause of action, it is too late after judgment to raise objections.-Home Protection of North Alabama v. Caldwell, (Ala.) 338. Action on judgment-Evidence.
of the proceedings in which the judgment was 9. In an action on a judgment a transcript rendered was offered in evidence, which con- tained the complaint of plaintiff asking for damages against defendant, and the answer of the latter, and which set out that after trial by a designated court a verdict was rendered for plaintiff, and that it was adjudged that plain- tiff have judgment. The names of the parties were set out in full on the margin of the judg ment entry. Held, that the transcript suffi- ciently showed that a judgment had been ren- dered against defendant, and that its exclu- sion from evidence was error.-Flack v. An- drews, (Ala.) 452.
3. A judgment dismissing an action at law as to one of the defendants therein because the court of law had no jurisdiction of the cause, and as to the other defendant on ac- count of an improper joinder of defendants, is not a bar to a subsequent suit in equity brought to subject the property of the former defendant to the payment of the same cause 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, involving the validity of title, the former ven- dor and warrantor, having notice thereof, and participating in the case through counsel, though not a party, is not bound by the judg ment to the title as technical res adjudicată; but in a subsequent suit against him as war- rantor of the same title the former adjudica- tion will be followed unless manifestly er- roneous, or unless the issue is changed by new evidence.-Elder v. Farrell, (La.) 71.
Parties affected by.
5. A mortgagee is not bound by a judgment erasing his mortgage when not a party to the rule to erase it, though he may be injured thereby, at least in restoring his mortgage, which may, under the judgment, have been released by the recorder of mortgages.-Ash- bey v. Ashbey, (La.) 546.
6. Where plaintiff in trespass, in which judg- ment has been obtained against defendant, is not the same as the plaintiff in a second suit for the statutory penalty, against the same defendant for the same trespass, de- fendant cannot set up the recovery in the former suit as a bar to the latter.-Allison v. Little, (Ala.) 221.
7. When a decree is so framed as to cover certain charges made by the bill and put in issue, but not sustained by testimony, it should be modified so as to make it cover only issues sustained by testimony, if such modifi- cation is essential or material to defendant.- Edwards v. Thom, (Fla.) 707.
Opening and vacating.
8. In a suit on a fire insurance policy, where the complaint contained every necessary
JUDICIAL SALES.
Of decedents' estates, see Executors and Ad- ministrators, 7-20.
Reversal of decree.
1. A bill to set aside a judicial sale, on the ground that the decree ordering it, though not superseded, had been reversed on appeal, al- leged that the solicitor of record of the party in whose favor the decree was rendered was in fact the purchaser. The record showed that the register made a conveyance to B., and reported that B. was the purchaser, and the sale to B. was confirmed. The register testi- fied that T., who bid off the land, told him to make the deed to the solicitor, and call at the bank and get his money. This was denied by both T. and D., who testified that T. bid off the land for D., who paid the register's costs, and had given his note to the solicitor for the pur- chase money, and that there was no arrange ment with the solicitor in regard to the pur- chase. Held, that the sale would not be set aside.-Phillips v. Benson, (Ala.) 78. Inadequacy of price.
2. Where the one-half interest of a dece- Ident in land worth $900, and incumbered by there is no such inadequacy of price as would tax-liens amounting to $243, is sold for $305, justify a resale, though the complainant, a creditor, offers, at the hearing, to give $900 for the land.-Glennon v. Mittenight, (Als)
See Injunction, 1, 2.
In criminal cases, see Criminal Lane, 1. Of justice, see Justices of the Peace.
On appeal, see Appeal, 1.
To remove cloud from title, see Quieting Ti-obtainable, it was opened with another key. tle, 1.
See, also, Grand Jury.
Correction of jury minutes, see Records. Intervention of, to assess damages on default, see Judgment, 1. Misconduct, see Criminal Law, 53–56,
Competency of juror.
1. A juror, in response to the question wheth- er he had a fixed opinion which would bias his verdict, replied, he knew nothing but what he read, that he had an opinion to a certain extent, and "I am afraid I would go into the jury with a biased opinion, but after being sworn as a juror, I could lay that opinion aside, and find a verdict upon the evidence alone, without reference to any opinion I now have." Held, that there was no error in hold- ing the juror competent.-Long v. State, (Ala.) 443.*
ed, except that, the key of the box not being Held that, under Acts Ala. 1882-83, p. 501; Acts 1884-85, p. 534; and Acts 1886-87, p. 201, regulating the mode of drawing jurors, this was a substantial compliance with the stat- utes in force at the time of trial.-Long v. State, (Ala.) 443.
6. In Alabama, there being no statute au- thorizing peremptory challenges of jurors in condemnation proceedings, no challenges can be made except for cause.-Brown v. Rome & D. R. Co., (AĨa.) 195.
7. Act Gen. Assem. Ala. Feb. 28, 1887, § 17, repealed all laws in conflict with it, and pro- vided that "all laws now in force in relation to jurors, their drawing, selecting, or qualifi- cation, not in conflict with this act, are hereby continued in full force and effect;" but con- tained no provisions as to jurors in capital cases. Held not a re-enactment of that date 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 4, § 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.) 278. that the juror possesses the qualifications re- quired by law. Held, that the court had power to excuse one summoned who could not understand the English language sufficiently to qualify him as a juror.-Id.
Summoning and impaneling.
3. An objection that the names of persons summoned as tales jurors were not written on ballots and placed in the venire box, and drawn therefrom, but were called from a list made out and furnished to the counsel by the sheriff, will not prevail, in case it appears
that the entire list was exhausted before the
JUSTICES OF THE PEACE.
Jurisdiction, separate claims, amount in- volved, see Action, 1. Jurisdiction.
Plaintiff filed with a justice three claims against defendant railroad company for dam- ages for injuries to his stock on three differ- tions, but issued only one writ. Defendant ent occasions. The justice docketed three ac- panel was completed.-State v. Dorsey, (La.) consolidate all the actions, which was denied, appeared to one action only, and moved to 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 fix 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 for $125. Held, that no jurisdiction was ob- summoned for such week. Held that, where the trial is set for a day of the same week intained 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.) 167. 5. On a prosecution for arson, in the city peal as to the actions in which no appearance was entered. On either theory, its judgment was erroneous.-Louisville & Ñ. R. Co. v. Mc- Collister, (Miss.) 695.
court of Mobile, Ala., the original venire hav- ing been exhausted without completing the 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 talesmen, in open court. The jury still being incomplete, the same proceeding was repeat-See Homicide, 5-9.
LANDLORD AND TENANT. Separate actions for rent, see Action, 1. Validity of lease, see Frauds, Statute of, 3. When relation exists.
1. Complainant held a deed of trust on land of A., which was presently subject to fore- closure. A. made a contract to sell the land to B. Complainant's attorney, at their in- stance, drew an agreement, by which A. leased the land to B. for the year 1887, for a certain sum to be paid as rent November 1, 1887; and if the rent-note, and also another note for a certain sum due November 1, 1888, should be paid promptly, the land was to be conveyed by A. to B.; but, if either note should not be so paid, A. or the assignee of the note should have the right to declare the lease and sale void. The notes were made payable to A. or bearer, and were intended beforehand by all the parties to be transferred to complainant, which was done. Held, that the relation of landlord and tenant was cre- ated between complainant and B., and that the former was entitled to an attachment for rent.-Houston v. Smythe, (Miss.) 520. Rent.
2. In an action on a bill of exchange provid- ing for the payment of the agreed rent month- ly, an instruction that if the lessor complied with his agreement he can recover for the full term, though the lessee abandoned the premises before the expiration of the lease, does not amount to a direction to disallow an undisputed payment of one month's rent.— Espalla v. Wilson, (Ala.) 867.
3. Code Miss. § 1301, provides that every lessor of lands shall have a lien on all the crops of the leased premises, however and by whomsoever produced, to secure the rent, and advances made by him for supplies for the tenant, and for his business carried on on the leased premises; that such lien shall be paramount to all other liens or demands on such products; and that the claim of the lessor for supplies may be enforced in the same manner as his claim for rent may be. Chapter 51 provides that such lien shall be superior to the rights of a mortgagee. Held, that such lien can be enforced against the crops of the leased premises after their removal therefrom, and must prevail against a bona fide pur- chaser for value.-Newman v. Bank of Green- ville, (Miss.) 753.
4. Such lien will pass to an assignee of the claim of the landlord against the tenant for rent and supplies.-Id.
5. Plaintiffs made certain advances to a ten- ant on the strength of the deposit with them as collateral security of a rent-note executed by the tenant to the landlord. The latter in- dorsed the same in blank, and wrote that he had surrendered the note to the tenant, to use as he should see fit. Held, that there was an assignment of the note to the plaintiffs, and they were entitled to subject to the payment of such note the crops of the leased premises. -Id.
6. Code Ala. 1876, § 3472, provides that a landlord may enforce his lien for rent and ad- vances when due, and the tenant fails, after demand, to pay it, or, whether the rent and advances are due or not, when the tenant has removed any part of the crop from the prem- ises without such payment, and without the which fails to aver demand of the rent and landlord's consent, Held, that an affidavit advances alleged to be due and unpaid, and to negative the consent of the landlord to the re- moval of the crop, is fatally defective.-Rob- inson v. Holt, (Ala.) 350.
7. The attachment having been issued be fore Code Ala. 1886, took effect, section 2998 of that Code, permitting an amendment before or during trial of any defect of form or sub- stance in the affidavit, does not entitle plain- tiff to leave to amend his affidavit in these re- spects, as section 10 provides that "this Code shall not affect any existing right, remedy, or defense. "-Id.
8. An assignee of a note given by a tenant in payment of rent is not entitled to the remedy by attachment given by Code Miss. $ 1302, 1324, to a landlord, grantee of demised premises, or of the reversion thereof, their heirs, executors, and administrators. Gross v. Bartley, (Miss.) 225.
to be made upon the crops of M., or of his ten- 9. A writ of attachment commanding a levy ants, raised on his premises, issued to enforce the lien of a mortgage given by M. on the crop to secure advances made to him to enable him to raise it, as provided by Code Ala. 1576, § 3256, is void on its face as to a tenant of M., not a party to the attachment, as said statute gives no authority to a landlord to bind the crop of his tenant.-Albright v. Mills, (Ala.) 591.
1. Defendant's lessor sold him two calves, the title in them to remain in the lessor until they were paid for. A dispute arose as to the debt, and the lessor broke open defendant's corn-crib, and appropriated the corn, where- upon defendant, after consultation with an attorney, openly, and in the day-time, sold the calves. Held, that he was not guilty of lar- ceny.-Buchanan v. State, (Miss.) 617.*
2. One who has the bare custody of prop- erty as the employé or servant of the owner, is guilty of larceny, if he fraudulently appro priates such property to his own use.→→Croch eron v. State, (Ala.) 649.
3. On indictment for larceny the court prop- erly refused to instruct the jury to find for defendants, if from the evidence there ap- peared to be a question, no matter how slight, as to the ownership of the property.-Robin- son v. State, (Fla.) 6. Verdict.
4. On indictment for larceny the jury may, under Rev. St. La. § 1056, return a verdict of "not guilty of larceny but guilty of embezzle- ment."-State v. Williams, (La.) 16.
LIBEL AND SLANDER. Words actionable per se.
Under Code Ala. § 2726, providing that ev- ery accusation importing the commission of a crime must be held to mean what the language ordinarily imports, and section 3795, making it embezzlement for a clerk to convert to his own use, or secrete with such intent, money in his hands by virtue of his employment, a publication commencing, "C.'s clutch on his friends, which caused them to trust him and get left, "and stating that C., a shipping clerk, collected a bill due his employer, and se- creted it till he was discovered; that he bor- rowed money and went away leaving bills un- paid; and that he caught a number of friends who had confidence in him,-is a libel per se. -Iron Age Pub. Co. v. Crudup, (Ala.) 332.*
To keep boarding-house-Construc- tion of statute.
Jing, and ginning the cotton grown thereon, is entitled to a lien on the cotton, under Code Miss. 1360, providing that every employé, etc., who may aid by his labor to make, gath- er, or prepare for sale any crop, shall have a lien on the interest of the person who con- tracts with him for his wages, paramount to all other liens except the landlord's lien for rent and supplies. - Lumbley v. Thomas, (Miss.) 823.
2. A contract by which a merchant agrees to make advances to a cotton planter, and the latter agrees to ship all cotton grown by him to the merchant, does not create a lien on the cotton in favor of the merchant.-Newman v. Bank of Greenville, (Miss.) 753.
LIMITATION OF ACTIONS. Of action on insurance policy, see, Insurance, Running of statute, see Corporations, 12. Application of statute.
1. An action by a vendee against a vendor for reimbursement for taxes paid by vendee since sale, but which existed prior thereto, is a personal action only, prescribed by 10 years under the Louisiana statute. Sandidge v. Hunt, (La.) 55.
2. An instrument under seal, containing covenants, is governed, as to the period of limitation, by Code Ala. § 2614, barring actions on contracts or writings under seal in ten years; and demurrers to pleas setting up the one and six year statutes of limitations are properly sustained.-Mobile & M. Ry. Co. v. Gilmer, (Ala.) 138.
3. An action for account of the usufruct is barred by the prescription of 10 years only, usufruct. Cochran v. Violet, 38 La. Ann. 525. to be completed from the termination of the -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) without paying a privilege tax as required by a statute making it a misdemeanor to keep a private boarding-house in a "town" without paying such tax, the question whether Mis- sissippi City was a "town" or not, within the meaning of the statute, was a question of fact for the jury, and the court erred in charg- ing that it was a town. -Murphy v. State, (Miss.) 626.
Extinguishment, see Mortgages, 3. Of attachment, see Attachment, 1. landlord, see Landlord and Tenant, 3-7. mortgage, see Chattel Mortgages, 3-5. vendor, see Sale, 6; Vendor and Vendee, 12-20.
1. A person employed to do general work on a plantation, who assists in making, gather-
4. Where one conveys land with warranty of title, and debts owing by him are after- wards charged on the land by decree, and the land is sold therefor, and purchased by the grantee, the grantee's right of action against the grantor for the amount paid at the latter sale accrues, and the statute of limitations be- gins to run, from the time of payment. He need not delay suit until confirmation of the sale.-Hebron v. Yerger, (Miss.) 110.
5. Code Ala. § 2627, provides that where there are mutual accounts between persons who are not merchants, time must be com- puted from the date of the last item, unless the account is liquidated and a balance is struck. Held, that where all the items of an account are on one side, though the other par- ty has cross-demands in the shape of certain 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. Manning, (Ala.) 682.
6. There being no actionable breach of a con-
tract by a wife to make a will in favor of her 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 such action was dismissed for the reason that
the party who had brought it had no interest in the matter, and was not a creditor of the debtor, whose act was assailed as being a fraudulent preference of one creditor over an- other. Ashbey v. Ashbey, (La.) 539. Disabilities and exceptions.
LIS PENDENS.
When notice imputed.
Where a person applies to be made a party to a suit in equity, and an order is made that the cause stand over, with liberty to the com- plainant to amend his bill by adding proper parties, if he should be so advised, such order does not make the applicant a party to the bill, in-nor create a lis pendens, as to him, prior to his being made a party.-Bigelow v. String- fellow, (Fla.) 816.
8. The extension of five years in which fants may sue "after the termination of their disabilities," given by act Ala. Feb. 7, 1843, 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 secure to the suitor the five years after reach- ing majority. If during the ten years there have been five years of majority, the period is not enlarged beyond the ten years.-Black v. Pratt Coal & Coke Co., (Ala.) 89.
9. In Alabama, the period from January 11, 1861, to September 21, 1865, is to be deducted, in any computation covering that period in which the time necessary to perfect the stat- utory bar is the subject of inquiry.-Id.
10. From the 20 years necessary to raise the presumption against claims suffered to slum- ber for that length of time, the period during the war is not deducted.-Id.
LOGS AND LOGGING.
Liability for obstruction of stream. 1. Where defendants, having a right to construct a boom for logging purposes, in a stream that had been made a public highway for the purposes of logging, continue it area- sonable time, they are not liable for damages caused by an obstruction made by a log jam, if they exercise due care to prevent it, or to break it when formed.-Harold v. Jones, (Ala.) 438.
2. If plaintiffs, knowing of such obstruc- tion, drive their rafts on it without allowing defendants time to remove it, they cannot re- cover damages for loss of lumber caused thereby.-Id.
11. A prayer for the nullity of a mortgage, in so far as relates to the complaining credit- or's rights, characterizes the suit as a revoca- tory action. The lapse of time within which 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
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 brought by a tutor for his ward, as judgment creditor of the common debtor.-Ashbey v. Ashbey, (La.) 539.
12. An admission of a debt made by defend- ants in their answer to a bill to set aside their assignment, and to vacate judgments con- fessed by them, is not a sufficient acknowl- edgment.-Holberg v. Jaffray, (Miss.) 94.* Pleading.
13. Courts cannot supply the plea of pre- scription, and an averment by the pleader that, in the same matter, between the same parties, but in a different suit and in another court, he had pleaded prescription, is not sufficient as a plea in the latter case.-Ashbey v. Ashbey,
Limiting Liability. See Carriers, 1.
Liquidated Damages.
See Damages, 2.
See Malicious Prosecution, 1.
Instructions as to, see Assault and Battery.
MALICIOUS PROSECUTION. Malice.
1. The inference of malice drawn from want of probable cause may be rebutted by proof that the prosecutor, though not able to show under an honest belief that plaintiff was guilty probable cause, instituted the prosecution of the offense charged; provided such belief is founded on facts and circumstances, which would produce in the mind of a reasonable and prudent man such serious suspicion of plaintiff's guilt as to repel the idea that the prosecutor was actuated by malice. -Luns- ford v. Deitrich, (Ala.) 461.
2. Plaintiff, an architect, when prosecuted at the instance of defendant, for larceny from the latter of plans for a building, could show, in an action for malicious prosecution, that the property of the drawings was in him by
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