1. An instrument in the form of a promis-
sory note, payable at a bank, but with the
seal of the maker attached, does not come
within Code Ala. § 2094, by which "bills of
exchange and promissory notes, payable in
money at a bank,
are governed by
the commercial law," and failure of consider
ation may be shown by the maker in a suit by
a bona fide holder, who took for value and be-
fore maturity.-Muse v. Dantzler, (Ala.) 178.*
2. Defendant was indorser of a note held
by plaintiff. After its maturity defendant
agreed that on transfer to him of the note,
and of the trust deed securing it, he would
indorse a new note for the amount due.
indorsed the new note, but the old note and
trust-deed were not assigned to him. Held,
that in the absence of a showing that he was
damaged by the failure to assign and deliver
the old note, defendant was liable on the new
note; the extension of time of payment on it
being a sufficient consideration.-Sanders v.
Smith, (Miss.) 514.
ment by one of them, and, the note being
found among the papers of such purchaser
after his death, it was presumptively in his
possession while living.-Potts v. Coleman,
(Ala.) 780.
6. The following instrument: "$365.74.
Moss POINT, April 16, 1888. Received on
board schooner Robert Delmas, from E. B.
Smith, 2,244 barrels of charcoal, for which I
promise to pay to the order of John J. Dris-
coll, at New Orleans, the sum of $365,74.
LOUIS CROMER, Master, "-is not a bill of ex-
change, and an action may be maintained
thereon against the maker without presenting
it in New Orleans for payment.-Smith v.
Cromer, (Miss.) 619.
Actions-Pleading and evidence.
7. It is harmless error to overrule a demur-
rer to a defective special count on a bill of ex-
change, when there are good common counts
under which the instrument is admitted in ev-
idence.-Espalla v. Wilson, (Ala.) 867.
8. In such case, though the bill of exchange
would be inadmissible under the common
counts without preliminary proof of its execu
tion, the error in admitting it without such
proof is cured if its execution is subsequently
shown.-Id.
9. At the request of the payee of a note, who
said that he desired to trade it with plaintiff,
but that plaintiff would not take it unless it
was payable at a bank, and contained a waiver
of exemption, the maker executed an instru-
ment in the form of a negotiable note, but un-
der seal, payable at a bank, and containing
the waiver, which the payee transferred to
plaintiff. Held, that the maker was not es-
topped to set up a failure of consideration
3. A certificate of shares of stock is not a which arose out of the original contract on
negotiable instrument, any usage among which the note was made, and which was un-
stock-brokers to the contrary notwithstand-known to him at the time.-Muse v. Dantzler,
ing; and an innocent purchaser for value of
such a certificate, indorsed in blank by the
owner, and stolen from him without negli-
gence on his part, acquires no title thereto.-
East Birmingham Land Co. v. Dennis, (Ala.)
Indorsement and transfer.
NEW TRIAL.
See Criminal Law, 53–56.
Objection to verdict.
When the verdict of the jury is clearly
against the evidence, a new trial should be
granted.—Meinhardt v. Mode, (Fla) 672
4. Under Code Ala. 1886, § 1761, providing
that a negotiable instrument payable to a per-
son or bearer shall be construed as payable to
such person or order, a person other than the
payee, who brings suit on such instrument
without indorsement, and who is shown to
have been the agent of the payee, and origin- See Practice in Civil Cases, 2.
ally brought the suit in that capacity, but
amended by striking out the name of his prin-
cipal, has the burden of proving, if his benefi-
cial ownership is denied, by evidence other
than the mere possession of the note, that he
is the beneficial owner,-Cobbs v. Bryant,
(Ala.) 586,
Under McClell. Dig. Fla. § 3, p. 792, empow
ering notaries public to take the acknowledg
ment of deeds and other instruments for rec-
ord, a notary public can take proof by sub-
scribing witnesses of the execution of a mort-
gage of real estate for record.-Edwards v.
Thom, (Fla.) 707.
Of incorporation of cities, see Municipal See Guardian and Ward; Infancy,
Corporations, 1, 2.
litigation, see Lis Pendens.
taking deposition, see Deposition, 1, 2.
When imputed to principal, see Principal | See Evidence, 11-13.
Appointment and tenure.
1. When the term of an elective county of-
fice, to which a person has been elected for
the entire term, has commenced, and there is
a vacancy in the office on account of the fail-
ure of the person elected to give bond and
qualify as required by Const. Fla. art. 8, § 7,
the governor may fill the vacancy by appoint-
ment.-Advisory Opinion, (Fla.) 613.
See Set-Off and Counter-Claim, 3.
In foreclosure proceedings, see Mortgages,
7-9.
To partition, see Partition, 3, 4.
proceeding to erase mortgage, see Judg-
ment, 5.
Necessary parties.
1. A suit by an evicted purchaser against
his vendor or the latter's vendor, for an in-
demnity on account of the breach of warranty
is not a real action, and when such suit is
brought against the succession of the vendor
the testamentary executor alone is competent
to defend the action, and it is not necessary
that absent heirs be made parties.-Succes-
sion of Cassidy, (La.) 292.
Real party in interest.
2. A steam-ship company took out an open
policy of insurance on merchandise to be
shipped over its steamers, which the company
might agree to insure prior to the sailing of
vessels, any losses to be paid to it or order.
Goods shipped by plaintiff were shipped un-
der such policy. Held, that plaintiff could
maintain an action on such policy under Code
Ala. § 2594, providing that actions on contracts
express or implied, for the payment of money,
may be prosecuted in the name of the real
party in interest whether he has the real title
or not.-Insurance Co. of North America v.
Forcheimer, (Ala.) 870.
Defect of parties-Objection, how
taken.
3. A demurrer for failure to make certain
persons specified in the demurrer parties de-
fendant, who do not appear by the bill to have
and interest whatever in the suit, is properly
overruled.-Ramage v. Towles, (Ala.) 342.
Bill in equity, pendency of proceedings in
probate court, see Abutement and Reviv-
al, 1.
1. In an action to set aside a conveyance by
2. Such appointee will hold, not for the re-
a married woman of her separate estate to her
mainder of the term, but only until the quali-husband and a son, on the ground that the
fication of a successor chosen at the next en-
suing general election, to be held in accord
ance with Const. Fla. art. 18, § 9.-Id.
Opinion Evidence.
Of cities, see Municipal Corporations, 5-6.
husband had not joined in the deed, when it
appears that the husband is dead, and his in-
terest in the land of his wife is thereby ter-
minated, a partition among her heirs is prop-
er. Trawick v. Davis, (Ala.) $3.
By judicial proceedings.
2. As incidental to a partition between
heirs, a court of equity may adjust and equal-
ize advancements, though jurisdiction of con-
troversies as to advancements is conferred on
the probate court. - Marshall v. Marshall,
(Ala.) 475.
By judicial proceedings--Parties.
3. As the authority of the personal repre-
sentative extends only to renting decedent's
lands, and to obtaining an order of sale for
payment of debts, he is not a necessary party
to a partition between the heirs and an inci-
dental adjustment of advancements, where
there are no debts.-Id.
4. As the husband under the Alabama stat-
utes has no interest in or control of the statu-
tory separate estate of the wife, and as by
Code Ala. § 2347, she must sue and be sued
alone in all cases involving such estate, a de-
murrer based on the misjoinder of the hus-
bands of the female heirs should be sustained.
-Id.
PARTNERSHIP.
1. The fact of a party advancing money to
pay the wages of the employés of a commer-
cial partnership, and discharging its other ex-
penses, does not constitute him a partner.-
Greend v. Kummel, (La.) 555.*
Evidence of.
2. In an action to charge defendant as a
member of an alleged partnership, evidence
that it was a matter of common notoriety that
a certain business was carried on in the name
of the alleged partnership is not admissible,
in the absence of evidence that the debt sued
for was contracted because of such notoriety,
and related to such business.-Tanner & De-
laney Engine Co. v. Hall, (Ala.) 584.
3. The fact that a person who makes ad-
vances of money to pay the employés of a
firm, takes the charge and superintendence of
the partnership business, and exercises the
rights of a proprietor does not constitute
him the owner of the establishment and
property, as between himself and the part-
ners.--Greend v. Kummel, (La.) 555.
Dissolution.
4. A firm being insolvent, one of its mem-
bers, P., prevailed on B. to buy up the cred-
itors' claims, and arranged with him to buy
out his partner, W., for a sum of money, and
gave him a partnership. He told W of the
arrangement which was concluded. There-
after W. filed his bill, charging that P. had
made a better arrangement for himself than
for his partner, and asking that his release
of his interest in the firm assets be rescinded.
Held demurrable for failure to show injury
to W.-Watts v. Patton, (Miss.) 628.
Rights of firm creditors.
5. Under Code Miss. § 1300, providing that
if any person shall merchandise with the ad-
dition of the words "Agent, ""and Co.," or
like words, and shall fail to have the name
of his principal or partner conspicuously
placed on a sign at his place of business, or
shall carry on business in his own name with-
out such addition, all goods, etc., used in or
accruing in such business, shall, as to his
creditors, be deemed his property, the stock
used in merchandising under the firm names
of "H. & C.," the surnames only of two part-
ners, of whom the junior is a married woman,
the business being conducted by her husband
and the senior partner under partnership ar-
ticles constituting the husband the wife's
agent to manage her interest therein, is
liable to the husband's creditors.-Evans v.
Henley, (Miss.) 522.
Actions-Pleading and evidence.
firm name, is demurrable for want of certain-
6. A bill brought by a copartnership, in the
as to the complainants; it being necessary
to allege their individual names.-Lewis v.
Cline, (Miss.) 112.
7. In an action on an instrument made by
one C., plaintiff joined other defendants with
C., who, he alleged, were "doing business un-
der the firm name of C." The attachment
writ was sued out against C. only. The other
defendants pleaded that they did not make
the writing, and denied partnership with C.
Held, that the court erred in excluding evi-
dence tending to show their liability, as by
pleading they had put that question in issue,
and had waived any objection on account of
the omission of their names from the attach-
ment.-Smith v. Cromer, (Miss.) 619.
PARTY-WALLS.
Right to build new wall.
1. The right granted to one co-proprietor of
a wall in common by Civil Code La. art. 62,
to demolish the old wall when found insuffi-
cient to bear the additional height and weight
of a proposed new structure, and to build a
new and thicker wall adequate to support the
new building as well as that of the neighbor,
at his own expense, and taking the additional
thickness from his own estate, is an absolute
right, and the previous consent of the neigh-
bor is not necessary.-Heine v. Merrick, (La.)
760.
2. The provisions of Rev. Civil Code La.
art. 685, requiring the consent of the co-pro-
prietor, or a decision of judicial experts, in
certain cases, do not apply to the cases aris-
ing under articles 681 and 682, which provide
for increasing the strength or height of the
wall.-Id.
3. The right to build the new and thicker
wall includes the rights to demolish the old
wall, to establish a sufficient foundation for
the new one, to disturb the neighbor's enjoy-
ment, and to enter upon his property to the
extent necessary for the exercise of the prin-
cipal right.-Id.
4. When one proprietor exercises the right
granted by Civil Code La. art. 682, his neigh-
bor is bound to bear, without indemnity, the
inconvenience and injury consequent thereon,
so far as they are inseparable from the exer-
cise of the right.-Id.
5. He is bound, at his peril, to replace the
neighbor, at the end of the work, in a position
every way equal to that which he occupied at
its beginning, and to furnish him a new wall
fit and adequate to support his building, and
for all shortcomings is liable to his neighbor
in damages. -Id.
Construction and material.
6. The provision of Civil Code La. art. 675,
restricting the right of one co-proprietor to
rest a wall in common more than nine inches
on the land of his neighbor, applies to the wall
itself, and not to its foundation, which, in New
Orleans, must necessarily be wider than the
wall.-Id.
7. The right to build a thicker wall under
Civil Code La. art. 682, includes the right to
rest it on the center of a sufficient foundation,
and although the additional thickness of the
wall itself must be taken from his own soil,
the foundation must necessarily extend equal-
ly on each side from the center of the wall.-
Id.
and deed were assigned to plaintiff. M.
bought supplies from plaintiff to an amount
in excess of the note, and delivered all his cot-
ton crop to him to be applied to the unsecured
portion of his account; but did not deliver
sufficient cotton to discharge all he owed,
there being a balance due secured by the deed
of trust. M., in the mean time, sold the mule
so mortgaged to defendant. Held, that the
application of the payments was between the
mortgagor and plaintiff, and defendant had no
right to object to anything they did in the
matter.-Hiller v. Levy, (Miss.) 226.
4. Rents paid by the mortgagor to the mort-
gagee, for the use of the land mortgaged, and
specially appropriated to the discharge of the
mortgage debt, are improperly applied by the
mortgagee on accounts constituting no charge
on the land.-Perdue v. Brooks, (Ala.) 126.
Penalties.
8. The requirement of Civil Code La. art.
675, that the wall in common should be built
in stone or brick, applies only to the wall and
its foundation proper, and does not forbid the
use of heavy timbers to make a firm and
smooth basis on which to build the brick foun-
dation, any more than it would apply to And liquidated damages, see Damages, 2.
wooden piles driven for the same purpose.-
Id.
1. An indictment which avers that the al-
Of note, see Negotiable Instruments, 5.
On account, conclusiveness, see Compromise.leged false oath was taken in a proceeding be-
1. Defendant, by resolutions of its board of
directors, sold its reconventional demand to
its treasurer, R., on his draft to be secured by
collaterals. Plaintiffs refused the draft, but
afterwards authorized their attorney to draw
on them for the amount of the demand in
question. The draft was made payable to R.,
his receipt for the amount attached, and it
was put in course of collection. Plaintiffs
paid the amount of the draft to the collecting
bank, and the draft and receipt were delivered
to them. Held, a complete payment of the
reconventional demand. Smith v. Atlas
Cordage Co., (La.) 413.
Application.
fore one P., who had been duly appointed
commissioner by the register in chancery, one
W., with authority to take the written testi-
mony of defendant in an action for divorce,
naming the parties to such action, and the
court in which it was pending, sufficiently al-
leges the substance of the proceedings, under
Code Ala. 1886, § 3908.-Hicks v. State, (Ala.)
425.
2. A charge of perjury was based on defend-
ant's deposition that she had seen defendant
in the suit for divorce, brought on the ground
of adultery, in an act of adultery, before her
marriage. Defendant's bill of exceptions
stated that there was other evidence of adul-
tery after marriage. Held, that it would be
presumed that this meant adultery between
the same parties; thus rendering defendant's
deposition material in the divorce suit, and
admissible on the trial for perjury.—Id.
2. Plaintiff's intestate agreed to assume
liability for advances to be made by defend
ant to her and her father to carry on farming.
A bill filed by intestate in her life-time
charged that intestate's father acted as her
agent, but in fact the farming was conducted
in her name because of his insolvency. Money
drawn by him and used for his own purposes See Criminal Law, 5-7.
was charged to intestate, and crops grown by
him on other farms were delivered to defend-
ant, and credited on the general account; the
entire account being kept in intestate's name.
Held, that intestate and her father occupied
the relation of surety and principal, and that,
in the absence of specific direction, payments
should be applied to the discharge of items as
they accrued, without reference to the fact
that one item was better secured than
another.-Moses v. Noble, (Ala.) 181.
3. One M. bought a mule, for which he gave
his note secured by a deed of trust. The note
See Alteration of Instruments; Equity, 17,
18; Frauds, Statute of, 6, 7.
Averment of lack of contributory negligence,
see Negligence, 7, 8.
In action by firm, see Partnership, 6, 7.
for commission, see Factors and Bro-
kers, 6.
for killing stock, see Railroad Com-
panies, 15, 16.
In action on bond, see Bonds, 1-3; Sheriffs
and Constables, 4.
on policies, see Insurance, 16-18.
ejectment, see Ejectment, 6-8.
Statute, see Limitation of Actions, 13.
Sufficiency of complaint, see Telegraph Com-
panies, 1, 2.
Usury as defense, see Usury, 7.
Plea in abatement.
1. In an action on a replevin bond, a plea in
abatement that at the time of the issuance of
the summons "in this cause another suit was
pending in this court between said plaintiff
and said defendants, involving the same cause
of action that is involved in this action," is
bad on demurrer.-Ernst v. Hogue, (Ala.) 738.
Demurrer.
2. A general demurrer, which fails to state
distinctly the special grounds of objection, as
required by Code Ala. 1886, § 2690, is properly
overruled.-Morris v. Beall, (Ala.) 252.
3. Where a complaint contains the common
counts in the form prescribed by the Code, a
demurrer to the entire complaint, and not to
any particular count, is properly overruled.
Griel v. Lomax, (Ala.) 325.
4. Where plaintiff, on the overruling of a
demurrer to the plea which presents a good
defense, or on sustaining a demurrer to the
replication, declines to plead further, a judg-
ment rendered for defendant will be affirmed.
-Brown v. Commercial Fire Ins. Co., (Ala.)
Motion to strike out.
5. The refusal of the court to strike out ir-
relevant and redundant averments from a
complaint, as authorized by Code Ala. 1886, §
2664, 2665, is not reversible error, unless it af
firmatively appears that defendant was prej-
udiced thereby.-Columbus & W. Ry. Co. v.
Bridges, (Ala.) 864.
6. If a replication is merely defective, and
not frivolous or a nullity, it is discretionary
with the trial court whether to grant a motion
to strike it from the record or to put the de-
fendant to his demurrer, and an order deny-
ing such a motion is not reviewable on error.
-Espalla v. Wilson, (Ala.) 867.
Replication.
10. A bill to enjoin a sale of land under exe-
cution against one of the complainants, the
other claiming by conveyance from her, and
the execution creditor alleging that such con-
veyance was voluntary, alleged that the lands
were acquired by the proceeds of a policy on
the life of complainants' testator, in which
complainants were both equally interested
under the will. A deposition showed that the
land was bought at foreclosure sale after the
testator's death, and paid for by crediting it
on the mortgage, which was held by testator,
and in which complainants were equally in-
terested by the will. Held, under Code Miss
§ 1881, allowing amendments "on liberal
terms," that an amendment, making the bill
conform to the proof, should be permitted,
though not asked for until the hearing; it ap-
pearing that the variance was not noticed un-
til then, and that the deposition had been on
file less than a week.-Jeffries v. Jeffries,
11. Where, in an action for breach of con-
tract, counts for goods sold and on account
stated are stricken out for misjoinder, it is
proper to allow an amendment, adding a sec-
ond count for breach of the contract.-Young
v. Arutze, (Ala.) 253.
Pleading and proof.
12. In a suit to subject land to the payment
of a debt of defendant's grantor, where the
answer alleges that defendant purchased the
land for a certain sum, which she paid to
such grantor in cash, a claim that the land at
the time of defendant's purchase was incum-
bered for purchase money owing by the gran-
tor, and that defendant paid the same as part
of the price agreed to be paid by her, and is
entitled to be reimbursed therefor, cannot be
considered.-Callen v. Schuessler, (Ala.) 795.
13. In an action for work done in the con-
struction of a brick-kiln, where the main is-
not necessary that plaintiff should prove the
sue concerns the number of bricks laid, it is
number laid with mathematical certainty.-
Birmingham Fire Brick Works v. Allen,
(Ala.) 454.
Joinder of issue-Similiter.
14. The supreme court of Florida will not
reverse a judgment, if the case was tried on
its merits, on the ground that there was no
7. It is not error to try the issues in the ab-issue to be tried, because of failure to join is-
sence of a formal issue, or replication by plain-sue by similiter, to a plea of not guilty.-Flor-
tiff to defendant's pleas, and where the rec-ida Ry. & Nav. Co. v. Webster, (Fla.) 714.
ord is silent it will be presumed that the de-
fendant pleaded the general issue, or that
plaintiffs took issue on defendant's pleas.-
Home Protection of North Alabama v. Cald-
well, (Ala.) 338.
Verification.
8. A demurrer to a plea not verified, deny-
ing execution of the instrument sued on, is
properly sustained.-Mobile & M. Ry. Co. v.
Gilmer, (Ala.) 138.
Amendment.
9. An amendment to a complaint and sum-
mons showing that the defendant is a body
corporate, and is sued in its corporate capaci-
ty, does not operate to substitute a new party
defendant.-Western Railway v. Sistrunk,
(Ala.) 79.
PLEDGE.
Rights of pledgee.
1. Where a planter deposits with a mer-
chant as collateral security for advances a
mortgage taken by him on the crop of a debt-
planter as a payment on the mortgage debt is
or, any portion of the crop received by the
held by him as the agent of the merchant.—
Newman v. Bank of Greenville, (Miss.) 753.
2. The fact that a creditor holds collateral
securities does not prevent the principal debt
from becoming due, nor debar him from pur-
suing legal remedies for its enforcement.-
Germania Sav. Bank v. Peuser, (La.) 75.
3. The right of retaining possession of the
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