ABATEMENT.
See Attachment, No. 6.
ADVERSE POSSESSION.
See Statute of Limitations, Nos. 4, 5, 6, 7, 8, and 9.
1. Right of: International Law.-It is only by virtue of the municipal law of
each State or nation, or the law of civilized nations, which is regarded as a
part of the municipal law of each, that aliens have any rights beyond the
jurisdiction of their native domicile. Heirn v. Bridault, 209.
2. Alien Enemies : same.-All aliens who are not friends, are enemies. Alien
enemies are either, 1st, temporary, or such as may become friends again;
or 2d, specially permitted, or commorant in the enemy's country at the time
of the suspension of amity; or 3d, perpetual enemies, or all savage and
barbarian tribes, who have no social, commercial, or diplomatic relations
with other nations, and who do not recognize the obligations of international
law and comity. Ib.
3. Rights of Alien Enemies: same.-Alien enemies (except such as are specially
permitted), are incapable of acquiring any right to property, or maintaining
any action in this State. Ib.
See Slavery and International Law.
AMBIGUITY.
See Evidence, Nos. 13 and 14.
1. Pleading.—An amendment to the declaration, by which the holder of the
legal title to the debt sued on, is made the nominal plaintiff, is authorized
by the provisions of the Rev. Code, 508, Art. 180. Montague v. King, 441.
2. Same. If the plaintiff after the commencement of the suit, strike out the
indorsement of the payee on the note sued upon, this will not debar him of
the right afterwards, to amend his declaration, by introducing the payee as a
nominal plaintiff. Ib.
See Criminal Law; subdivisions Pleading, and Indictment.
1. Chancery: Injunction.—An appeal from an order dissolving an injunction,
if allowed, necessarily suspends its operation, and it will be error therefore,
for the chancellor, pending the appeal, to make an order, allowing the
defendant to do the thing restrained by the injunction.
2. Probate Court: Interlocutory Order.-The decree of the Court of Pro-
bates, overruling exceptions to an answer, is interlocutory, and is not the
subject of an appeal. Ricard v. Smith, 644.
3. Same: How Appeal granted from Probate Court.—Appeals from the Court
of Probates cannot be granted in open court: they can only be allowed on
petition to the clerk. See Rev. Code, 431, Art. 28. Ib.
1. Plaintiff must have Subsisting Debt.-In order to entitle a party to an at-
tachment at law, it is absolutely necessary that he should have a present
subsisting debt against the person whose estate is attached, at the com-
mencement of the suit,-a mere liability as surety for the defendant, is not
sufficient; and hence, an accomodation acceptor of a bill of exchange, is not
entitled to an attachment against the drawer, on account of the acceptance,
until after it has been paid by him.
Henderson, Terry & Co. v. Thornton, 448.
2. Same: Right of Creditors to complain where Plaintiff has a Subsisting
Debt.-The rule, which denies an attachment at law to a party who has not
a present subsisting debt against the defendant, is not alone for the protec-
tion of the defendant, but is also for the security of his creditors, the collec-
tion of whose debts might otherwise be defeated, by the appropriation of his
property under improper attachments; and hence, a creditor may success-
fully attack a judgment, rendered in an attachment against a debtor, in favor
of a party who had not, when the attachment was sued out, a subsisting debt
against the defendant, if such course be necessary to collect his own debt.
Ib.
3. Chancery: Jurisdiction.-The Chancery Court has jurisdiction to entertain
a bill by a creditor, seeking to annul a judgment in attachment rendered
against his debtor, upon the ground that the plaintiff in attachment had not
a subsisting debt against the debtor, when the attachment was sued out. Ib.
4. In Cases where the Debtor has removed, or is about to remove his Property.—
The object of the statute, allowing an attachment where the debtor has re-
moved, or is about to remove his property from this State, is, to secure to
the creditor the collection of his debt in this State, and to provide against
the danger of its loss by the removal of the debtor's property to another
jurisdiction: and hence, where a debtor, resident in this State, has in his
open possession, property of a permanent character and subject to execution,
and of value sufficient to pay all his liabilities in this State, and which he
does not intend to remove, he is not subject to attachment, because he has
removed, or is about to remove, the greater part of his property to another
State. Montague v Gaddis, 453.
5. Replerin of Attached Property by Defendant: Effect of. The replevin, by
the defendant, of property seized under an attachment, does not destroy the
lien created by the levy: and hence, after such replevin, the attachment
still retains its character as a proceeding in rem. Ib.
6. Same: Plea in Abatement.-If the issue, on a plea in abatement, traversing
the grounds upon which an attachment was sued out, be decided for the
defendant, the attachment will be quashed, notwithstanding a previous re-
plevin of the property attached, by the defendant. Ib.
Power of Attorney to act for Client.-The solicitor of the complainant in a
bill of interpleader, has authority, on the dismissal of the bill, to demand and
receive from the clerk of the court, the money deposited by the complainant
with his bill; and hence, a payment to the solicitor by the clerk, without
notice of any objection thereto by the complainant, is good and valid.
Hiller v. Ivy, 431.
AUTREFOIS ACQUIT AND CONVICT.
1. Common Carriers: Ferrymen: Liability of.-The keeper of a public
ferry is a common carrier, and is liable as an insurer of the property com-
mitted to his charge for transportation, against all loss or damage, except
such as may result from the act of God or the public enemy, or from the
act of the owner, or his agent or servant. Powell v. Mills, 691.
2. Same. After property has been received into a ferry-boat for transporta
tion, it is prima facie, in charge of the ferryman as a common carrier, and
the responsibility of the ferryman is not diminished by the fact that the
property is accompanied by the owner, unless it affirmatively appear that
the owner did not trust the care of the property to the ferryman, but re-
tained the exclusive management and control of it himself. Ib.
3. Same.-A ferryman is bound to make such provision for the safe transpor-
tation of property received by him on his boat, as from the nature of the
property is requisite and necessary, and he cannot devolve any portion of
this duty on the owner, without his consent.
4. Same: Case in Judgment.—The defendant was the keeper of a public ferry,
and had agreed with the plaintiff, for hire, to transport his stage-coach and
horses across the river, without making any change in his common law lia-
bility as a common carrier. The plaintiff's coach and horses were driven into
the ferry-boat by their driver, who thereupon vacated his seat, hitched the
lines, and went to the front of the horses, and commenced giving them
water, dipped from the river in a bucket. Whilst thus engaged, one of the
horses became restive, and soon afterwards and before the boat reached
the landing, the team ran out of the boat into the river, the driver being
carried with them in his efforts to stop them. Held, that the coach and
horses were in the custody and possession of the ferryman, and not of the
driver;
and that the defendants were responsible for the damages thus sus-
tained by plaintiffs. Ib.
5. Same: Liability when Goods are inherently subject to Decay.—A common
carrier is not responsible for damages resulting to the goods, in consequence
of a natural and inherent infirmity in them, and without fault on his part;
but this principle is applicable alone to cases, where the property damaged
is from its nature liable, without fault on the part of the carrier, to rapid
decay, as fruits and vegetables, or subject to diminution or destruction, as
by evaporation, leakage, or spontaneous combustion, or where goods are
damaged in consequence of being improperly packed by the owner. Ib.
See Evidence, Nos. 1 and 2.
BEQUESTS TO CHILDREN.
See Will, No. 1.
1. Meaning of "Transfer."—The term "transfer," when applied to negotiable
paper, is a general term, implying the passing of the beneficial interest in
the instrument to another, but not indicating the particular mode of passing
such interest; and hence, the averment in a declaration in the name of the
payee of a note, as nominal plaintiff for the use of another, that the note has
been transferred from the nominal to the real plaintiff, does not show that
the nominal plaintiff has been divested of the legal title to the note.
Montague v. King, 441.
2. An Accommodation Acceptor, not a Creditor until Payment.—An accom-
modation acceptor of a bill of exchange, does not become a creditor of
the drawer on that account, until he has actually paid the bill.
Henderson, Terry & Co. v. Thornton, 448.
3. Conflict of Laws: governed by Lex Loci.-A promissory note is, as to the
rights acquired by an indorsee, governed by the law of the place where
it is executed and made payable.
Miller, Mayhew & Co. v. Mayfield et al. 688.
4. Bona fide Indorsee not affected by antecedent Equities.-By the rules of the
common law, the bona fide indorsee of a promissory note for value, takes
it exempt from all equities existing between any of the antecedent parties.
5. Meaning of "Due Course of Trade."-The term "due course of trade,"
when applied to the indorsement of a promissory note, means, that the
indorsement was for value. Ib.
Capacity of, to sue.-The Branch Bank of the State of Alabama, at
Mobile, is a corporation, at least so far as to be capable of suing and being
sued as such. See Aiken's Dig. pp. 75, 76, 22 7, 12.
Branch Bank of Alabama v. Rhew, Adm. 110.
CERTIFICATE OF ENTRY.
See Land Laws, No. 2.
1. Division of County for holding.-The legislature of this State has the
constitutional power to provide for the division of a county into two dis-
tricts, and a holding of a circuit court in each; and where this is done, it
may also be provided that the grand and petit jurors in each district, shall
be taken alone from that district in which the court is held in which they
are required to serve, and not from the whole body of the county.
2. Original Process: Return of Service.-Under the provisions of the Revised
Code (see Arts. 63, 64, p. 489), a general return of "executed," on original
process from the Circuit Court, is insufficient: the sheriff must state in his
return all that he did in the execution of the process, so that the court may
determine whether it was legally and properly executed, or not.
Merritt v. White, 438.
3. Practice: Declaration must be filed when Suit commenced.-To enable the
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