one gold and ten silver watches. Now in respect to the latter, it is not pretended that there was any variance in the proof, whatever opinion may have been entertained as to its sufficiency; and a nolle prosequi could not be entered, consistently with the rights of the accused in all criminal prosecutions.
When an indictment for a felony has been submitted to a jury upon the plea of not guilty, it is not allowable for the Court to permit a nolle prosequi to be entered, (without the consent of the accused.) that he may be again indicted for the same offence. It is the office of his triors to make "true deliverance" between the State and himself, and it is beyond the competency of the judge to arrest the due course of law by withdrawing the cause from the jury. This principle has been recognized for a period of time "beyond which the memory of man runneth not to the contrary." Its antiquity and stability make it a fundamental doctrine in criminal jurisprudence. See The State v. Williams, 3 Stew. Rep. 476 to 479, and cases there cited; Ned v. The State, 7 Porter's Rep. 187.
The amendment, it must be observed, was not willingly assented to by the defendant, but his consent was given to prevent the withdrawal of the issue from the jury, and his trial upon a second indictment. It is sufficiently apparent from what has been said, that the Court had not the power in respect to the watches, to compel the defendant to elect between such alternatives; and the bank bill being embraced in the same indictment as one of the objects of the larceny, the case does not come within the provision of the Penal Code which has been cited. We express no opinion upon the sufficiency of the evidence to convict for stealing the watches, without the amendment of the indictment; nor will we undertake to determine to what extent amendments are allowable under that enactment.
This view is decisive of the case, and we will not consider the questions raised as to the sufficiency of the indictment. The judgment of the Circuit Court is reversed, and the cause remanded, that it may be proceeded in according to law. [See The State v. Williams, supra; Ned v. The State, supra; The State v. Hughes, 2 Ala. Rep. 102.] And the prisoner will remain in custody until he be legally discharged.
1. In practice, no formal judgment of respondeas ouster is entered upon the
sustaining a demurrer to a plea in abatement. The sustaining of the de-
murrer is entered on the record, and if the defendant wishes to plead over
he is permitted to do it. Massey v. Walker,
1. Where a party presents an account to his debtor, in which are stated both
debits and credits, he shall not claim the benefit of the former without sub-
mitting to the latter also. Fitzpatrick, Adm'r, v. Harris,
32.
2. To charge one for articles which he did not authorize the purchase of,
but which came to the use of his family, it must appear that he knew the
fact, and did not object, or offer to return them. Grant v. Cole & Co., 519.
See Chancery, 22.
See Evidence, 65.
1. A brother-in-law, wrote to the widow of his brother, living sixty miles dis-
tant, that if she would come to see him, he would let her have a place to raise
her family. Shortly after she broke up and removed to the residence of
her brother-in-law, who for two years furnished her with a comfortable res-
idence, and then required her to give it up: Held, that the promise was a
mere gratuity, and that an action would not lie for a violation of it. Kirk-
sey v. Kirksey, ..
....131.
2. When an agent was employed to sell land, and took from the purchaser
the note of another individual, indorsed by the purchaser, it is no defence
in a suit on the indorsement, in the name of the agent, to show, that the
principal has received the amount of the purchase money, unless it is also
shown, that it came from the maker or indorser of the note. The agent
paying the money to his principal, acquired such an interest in the note as
to entitle him to sue upon it. Tankersley v. J. & A. Graham,.......247
3. An action for refusing to comply with a contract of sale, made with a sheriff
upon a sale of property under execution, is properly brought in the name
of the sheriff. Bell v. Owen,. . . . . .
4. A sheriff who has lawfully seized slaves under an attachment, is not liable
in an action of trespass, if he refuse to permit the defendant to replevy
them, although a valid bond with sufficient sureties may be tendered.—
Walker v. Hampton, et al.,...
.412.
5. If adjoiuing proprietors enter into an agreement, one to keep up one-half
the fence, and the other the other half, an action of trespass cannot be
maintained by one against the other, for an injury caused by an insufficient
fence, but the remedy is for a breach of the contract. Walker v. Wa-
trous,
See Constable and Surety, 1, 2.
See Guardian and Ward, 5.
See Indorser and Indorsee, 3.
See Pleading, 1.
ADMIRALTY PROCEEDINGS.
1. It is premature to render judgment upon a replevy bond, conditioned for
the delivery of a steamboat to the sheriff, at the same time that the boat
is condemned. Bell and Casey v. Thomas, ..
2. If a bond for the delivery of a boat seized under process, in a libel suit, is
good as a common law bond, it may be proceeded on as a stipulation, al-
though it does not conform to the statute. Ib......
...527
1. When either money, or property, is advanced to a child, it will prima fa-
cie be an "advancement" under the statute, and must be brought into
hotch pot; but it may be shown that it was intended as a gift, and not as
an advancement; or unless it be of such a nature that it cannot be pre-
sumed to be an advancement, as trifling presents, money expended for ed-
ucation, &c. The Distributees of Mitchell v. Mitchell's Adm'r, .......414
2. Where a father, by deed, conveyed real and personal property to two of
his minor children, declaring at the time that it was not given as an ad-
vancement, but was to be in addition to their equal share of the residue of
his estate-Held, that this was not an advancement, and that the testimo-
ny was properly admitted. Ib.......
....415
3. A father kept an account with his son, upon his books, which was added
up, and at the foot of the account was written by the father, "accounted
for, as so much that he has had of my estate; if it is over his portion, he
must pay it back to them." No question being made of this as a testa-
mentary paper-Held that it was competent to explain the nature of the
items, and to detail a conversation the widow of the deceased had with him
in relation to it, to show, that the account was not a debt due from the son,
or an advancement under the statute. Ib........
4. If a father, who has expended more money upon the education of one of
his children than the rest, wishes to make the others equal with him, by
giving him less of his estate, he must do so by a will; he cannot accom-
plish it by considering the money so paid out, a debt, or an advancement
under the statute. Ib.
1. The true construction of the two acts of the Legislature for the relief of
Elizabeth Morris, is, that she was made capable of inheriting the lands of
her uncle, James D. Wilson, in the same manner as if herself, her mother
and her uncle, had been native born citizens. The declaration in the act,
that the land shall not escheat to the State, is a waiver of the right of the
State in her favor only, and will not enable her brother, who is an alien,
or was so at his uncle's death, to inherit as his heir. Congregational Church
at Mobile v. Elizabeth Morris,
...182
2. The wife of an alien though an American citizen, is not dowable of his
lands. Ib.
3. Whether the saving in favor of creditors in the statute of escheats, applies
to the lands held by an alien at his death-Quere? But if it does apply in
such a case, the fact of such indebtedness would not prevent the escheat.
Nor could the land be sold by an administrator of the alien, for the pay-
ment of creditors, without authority for the Orphans' Court, as in other
Ib.....
...183
1. The Court will not permit the sheriff to amend his return, after judgment
by default, so as to show that the writ was not executed, unless it were
shown that irreparable injury would follow from permitting the judgment
to stand, and then only upon terms which would not work a discontinuance.
It does not vary the case, that the motion is made by the defendant. Me-
Gehee v. McGehee,
.86
2. Whether the remedy in such case must not be sought by mandamus, if
the Court below improperly refuse to permit the amendment-Quere?
Ib.....
..86
3. Where the clerk of the Court, in entering judgment, commits an error by
confounding two suits, it may be amended nunc pro tunc. Dobson, et al.
v. Dickson, use, &c. . . . .
4. When a writ of error is sued out in the names of D. A. and others, it may
be amended by the transcript of the record, and the names of the proper
party or parties substituted. Ellison v. The State,.....
....273
5. A judgment nisi rendered upon a recognizance, when it does not conform
to the recognizance, may be amended nunc pro tunc ; and if a motion for
that purpose be overruled, the refusal may be revised on error. The Gov-
ernor, use, &c. v. Knight.........
6. When a suit by attachment is improperly commenced in the name of the
party to whom a note not negotiable is transferred without indorsement,
instead of using the name of the person having the legal interest, and the
cause is afterwards appealed to the Circuit Court, the defect cannot then
be cured by substituting the name of the proper party in the declaration:
Nor can the note be allowed to go to the jury as evidence under the mo-
ney counts in a declaration in the name of the holder, without proof of a
promise to pay him the note. Taylor v. Acre,......
......491
7. The surety is not bound beyond the penalty of the bond, and a judgment
against him for a larger sum will be here amended, at the cost of the plain-
tiff in error. Seamans, et al. v. White,..
.....657
8. When the judgment of the Circuit Court, in a cause of forcible entry, is
reversed because the complaint was dismissed, instead of being remanded
that it might be amended in the Justices Court, and the Circuit Court is
directed so to enter its judgment, if it afterwards does so and renders costs
against the plaintiff in the certiorari, this is irregular, but the error is a cle-
rical misprision, and will be here amended at the cost of the plaintiff in
error. Tilman, et al. v. McRae,..
.....677
9. When a notice is pleaded to by the sheriff, it is in the nature of a declara
tion, and may be amended on motion. Walker, et als. v. Turnipseed,. .679
10. The rendition of a decree by the Orphans' Court, for the distributive share
of the wife, in the name of the husband alone, is a clerical misprision, and
may be amended; it is not an error of which he can complain. Parks v.
Stonum,....
....752
11. After a cause commenced before a justice of the peace has been removed
by appeal or certiorari to a higher Court, the parties cannot be changed,
unless death or some other cause has supervened. Mooney, use, &c. v.
Ivey,.....
See Error, Writ of, 19.
See Judgment and Decree, 5.
See Practice at Law, 3.
See Record, 1.
1. Upon certiorari, judgment may be entered against a party to the original
|