at the moment of his solemn statement un, der oath, not upon what he had last year or last month or yesterday. And the plaintiff is entitled to know affirmatively from his claim and inventory what he has now. Had the claim filed on March 18th in terms stated that on the 19th day of the preceding January the defendant owned the property therein described, and was then entitled to have the money due him from the garnishee exempted from the satisfaction of plaintiff's judgment, it would not, we apprehend, be for a moment insisted that the claim and inventory were sufficient, and made a prima facie showing for the allowance of the exemption; for non constat but that the defendant in the mean time had acquired, and at the time of filing the claim was the owner of, personal property, choses in action, and money which was not and could not have been embraced in the claim. This is precisely the substance, meaning, and effect of the claim and statement which was filed in this case, though it does not in so many words aver that two months before it was filed defendant had only the property set forth in it, and was then entitled to the exemption claimed. This claim and inventory was sworn to on January 18, 1893. It was a statement of the property, etc., which the defendant then had. It asserted that the defendant was then entitled to the exemption claimed, and this only, as we have seen, against the judgment of McPhillips. The paper speaks only of the time when it was originally filed. The defendant swore that the facts set forth in it were then true. It was taken out of the file in that case, and filed for the defendant in this; but it still speaks only of a state of things existing on the 19th of January, and not of facts existing on the 18th of March. Whether the intervening time be long or short can make no manner of difference. If a defendant can claim exemptions on a state of facts which are shown by his affidavit to have existed two months before, but which are not shown to exist at the time the claim is actually interposed, he may equally well base his claim upon facts existing 10 years before. If the requirement that his claim shall be accompanied by a sworn statement showing the personal property, choses in action, and money belonging to him, and the location thereof, at the time the claim is propounded, can be filled by his affidavit that two months before he owned only certain described personal property, etc., it can equally be met by a verified statement of his personal effects 10 years before, or by presently filing a sworn inventory made and verified any length of time in the past. There is, we think, therefore, no escape from the conclusion that the claim filed in this case was wholly insufficient and bad, in that-if not for other reasons than this and those first adverted to it was not accompanied by a presently verified statement of the personal

property, choses in action, and money be longing to him at the time of filing the claim. Buckland v. Tonsmere, 90 Ala. 503, 8 South. 68; Tonsmere v. Buckland, 88 Ala. 312, 6 South. 904. The plaintiff did not waive any of the infirmities of the claim of exemptions to which we have referred. To the contrary, on account of them he objected to the filing of the claim, and moved to strike it out after it had been filed against his objec tion, and finally moved for judgment against the defendant and his sureties on the bond given under the act of 1890-91 to dissolve the garnishment, notwithstanding the pending of the alleged claim. His objection to the filing was overruled, and each of his motions was denied. In each and all of these rulings the trial court erred. The claim should not have been admitted to the file. Having been put on file, it should have been stricken out; and its being on the file was no obstacle to the rendition of a judgment on the answer of the garnishee. Reversed and remanded.

YELDELL v. STATE.

(Supreme Court of Alabama. Jan. 16, 1894.) CRIMINAL LAW - CONDUCT OF TRIAL - LIMITING ARGUMENT OF DEFENDANT'S COUNSEL-COSTS.

1. A court which has allowed defendant "to confess judgment with good and sufficient sureties for the fine and costs" (Code, § 4502) need not grant an order to be entered on the docket limiting the confession of costs to those incurred on behalf of the state, since the clerk can enter judgment for such costs only.

2. Defendant was tried for assault with intent to murder, and convicted of assault and battery. The witnesses were few, and there was little conflict as to the facts. Held, that the court did not abuse its discretion in limiting the argument of defendant's counsel to 25 minutes.

Appeal from circuit court, Butler county; John R. Tyson, Judge.

Finney Yeldell was convicted of assault and battery, and appeals. Affirmed.

J. C. Richardson, for appellant. Wm. L. Martin, Atty. Gen., for the State.

HARALSON, J. 1. The defendant was indicted and tried for an assault with intent to murder. He was convicted of an assault and battery and fined five dollars. He asked a charge which had reference alone, to an assault with intent to murder, but we will not consider it, since he was not convicted of this, but of a smaller offense, to the commission of which the charge had no reference.

2. Section 4502 of the Code provides, that "when a fine is assessed, the court may allow the defendant to confess judgment, with good and sufficient sureties, for the fine and costs." The defendant, after he and his sureties had confessed judgment for fine and costs, requested the court, by an order to be entered on the docket, to limit the confession

as to the costs, to such as had been incurred on behalf of the state. The court refused to inake such an order on the docket, but stated he would instruct the clerk, and did so instruct him, to include in the taxation of the costs, only such as had been incurred on behalf of the state. To the refusal of the court to make the order on the docket as requested, the defendant excepted. There was no error here. The confession of the judgment was made in exact accordance with the statute, and it was not incumbent on the court to go any further, and do as the defendant proposed, although it would not have been improper to do so, and really, by so doing, the judgment entry in this respect would have been clearer, and a mistake of a wrong taxation of the costs afterwards, rendered less liable to occur. The judgment entry, however, as made, could include only the costs of the state, and the clerk, without being told, was bound to know that fact, and that any taxation by him of the costs of the defendant, would be illegal. Bowen v. State, (Ala.) | 12 South. 809.

3. The only other question presented is, whether the court had the right to limit the argument of the defendant's counsel, as to the time it should occupy. It is stated in the bill of exceptions, that before the argument of the cause began, the presiding judge statcd, that he would limit the arguments to 15 minutes on each side. Against this limitation the defendant, by his attorneys, protested, on the grounds, that the court had no right, in a case like this, to put such a limit on the speech of his counsel; that 15 minutes to the side, was an unreasonable limitation, in violation of defendant's constitutional rights; and he demanded that the court should not limit the argument of defendant's counsel to 15 minutes, but allow it without limit as to time. This the court refused to do, and the defendant excepted. After one of the defendant's attorneys had addressed the court and jury for 25 minutes, the judge announced that his time for argument had expired, and the attorney again demanded that he be permitted to continue the argument, which the court refused to allow, and the defendant excepted.

4. The constitution of this state provides (article 1, § 7) "that in all criminal prosecutions the accused has the right to be heard by himself and counsel, or either." The constitutions of most of the states have similar provisions, and the federal constitution provides, that in all criminal prosecutions, the accused shall have the assistance of counsel for his defense. Article 6, Amendments. In Georgia, in a prosecution for an assault with intent to murder, the court below, against the protest of defendant, limited the defendant's counsel to 30 minutes in his argument to the jury. The court allowed him 40 minutes. The defendant was convicted of an assault and battery. On a motion for a new trial, based on these facts, the supreme

court held, that the court below committed a grave error. Hunt v. State, 49 Ga. 255. In North Carolina, on a prosecution for murder, the trial court limited the argument of counsel for defendant, to 11⁄2 hours. The right thus to limit counsel, coming before the supreme court, the court indulged an expression of regret at the necessity for a question of the kind to be presented in that court for review, stating, that theretofore, the judges, in the exercise of their discretion in such matters, had deemed it better to submit to an abuse of the privilege of argument by counsel, rather than to appear to deny a right in such connections. The court, however, held that it was a matter within the discretion of the judges to regulate, and that an admission of the discretion was, at the same time, a denial of the right to review the exercise of that discretion. State v. Collins, 70 N. C. 241. These two cases present the extremes of the doctrine, and neither meets our approval. The correct and just principle, sanctioned by reason and authority, lies between these extremes. Courts are established for the administration and promotion of justice. If time and patience are not accorded a defendant, proceeded against in a cause in which his life or liberty is endangered, this high end and aim of the court, would be subverted. If time is valuable and is pressing, if patience has been sorely taxed, any just judge will be careful, yet, to allow full and fair opportunity to counsel to present his client's defense. This much is guarantied in the constitution, and no more; and this guaranty is not inconsistent with the existence of power in the court to regulate the exercise of the right of argument by reasonable rules and regulations. Counsel have no more right, from whatever motive, unnecessarily to waste the time of the court, in improper and unnecessary speech, than the court has, to deprive them of reasonable opportunity to make defense for their clients. Should they abuse their privilege in this regard, it is the right and duty of the court to restrain them within proper and legal bounds. Weeks, Attys. at Law, § 115; Proff. Jury, 254; State v. Page, 21 Mo. 257; Lynch v. State, 9 Ind. 541; Mussleman v. Pratt, 44 Ind. 126; Weaver v. State, 24 Ohio St. 584; Com. v. Buccieri, 153 Pa. St. 551, 26 Atl. 228; Dobbins v. Oswalt, 20 Ark. 619; Freligh v. Ames, 31 Mo. 253.

5. The witnesses in this case were but few, and several were examined alone as to the character of the defendant and the party assaulted, the evidence of all of them being set out in about 21⁄2 pages of the transcript, loosely written, in a large hand. The facts were few and simple, with but slight conflict. The question of self-defense hardly had a place for argument, and the principles of law were plain and familiar. We fail to see any evidence in this record, that the privilege of counsel was improperly restricted in this instance. In the absence of such discovery we

do not feel authorized to declare that the trial court exercised its discretion improperly. Affirmed.

HOOD v. LEAGUE. (Supreme Court of Alabama.

Jan. 12, 1894.) ACTION AGAINST ADMINISTRATOR-LIMITATIONS. 1. Where services are rendered by one person to another, and knowingly accepted, a promise to pay therefor is presumed, unless the relation of the parties, the nature of the serices, or other circumstances, are such as to rebut this presumption.

2. In computing the three-years limitation in an action against an administrator for services rendered his intestate, the six months in which, under Code, § 2263, no suit can be brought against an administrator, must be excluded.

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by Patience League against William H. Hood, as administrator of Louisa Garrett, deceased, for services rendered to defendant's intestate. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint in this case sought to recover an amount due from defendant's intestate "by an account made by said intestate on the 1st day of October, 1890, or for work and labor done, and for services rendered to the said Louisa Garrett, now deceased, during her lifetime, by the plaintiff, during divers days, weeks, months, and years prior to her death," etc. The defendant pleaded the general issue, and, for a further plea, pleaded the statute of limitations of three years and of six years. On the trial of the cause, it was shown by several witnesses introduced in behalf of the plaintiff that she had lived with the defendant's intestate, Louisa Garrett, since October, 1868, up to the time of her death, which occurred in November, 1890; that for some four years prior to her death the said Louisa Garrett was partially paralyzed, and unable to help herself; that plaintiff did the cooking, washing, cleaning up the house, milking, cutting wood, fed and tended the stock, and that for these services she had never been paid, except a few dollars at different times. It was also shown by the testimony of these witnesses that no contract to pay the plaintiff for her services in the household of Louisa Garrett had ever been made between the plaintiff and the said Louisa Garrett; but it was shown that said Louisa Garrett, some few days before her death, had requested the physician who attended her in her last illness, and who had been her family physician for a number of years, "to see that plaintiff got her pay for waiting on her, as she had never paid her anything or given her anything." The value of the services was proved by the testimony of witnesses. The cause was tried by the

court without the intervention of a jury, and upon the introduction of all the testimony the court rendered judgment for the plaintiff, after deducting the several small payments that had been made to the plaintiff; but it was recited that in this judgment the recovery of the plaintiff was restricted to the four years prior to Louisa Garrett's death, during the time she was partially paralyzed.

Dortch & Martin, for appellant.

COLEMAN, J. This action was to recover for services rendered by Patience League to defendant's intestate. Prima facie, valuable manual services rendered by one person for another, the benefits of which are knowingly accepted and enjoyed by the latter, are not intended or understood to be a donation. Unless there is something in the relation of the parties, the nature of the service rendered, or other circumstances to rebut the presumption, the law will presume an obligation to pay for such services; and, if there was no express contract as to value, the law will imply that the party receiving the benefit of the services agreed to pay what they were reasonably worth. Wood v. Brewer, 66 Ala. 570; Railroad Co. v. Hill, 76 Ala. 303. In addition to this principle of law, the family physician of deceased testified that, a few days before her death, she requested him "to see that plaintiff got her pay for waiting on her." This testimony is not only uncontradicted, but there are no facts in evidence which would authorize an inference in conflict with it. The action was for services rendered during a number of years prior to the death of deceased, and, as the evidence shows, was upon an implied contract to pay. The evidence shows that it was customary to pay for similar services, either by the month or by the year. The suit was upon an open account. Gayle v. Johnston, 72 Ala. 254. The defendant interposed the plea of the statute of limitations of three years. This was a good plea in bar to the action for so much of the claim as had become due three years before the beginning of the action, excluding from the computation six months, as provided in section 2263 of the Code. When the wages are payable by installments, the party entitled to receive them may sue and recover each installment as it becomes due. Strauss v. Meertief, 64 Ala. 299. It will depend upon whether the wages became due and were payable monthly, or at the end of each year, to determine what claims are barred by the statute of limitation of three years.

The court properly credited the claim with the payments made, but erred in rendering judgment for services rendered during a period back beyond that to which the plea of the statute of limitations applied. Reversed and remanded.

REYNOLDS et al. v. EXCELSIOR COAL CO. (No. 927.)

SAME v. TANNEHILL. (No. 965.) (Supreme Court of Alabama. Nov. 14, 1893.) CANCELLATION OF DEED-PROCUREMENT BY FRAUD -EVIDENCE.

Plaintiff grantor testified that defendant grantee came to his house to buy both sections 5 and 29 in a certain township, and that he agreed to sell only section 5, but that while he was in another room the grantee substituted a deed of section 29 for that of section 5, which he had put on the table, preparatory to signing. Defendant denied this, and testified that plaintiff was willing to deed section 29, and not section 5. It appeared that section 29 was entered in the name of D. T., and section 5 in the name of D. M. T., and plaintiff testified that he intended to sell land entered in the name of D. T., and not that entered in the name of D. M. T., and the deed actually signed by him described the land as entered by D. T. It further appeared that when defendant called on plaintiff to purchase the land he had a deed for each piece of land for plaintiff to sign, one describing a piece as entered by D. T., and the other a piece as entered by D. M. T. Held, that it was not shown that defendant substi tuted one deed for another, as alleged.

Appeal from chancery court, Shelby county; S. K. McSpadden, Chancellor.

Bill by the Excelsior Coal Company against H. C. & W. B. Reynolds. Bill by L. M. Tannehill against the same defendants. From a decree for complainants in each case, defendants appeal. Reversed.

In the case in which the Excelsior Coal Company is complainant, the bill was filed by it as the grantee, which alleged that it did not know when it bought, nor when it took possession, and when the deed to the land in controversy was made, that its grantor had, before, through fraud or mistake, executed a deed to the defendants. The prayer of the said bill was to remove and cancel the deed made by L. M. Tannehill to the defendants as a cloud on complainant's title, and to have the defendants perpetually enjoined from claiming title thereunder to the land in controversy. In the case in which L. M. Tannehill is complainant, the bill was filed to protect his warranty in the deed he had executed to the Excelsior Coal Company, alleging fraud against the defendants, in the procurement of the deed to the same land he afterwards granted to the Excelsior Coal Company; and the prayer of the bill was that the said deed be canceled, and a perpetual injunction be issued, restraining the defendants, or either of them, from asserting any right, title or claim to the land in controversy under and by virtue of said deed. In the first case there was a demurrer to the bill filed, which assigned in various ways a want of equity. In the latter case there was a motion made to dismiss the bill for the want of equity. Both the demurrer and the motion were overruled. On the final submission of the cause, on the pleadings and proof, the chancellor rendered a decree granting the relief prayed for.

The principal ground on which relief is

sought, is that of fraud practiced by the defendants upon L. M. Tannehill in procuring the execution of the deed to the land in controversy from said Tannehill to them. The allegations setting out the facts as to the charges claimed to have constituted the alleged fraud, are found in the sixth paragraph of the bill, and are as follows: "On the 31st day of January, 1890, the defendant, William B. Reynolds, came to the house of the said L. M. Tannehill, in Winn parish, state of Louisiana, and made himself known to the said Tannehill as from Montevallo, Alabama, and proposed to purchase from him certain lands, which he said he had discovered belonged to said Tannehill, the same being the land hereinabove described, and the southeast

of the northwest 4 of section five in the same township and range; that the said Tannehill told him that he knew about the piece of land in section twenty-nine; that he and his brother had had some correspondence with one T. H. Aldrich, at Blocton, Alabama, in regard to purchasing it, and that his brother had gone to Alabama to make a sale of it to him, and that he had given his brother authority to represent him in the matter, and that he would not under any circumstances sell it or have anything to do with it until his brother's return; that the said Reynolds then proposed to purchase from him his interest in the other piece, being the said southeast 4 of the northwest 14 of section five, in the same township and range, and that after some talk and bargaining the said Tannehill agreed to sell and deed to him whatever interest he might have in said southeast 4 of the northwest 4 of section five at and for the sum of one hundred and seventy-five dollars; the said Reynolds had with him already written out two instruments, one of which he represented to be a deed of the southeast 1/4 of the northeast 14 of section 29, and the other a deed for the southeast 4 of the northwest 4 of section 5; that the said L. M. Tannehill read over the one purporting to be a deed of the said S. E. 4 of the N. W. 4 of Sec. 5, and being satisfied to sell and deed to him his interest in that piece, he went into the house, their interview up to this time having been outside, and placing the instrument which he had read on a bureau near the outside door, went with his wife into an adjoining room to procure ink and pen, but finding no pen and ink he returned to the room, and on his return found the said Reynolds, whom he had left outside the door, standing in front of and close to the bureau and the paper which he supposed to be the one he had left there on the bureau, and that without again reading or examining it to see if it was the same, and not suspecting anything wrong, he and his wife wrote their names to the paper with a lead pencil at the suggestion of the said Reynolds, in the presence of D. F. Dunn, who had come in from outside the house, and who had been brought out to his house by the said Reynolds; that the said

Dunn 'signed his name as a witness to the instrument, and the daughter of said Tannehill, just ten years of age, was called in from the back yard, where she was at play, and, with some assistance from her mother, wrote her name as a witness to the paper; that the said Reynolds immediately folded the paper and put it in his pocket, remarking that he was in a hurry to get back to the railroad to meet a certain train; that the said Tannehill requested the said Reynolds to give him a memorandum of the land he had sold him his interest in, that he might show his brother what he had sold on his return, and that thereupon the said Reynolds wrote down on a piece of paper in pencil the southeast 1⁄4 of northeast of section 29, with a cross in a circle opposite it as indicating the piece he had not purchased, and the southeast 4 of the northwest 1/4 of section 5, with a pencil line drawn around it as indicating the piece he had purchased, and as he was leaving said to said Tannehill, 'Don't sell or deed away the other piece to any one without letting us know, as we will do fifty or seventy-five dollars better by you than any one else will;' your orator, therefore, upon such information and belief, charges and states that the said L. M. Tannehill never sold, or agreed to sell, never agreed to convey or intended to convey, and never received any consideration for conveying to the said defendants, or either of them, or to any other person other than the Excelsior Coal Company the said southeast 4 of the northeast 14 of section 29, township 21, range 4 west, that if the said defendants have a deed or instrument purporting to be a conveyance to them of said piece of land the same was obtained by fraud, and is either a forgery as to the land described therein, or was secured by substituting for the instrument purporting to convey the southeast 14 of the northwest 14 of section 5, which the said Tannehill had read and agreed to execute, an instrument conveying the southeast 4 of the northeast 14 of section 29 which he had positively and repeatedly refused to sell to him, and that thus or by some other artful contrivance his signature was secured to said instrument, or that the same has been since its execution fraudulently changed or altered, but exactly in what manner your orator and the said Tannehill are unable to state, inasmuch as neither your orator nor the said Tannehill has been able to secure a sight of the original, the same being still in the possession of the said defendants."

Tompkins & Troy, J. M. Falkner, and J. B. Knox, for appellants. W. C. Ward, Henry Wilson, and Charles Turner, for appellees.

HARALSON, J. For a proper decision of this case, it is necessary to ascertain from the pleadings, what the precise issue of fact is. The record is of voluminous proportions, and a great mass of evidence has been in troduced, much of which, according to the

view we take of the case, may be eliminated from consideration, in the solution of the real issue. The arguments of counsel, on each side, are lengthy and have been prepared with great care, covering a wide field of controversy. While the subject-matter involved is an undivided half interest in a 40acre tract of coal land, the contention over it could not be greater, if its value were priceless, since it is supposed the character and reputation of the parties, especially of the appellants, are involved in the settlement of the litigation. We propose to limit the discussion to the real issue, and thereby curtail its length, and save the unpleasant and unnecessary task of discussing the character of the witnesses and the principals in the transaction.

The allegations of the bill as to the fraud, by which the deed sought to be set aside is alleged to have been procured, are found in the sixth paragraph thereof, which the reporter will set out in full in the statement of the case. The bill is distinctly one to vacaté and set aside the deed held by the defendants below-the appellants here-to the one-half interest to the land in controversy, on the ground, that the same was obtained by actual fraud. The main allegation, as will be gathered from the statement of the pleadings in the cause, is, that there were two 40-acre tracts of land, in the same township and range, one in section 5, and the other-the one in controversy-in section 29, and that a fraud. such as is particularly set forth, was practiced by W. B. Reynolds, one of the defendants, by which a deed to the latter tract was obtained from Tannehill, the vendor, when he had contracted to convey the former tract. in section 5. The particular land in litigation-the 40 in section 29 -had been entered in the name of David Tannehill, and the 40 in section 5, had been entered in the name of David M. Tannehill. The complainant below-appellee hereclaims, that it was the purpose and intention of L. M. Tannehill, the grantor in the deed, to sell to the defendants, the land in section 5, and not that in section 29; that such was the agreement and understanding between Tannehill and W. B. Reynolds; that Reynolds had with him two deeds filled out, one to the land in section 5, and the other to the land in section 29; that ne nanded Tannehill, and Tannehill read, the one purporting to convey the land in section 5, which he was willing and agreed to sell; that he took the Ideed in the house, his wife going with him, for the purpose of executing it; and placed it on a bureau in the room, and went with his wife into an adjoining room to procure a pen and ink, but finding none, he returned to the room, and found said Reynolds, whom he had left outside the room, standing in front of and close to the bureau, on which lay the paper he supposed to be the one he had left there, and not suspecting anything wrong, he and his wife wrote their names to the