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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.

Modification.

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 Notice.

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)

772.

Jurisdiction.

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.

JURY.

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.

Challenges.

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

26.

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.

Justifiable Homicide.

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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.

Landlord's lien.

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.

Attachment.

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.

LARCENY.

What constitutes.

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.

Instructions.

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.

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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.*

LICENSE.

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.

Life Insurance.

See Insurance.

LIMITATION OF ACTIONS.
Of action on insurance policy, see, Insurance,
Running of statute, see Corporations, 12.
Application of statute.

15.

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.

LIENS.

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.

On crop.

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-

Liquor Selling.

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.

Lost Instruments.

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

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

Acknowledgment.

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,

(La.) 539.

Limiting Liability.
See Carriers, 1.

Liquidated Damages.

See Damages, 2.

Malice.

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.

Evidence.

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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