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Full text of "Report of cases argued and determined in the Supreme court of Alabama"

UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
, LIBRARY 

Faculty library 



DENNIS & CO.. INC 

Law Book Publishers 



Digitized by the Internet Archive 

in 2007 with funding from 

IVIicrosoft Corporation 



http://www.archive.org/details/alabamasupreme46alabiala 



EBPOETS 



or 



CASES AEGUED AND DETEEMINED 



>^( 



x^ 



SUPREME COMSOF ALABAMA, 



JtJlVE TERM, ISyi. 



BY THOMAS G. JOIi^ES, State Reporter, 



VOL. XJLVI. 



* 

MONTGOMERY, ALABAMA : 

SABBETT ft BBOWN, STEAM PRINTERS AND BOOK BIMDEBS. 

1872. 



KF4 
45 




M^^o 



OFFICERS OF THE COURT, 

DUKING THE TIME OF THESE DECISIONS. 



E. WOLSEY PECK, Chief-Justice, 

Tuakaloosa, Ala. 

THOMAS M. PETERS, Associate Justice, 

Moulton, Ala. 

BENJAMIN F. SAFFOLO, Associate Justice, 

Selma, Ala. 

JOHN W. A. SANFORD, Attorney-General, 

Montgomery, Ala. 

DANIEL B. BOOTH, Clerk, 

Montgomery, Ala. 

PATRICK RAGLAND, Marshal, 

BeUefonte, Ala. 



TABLE OF CASES. 



Adkinson v. Wright 598 

Ala. & Fla. E. K. Co. v. Burkett.. 569 
Ala. Medical College v. Maiden 

&Son8 603 

Armistead v. Irvine 363 

Atkins V. Knight 539 

Autry V. Walters 476 

Barker v. Bell 216 

Barwick v. Rackley 402 

Bates V. Mayor and Aldermen 

of Mobile 158 

Bell ats. Barker 216 

Benton v. Taylor 388 

Bibb ats. Ryan 323 

Bibb ats. Yaughan and Wife.. 153 
Bibb and Wife ats. Carpenter . . 584 

Bledsoe ats. Thornton 73 

Block V. McNeil 288 

Boggs ats. Hawkins 15 

Boles V. The State 204 

Bottoms, Ex parte 312 

Boyd & Jackson v. The State. . 329 

Boynton v. Nelson 501 

Bradley v. Graves 277 

Brame v. McGee 170 

Brazelton ats. Hall «fe Carry. . 359 

Brigman v. The State 72 

Britt's Legatees v. Petty. . .... 491 

Brown v. The State 148, 175 

Bryant v. The State 302 

Burkett ats. Alabama & Florida 

Railroad Company 569 

Burnett & Martin v. Eufaula 

Home Insurance Co I ] 

Burns ats. Shropshire 108 

Cabbell v. The State 195 

Campbell ats. Ingersoll 282 

Campbell ats. Pizzala 35 

Campbell v. The State 116 

Carpenter ats. Bibb and Wife. 584 



City of Selma v. Mullen 411 . 

City of Tuscumbia v. Lindsay. 581 

Clark ats. Moses 229 

Clark V. The State 307 

Clement v. Nelson 634 

Cockran V. The State 714 

Cogburn v. McQueen .^ol 

Colby ats. First National Bank 

of Selma 435 

Cole & Sons ats. Stewart & Hud- 
son 646 

Conn V. Thornton 587 

Costley V. Towles 660 

Crawlord v. Tyson 299 

Creswell ats. Hall 460 

Crommelin's Adm'r ats. Wald- 

man 580 

Crumbley v. Searcey . . .' 328 

Cunningham ats. Wharton 590 

Curtis V. Gaines 455 

Dale County v. Gunter 118 

Darnell v. Griffin 520 

Davis V. The State 80 

Dempsey, Harrell «fc Co. v. Sta- 

pleton :}83 

Dillihunt ats. Eslava 698 

Dinkins ats. Jackson 69 

Dudley v. Witter 664 

Dagger v. Tayloe 320 

Dunkin v. Hodge 523 

Durr ats. Rivers 4 1 8 

Echols uts. Stringer 61 

Edwards ats. Mobile & Girard 

Railroad Co 267 

Edwards ats. Webb 17 

Edwards & Brassell ats. Mea- 
dows ^ 354 

Eslava v. Dillihunt 698 

Eufaula Home Insuran::e Co. 
ats. Burnett «t Martin 1 1 



TABLE OF CASES. 



Evins V. The State 88 

Ex parte Bottoms 312 

Ex parte Locke 77 

Ex parte Selma & Gulf Rail- 
road Co 230, 42:} 

Ex parte Tlioruton 38-1 

Falconer v. Robiusou, 340 

Faulks ats. McSweau fUO 

Fielder & Sessions ats. Sim- 
mons 304 

First National Bank of Selma 

• V. Colby 435 

Fisher v. The State 717 

Flagg ats. Smith 624 

Flanagan v. The State 703 

Fulgham V. The State . 143 

Gaines ats, Curtis 455 

Gardner v. Pickett I'Jl 

Gazzam ats. Stone & Matthews. 2G9 

Grady v. Wolsner 381 

Graves ats. Bradley 277 

Gregory v. The State 151 

Griffin ats. Darnell 520 

Guice ats. Parker 616 

Gunter ats. Dale County 118 

Hall V. Creswell 460 

Hall <fc Curry v. Brazelton 359 

Harrison v, Holley 84 

Hart V. Shorter «fe Baker 453 

Hawkins v. Boggs 15 

Henry v. Porter 293 

Hetherington v. Hixon 297 

Hightower v. Moore 387 

Hightower and Wife v. Moore. 460 

Hixon ats. Hetherington 297 

Hodge ats. Duukin 523 

Holley ats. Harrison 84 

Howell ats. Mirshall 318 

Hudgins v. The State 208 

Hudspeth v. Thomason 470 

Hutchins ats. Randolph County 397 

IngersoU v. Campbell 282 

Insurance Co. (Eufaula Home,) 

ats. Burnett & Martin 11 

Insurance Co. (Talladega, ) ats. 

McCuUough 376 

Irvine v. Armistead 363 

Jackson v. Din^ins 69 

Jeruigan ats. Oliver 41 

Johnson v. The State 212 



Jones V. Trustees Florence Wes- 

leyan Univei sity 626 

Jones & Cullom v. Knox 53 

Kennedy v. Marrast 161 

Knight ats. Atkins . 539 

Knox ats. Jones & Cullom .... 53 

Kyle ats. Thornton 379 

Lane and Wife v. Mickle 600 

Latham v. Staples 462 

Lehman Brothers v. Skelton . . 310 

Lillensteine v. The State 498 

Lindsay ats. Shaw 290 

Lindsay ats. City of Tuscumbia. 581 

Locke, Ex parte 77 

Logan V. Mobile Trading Co.. 514 
Malone ats. Mobile & Ohio Rail- 
road Co 391 

Marrast ats. Kennedy 161 

Marshall ats. Howell 318 

Maynard v. The State 85 

Mayor and Aldermen of Mobile 

ats. Bates 158 

McCullough V. Talladega Insur- 
ance Co 376 

McGee ats. Brame 170 

Mclnnish ats. Taunton & Brooks 619 

McNeil ats. Block 288 

McPeters v. Phillips 496 

McQuaid v. Powers and O'Don- 

nell 44 

McQueen ats. Cogburn 551 

McSwean v. Faulks 610 

Meadows v. Edwards & Brassell. 354 
Medical College (Alabama) v. 

Muldou & Sons 603 

Merrill v. The State 82 

Mickle ats. Lane and Wife .... 600 
Mobile Trading Co. ats. Logan. 514 

Moody v. Robertson 432 

Moore ats. Hightower 387 

Moore ats. Hightower and Wife. 466 

Moseley ats. Whitley 480 

Moses V. Clark 229 

Muldon & Sons ats, Alabama 

Medical College 603 

Mullen ats. City of Selma 411 

Murrell v. The State 89 

National Bank of Selma (First) 

V. Colby 435 

Nelson ats. Boyntou 501 



TABLE OF CASES. 



Nelson ats. Clement 634 

Nelson v. The State 18G 

Oliver v. Jernigan 41 

Orme ats.' Scruggs and Lindsay, 533 

Overstrefct v. The State 30 

Oxford Iron Co. v. Spradley. . . 98 

Parker ats. Guice 616 

Patrick Irwin & Go. ats. Prest- 

ridge 653 

Perkins ats. Turrentine 631 

Petty V. Britt's Legatees 491 

Phillips ats. McPeters 496 

Pickett ats. Gardner 191 

Pizzala v, Campbell 35 

Pleasants ats. Western Union 

Telegraph Co 641 

Porter ats. Henry 293 

Powers and O'Donnell ats. Mc- 

Quaid 44 

Prestridge v, Patrick Irwin & 

Co 653 

Prewitt ats. xVIobile & Girard 

Bailroad Co 63 

Backley ats . Barwick 40^ 

Eailroad Co. (Ala. & Fla.) v. 

Burkett 569 

Railroad Co. (Mobile & Girard) 

V, Edwards 267 

Railroad Co. (Mobile & Girard) 

V. Prewitt 63 

Eailroad Co. (Mobile & Ohio) 

V. Malone 391 

[/Railroad Co. (Selma & Gulf) 

Ex parte 230, 423 

Randolph County v. Hutchins. 397 

Ray ats. Thompson 224 

Reynolds ats. Wilcoxen 529 

Rivers v. Durr 418 

Rivers v. Thompson 335 

Robertson ats. Moody 432 

Robertson, Brown & Co. ats. 

Voss & Co 483 

Robinson ats. Falconer 340 

Robinson v. The State 9 

Ryan v. Bibb 323 

Scruggs & Lindsay v. Orme . . . 533 

Searcey ats. Crumbley 328 

Selma (City of ) v. Mullen 411 

Shaw V. Lindsay 290 

Shorter & Baker ats. Hart 453 



Shropshire v. Burns 108 

Simmons v. Fielder &Ses.sions. 304 
Skelton ats. Lehman Brothers. 310 

Slocovitch V. The State 227 

Smithv.Flagg 624 

Snedecor ats. Wright and Wife, 92 
Spradley ats. Oxford Iron Co . . 98 

Staples ats. Latham 462 

Stapleton ats. Dempsey, Har- 

rell & Co 383 

State ats. Boles 204 

State ats. Boyd & Jackson 329 

State ats. Brigman 72 

State ats. Brown 148, 1 75 

State ats. Bryant 302 

State ats. Cabbell 195 

State ats. Campbell 116 

State ats. Clark 307 

State ats. Cochran 714 

State ats. Davis 80 

State ats. Evins 88 

State ats. Fisher 717 

State ats. Flanagan 703 

State ats. Fulgham 143 

State ats. Gregory 151 

State ats. Hudgins 208 

State ats. Johnson 212 

State ats. Lillensteine 498 

State ats. Maynard 85 

State ats. Merrill 82 

State ats. Murrell 89 

State ats. Nelson 186 

State ats, Overstreet 30 

State ats. Robinson 9 

State ats. Slocovitch 227 

State ats. Warren 549 

Stewart & Hudson v. Cole & Son 646 
Stone & Matthews v. Gazzam.. 269 

Stott ats. Wright 200 

Stringer v . Echols 61 

Swanson ats. Wright 708 

Talladega Insurance Co. v. Mc- 

CuUough 376 

Taunton & Brooks v. Mclnnish, 619 

Tayloe ats. Dugger 320 

Taylor ats. Benton 388 

Telegraph Co. (Western Union) 

v. Pleasants 641 

Thomason ats. Hudspeth 470 

Thompson v. Ray 224 



8 



TABLE OF CASES. 



Thompson ats. Rivers 335 

Thornton v. Bledsoe 73 

Thornton ats. Conn 587 

Thornton, Mc parte 384 

Thornton V. Kyle 379 

Towles ats. Costley 660 

Turrentine v. Perkins 631 

Tuscumbia (City of) v. Lind- 
say 581 

Trustees Florence Wesleyan 

University ats. Jones 626 

University (Trustees Florence " 

Wesleyan) ats. Jones 626 

Vaughan and Wife v. Bibb 153 

Voss & Co. ats. Robertson, 
Brown ife Co 483 



Waldman v. Crommelin's Adm'r 580 

Walters ats. Autry 476 

Warren v. The State 549 

Webb V. Edwards 17 

Western Union Telegraph Co. 

V. Pleasants 641 

Wharton v. Cunningham 590 

Whitley v. Moseley 480 

Wilcoxen v. Reynolds 529 

Witter ats. Dudley 664 

Wolsner ats. Grady 381 

Wright ats. Adkinson 598 

Wright V. Stott 200 

Wright V. Swanson 708 

Wright and Wife v. Snedecor. . 92 



EEPORTS 



CASES ARGUED AND DETERMINED 

AT THE JUNE TEEM, 1871. 



ROBINSON vs. THE STATE. 

[INDICTMENT FOB MUBDER.] 

1. Indictment and list of jurors ; token judgment toill not ie reversed for 
failure to shoto service of copy of, on defendant, — The judgment and sen- 
tence in a capital case will not be reversed because the record and pro- 
ceedings do not show that the defendant was served with a copy of the 
indictment and a list of the jurors summoned for his trial, including 
the regular jury, at least one entire day before the day appointed for 
his trial, unless it appears from the record that the defendant was in 
actual confinement. 

2. Accused, duty of ; as to errors relied on to reverse judgment heloic. — Al- 
though under our statutes no assignment of error is necessary in a 
criminal case; nevertheless, the accused should, in some proper man- 
ner, bring to the notice of the court the matters relied on to reverse 
the judgment below. . 

Ari'EAL from City Court of Mobile. 
Tried before Hon. C. F. Moulton. 

This appeal was taken on the record from a conviction 
of murder in the second degree in the lower court. No 
counsel appears for appellant, and no errors are assigned. 
The opinion states the points on which the case turns. 

PECK, C. J. — The appellant was indicted in the city 
court of Mobile for murder. 
She was tried and convicted of murder in the second 
2 



10 FORTY-SIXTH ALABAMA. 

Eobinson v. The State. 

degree, and sentenced to be confined in the penitentiary 
for ten years. 

She appeals to this court to have the proceedings and 
sentence of the said city court reviewed. 

No brief or memorandum has been furnished to this 
court, pointing out or calling our attention to any particu- 
lar error in the record. 

In such a case, no assignment of errors is necessary. It 
is made the duty of this court to examine the record, and 
render such judgment on the record as the law demands. 
Revised Code, § 4314. 

We think, however, the accused should furnish the court 
with a brief, or in some way call the attention of the court 
to the supposed error or errors in the record. It would 
save us much trouble, in otherwise having to examine the 
record, without any aid, to see whether any error or errors 
were committed in the proceedings to the injury of the ac- 
cused. 

We have examined the record, but find no error for which 
the sentence and judgment of the court below should be 
reversed. 

We presume that the supposed error, for which this ap- 
peal was taken, is that the record does not show that a list 
of the jurors summoned for her trial, including the regular 
jury, and a copy of the indictment, were delivered to her 
at least one entire day before the day appointed for trial. 
But a sufficient answer to this is, that the record does not 
show that she was in actual confinement. — Rev. Code, § 4171. 

As the record no where shows that she was in actual con- 
finement, we can not, for the purpose of reversing the judg- 
ment, presume that she was. If any presumption is per- 
missible, in such a case, it should be in favor of the regu- 
larity and correctness of the proceedings of the court 
below. 

Let the sentence and judgment of the court be affirmed, 
and the clerk will certify the fact to the court below, that 
the sentence of said court may be carried into execution. 



JUNE TERM, 1871. 11 

Burnett & Martin v. Eufaula Home Insurance Co. 



BURNETT & MARTIN vs. EUFAULA HOME INSU- 
RANCE COMPANY. 

[ ACTION ON FIBE PCLICT OF INSUBANCE. ] 

1. Insurance, poflcy of, issued to partnership ; what not vitiated by. — A 
policy of insurance on a stock of goods, issued to a partnership, is not 
vitiated by a transfer by one partner of all hi^ interest to his copart- 
ners, notwithstanding a provision in the contract that the policy 
shall be void if the property should "be sold or conveyed, or the 
interest of the parties therein changed." 

2. Same; conditions for disabilities in, how construed. — Conditions for dis- 
abilities and forfeitures, where the intent is doubtful, are to be con- 
strued againnt those for whose benefit they were imposed. 

Appeal from Circuit Court of Barbour. 
Tried before Hon. J. McCaleb Wiley, 

It appeared from the complaint, that the plaintiffs, Bur- 
nett & Martin, as partners, were seeking to recover dam- 
ages upon a policy of insurance issued by the defendant 
to Burnett, Martin & Swan, on their stock of goods and 
merchandise. It was aveiTed that prior to the loss. Swan 
retired from the firm, and sold all of his interest to his 
said copartners. The policy, which was set out in the 
complaint, amongst other restrictions of liability, con- 
tained the following provision : " Provided further, if the 
said property shall be sold or conveyed, or the interest of 
the parties therein changed, or, if this policy shall be 
assigned without the consent of the company obtained in 
writing hereon, then, and in every such case, this policy 
shall be null and void." A demurrer to the complaint, on 
the ground that the transfer by Swan of his interest to his 
copartners was such a sale or conveyance, or change of 
the interest of the parties, as vitiates the contract, was 
sustained. The plaintiffs appeal from a judgment of non- 
suit which they were compelled to take on account of this 
ruling. 



12 FORTY-SIXTH ALABAMA. 

Burnett & Martin v. Eufaula Jleme Insurance Co. 

PuGH, AND GoLDTHWAiTE, EiCE & Semple, for appellants. 
Does the condition in this policy cover the sale by Swan 
to his copartners, ( the appellants,) recited in the record ? 

The plain sense of the contract of insurance, the mani- 
fest logic of the law, and the highest authority, establish 
the proposition that such a change of interest is not pro- 
hibited by the terms of the policy. — Wilson v. Genesee Mut. 
Ins. Co., 16 Barb. 511 ; Hoffman & Place v. jEtna Fire Ins. 
Co. These two cases are unanswerable in reason and 
sound policy. 

There is a marked difference between a policy covering 
merchandise and policies covering other property. There 
is a case in 40 Pennsylvania, ( West Br. Ins. Co. v. Helfen- 
stein, p, 289,) which recognizes this distinction. See head- 
note in Digest of Decisions on Insurance, p. 70, § 53. 

One of the cases relied on by appellee is from Pennsyl- 
vania, and it is on insurance of houses which belonged to 
joint owners, and this case is expressly excepted in the 
case in 40 Pennsylvania, because of the difference stated 
between mercantile and other policies. 

All the cases which deny the right of one partner to sell 
to another are founded in ignorance of the true nature of 
partnerships, as ably expounded in Parsons on Partner- 
ship, 1 vol., pp. 2, 171. He assimilates a partnership to a 
corporation, and calls it a " mercantile personality," the 
identity of which is not disturbed by the retiring of one 
partner, or the sale by one partner to another. Parsons 
demonstrates the soundness of the New York decisions we 
have cited. 

What mischiefs were the words "change of interest 
therein" intended to remedy? It is said that they were 
intended to prohibit the mischief or hazard of allowing 
one partner to sell to another, or increase the amount of 
his interest ; that the company trusted one of many part- 
ners on account of his pi:udence, habits, &c., against the 
others, who might be rash, unsafe, &c., and that if these 
be not the mischiefs guarded against, the words have no 
meaning, no field to act in, &c. If change of interest by 
sale of the safe partner's share produces this mischief, the 



JUNE TERM, 1871. 13 

Burnett & Martin v. Eufaula Home Insurance Co. 

the death of the prudent partner would produce the same 
effect ; and so would his involuntary bankruptcy, as in each 
event a change of interest would take place. 

The prohibition in the policy against sales or " any 
change in the interest of the parties," is aimed at any 
change that introduces a stranger, and not a change that 
the parties insured make by sales or contracts among 
themselves. If the prohibition forbids a sale by one to 
another partner because it is a change of interest, then an 
involuntary bankruptcy, which introduces the assignee, 
would avoid a policy ; or a partner who owned a fourth 
could not increase it to a third, without vacating the 
policy ; or if one partner died, the same result would fol- 
low. 

All the decisions cited against the right of one partner 
to sell to another, are based on its being an increase of 
the hazard, and not on any peculiar wording of the policy. 
If the policy in the present case had only used the words 
" sell or convey," the same decisions would have been 
made ; so that the addition of the words " change of in- 
terest therein," in the policy sued on in this case, can claim 
no more support from those northwestern decisions than if 
such words had never been added. 

F. M. Wood, for the appellee, cited the following authori- 
ties in support of the oral argument made at the bar : 
Keeler v. Niagara Ins. Co., 16 Wis. 523 ; Barnes v. Union 
Fire Ins. Co., 51 Maine, 110; Findley v. Lycoming Ins. Co., 
30 Penn. 311 ; Hartford Ins. Co. v. Boss, 23 Ind. 179 ; Buch- 
ky V. Garrett, 47 Penn. 204. He contended these cases, 
are directly in point, and that the decisions are conclusive, 
in favor of the appellee. 

B. F. SAFFOLD, J. — The field of inquiry is much nar- 
rowed by the definite settlement, long since, of some ma- 
terial propositions independent of the special contract of 
these parties. Policies of insurance, except marine, are 
not in their nature assignable ; nor is th^ intei^est in them 
ever intended to be transferable frou^ one to another, 
without the express consent of the office.— 3 Brown's Pari. 



14 FORTY-SIXTH ALABAMA. 

Burnett & Martin v. Eufaula Home Insurance Co. 

Cases, 497. It is necessary the party insured should have 
an interest or property at the time of insuriog, and at the 
time the fire happens. — Saddler's Co. v. Babcock et ah, 
2 Atkyns, 554 ; Angell on Fire and Life Ins. §§ 55, 193. 

The principle sustaining these adjudications is, that 
there is a purely personal contract by which the insurer 
undertakes a conditional indemnity of the insured alone, 
dependent upon certain duties to be performed by him 
into which enter his personal character and fitness. The 
property insured does not draw with it the contract, be- 
cause its probable destruction is the foundation of the 
agreement. The essence of the contract is taken away by 
the transfer of the proprietary interests to others not par- 
ties to it. 

It is manifest, however, that some limitation must be im- 
posed on the restriction respecting the change of interest 
of the parties. Of all the ways by which some change of 
interest might be effected without the consent or fault of 
the partners, or a majority of them, some one might almost 
surely be expected to intervene. By the death of his 
partners the sole survivor would become the legal, and, in 
some cases, the equitable owner of all the assets. By the 
voluntary assignment by one partner of all his right, title 
and interest in the partnership property, the interests 
would be materially changed. If such occurrences were 
intended to work an entire forfeiture of the policy, the 
contract would be a mere wager, with all the chances on 
one side. 

Inasmuch as the words of this restriction can not be 
used in their enlarged sense, and their import is doubtful, 
their construction must incline against those for whose 
benefit the restriction was imposed. The interest of each 
partner in the goods was per my et per tout. The confi- 
dence reposed in them was testified only by the issue of 
the policy, and consequently was equal in each. The com- 
mingling of such an interest with such a confidence ought, 
by the rule above stated, to determine the construction in 
favor of the plaintiffs. Does this restriction, then, mean 
flothing ? I do not know what the parties intended by it. 



JUNE TERM, 1871. 15 

Hawkins v. Boggs. 

It is evident that the plaintiffs did not understand it in the 
same sense as the defendants. As it is susceptible of a 
meaning more extensive than was contemplated by either, 
it must be restrained to a reasonable significance consist- 
ent with the rights of the promisees. — Hoffman v. ^tna 
Ins. Co., 32 N. Y. 405 ; Wilson v. Genesee Mut. Ins. Co.^ 
16 Barb. 511. The authorities referred to are directly in 
point on the facts of this case as averred in the complaint. 
The demurrer ought to have been overruled. 

The judgment is reversed and the cause remanded. 



HA'WKINS vs. BOGGS. 

[assumpsit fob money paid by mistake.] 

1. What contracts not void as against public policy. — In March, 1864, after 
the capture of Memphis by the United States forces and the retreat of 
the rebel army from Corinth, which events occurred in 1863, the insur- 
rectionary forces did not hold such control over the citizens of the 
county of Lauderdale in this State, as to render contracts, between 
citizens of said county and citizens of Kentucky, for necessaries for 
the family or plantation, void, as against the public policy of the Uni- 
ted States. 

Appeal from the Circuit Court of Lauderdale county. 
Tried before Hon. W. L. Whitlock. 

The facts appear in the opinion. 

E. A. O'Neal, for appellant. 
R. O. Pickett, contra. 

(No briefs came to the Reporter's hands.) 

PETERS, J. — This is an action of assumpsit for money 
paid by mistake. There was a verdict and judgment for 
the appellee, Boggs, in the court below, for the sum of six 
hundred and fifty-two dollars and sixty- three cents, and 



16 FORTY-SIXTH ALABAMA. 

Hawkins v, Boggs. 

costs. From this judgment the appellant brings the case 
to this court by appeal, and here assigns for error the re- 
fusal of the court below to give the charges asked by the 
defendant in the court below. 

From the bill of exceptions, it appears that the transac- 
tion out of which this suit arose, occurred in March, 1864. 
Mrs. Hawkins, a resident citizen of Lauderdale county in 
this State, sold two bales of cotton to Cherry & Co., who 
were resident citizens of Paducah in the State of Kentucky, 
and received in payment therefor a quantity of family sup- 
plies and some money in "greenbacks," or United States 
currency. In the transaction of the sale of the cotton 
Boggs was the agent of the firm of Cherry & Co. Boggs 
was also a citizen of Lauderdale county in this State. Mrs. 
Hawkins received payment for the cotton twice ; once from 
Cherry & Co., and then again from Boggs, not knowing at 
the time that she had already been paid. When the mis- 
take was discovered, she refused to pay Boggs the money 
he had advanced, and he brought this suit to recover it, as 
money paid by mistake. The court was asked by the de- 
fendant to charge, that such a contract was void, as being 
opposed to the public policy. This the court refused, and 
the defendant below excepted. 

it is a fact judicially known to this court, that in March, 
1864, the county of Lauderdale in this State, was not a 
part of the enemy's country. After the retreat of the in- 
surrectionary forces from Corinth in the State of Missis- 
sippi, and the capture of Memphis in the State of Tennes- 
see, in 1863, the rebel authorities had only a predatory 
control in the counties of the State north of the Tennessee 
river. Such a control was not sufficient to impress upon 
the people of that portion of the State the disabilities of 
an actual insurrection. Neither the laws of war nor the 
public policy of the nation then forbid a contract between 
a citizen of Lauderdale county in this State, and citizens 
of the State of Kentucky, for family or plantation supplies, 
particularly when such trade was allowed under a military 
permit of the military authorities of the United States in 
the actual pommand of t|ie territory in which the transac- 



JUNE TEEM, 1871. 17 

Webb V. Edwards. 

tion took place. There was no proof that Mrs. Hawkins 
was an alien enemy to the nation in fact ; and the learned 
judge of the circuit court did not err in refusing to put her 
in" that attitude without strong proof. Under the facts 
shown in this case, it was by no means a sufficient pre- 
sumption of law that she was an alien enemy. 

The action of the court below was without error. The 
judgment of the circuit court is therefore affirmed. 



WEBB ... EDWAEDS.^^^^,^^^ ^^ 



[motion by defendant in attachment to hate set apaet to him as ex- 
empt UNDER the statutes, A SUM OF MONET IN THE HANDS OF GAKNISHEE, 
against whom JUDGMENT AND EXECUTION HAD BEEN AWABDED IN FAVOB OF 
THE PLAINTIFF IN ATTACHMENT.] 

1. Exemption statutes construed. — In this State the claim of a resident 
citizen to such portion of his personal property as is exempt from sale 
on execution, or other final process of any court, issued for the collec- 
tion of any debt, is an important and " valuable legal right." — 18 Ala, 
Rep. 127. 

2. Same — Laws for the protection of this right in this State have always 
been liberally construed, — 22 Ala. 624. 

3. Same. — Under the laws of Alabama, money is personal property, and 
a resident of this State is entitled to have $1,000 of his personal prop- 
erty exempt for the use of his family, and the personal property so re- 
served may consist of money. Under the constitution, a resident with- 
out a family may claim this exemption. — Const. Ala. 1867, Art. 14, § 1; 
Revised Code, § 2884. 

4. Same. — A defendant in an attachment and garnishment suit may go 
into the circuit court, and on motion in that court may claim a sum of 
money equal to the value of $1,000, while in the hands of the gar- 
nishee against whom judgment has been rendered, or after the same 
has been collected by the sheriff on execution against the garnishee, 
and have his claim to the money thus collected tried and determined 
by a jury, as upon a motion to show cause against a rule for the pay- 
ment of the money to the claimant as his exempt property. 

5. Same; rerdict of jury on trial of such motion, effect of. — On the trial of 
such a motion, when all the parties in interest are before the court, 



18 FORTY-SIXTH ALABAMA. 



Webb V. Edwards. 



and there is no exception, the verdict of the jury is conclusive, if the 
law is with the claimant. 

6. Exemption, claim of; ichen not too late.~The claim of such exemption 
does not come too late when it is made before the money thus collected 
is paid over to the plaintifif in the attachment suit. 

7. Judgment, what tvill be connected in supreme court. — A judgment in the 
court below in favor of the moveant in the court below, "or his attor- 
neys of record {naming them]," will be corrected in this court, when the 
verdict in the court below was in favor of the moveant and the attor- 
neys were not parties to the suit, by arresting that part ordering pay- 
ment to the attorneys of record, and the judgment as thus corrected 
affirmed. 

(PECK, C. J., dissenting.) 

Appeal from the Circuit Court of Henry. 
Tried before Hon. J. McCaleb Wiley. 

The facts of this case may be stated as follows : The ap- 
pellant, on the 28th of January, lfc67, sued out an attach- 
ment against the appellee, in the circuit court of Henry 
county, which was executed by summoning one George 
Searcy, a person supposed to be indebted to said defend- 
ant, as garnishee. 

The garnishee appeared, and answered in writing, that 
he was indebted to said defendant in the sum of seven hun- 
dred and eighty-six 73-100 dollars. 

At the spring term of said court, in 1869, the plaintiff, 
said appellant, recovered a judgment against defendant, 
said appellee, for thirteen hundred and thirteen 62-100 dol- 
lars ; and, after the rendition of said judgment, at the same 
term, he recovered judgment against said garnishee, on his 
answer, for the said sum of seven hundred and eighty-six 
73-100 dollars, the amount he had admitted he owed the 
said defendant. Of this sum, plaintiff has collected, by 
execution, of said garnishee two hundred and fifty-four 
56-100 dollars, the remainder being unpaid. 

At the fall term of said court, 1869, the defendant in said 
attachment made the following motion, to-wit : " Motion is 
made by defendant to have set apart to him the sum of 
one thousand dollars of the money in the hands of the 
garnishee, as exempt under the laws of the State, in favor 
of the defendant, who is and was at the time of the ser- 



JUNE TERM, 1871. 19 

Webb V. Edwards. 

vice of the garnishment, the head of a family and a resi- 
dent of the State." 

This motion was resisted by appellant on the following 
grounds, to-wit : 1. " That the court had not jurisdiction to 
grant said motion, because a final judgment had been ren- 
dered in favor of the plaintiff against the garnishee, Sear- 
cy, at the spring term, 1869." 2. "Because said motion was 
not made until six months after the condemnation of the 
debt due by garnishee." 3. " Because the judgment against 
the garnishee was the property of the plaintiff." 

From a bill of exceptions in the record, taken by the 
plaintiff, it seems the said motion was tried by a jury, but 
what the issue was does not appear. 

On the trial, the testimony consisted of evidence that de- 
fendant was the head of a family, as stated in the motion, 
and the proceedings and judgments in the attachment case 
against defendant and said garnishee, and that two hun- 
dred and fifty-four 56-100 dollars had been collected and 
paid on said judgment against said garnishee. 

The bill of exceptions says this was all the evidence. 
Thereupon, the court, at the request of said defendant^ 
said Edwards, charged the jury, that if they believed the 
evidence, they must find for him. 

The jury found accordingly. But what was found does 
not appear, as no issue is stated in the record to which it 
was a response. The bill of exceptions says, " said jury 
found for said Edwards," and the minute entry states, 
" they" (the jury) " find for the moveant." The judgment 
of the court is as follows : " It is, therefore, considered 
by the court, that the sheriff pay over to the said defend- 
ant, James J. Edwards, or his attorneys of record, Messrs. 
W. C Oates and F. M. Wood, when collected, the balance 
of the money due on the judgment of the plaintiff against 
the garnishee, George W. Searcy. It is further considered 
by the court, that the defendant recover of the plaintiff 
the costs in this behalf expended, for which let execution 
issue." To the said charge, rulings and judgment of the 
court, the plaintiff excepted. 

The case is here on plaintiff's appeal for revision, and 



20 FOKTY-SIXTH ALABAMA. 

Webb V. Edwards. 

the rulings, charge and judgment of the circuit court are 
assigned for errors. 

J. A. Clendennin, for appellant. — Could the legislature 
pass a law that would authorize a court to annul and set 
aside the service of process which had been perfected be- 
fore the passage of the act of 19th of February, 1867, 
( § 2884 of Eevised Code,) under which the appellee claimed 
the right to sustain the motion ? 

The appellant was pursuing nothing but his rights recog- 
nized by the existing law. It was the duty of both the 
defendant and the garnishee to interpose all claims of right 
or defense as against the plaintiff's proceeding, before the- 
rendition of judgment. When the judgments were ren- 
dered, they were final and conclusive between the parties 
thereto, unless appealed from. 

The judgment against the garnishee forever stopped the 
defendant in attachment from the collection of his note 
out of the garnishee, and it would have been the same 
with any other person to whom he may have disposed of 
it, and who had not given notice. The note itself was still 
the property of the defendant in attachment, but a change 
bad taken place in respect to the debt. After the judg- 
ment of condemnation, it certainly did not belong to the 
defendant in attachment. The record recites it as a judg- 
ment in favor of the appellant ; and he certainly had all 
the rights in it that any other plaintiff could have in a 
judgment, with this single contingency, that his right to it 
ceased when the appellee paid the judgment against him- 
self, the garnishment judgment remaining unsatisfied. 

In the case of Weaver et al. v. Lapsley, 43 Ala. 232-3, 
this court fully settled the question as to the rights of a 
plaintiff in a final judgment. They are pronounced con- 
tracts, and impose the highest obligations. Such contracts 
are entitled to the protection of the constitution equally 
with other contracts, and no State can pass any law im- 
pairing their obligation. They also decide that a plaintiff 
has a vested right in a final absolute judgment that has 
passed beyond the control of the court, as much as he has 



JUNE TEBM, 1871. 21 

Webb V. Edwards. 

in his dwelling house or farm, and they are all equally 
property and entitled to protection alike. 

It results, then, if the judgment against the garnishee 
was the property of the appellant, he could use or dispose 
of it as he pleased. It was the right of the appellant to 
withhold the issuance of an execution upon it, against the 
garnishee, if he saw proper to do so. 

After the adjournment of the court which rendered the 
judgment, said court ceased to have power to annul or set 
aside said judgment, unless by proceedings coming within 
the plain letter of the statute. None such appear to have 
been instituted. 

Under and by what process would the sheriff collect the 
money upon the judgment other than execution, the man- 
date of which commands him to have the proceeds to ren- 
der to the plaintiff in the judgment? -and yet here is. 
another mandate requiring him to render the same to 
another and different party, and depriving the attorney of 
record of the plaintiff in the judgment of his rights. 

In the case of Bell v. Davis, 42 Ala. 160, the party 
claiming the exemption lost his right by the failure to in- 
terpose his claim at the proper time. 

Has not the appellee, by his neglect and failure to bring 
to the notice of the court below his claim before rendition 
of judgment, forfeited all right or claim to have the vested 
rights of the appellant torn from him in the summary way 
in which it was done ? 

W. C. Gates, and F. M. Wood, contra. — 1. The law of 
this State permits a defendant to claim property as exempt 
at any time before a sale. And we claim that where a 
levy is made by garnishment, the defendant can claim the 
money in the hands of the garnishee at any time before it 
is reduced to the possession of the sheriff, or applied by 
him to the plaintiff's debt. 

Suppose the money h^d been paid into court by the 
garnishee when he answered, could the defendant not have 
claimed it before it was paid over to the plaintiff ? And 
at any time before payment of the money to the plaintiff. 



22 FOETY-SIXTH ALABAMA. 

Webb V. Edwards. 

could not the court have ordered the money paid by the 
clerk to the defendant ? The sheriff is as much under the 
power of the court as the clerk, and why could not the 
court order the sheriff to pay the exempt money to the 
defendant, if it could have ordered the clerk to do it ? 

Exemption laws are to be construed liberally, and with 
this construction it is plain that the appellee was entitled 
to the exemption. It is the amount exempt, and not the 
particular thing claimed as exempt, which concerns the 
creditor. 

By the paying over of the money in the hands of the 
garnishee to the defendant, the plaintiff 's judgment against 
the defendant in attachment was not annihilated. It was 
still subsisting. Preventing the plaintiff from taking sat- 
isfaction out of the particular fund in the hands of the 
garnishee, was only a modification of the remedy, such as 
under the decisions of our supreme court can be made 
without impairing the obligation of the contract. The 
judgment against the garnishee was only a remedy given 
for the collection of the original debt. 

The fault of the appellant's argument is, that it omits to 
notice that under our law the judgment creditor has no ab- 
solute right to satisfy his judgment out of a particular 
fund that may be lawfully claimed as exempt. Enforcing 
the exemption is not destroying a judgment, but enforcing 
a right existing before the judgment was rendered. 

Construing the exemption law liberally, why may not 
the money in this case be claimed as exempt at any time 
before being paid over to the plaintiff? There are no ele- 
ments of estoppel, as claimed by appellant. Courts can 
always alter, or correct, or control their process so as to 
prevent injustice and to enforce rights ; there is, therefore, 
no valid reason why the court can not order the money 
paid over to the claimant, notwithstanding it might have 
been collected on an execution in favor of the plaintiff. 
The money collected of the garnishee was certainly the 
property of the defendant, else how could the appellant 
have a judgment against the garnishee ? 



JUNE TERM, 1871. 23 

"Webb V. Edwards. 

PETERS, J. — The issues made in this record do not 
involve any question of constitutional power to make the 
exemption in controversy. Nor do they present any ques- 
tion which puts the policy of exemption laws upon trial. 
If they did, it seems to me that it would not be difficult to 
show that in a great republican and agricultural nation, as 
this is, it is of the utmost importance to the stability and 
prosperity of the State, that all its citizens, in whom its 
sovereignty is vested, shall have homes, and the means of 
support for their families and the education of their chil- 
dren. In such an inquiry, it is to be presumed that a 
people well educated and diligently instructed in christian 
morals, if they are provided with homes and the means of 
cultivating their farms, will always pay their debts, if in- 
deed such a people do not soon cease to, be a debt-owing 
community altogether. In this country, the people repre- 
sent the nobility of other nations, And there is no nation 
of any importance in history, that has deprived its nobil- 
ity of their homes and the means of a comfortable sup- 
port, in order to secure the payment of their debts. An 
English lord or prince would regard it as an assault upon 
the constitution of their country, to attempt to render his 
home and the means of his support subject to the payment 
of his debts. This exemption on their behalf they laud 
as the safeguard of the state. Why should it be less so 
here ? The principle in the one case is equally good in 
the other. It is this : the citizen in whom the sovereignty 
is vested should be placed in a situation to raise him above 
the hindrances and the temptations of poverty. In the 
system from which ours is, in great measure derived, the 
people are ranged into two classes : the prince in the one, 
and the subject in the other. Our system makes all princes, 
and all are alike entitled to the exemptions to which 
princes may claim to be entitled. A home, and the means 
to make it useful, and some degree of intelligence, are ele- 
mentary necessities of the governing classes. With us, all 
belong to this class. — Decl. Indep. 

The courts, having no legislative powers here, have 
simply copied so much of the English commercial system 



24 FOKTY-SIXTH ALABAMA. 

Webb V. Edwards. 

as they have deemed suitable to our institutions ; and the 
common law of the prince and his agricultural exemptions 
are altogether left out. This is now corrected by the legis- 
lature. And it is the duty of the courts to see that this 
correction has not been made in vain. No opposition to 
this correction can stay it from the accomplishment, sooner 
or later, of the high purpose for which it is designed. We 
have bidden farewell to the age when the interests of 
hucksters, and peddlers, and money-changers can subject 
to their uses the liberty, the home and independence of 
the citizen and prince. 

The courts must execute the laws. In this State, their 
officers are solemnly sworn "honestly and faithfuUy to sup- 
port and defend the constitution and laws of the United 
States, the union of the States, and the constitution and 
laws of Alabama." — Const. Ala. 1867, Art. XV. It scarcely 
needs an argument to show that to " support " a law means 
to enforce it, and to prevent any failure of the purpose for 
which the legislative authority brought it into being. If a 
law is permitted to fail of its purpose, it is rendered of no 
effect. Then it can not be said to be supported. 

Among the duties courts have to perform, it is said, with 
them, that there is no right without a remedy. Uhi jus, 
ihi remedium. — Co. Litt. 19/; 1 Term E. 512 ; 3 Bouv. Inst. 
n. 2411. And where the court may rightfully deal with 
the subject of controversy and the parties, and there is a 
right to be investigated, and the law has not prescribed a 
rule of practice, it is competent for the court to prescribe 
its own practice. Hence it is said, " the practice of the 
court is the law of the court." Cursus curice est lex curue. 
Broom Max. 126. Besides, the court " may amend and 
control its process and orders so as to make them conform- 
able to law and justice." — Rev. Code, § 638, cl. 6. 

Property which the " constitution and laws " of the State 
exempt for the use of the debtor and his family can not be 
said to be liable to seizure for the payment of his debts. 
And the creditor who contracts with a debtor knows, at 
the time of the contract, that the exempt property is freed 
from all liabihty for payment of any save certain specified 



JUNE TEEM, 1871. 25 

Webb V. Edwards. 

debts. He can not, therefore, complain, as he acted with 
his eyes open to such a condition. It is a risk that the 
creditor is willing to encounter, and if it brings harm upon 
him, it is his own fault. The law itself prejudiceth no 
man. 

Here there can be no doubt of the appellee's right. 
The proofs show that he is a resident of this State, and 
the head of a family. The language of the constitution 
fixing the exemption is as follows : " The personal property 
of any resident of this State to the value of one thousand 
dollars, to he selected by such resident, shall be exempted from 
sale on execution, or other final process of any court, 
issued for the collection of any debt contracted after the 
adoption of this constitution." — Const. Ala. 1867, Art. 
XIV, § 1. In addition to this, there is a similar provision 
in the Revised Code, which exempts one thousand dollars 
worth of personal property. — Bev. Code, § 2884. This 
exemption is said to be "a valuable legal right," and the 
laws for its support and protection have always been lib- 
erally construed. — Boss v. Hannah, 18 Ala. 125, 127 ; Fa- 
vers V. Glass, 22 Ala. 621, 624; Watson et al. v. Simpson, 
5 Ala. 233 ; Noland v. Wichham, 9 Ala. 169; Salee v. Waters, 
17 Ala. 482 ; Cook v. Baine, 37 Ala. 350. It is the duty of 
the court, then, to support and enforce this law until it is 
repealed. — Adrrir of Brewer v. Granger et al., in MS. ; 
Bay V. Adams, 45 Ala. 168. 

This proceeding is analogous to that of several parties 
claiming the same fund in different rights, as upon a mo- 
tion or cross bill, where the subject matter of the contro- 
versy and all the parties are within the jurisdiction of the 
court. No injustice can be done by such a practice. All 
the parties can be heard, and in the manner appointed by 
law : by a public trial before the court and jury. This is 
all that the law secures, and all that justice requires. — 
Const. Ala. 1867, Art. I, §§ 15, 13; 20 Ala. 140, 214. 
There is no authority given by law to the officer who makes 
the collection of the money in controversy to allow the 
exemption. But he can bring the money into court on the 
3 



26 FOBTY-SIXTH ALABAMA. 

Webb V. Edwards. 

return of the process under authority of which it has been 
levied, and leave the court to dispose of it as the law di- 
rects. This is the mandate of the writ. — Rev. Code, 
§ 2837. Undoubtedly, money collected on a fieri facias is 
personal property.— Rev. Code, § 2, cl. 3 ; 2 Tidd Pr. 1003. 
And in this case, it is the personal property of the defend- 
ant in the attachment suit, seized under final process of a 
court, issued for the collection of a debt. — Const. Ala. 1867, 
Art. XIV, § 1. The owner could not interpose his claim 
sooner, because there was no one authorized to hear it. 
And the motion interposing the claim has been made in 
this instance before the property claimed has passed from 
the control of the court, while the proceedings were yet in 
fieri. This is early enough. — Watson et al. v. Simpson, 

5 Ala. 2dS, supra ; Simpson v. Simpson, 30 Ala. 225. In 
such a case as this, the claim may be made upon motion 
to the court, by analogy to cases of a similar character. 
The same reasons make the same practice. (Est boni judi- 
cis ampliare jurisdictionem. Gilb.) — RutUdge's AdmW v. 
Toivnsend, Crane & Co., 38 Ala. 706 ; Langdon v. Raiford, 
20 Ala. 532 ; 3 Chitt. Pr. 570, 571 ; Jones v. Hutchinson, 
43 Ala. 721. Besides, the appellant in this court, who was 
the defendant in the motion in the court below, submitted 
to the jurisdiction without objection, pleaded and went to 
trial before a jury. He can not now repudiate his acts in 
the court below. This proceeding is analogous to an 
agreed case, leaving certain of the facts to the jury. In 
such a case, defendant below is bound by the verdict, if the 
law is against him. — Dane Abr. c. 137, Art. 4,§ 7 ; 8 Sergt. 

6 R. 529. And I think there is no doubt that the law is 
with the appellee, and that the verdict and judgment are 
correct as rendered in the court below, except as to the 
order to pay the money to appellee's attorneys, which is 
here arrested. 

Therefore, let the judgment of the court below, as cor- 
rected, be affirmed. 
■ 

PECK, C. J., (dissenting.) — I. The novelty of the question 
here presented, at first blush, would seem to involve its de- 



JUNE TEEM, 1871. 27 

Webb V. Edwards. 

cision in more or less difficulty, but an examination of the 
several sections of the Revised Code having reference to 
this subject, at once dissipates this apparent difficulty. 

1st. Let it be borne in mind that the right, if it may 
properly be called a right, of a head of a family to have 
,any of his property exempted from levy and sale for the 
payment of his debts, is purely statutory in its character, 
and has no existence independent of the statutes by which 
it is given. 

2d. Being a statutory right, it can only arise in the cases 
named in the statutes, and must be made within the time, 
and in the manner, and in the cases therein prescribed. 

3d. It is a right, in every case, personal to the head of a 
family, and must be claimea by himself, and by no body 
else, and it must be made before a sale of the property ; 
otherwise the right is lost. He can not claim or have the 
money arising from the sale, because the statutes do not 
gay so. 

4th. The claim is a pure matter of grace, and not of 
debt; therefore, the beneficiary must take what is given 
and be content ; he can have nothing more. And this 
should be so, for the reason that it is of grace and not of 
debt; and for the further reason, that the State, in this 
matter, is generous — not with her own, but with what, on 
the highest principles of morality, should belong to another; 
for every dollar a debtor is in this way permitted to with- 
draw from the payment of his honest debts, is a dollar, 
first or last, taken from the pockets of the creditor. 

The present enormous system of exemption laws, in the 
beginning, grew out of the purest feelings of philanthropy 
and good will, and was intended to help the poor, and to 
encourage them in the ways of honesty, industry and 
economy, and to secure to them the enjoyment of the com- 
mon comforts and decencies of life, and thereby enable 
them to improve their condition. 

For this purpose these laws wisely confined exemptions 
to a few necessary articles of daily family use, including 
among them the usual implements of husbandry, with a 
beast for the plow, and the tools of the mechanic ; but this 



28 FOKTY-SIXTH ALABAMA. 

Webb V. Edwards. 

system, which had its commencement in charity and good 
intentions, has been fed into its present unhealthy propor- 
tions by the false and hypocritical cries of sympathy on 
the part of demagogues and time-serving politicians for 
the "poor dear people," until nearly all just sense of obliga- 
tion and duty to observe honest promises has become de- 
moralized, and amounts, in reality, to almost an utter ab- 
rogation of all laws for the collection of debts. For it may 
be safely affirmed, that in no State or community is one- 
fifth of the people, as a body, at any one time worth the 
amount of property now exempted from execution. 

The result of all this is, that the poor, instead of being 
benefitted by these laws, and their best good and prosperity 
promoted, are being seriously injured by the destruction of 
the trust and confidence that once existed, not only be- 
tween them and their better-off neighbors, but also among 
themselves. Trust and confidence is the very life — the 
foundation of neighborhood commerce, without which no 
people, especially the poor, ever prospered or can prosper. 

Moderate and discreet exemption laws are both just and 
right in themselves, and are, no doubt, a great benefit and 
blessing to that portion of the people for whom they were 
first intended ; but, for myself, I desire to set my seal of 
disapprobation upon the extravagant lengths to which these 
laws have been extended by the legislation of this State. 

II. I will now refer to the sections of the Revised Code 
upon which this opinion is based. Section 2880 provides, 
that " the following property may be permanently retained 
for the use of every family in this State, exempt from levy 
and sale, by any legal process." Then follows a list and 
description of the property so exempted, both real and 
personal, the value of which, according to the very lowest 
estimate, can hardly be less than fifteen hundred dollars. 

This would seem to be enough to enable a prudent and 
industrious family to make a comfortable living. 

1st. This property is to be selected by the head of a 
family, and valued by three -disinterested persons, to be 
selected by the sheriff, or other person levying the process. 
So stood the law on this subject until the 19th of February, 



JUNE TERM, 1871. 29 

Webb V. Edwards. 

1867, when an act was passed which . forms § 2884 of the 
said Code, by which twelve hundred dollars of real estate 
and one thousand dollars worth of personal property is 
added to the list of property then already exempted from 
levy and sale, for the use of the family. 

By these sections we see that the property thus exempted 
is property that may he levied upon and sold by the slieriff or 
other officer^ under process in his hands for that purpose. 

2d. That only such property is exempted as shall be in 
the possession of the head of the family at the time of the levy, 
and which must be selected by him, after the levy, and be- 
fore the sale thereof. 

By section 2883, the value of the property so exempt 
must be ascertained by three disinterested persons sum- 
moned by the sheriff, or other officer levying the process. 
It follows, from this, that the property so exempt must be 
property, not only liable to be levied upon and sold, but 
must also be property possessed by the head of a family ; 
for if not possessed, it can not be retained, and, further- 
more, it must be levied upon before the sheriff, or other 
person levying the process, can proceed to have its value 
ascertained by the persons to be summoned for that pur- 
pose. 

3d. The question now arises, what property may be 
levied on and sold, by execution or other legal process ? 
By section 2871, Revised Code, we see that " things in ac- 
tion" can not be levied on and sold. By " things in action" 
is understood "choses in action." The word "choses" 
means things. All debts are choses in action, and, there- 
fore, things in action are not liable to be levied on and sold, 
and, consequently, not such property as can be reserved 
or retained for the use of a family, under the exemption 
laws. 

That was the purpose of the motion in this case. The 
appellee in the circuit court sought to have the money that 
might be collected by the appellant out of the property of 
the garnishee, on his judgment against the garnishee, paid 
to him, under the laws exempting certain property from 
levy and sale, for the use of his family. This could not 



30 EOETT-SIXTH ALABAMA. 



Overstreet et al. v. The State. 



be done. The said, judgment is not such property as is 
embraced within the purview and meaning of these laws. 
It was not, and could not be levied on and sold as property. 
It is not property in the sense of these laws, but a mere 
thing in action. The said judgment is in favor of the ap- 
pellant, against the garnishee, and not against the appel- 
lee. It is the appellant's judgment, and an execution issued 
on it can not be levied on the appellee's property, but only 
on the property of the garnishee. He is not, therefore, 
entitled to have property levied on for its satisfaction, be- 
ing the property of the garnishee, exempted from sale for 
the use of his family ; and if he is not entitled to have the 
property so levied on, it is very certain he can not have 
the money that may be derived from its sale. The motion 
was without any legal foundation, and should not have been 
entertained by the court ; consequently, the charge to the 
jury was erroneous. 

Note. — The foregoing opinion was prepared as the opin- 
ion of the court, but not meeting with the approbation of 
my brethren, I read it as a dissenting opinion. 

Peck, C. J. 



OYEESTKEET et al. vs. THE STATE. 

[indictment foe akson.] 

. Court, sentence of, in felony case ; when void. — The sentence of a cir- 
cuit court, in a case of felony, rendered at a special term not held on 
the application of the person charged, nor on account of a failure to 
hold a regular term, is invalid. 

, Motive to commit crime; when evidence of admissible. — Evidence of a 
motive to commit the oflfense charged, though weak and inconclusive, 
is admissible where the commission of the crime is shown and the 
circumstances point to the accused as the guilty agent. 

, Arson; what sufficient p^oof of . — An indictment for arson in burning 



JUNE TERM, 1871. 31 

Overstreet et al. v. The State. 

a gin-house is sustained by proof that it was burned by the ignition of 
matches which the defendant put amidst the unginned cotton in the 
gin-house, with the intention of having the house burned by the igni- 
tion of the matches in the necessary or probable handling of the 
cotton. 

Appeal from Circuit Court of Wilcox. 
Tried before Hon. P. O. Harper. 

The appellants, Tom Petway, Hilliard Pet way and 
Emanuel Overstreet, were jointly indicted for wilfully set- 
ting fire to and burning a gin-house, the property of J. H. 
l*etway, of the value of more than five hundred dollars, 
<fec. The defendants were tried at a special term of court 
held on the first Monday in February, 1871, went to trial 
on plea of not guilty, were convicted, and sentenced to the 
penitentiary. 

The caption of the minutes of the special term is as fol- 
lows : " Now on Monday, the 6th day of February, 1871, 
it being the day appointed and set apart to begin and hold 
a special term of the circuit court for Wilcox county, due 
publication thereof having been made by notice for thirty 
days of the time and place for holding the same, said no- 
tice having been given by the order of the Honorable 
P. O. Harper, judge of the lith judicial circuit of the 
State of Alabama, which notice was regularly published in 
the News and Pacificator, a newspaper published in said 
county of Wilcox, and the Hon. P. O. Harper, judge of 
the 11th judicial circuit of Alabama, being present, the 
court was regularly opened," <fec. 

The notice referred to was as follows : 

" Special Term of Wilcox Circuity Court. 

Greenville, Alabama, "i 

At Chambers, Dec. 28th, 1870. j 

" It is ordered, that a special term of the circuit court 

for Wilcox county be held, commencing on the 1st Monday 

in February, 1871, and continuing two weeks, for the trial 

of unfinished criminal business. All witnesses must be 



32 FOBTY-SIXTH ALABAMA. 

Overstreet et al. v. The State. 

summoned to attend said term, and all process relating to 
the business of said term made returnable to it. 

P. O. Haeper, 
Judge of 11th Judicial Circuit." 

It appears from the bill of exceptions reserved on the 
trial, that the State having proved the burning, tne venue, 
and the ownership and value of the property, as laid in 
the indictment, introduced one Burgess, who testified that 
he was the owner of fifteen bales of cotton burned in the 
gin -house ; that Hilliard, one of the defendants, was un- 
friendly to him ; that Tom was mad with J. H. Pet way, 
and said J. H. Petway would lose more than ten times fif- 
teen dollars. The court overruled defendants' objection 
to the admission of this testimony, and they excepted. 

The State was also allowed, against defendants' objec- 
tion, to introduce evidence that Tom Petway, one of the 
defendants, while on the way to jail, during an interval of 
adjournment in the trial, remarked that " Jacob Purnell, a 
witness for the State, had better look out, as he would be 
killed about saying such a lie as he did about defendants 
confessing they had burned the gin." 

There was testimony introduced going to sbow that the 
defendant Overstreet, just before light on the day of the 
fire, went into the upper part of the gin-house, and threw 
matches in the cotton to be ginned, while the other defend- 
ants watched for him, and helped him up in the gin-house. 
Soon after the ginning commenced next morning, fire 
broke out in the gin and lint cotton. 

This was in substance all the evidence. The defendants 
asked the court in writing to give the following charges to 
the jury : 

1. " That the throwing of matches on a pile of unginned 
cotton is not a setting fire to or burning of said gin." 

2. " That before convicting in this case, the State must 
prove beyond a reasonable doubt that the matches thrown 
on the unginned cotton would have ignited by going 
through the gin and set the gin house on fire.'' 

3. " That before they can convict, they must be satisfied 
beyond a reasonable doubt that the gin-house and its con-^- 



JUNE TERM, 1871. 3a 

Overstreet et al. v. The State. 

tents, the cotton, belonged to Petway, the owner of the 
gin-house, and were worth five hundred dollars ; and if 
the gin-house was Petway's, and not worth five hundred 
dollars, they could not convict.' 

The court refused to give the charges, and defendants 
excepted, and they now assign as error the various rulings 
of the court to which exceptions were reserved. 

John McCaskill, for appellants. — 1. The court erred in 
allowing the witness Burgess to give evidence of the un- 
friendly relations existing between himself and the defend- 
ant Billiard Petway, and the declarations of Tom Petway 
as to the ill will he had for J. H. Petway, unless a threat 
had been made. The evidence was used as well against 
Emanuel Overstreet as the other defendants, and preju- 
diced the jury against all the defendants. 

2. The court erred in allowing the witness Ingersoll to 
tell what Tom Petway said on hip way to the jail, as it 
tended to impeach his ( the defendant Tom's ) character, 
and was used against all the defendants, and when there 
was no character in issue. 

3. The court was held contrary to law. This record does 
not show that any of the reasons mentioned in section 752 
of the Eevised Code for holding special or extra terms of 
the circuit court existed, and as a matter of course all 
orders and sentences are void. 

John W. A. Sanford, Attorney-General, contra. — Evi- 
dence in regard to the enmity felt by the accused towards 
the owners of the property destroyed, was properly admit- 
ted, because it showed a motive for the conduct of the ac- 
cused, and tended to prove the question at issue. — Balaam 
V. The State, 17 Ala. 451; State v. Zeller,2 Halst. 220;. 
Rose. Cr. Ev. 87-8 ; Burr, on Cr. Ev. 313-14. 

The evidence of the angry denial by one of the accused 
of the truth of the testimony, may have been improperly 
admitted, but it was an error without injury, and therefore 
ought not to cause a reversal of the judgment. — The State 
V. Brantly, 27 Ala. 44; Beese v. Harris, 27 Ala. 306. 



34 FOETY-SIXTH ALABAMA. 

Overstreet et al. v. The State. 



The law presumes that all persons intend the natural 
and probable consequences of their acts. Hence, a person 
will be convicted of murder who prepares and places 
poison with the intention to take the life of a human being, 
and a person is killed by it. So, the placing of matches 
in unginned cotton, with the intention to burn a gin-house, 
and the house is actually destroyed by fire originating from 
them, is guilty of arson. — 1 Bish. Cr. Law, §§ 248, 513 ; 
Euss. & Eyan, p. 2u7. 

The court did not err in refusing the second charge, be- 
cause it was abstract. There was no evidence tending to 
prove the composition of the matches or the effect of fric- 
tion upon them. — Murray v. The State, 18 Ala. 727-32. 

Nor did the court err in refusing the third charge. The 
evidence proved that the gin-house was owned by Petway ; 
it is not necessary that the personal property contained 
and burned in it should have belonged to the same person. 
Eev. Code, § 3698. Therefore, the charge was properly 
refused. 

B. F. SAFFOLD, J. — This cause, being an indictment 
for felony, having been tried at a special term of the court 
held not on the application of the accused, nor in conse- 
quence of the failure to hold a regular term, must be re- 
versed.— Eev. Code, § 752 ; GuUy v. The State, in MS. 

The testimony of Burgess respecting the unfriendly feel- 
ing of one of the defendants towards himself, it being his 
cotton that was burned, and the threat of another defend- 
ant towards the owner of the gin-house burned, was prop- 
erly admitted in evidence. When it is shown that a crime 
has been committed, and the circumstances point to the 
accused as the guilty agent, proof of a motive to commit 
the offense, though weak and inconclusive evidence, is 
nevertheless admissible. The jury should be guarded as 
to the importance they attach to it, and especially should 
they not suffer it to affect the case of a co-defendant to 
whom it does not apply. — Balaam v. The State, 17 Ala. 451. 

The declaration of the defendant Tom Petway, on his 



JUNE TEEM, 1871. 35 

Pizzala v. Campbell, Adm'r. 

return to jail during a recess in the trial, concerning the 
witness Burrell, was irrelevant. 

A general consideration of the charges asked for the de- 
fendants and refused, will be sufficient. The evidence 
tended to show a burning of the gin-house by the ignition 
of matches passing through the gin, which were thrown by 
the defendants into the cotton to be ginned. Every man 
is presumed to intend the natural, necessary, and even 
probable consequences of an act which he intentionally 
performs. There must also be some adaptation in the 
thing done to accomplish the thing intended. — 1 Bish. Cr. 
Law, §§ 513, 516. If the defendants put the matches in 
the gin-house amidst the unginned cotton, with the inten- 
tion and expectation of their being ignited by the neces- 
sary or probable handling of the cotton, or in such hand- 
ling, and they were ignited, in consequence of which the 
gin-house was burned, they would be guilty of burning it. 
As the house was charged to be the property of Petway, it 
was necessary so to prove it, but it was immaterial to whom 
the cotton belonged. 

The judgment is reversed, and the cause remanded. 



. PIZZALA vs. CAMPBELL, Adm'e. 

[ejectment by adminibtbatob against widow,] 

1. Leasehold ; widow not entitled to rents and profits of. — A leasehold is not 
such an estate as the widow of the lessee is entitled to retain the rents 
and profits of, by Art. 14, § 5 of the State constitution. 

2. iFidmo's quarantine. — The widow's quarantine, as given by section 1630 
of the Revised Code, pertains exclusively to property of which she is 
dowable. 

Appeal from the Circuit Court of Montgomery. 
Tried before Hon. J. Q. Smith. 



FOETY-SIXTH ALABAMA. 



Pizzala v. Campbell, Adm'r, 



The facts appear in the opinion. 

Walker & Mukphey, for appellant. — The only question 
in this case is, whether the widow of a decedent without 
children is entitled to occupy the family residence at the 
time of the death, as a homestead, which was held under 
a lease, and not in fee simple. 

The constitution provides, that " if the owner of a home- 
stead die, leaving a widow, but no children, the same shall 
be exempt, and the rents and profits thereof shall inure to 
her benefit." — Constitution, Art. 14, § 5. 

The rented house of the decedent's residence is a home- 
stead. It is not necessary that the decedent shall haVe 
been the owner of the land. There is a distinction be- 
tween the land upon which one has a home, and the home 
itself. A man may be the owner of a homestead on land 
when he does not oivn the land. If one living in and only 
having a rented tenement were asked whether he owned 
land or not, he would answer in the negative. If asked 
whether he had or owned a home, he would answer in the 
aflfirmative ; for although he had no land, he really had a 
home. 

A homestead is not really land, but the quality given to 
or impressed on land by reason of its being a habitation 
or dwelling place. Land and house are elements of a 
homestead, inasmuch as there can not be a homestead 
without their presence ; but ownership absolutely of the 
land is not indispensable to the constitution of a home- 
stead. Homestead is nothing more than the quality of a 
home imparted to land and house by reason of a residence 
upon the land and in the house. 

A man may have a home on a piece of land iu which he 
has only a leasehold interest ; that is, he owns the quality 
attached to the property of being a home. 

There is a principle of law which guards a man's home 
and house, and pronounces his house his castle. Would 
the house be the less his castle, if he were a mere tenant, 
than if he were the owner of the soil? 

A tenant may have a lease extending through a period 



JUNE TEBM, 1871. 37 

Pizzala v. Campbell, Adm'r. 

of twenty-five years under our law. If the proposition of 
the appellee be correct, the widow* of a lessee for twenty- 
five years would not be entitled to a homestead, even though 
a lease for that time had been paid in full. A homestead 
in a lease for twenty-five years would in most cases be 
worth as much as a homestead on land to which there was 
a fee simple title. It would be immaterial to a widow sixty 
years of age whether her homestead was in land with a fee 
simple title, or in land with a lease for twenty-five years. 
Yet the proposition of the appellee would deprive the 
widow of a homestead where there was a lease for twenty- 
five years, and give it to her if there was a fee simple title. 
How could such a discrimination be excused or justified ? 

The construction of all the exemption laws should be 
favorable to the exemption. — AUman v. Gann, 29 Ala. 240 ; 
Favers v. Glass, 22 Ala. 621. 

The position, that there may be a homestead in a lease- 
hold estate, is fully sustained by authority. — Pelan v. De 
Vard et al., 13 Iowa, 63. 

Campbell & Hubbard, for appellee. — Estates in lands, 
tenements, &c., are those of freehold and those of less than 
freehold. 

A homestead to widow without children, being an estate 
for life, (Const. Ala. 1867, Art. 14, § 5 ; Washburn on Ee- 
alty, vol. 1, pp. — ; Kesley v. Kesley, 13 Allen, 287,) is a 
freehold estate, not of inheritance. 

Pizzala's interest in the rooms in question being a lease 
only for a year is an estate less than freehold. 

To hold that the widow is entitled to homestead in the 
rooms, would be to decide that a freehold estate can be 
carved out of an estate less than freehold ; that the less 
includes the greater ; that a part is greater than the whole. 

The right is the exemption of a homestead from debts, 
arising solely from the statute ; the true and legal signification 
of the word can only be derived from the statute enacting 
the same. 

What constitutes a homestead under our statutes ? 

The realty in which it is claimed must not only be occu- 



38 FOKTY-SIXTH ALABAMA. 

Pizzala v, Campbell, Adm'r. 

pied but oioned by the claimant through whom it is claimed. 
Const. Ala. 1867, Art. 14, § 2. . 

B. F. SAFFOLD, J.— The appellant was sued in eject- 
ment by the administrator of her husband's estate, to 
recover the possession of rooms in a building which he 
had leased for a year, and which she claimed the right to 
retain as his homestead, or dwelling house where he re- 
sided next before his death, under Article XIV, section 5, 
of the State constitution, and section 1630 of the Revised 
Code. 

The widow's quarantine, as given by section 1630 of the 
Revised Code, pertains exclusively to premises of which 
she is dowable, else, as she may retain them until her 
dower is assigned her, if she has no dower there would be 
no limit to her right of retention. 

The XlVth article of the constitution preserves the dis- 
tinction heretofore observed between real and personal 
property. It defines a homestead to be land, or a lot in a 
town, city or village, to be selected by the owner thereof, 
with the dwelling and appurtenances thereon, &c. The 
interest of a widow in the estate of her husband is her 
distributive share of his personal property, which she takes 
absolutely, and her life estate in his real property. A 
lease for a year, or term of years, is personal property. 
The homestead which the widow of the owner is to have 
the rents and profits of under section 5, is the homestead 
described in section 2 of Article XIY of the constitution. 

The judgment is affirmed. 

Appellant filed the following petition for a re-hearing : 
The appellant respectfully petitions the court for a re- 
hearing, and presents the following argument in support 
of the application : 

1st. The question is entirely new in this State. Arising 
under our new and recently adopted constitution, there is 
in this State as yet no precedent to guide in its decision. 
It is difficult to perceive the consequences of a decision of 
a question so new and so unprecedented. Jt would seem, 



JUNE TERM, 1871. 39 

Pizzala v. Campbell, Adm'r. 

therefore, that the question is one deserving the most care- 
ful consideration. 

2d. The opinion delivered does not consider either the 
argument or authorities in the written brief of appellant's 
counsel, and it is possible that those arguments and authori- 
ties may not have been considered by all the judges. They 
certainly were not presented to the other judges by read- 
ing the opinion in consultation. 

The argument of the court in the opinion is very brief, 
and is substantially this : That a homestead is defined by 
Article XIY, section 2, of the constitution ; that by that 
definition there can be no homestead without ownership of 
the land ; that homestead, in the 5th paragraph of that 
article, means the same thing with homestead in the 2d 
paragraph ; and that therefore the widow can not be en- 
titled to a homestead where the husband had only a lease- 
hold estate and was not the owner of the land. 

Now, it is respectfully submitted, that homestead is not 
defined iu paragraph 2. The first clause exempts from 
execution a homestead not exceeding forty acres of land, to 
be selected by the owner thereof, ( that is, of the home- 
stead) ; and not in any town, city or village ; or in lieu 
thereof, any lot in the city, town or village, owned and 
occupied by a resident of the State, and not exceeding two 
thousand dollars in value. 

It will be perceived that the second paragraph provides, 
first, for the exemption of a homestead, without defining 
it, and then it authorizes the substitution of a lot in a city 
or town, owned and occupied, at the option of an owner. 
The meaning of this paragraph is, that one having a home- 
stead may, instead of the homestead, take a lot owned and 
occupied by him. One may own and occupy a lot, and 
yet that lot may not be a homestead. He may reside else- 
where, and use the lot as a shop or place of business. In 
a case of this sort, where a man has a homestead, and be- 
sides owns and occupies a lot, he may at his election give 
up the homestead and take the lot which he owns and 
occupies. 

It is apparent that homestead is not defined in the sec- 



40 FORTY-SIXTH ALABAMA. 

Pizzala v. Campbell, Adm'r. 

ond paragraph, and that homestead is used rather in con- 
tradistinction to land owned and occupied. 

We refer to our argument already submitted, to show 
that homestead has a meaning wide enough to include a 
leasehold estate, and is not confined to land which was 
owned. 

This case was not orally argued. 

The conclusion attained by the court as to the meaniog 
of homestead will operate with great injustice. It will 
convert a widow on rented premises into a trespasser in 
the instant of the husband's death. 

That a man may be the owner of a homestead without 
being the owner of land, is, as we think, shown in our 
original brief in this case. 

The following response was made by — 

SAFFOLD, J.— The court decides that the judgment 
rendered in this case at this term is correct, and that the 
application for a re-hearing must be denied. 

My own opinion is, that the provisions of Article XIV 
of the State constitution are not at all influenced by any 
impress of the term homesiead, as a home, habitation or 
dwelling place. The second section reserves from his 
debts two thousand dollars worth of any real estate which 
the owner thereof may select, whether it has previously 
been his home, or dwelling place, or not. If he can make 
a better use of it than to reside upon it, he is at liberty to 
do so. The first section prescribes the least amount of 
personal property owned by a citizen which shall not be 
subjected by the legislature to the payment of his debts, 
and the second, the least amount of real estate. If this 
construction be correct, a leasehold can not be the subject 
of a homestead, because it is personal property. 

The construction contended for by the appellant's coun- 
sel would involve changes in the law which the legislature 
only is authorized to make. And they would depend solely 
on the association of an ideal home with every fugitive or 
temporary abiding place. 



JUNE TERM, 1871. 41 

! <( 

Oliver v. Jernigan. 



OLIVER vs. JERNIGAN. 

{bill in equity by tenaijt in common against his co-tenant fob sale op 

LANDS for PABTTTION.] 

1. Chancery, court of; what sale has no jurisdiction to decree. — In this State, 
the court of chancery has no jurisdiction to decree the sale of the lands 
of a tenant in common, who is of full age, without his consent, for the 
purpose of partition, because the same can not be equitably divided. 

2. Tenant in common of full age, lands of; when can not be exactly divided, 
what allotment may he made. — If the lands of tenants in common of full 
age are not susceptible of an exact division, an allotment may be made 
in unequal shares, with compensation for the inequality, by creating a 
rent or charge upon the land ; or, if the land allotted to one exceeds in 
value that allotted to the other, the court may compel the former to 
make compensation to the latter, for equality of compensation. 

3. Same ; rules as to partition of lands, title of which is in dispute, to what 
applies. — The general rule, that partition will not be decreed in equity 
where the title is in dispute, applies to a legal and not to an equitable 
title ; and if, on a bill for partition, the defendant wishes to avail him- 
self of an equitable defense, as, for instance, a defense arising out of 
a contract for purchase, &c., he must file a cross bill, or, under our 
system, he may set it up in his answer in the nature of a cross bill, and 
pray such relief as he may believe he is entitled to. 

4. Partition, <fcc, till for; when decree for rent, &c., may be rendered on. — 
On a bill for partition, where one of the tenants in common has been 
in the exclusive possession and enjoyment of the joint property, the 
chancellor, in a proper case, may decree an account for occupation, 
rent, &c. 

Appeal from Chancery Court of Bullock. 
Heard before Hon. B. B. McCraw. 

The facts are suflBciently stated in the opinion. 

Rice, Chilton & Jones, for appellant. 
Seals, Wood & Roquemore, aYid Norman & Wilson, 
contra. 

PECK, C. J.— The appellee filed his bill in the court 
below against the appellant, for the partition and sale of 
the lands described in the bill of complaint, upon the 
4 



42 FOKTT-SIXTH ALABAMA. 

Oliver v. Jernigan. 

ground that the said lands could not be equitably parti- 
tioned or divided without a sale. 

The bill states that plaintiff and defendant were tenants 
in common, each being entitled to an equal undivided half 
interest in the same as tenants in fee simple. 

That on or about the first day of January, 1868, the de- 
fendant, by a verbal agreement, purchased plaintiff's inter- 
est in said lands. That by said agreement defendant was 
to pay plaintiff two hundred and seventy-five dollars, one- 
half in cash, and the other half on the first day of Janu- 
ary, 1869 ; that under said purchase, defendant went into 
the possession of said lands, and cultivated them in the 
year 1866 ; that plaintiff, hoping and believing that de- 
fendant would substantially comply with his agreement, 
allowed defendant to take the exclusive control and pos- 
session of said lands during that year ; that plaintiff had 
been always willing to abide by said contract for the sale 
of said lands, and had often called on and requested said 
defendant to perform his part of said agreement, but that 
defendant had refused to perform his part of said agree- 
ment. Plaintiff further states that the annual rent of said 
lands was worth one hundred and fifty dollars ; that de- 
fendant had refused to account to plaintiff for the year 
18tj8, although plaintiff had often demanded the same of 
defendant. The bill further states, that the joint tenancy 
of said lands by plaintiff and defendant was attended with 
serious inconvenience to both plaintiff and defendant, and 
that said lands could not be equitably partitioned or di- 
vided without a sale. 

The bill prays an account for the rent, &c., and that de- 
fendant be decreed to pay the same to plaintiff, when as- 
certained ; and then prays for a sale of said lands, for the 
purpose of partition between the parties, as should seem 
equitable and just, and for general relief, &g. 

The answer of defendant on oath is waived. 

Defendant answered the bill, and admitted the tenancy 
in common, and the verbal agreement for the purchase of 
the land, as stated in the bill, and his possession of the 
land under said agreement, &c., and denied all the other 



JUNE TEEM, 1871. 43 

Oliver V. Jernigan. 

allegations of the bill, and demurred to the same for want 
of equity. 

Testimony was taken by plaintiff, and the case was sub- 
mitted for a final hearing on the bill, answer, exhibit and 
proofs. 

No notice seems to have been taken of the demurrer. 

The chancellor decreed that the plaintiff was entitled to 
the relief prayed ; that the plaintiff and defendant were 
tenants in common ; that the lands could not be equitably 
partitioned ; and, thereupon, decreed that the same should 
be sold, and directed an account to be taken as to the rent 
of the lands, &c. 

The decree for the sale of the lands in this case must be 
reversed, on the authority of the case of Ddoney et al. v 
Walker et al., (9 Porter, 497.) On page 503 of said case 
the court say : *' We can not suppose a case in which the 
lands of an adult can be sold by the decree of the chan- 
cellor, to make partition, without his consent." In this 
State, therefore, a court of chancery has no power to de- 
cree a sale of lands for partition, because they can not be 
equitably divided. 

If the lands of tenants in common, of full age, are not 
susceptible of an exact division, an allotment may be made 
in unequal shares, with compensation for the inequality, by 
creating a rent or charge upon the land ; or, if the land 
allotted to one tenant ia common exceeds in value that 
allotted to the other, the court may compel the former to 
make compensation to the latter, for equality of partition. 
The mode in which partition is effected in equity, may 
be seen in Adams' Equity, pages 552-3-4. 

In the present frame of the complainant's bill, he is not 
entitled to simple partition. He should have stated and 
charged, that the verbal agreement of the defendant to 
purchase his undivided interest was void by the statute of 
frauds, and that there had been no such part performance 
as, under par. 6 of section 1862 of the Revised Code, would 
relieve it from the influence of that section. 

The general rule, that partition will not be decreed in 
equity where the title is in dispute, applies only to a legal 



U FOKTT-SIXTH ALABAMA. 

McQuaid v. Powers and O'Donnell. 

title. — Adams' Eq. 5^9, note 1. If, on a bill for partition, 
the defendant wishes to avail himself of an equitable de- 
fense, as, for instance, a defense arising under a contract 
for purchase, he should, to entitle himself to his defense, 
file a cross bill ; or, under our system, set it up in his answer 
in the nature of a cross bill, with a prayer for such relief 
as he may claim to be entitled to. — DonneU et al. v. Mateer 
et al, 7 Iredell's Eq. K. 91. The verbal agreement for the 
purchase of the plaintiff's undivided ititerest, &c., is not a 
legal title ; it is a mere equity at best. — lb. 

If, on the hearing, the chancellor shall be of the opinion 
that said verbal agreement entitles the defendant to relief, 
and to have the same specifically executed, then he should 
decree accordingly, and dismiss the plaintiff's bill for par- 
tition ; but if, on the other hand, he shall be of the opinion 
that the said verbal agreement is void, then he should dis- 
miss the cross bill, and proceed to decree partition, &c. 

In addition to the decree for partition, if partition is de- 
creed, the court may, if the case is a proper one for that 
purpose, proceed to decree an account for occupation, rent, 
<fec.— Adams' Eq, 534-5. 

The decree of the chancellor is reversed, and the cause 
is remanded for further proceedings, in conformity to this 
opinion. The appellee will pay the costs. 



McQUAID vs. POWEKS AND O'DONNELL. 

[action to eecoveb damages foe non-peefoemance of conteact to 
consteuct a house. ] 

Contract; what tvill support joint action ; what attestation sufficient where 

obligor makes his mark. — A written contract for the construction of 

a house for a specified sum of money, signed by the parties, with an 

obligation beneath as surety for the faithful performance of the con- 

his 
tract by the builder, signed, "Phillip ><! O'Donnell," and attested by 

mark. 



JUNE TERM, 1871. 45 

McQuaid v. Powers and O'Donnell. 

two witnesses, whose names are written on the same page, but midway 
between those of the principals and the surety, was offered in evidence 
to support a suit for damages for non-performance of the contract 
prosecuted against the builder and surety jointly : Held, 1st. It was an 
attested instrument, the execution of which could be proved by one of 
the subscribing witnesses, 2d. The signature of the surety was shown 
to be complete by the testimony of the witness that the writing was exe- 
cuted by all the parties at the same time and place, and that he and 
the other witness signed it as witnesses with the assent of all the par- 
ties, and in their presence. 3d. As an obligation to answer for the 
default of another, a sufficient consideration was expressed. 4th. A 
joint suit against the defendants might be maintained upon it. 

Appeal from Circuit Court of Mobile. 
Tried before Hon. John Elliott, 

Tms was an action commenced by the appellant against 
the appellees jointly to recover damages for the non-per- 
formance of the contract evidenced by the following in- 
strument : 

" Mobile, July 2d, 1866. 

" Contract between John McQuaid, of the first part, and 
Robert Powers, of the second part. — It is hereby agreed 
that Robert Powers is to build for and deliver to John 
McQuaid, on or before 5th August next, a cottage resi- 
dence, [ here follows plan, dimensions, &c., of cottage.] 
The entire house to be built in good faith, according to 
plan and drawing furnished, for the sum of eight hundred 
dollars in current funds of the United States. 

" In witness whereof we append our names. 

j U. S. I. ) Of the first part, John McQuaid. [l.s.] 

( R. STAMI*. J Of the second part, RoBT. PowEBS. [l.s.] 

TTT-^ ( James Kelly, 

Witnesses, | ^ ^ p.^ J; 

C We, the undersigned, do bind ourselves 

I hereby for the faithful performance of this 

ecur . ■\ QQ^^^^Q^ ]Qy ]yjj. Robert Powers, as securi- 

t ties. 

his 

Phillip M O'Donnell." 

mark. 

The defendant O'Donnell pleaded, " 1st. The statute of 
frauds ; 2d. The general issue ; 3d. That he did not enter 



46 FOBTY-SIXTH ALABAMA. 

McQuaid v. Powers and O'Donnell. 

into the contract and engagement set out in the complaint ; 
and 4th. That said contract and engagement as to him is 
without consideration." And upon these pleas issue was 
joined. O'Donnell filed his sworn plea of non est factum^ 
but this plea was withdrawn by him. Powers appeared, 
but filed no plea. 

On the trial, the plaintiff offered in evidence the agree- 
ment, which is set out above, which was objected to by 
O'Donnell on the ground that the undertaking of Powers 
was absolute, but O'Donnell's was collateral and as a 
surety, and that they could not be joined in this action on 
that instrument. 

This objection the court overruled. 

The defendant O'Donnell then moved to exclude the 
agreement, on the ground that as to him it was not sub- 
scribed and executed, and attested by a subscribing witness, 
according to the statute, where a party signs by making 
his mark. 

''Pending this objection, plaintiff introduced James Kelly, 
one of the witnesses named in the agreement, who testified 
that he saw O'Donnell affix his mark to the paper ; that 
his name was written there by his daughter at his request ; 
that it was acknowledged by him as his signature, as the 
surety for Powers iu the contract, and also by Powers and 
McQuaid ; that he subscribed it as a witness by their 
assent at the place where his name appears upon it, and 
that the other witness subscribed at the same time and 
place and in presence of all the parties; that O'Donnell 
received from McQuaid eight hundred dollars, and handed 
it to his daughter to keep for him ; that the paper was 
then handed to McQuaid and a copy to Powers, with the 
plan of the house ; that this occurred at O'Donnell's house 
in Mobile, where Powers boarded." 

The court ruled that the signature of O'Donnell was not 
attested according to law, and that the evidence could not 
avoid the objection, and excluded the paper from the jury 
as to O'Donnell ; to which ruling plaintiff excepted and 
took a non-suit, &c. 



JUNE TERM, 1871. 47 

McQuaid v. Powers and O'Donnell. 

The various rulings of the court to which McQuaid ex- 
cepted are now assigned as error. 

George N. Stewart, for appellant. — The obligation was 
a sealed instrument. — Eev. Code, § 1585. But whether it 
was or not, was entirely immaterial, as the statute puts all 
written obligations which are made the foundation of the 
action on the same footing as sealed instruments, whether 
they be sealed or not. Section 2681 of the Revised Code 
provides that they shall be evidence of the duty for which 
they were given, and shall be taken as made on sufficient 
consideration, but may be impeached by plea and proof 
by the defendant. 

The execution of such obligation is made by statute evi- 
dence without proof of execution, unless denied by plea 
on oath.— Rev. Code, §§ 2682, 2640. 

In this case the execution had been denied by O'Donnell 
by plea, but that plea had been withdrawn. 

It was excluded as to both defendants. One of them 
had made no objection to it. 

But it was said that the attestation was not signed by 
the witness at the proper place as required by the statute. 
There is no statute on the subject ; the one above cited 
applies to conveyances of lands. 

Signing anywhere on the paper is sufficient. — Story on 
Contracts, § 863 ; Burge on Suretyship, p. 32. Even sign- 
ing on the back is sufficient. — 9 Mass. R. 314 ; 13 John- 
son's R. 175. 

The execution of the instrument as above stated stood 
before the court admitted, according to the statute, as it 
was made the foundation of the suit and was not denied 
on oath. 

The written obligation was excluded also on the ground 
that there was a misjoinder — that the -obligation of Powers 
was an original undertaking, and that the obligation of 
O'Donnell was a collateral undertaking. 

In this we say the court again erred. 

The obHgation of O'Donnell was not collateral ; it was 



48 FORTY -SIXTH ALABAMA. 

McQuaid v. Powers and O'Donnell. 

on his part, as well as on that of Powers, an absolute and 
original contract, not within the statute of frauds. 

Both the writings constitute but one joint and several 
obligation in law. 

The obligation of Powers was, that he should deliver 
the house on a certain day. 

The obligation of O'Donnell was, that the house should 
be delivered by Powers on that day. 

The two writings were simultaneously made, both deliv- 
ered together by the two obligors to McQuaid. 

The consideration was the same to both — eight hundred 
dollars paid. Powers accepted the consideration, and 
O'Donnell received the money. The obligation of both 
was that Powers should do the work and O'Donnell receive 
the pay. This was assented to by both. 

Such contracts are treated precisely as if there was but 
one obligation signed by both jointly, and may be declared 
on as a joint and several promise. 

That one signs as principal and the other as surety, 
makes no difference ; they are nevertheless joint obligors. 
White V. Howland, 9 Mass. 314 ; Nelson v. Dubois, 13 Johns. 
175 ; Hunt v. Barnes, 5 Mass. 358 ; Burge on Suretyship, 36. 

The obligation of O'Donnell is not a collateral promise, 
because he has the fund for payment of the default which 
belonged to Powers. 

A promise to pay out of funds of the principal debtor 
by the surety is not a collateral, but an original obligation. 
Burge on Suretyship, 28. 

The evidence of the payment of the money to O'Don- 
nell was proper, although by parol. 

Extrinsic evidence may be given to ascertain the true 
import of a guaranty. — Story on Contracts, 410 ; 11 John- 
son's R. 2 iS. 

The objection of misjoinder, under the authority of the 
cases above cited, does not exist. The pleadings in those 
cases show the light in which such contracts are treated ; 
that is, the same as if only one joint obligation existed. 

But the objection was not a proper one under the state 
of the pleadinjgs. There was no plea in abatement for 



JUNE TERM, 1871. 49 

McQuaid v. Powers and O'Donnell. 

misjoinder, nor was there any demurrer to the complaint. 
The objection, even if available at first, was made at too 
late a stage of the case. A plaintiff should not be delayed 
by the withholding of such an objection. 

Anderson & Bond, contra. — There was no error in the 
exclusion of the evidence offered as to O'Donnell — 1st, Be- 
cause it was a departure from the complaint, and did not 
correspond with its allegations ; 2d. Because it was void 
as to O'Donnell under the statute of frauds, not expressing 
any consideration ; and bd. Because it was not signed or 
subscribed by O'Donnell as required by law. 

1. The complaint declared on a joint undertaking. The 
contract attempted to be given in evidence is a full and 
distinct agreement, complete in itself with respect to plain- 
tiff and Powers, but the undertaking of O'Donnell is col- 
lateral to the agreement in chief, and is not a part of it. 
Powers' agreement is complete without it. O'Donnell is a 
guarantor that Powers will perform his contract, and is 
not otherwise connected with it. — Chit. Plead, vol. 1, p. 44. 

Story on Contracts, § 33/", p. 53, says : " In contracts of 
guaranty or suretyship, co-sureties may be either jointly or 
severally liable, according to the terms of their contract, 
but the surety is not jointly liable with the principal, his 
undertaking being collateral and secondary." 

The case of Phalen v. Dingee, 4th ed. Smith N» T. Rep. 
379, is directly in point. See, also, Le Boy v. Shaiv, 2 Duer, 
626 ; DeRidder v. Schermerhorn, 10 Barb. 638 ; Hall v. 
Farmer, 2 Comst. 553; Hicks v. Branton, 21 Ark. 186; 
Bowan v. Bowan, 29 Penn. St. R. 181 ; Worster v. North- 
rup^ 5 Wis. 245. 

2. No consideration is expressed in the guaranty. The 
statute (Rev. Code, § 1862,) requires the agreement to ex- 
press the consideration, 

Burge on Suretyship, p. 30, says : " The statute requires 
the agreement to be in writing, and not merely the promise. 
If it was only necessary to show what one was to do, it 
would be sufl&cient to show the promise made by the de- 
fendant who was to be charged with it. But if this con- 



50 FOETT-SIXTH ALABAMA. 

McQuaid v. Powers and O'Donnell. 

struction were to be adopted, it would let in those very 
frauds and perjuries which it was the object of the statute 
to prevent." 

It is true, other writings may be resorted to, but they 
must be other writings of the party to be charged, or to 
which he refers, or adopts. — Wain v. Walters, Smith's 
Leading Cases. 

And this can not be done by parol, for parol evidence to 
connect them is not admissible. 

3. The statute (Rev. Code, § 1,) is as follows : " ' Signa- 
ture ' or ' subscription ' includes mark when the person can 
not write, his name being written near it, and witnessed 
by a perssn who writes his own name as a witness." 

It is attempted to make one attestation cover both in- 
struments. This might possibly be done, if the attestation 
followed the whole, but it is appended to the original, and 
can not be extended to the one following. 

The instrument must appear on its face to be signed ac- 
cording to law. If the door be opened to parol proof, the 
very mischief is let in which the statute of frauds seeks to 
prevent. 

The statute of frauds (Rev. Code, § 1862,) is emphatic 
iiiat the writing must be subscribed by the party to be 
charged therewith, or by some other person by him there- 
unto lawfully authorized in writing. 

This case differs from the ordinary proof of the execu- 
tion of a writing. In such case we have the signature, 
and only its genuineness is to be established. In this case 
the signature is not found ; and the effect of the proof 
would be to make a contract by parol evidence to bind a 
surety, which the statute of frauds forbids. 

There is no signature to bind O'Donnell, if he were the 
principal, instead of a surety. Being a surety, the statute 
is very emphatic that the surety to be charged must have 
subscribed the agreement. Section 1 of the Revised Code 
requires the mark and the name of the party near it, and 
to be attested by a witness who writes his own name. 
Rules like this on the subject of the execution of deeds 
and wills are always strictly enforced. — See 5 Barr (Penn.) 



JUNE TERM, 1871. 51 

McQuaid v. Powers and O'Donnell. 

p. 33, Asay v. Hoover ; see, also, GrayhiU v. Barr, 5 Barr, 
441. Flowers v. Bitting, in MS., is directly in point. 

4. The distinction between a direct and a collateral un- 
dertaking is shown by Mr. Serjeant Williams in his elabo- 
rate note to Forth v. Stanton, 1 Williams &, Saund. 211. 
" The rule there laid down by him, and which has ever 
since been approved of, is, that the only test and criterion 
by which to determine whether the promise needs to be in 
writing, is the question whether it is or is not a promise to 
answer for a debt, default or miscarriage of another, for 
which that other continhes liable." — Smith on Con., top 
page 116, citing many cases in notes on that and page 117. 

In this case, the contract between the two principal par- 
ties irf distinct and separate, and is complete by itself ; 
while the contract of O'Donnell is incidental, separate and 
conditional. He guarantees or binds himself not to do 
anything himself, but to answer that Powers shall faith- 
fully perform his (Powers') contract. O'Donnell does not 
agree to do any of the work ; does not agree to join Powers 
in doing it. The contract is to build a house ; that is en- 
trusted to Powers, and Powers is entrusted and charged 
with that duty. He is fully liable upon it. Must not 
O'Donnell's liability, therefore, be necessarily secondary 
and collateral ? — See Desllionde v. Boykin & McRae, 37 
Ala. 583. 

B. F. SAFFOLD, J.— The appellee, O'Donnell, is not 
liable in this suit, unless the plaintiff can show that there 
is some agreement in writing expressing the consideration 
subscribed by him, or some other person by him authorized 
in writing. His alleged undertaking is to answer for the 
default or miscarriage of another. 

The writing offered in evidence has the name of O'Don- 
nell affixed, by his mark, as a guaijantor of Powers' per- 
formance of his contract. The signatures of the two wit- 
nesses, from their position on the paper, and the purpose, 
as expressed by the word " witnesses" merely written near 
them, appear to be an attestation only of the contract be- 
tween McQuaid and Powers. One of these witnesses, 



52 FORTY-SIXTH ALABAMA. 

McQuaid v. Powers and O'Donnell. 

Kelly, testified that his attestation was intended to apply 
to the signature of O'Donnell as well as to the others ; 
that the whole execution of the instrument was made at 
one time, in the presence of all the parties and the wit- 
nesses. 

As the obligation of Powers was founded upon a valua- 
ble consideration, and the guaranty was given at the time 
when it was incurred, and entered into the inducement to 
the contract on the part of the plaintiff, the whole being 
evidenced by one writing, a sufficient consideration for the 
guaranty is expressed. It is not necessary that any con- 
sideration should pass directly from the party receiving 
the guaranty to the party giving it. If the party for whom 
the guaranty is given receive a benefit, or the party to whom 
it is given receive an injury in consequence of the guaranty, 
and as its inducement, this is a sufficient consideration. — 
1 Parsons on Contracts, 497 ; Leonard v. Vredenburgh, 
8 Johns. 29 ; Bickford v. Gibhs, 8 Gush. 156. 

As to the authentication of the guaranty, no law pre- 
scribes the place on a written instrument where the signa- 
ture of an attesting witness must be written, nor is any 
particular form of attestation required. The paper must 
indeed show that it is attested, and by whom. When this 
is made to appear, the instrument is to be authenticated 
by the testimony of such attesting witness. In case of a 
conveyance of land, the statute prescribes the facts which 
he must establish. So far as the validity of the deed is 
concerned, this probate may be made at any time. The 
testimony of Kelly is surely admissible to prove the exe- 
cution of the contract by Powers. From it we learn that 
O'Donnell also executed the writing as a guarantor of Pow- 
ers' performance. Shall his evidence be excluded against 
O'Donnell, because his name is not written in the custom- 
ary place ? if so, then the place where a contract or con- 
veyance should be attested is more controlling than the 
attestation itself. We think the signature of O'Donnell is 
proven. 

If O'Donnell, being sued on his obligation, might have 
obtained a summary judgment against Powers under sec- 



JUNE TERM, 1871. 53 

Jones & Culloin v. Knox. 

tions 3070 and 3071 of the Revised Code, as he undoubt- 
edly could have done as surety in any manner on the con- 
tract or instrument, there can be no error in joining the 
two as defendants in the first instance. Neither was liable, 
unless both were, for default in the performance of the 
contract. 

The judgment is reversed, and the caused remanded. 



JONES & CULLOM vs. KNOX. 

[bill in chanceby by ward against sueeties on guabdian's bond fob 
settlement of the guaedianship. ] 

1. Settlement of guardianship, when may he transferred to chancery court; 
who necessary parties defendant. — It is a sufficient ground for transfer- 
ring, at the suit of the ward, the settlement of a guardianship account 
from the probate to the chancery court, that the guardian was a cer- 
tificated bankrupt, and died leaving uo estate whatever ; and in such 
a case there is no necessity for joining with the sureties a representa- 
tive of the guardian as co-defendant, there being no administrator ap- 
pointed. 

2. Liability of surety of guardian ; provable in bankruptcy, and released 
by discharge in bankruptcy. — The liability of the surety of a guardian 
is a contingent liability provable under section J 9 of the bankrupt law 
of 1867. It is not of a fiduciary character, from which the discharge 
in bankruptcy of the surety does not release. 

Appeal from the Chancery Court of Montgomery. 
Heard before Hon. A. C. Felder. 

The appellee, a ward, on 23d June, 1869, filed his bill by 
next friend, against appellants, sureties on the bonds of his 
guardian. The facts are as follows : William Knox, in 1&59, 
was appointed guardian of appellee, and qualified as such, 
with appellants as his sureties. On the 8th February, 1868, 
said guardian filed his accounts for an annual settlement of 
his guardianship.by which was shown a balance in his ward's 
favor of $10,635.06, for which, on the 29th June, 1868, the 



54 FOETY-SIXTH ALABAMA. 

Jones & Cullom v. Knox. 

probate court rendered a decree. After rendition of said 
decree the guardian died, having become an adjudicated 
bankrupt previous thereto. Said guardian died insolvent, 
leaving no assets subject to administration, and no admin- 
istration upon his estate has been granted or applied for. 

Appellant Jones was adjudged a bankrupt, on his own 
petition, 24th February, 1868, and received his final dis- 
charge in bankruptcy 15th June, 1868. 

Appellant Jones demurred to the bill, and assigned, 
among others, as grounds of demurrer, want of equity, and 
non-joinder of personal representative of guardian as party 
defendant ; and plead his discharge in bankruptcy. The 
chancellor overruled the demurrer, and gave decree in favor 
of appellee, from which appellants appeal, and assign as 
error the overruling the demurrer and the decree of the 
chancellor. 

Chilton & Thorington, and S. F. Eice, for appellants. — 
1. The foundation of complainant's claim to relief, is the 
indebtedness of William Knox, the guardian, and Cullom 
and Jones, the sureties of said guardian ; the only indebt- 
edness alleged, is the indebtedness which the bill and ex- 
hibit thereto show to have been actually existing on the 
8th day of February, 1868. 

Nothing is shown to have been done after the 8th day of 
February, 1868, and before the filing of complainant's bill, 
which changed in any manner the nature or character of the 
alleged liability against the sureties. The decree of the 
probate court of June 29th, 1868, alloioing the guardian's 
account, previously filed, did not change the nature or charac- 
ter of the liability of his sureties. 

2. The nature or character of the liability of a surety of 
a guardian appointed in Alabama, must be determined by 
the statute of Alabama. The effect of a report, or return, 
or account filed by such guardian, in the probate court 
which appointed him, as well as the ascertainment by such 
court of the amount due by such guardian upon any set- 
tlement by him in that court, must be determined by those 
statutes. 



JUNE TERM, 1871. 55 

Jones & Cullom v. Knox. 

These positions are the plain sequences from the following 
unquestionable principle, to-wit : " The legislature (of Ala- 
bama) is authorized clearly, by law, to provide that certain 
consequences shall flow from certain acts ; or, as in this 
case, that the ascertainment of the liability of the princi- 
pal shall fix the liability of the sureties ; but the facts and 
circumstances out of which this relation (of principal and 
surety) arises, is, and must always be, a matter for judicial 
determination." — McClure v. Coldough, 5 Ala. 69, 70 ; Price 
V. Cloud, 6 ih. 248 ; Robertson v. Coher, 11 ib. 466. 

Sureties who become such under the statute are bound 
by them as part and parcel of their contract ; for these 
statutes are, in truth, part and parcel of their contract. — 
Atwoods V. Wright, 29 Ala. R., and cases there cited. 

3. The inquiry that must govern the present suit, is then 
reduced to this : Upon the facts and circumstances proved 
in this suit, was the liability of the principal (Wm. Knox) 
of such nature and character (had it not been fiduciary) as 
to be provable under the bankrupt law ? This inquiry is 
of easy and certain solution. 

4. Jones was discharged in bankruptcy from all debts 
that existed on the 24th of February, 1868. The question, 
then, is not whether an indebtedness had been so ascer- 
tained to be due by the guardian before said 24th Febru- 
ary, 1868, as that a suit could have been maintained at or 
before that day against the sureties, but whether Knox, the 
guardian, had up to that day received a greater amount of 
money from the estate of his ward than he was able to re- 
turn to him. If the indebtedness of Knox to his ward 
existed, it matters not whether it was ascertained or not. It 
was not Jones' duty to have it ascertained, but the duty of 
the party who now seeks to charge him with it. The bank- 
rupt law gave him the right to have it ascertained, and in 
this differs from the old bankrupt law ; having the right, 
his refusal or failure to exercise it, can only operate against 
himself. Jones' rights can not be prejudiced thereby. 

5. The decisions above cited also show that, under our 
statutes, the sureties of a guardian are so peculiarly affected 
by his acts, as to make it manifestly inequitable to permit 



56 FOETT-SIXTH ALABAMA. 

Jones & CuUom \. Knox. 

a complainant to force the sureties to litigate the question 
of liability without the aid of the guardian, if living, or of 
his representative, if he be dead. A complainant can al- 
ways make the guardian or his personal representative a 
party defendant under our practice ; and he ought to be 
compelled to do so. Especially ought he to be so com- 
pelled, when, as here, he seeks to have the jfinal settlement 
of the guardianship transferred from the probate to the 
chancery court. To any ^nch. final settlement, the guardian 
or his personal representative is not only a proper, but a 
necessary party. Obviously, he is a necessary party to 
such settlement in the probate court, and must be so 
deemed when such settlement is transferred to the chan- 
cery court, 

Martin & Sayre, contra. — 1. The demurrer, for want of 
proper parties, has already been overruled, and there is 
nothing in any of the other causes of . demurrer. 

One of the defences is, that Jones was discharged as a 
bankrupt, and thereby released from his liability on the 
bond. This depends upon whether there was any debt 
against him at the time of filing his application for a dis- 
charge. His discharge shows that he was " discharged 
from all debts which by said act are made provable against 
bis estate, and which existed on the 24th of February, 
1868." William Knox never made any final settlement of 
his guardianship. On an annual settlement made the 3d 
of February, 1868, a balance was found against him of 
$ 1 0,535.06. But there was no liability fixed on the sureties 
by this annual settlement. The liability of the surety is 
not established until there is a final decree, and a failure 
by the guardian to satisfy that decree. 

There was no demand against Jones in February, 1868, 
on account of his suretyship on said bond. There was no 
default at that time by his principal. No. demand could 
at that time have been enforced against Jones ; it was an 
amount for which Knox was individually liable. — Owen on 
Bankruptcy, 161-5 ; Hilliard on Bankruptcy, 303, 304, 305 ; 



JUNE TERM, 1871. 57 

Jones «fe Cullom v. Knox. 

Tufner v. Fsselman, 15 Ala. 690 ; James on Bankruptcy, 
85 ; 6 Hill, 252. 

2. The argument of appellant's counsel, that Jones was 
discharged from his obligation as surety by his bank- 
ruptcy, is not sustained by the authorities which he cites. 
Section 19 of the bankrupt act applies only to such liabili- 
ties, contingent in their character, which have been con- 
tracted by the bankrupt himself ^ and has no reference to 
security debts. 

The bankrupt act of 1841, § 5, contains this provision : 
" All creditors whose debts are not due and payable until 
a future day, all annuitants, &c., sureties, endorsees, bail, 
or other persons having uncertain or contingent demands 
against such bankrupt, shall be permitted to prove," <fec. 

This language is certainly as strong as that contained in 
the act of 1867 ; and all the authorities hold that the lia- 
bility of a security on a guardian's bond is not such a 
demand against the bankrupt as can be proved. ( See 
authorities before cited.) In the case of Turner and Wife 
V. Essdman, 15 Ala. 695, Judge Chilton says: "Until the 
guardian made default, there was clearly no demand which 
was provable against the surety, and I apprehend it was 
hardly contemplated by the act, that the court granting 
the discharge should institute an inquiry as to the extent 
of the principal's default." In this opinion Judge Dargan 
agrees with him. The point stated by Judge Chilton is 
the precise point in this case ; and the law as stated by 
him is amply sustained by all the authorities. 

The account of William Knox was allowed on the 29th 
of June, 1868, being the only account ever filed by him in 
reference to said estate. On the 15th of June, 1868, Jones 
is finally discharged from all debts and claims which were 
provable against his estate on the 24:th of February, 1868. 
Certainly the allowance of Knox's account created no 
claim against the estate of Jones ; that account was not 
allowed on the 24th of February, 1868. If the proposi- 
tion had been made to prove it as a claim against Jones, 
the answer would have been that no liability had been 
6 



58 F OBTY-SIXTH ALABAMA. 

Jones & CuUom v. Knox. 

fixed on either Jones or Knox; that the account was Evi- 
dence only ; that Knox had to account for the balance 
thus found against him. It was no evidence that he had 
to pay that amount of money ; it was evidence only that 
he had to account for that sum. No man could have known 
that Jones would ever be called upon for that money. 
The condition of the bond is, " if the said William Knox 
shall well and truly perform all the duties which are or 
may be required of him by law as such guardian." How 
could it have been ascertained at that time what duty 
Knox had neglected ? or that he had neglected any ? Or 
how could the damages have been ascertained ? No lia- 
bility attached to Jones until Knox's default had been 
found by law. It was not yet fixed ; that is the question 
DOW being tried in this court. The liability of Jones de- 
pends upon the liability of Knox. If it should be shown 
in this case that Knox had properly administered the es- 
tate, and had properly invested the money, no liability 
would attach, although the money was lost. It can not be 
ascertained, until this case is determined, whether Knox is 
liable at all as guardian. The account is prima fade evi- 
dence against him, but he may shew what disposition was 
made of the money. Such inquiries certainly could not 
be made in proving a debt against a bankrupt estate. In 
the language of Judge Chilton, in Turner v. Esselman, 
supra, " This would in many cases be impracticable, and 
would have rendered the law in such cases nugatory, by 
involving the court in inextricable difficulties and delays." 
See Hilliard on Bank. 804, § 103 ; The Owners of St. 3Iar- 
tin V. Warren, 1 Barn. & Aid. 4U1. 

3. Knox was guardian when Jones was discharged as a 
bankrupt ; he had committed no default then ; but accord- 
ing to the argument of counsel, his sureties would cease 
to be his sureties whenever they thought proper to go into 
bankruptcy. The law in this State is, that the sureties are 
bound until their successors are qualified. Who has been 
Knox's surety since Jones' bankruptcy ? There is no 
order of court relieving him. The suretyship of Jones 
continued in spite of his bankruptcy, and it was impossible 



JUNE TERM, 1871. 59 

Jones & CuUom v. Knox. 

for him to relieve himself of it, except in the way pointed 
out by statute. His liability is continuous, and goes on 
from day to day. 

4. The object of the bill is to obtain a final settlement 
of the guardianship, and to ascertain . the extent of the 
liability of Knox, and at the same time to fix the liability 
of the sureties, the only parties now in being. 

The jurisdiction of the court of chancery in such cases 
is so well established that no authority need be cited on 
that point. 

B. F. SAFFOLD, J.— The purpose of the bill filed by 
the minor, was to obtain a settlement of his guardianship 
in the chancery court. The sureties of the guardian were 
alone made defendants on the allegation that the guardian 
had died insolvent and bankrupt, leaving no assets what- 
ever. 

A demurrer to the bill, on the ground that a representa- 
tive of the deceased guardian was a necessary party de- 
fendant, was properly overruled. Equity never requires 
the performance of a useless ceremony. The appointment 
of an administrator would have caused some expense, while 
it could afford no possible advantage to the sureties. — 
Frowner v. Johnson, 20 Ala. 477 ; Vanderveer v. Alston^ 
16 Ala. 494. 

The allegation also showed the necessity of the chancery 
jurisdiction, because the probate court was only authorized 
to settle the accounts of the guardian with his representa- 
tive.— Revised Code, §§ 2324, 2326. 

Is the defendant Jones' discharge in bankruptcy a pro- 
tection against his liability as surety on the guardian's 
bond ? It absolved him from all debts and claims provable 
against his estate which existed on the 24th of February, 
1868. An account filed for settlement by the guardian on 
the 8th of February, 1868, showed a liability existing at 
that date against him as great as the amount recovered by 
the decree. No breach of trust is alleged or proved to 
have been committed after the filing of Jones' petition in 



60 FOKTT-SIXTH ALABAMA. 

Jones & CuUom v. Knox. 

bankruptcy. Unless the liability of the surety is fiduciary, 
the discharge released him from it. 

In Turner v. Esselman, ( . 5 Ala. 690,) a discharge in bank- 
ruptcy of the surety of a guardian under the bankrupt act 
of 1841, was held not to protect him against a statute judg- 
ment obtained after his discharge, on the ground that the 
debt was not provable, and, as declared by Judge Dargan, 
that it was a fiduciary debt. The act of 1867 is essen- 
tially different in this respect from that of 1841. The 19th 
section includes, among the debts and claims provable, all 
cases of contingent debts and contingent liabilities contracted 
by the bankrupt, and not therein otherwise provided for. 
The creditor is allowed to " make claim therefor, and have 
his claim allowed, with the right to share in the dividends, 
if the contingency shall happen before the final dividend j 
or, he may at any time apply to the court to have the pres- 
ent value of the debt or liability ascertained and liqui- 
dated, which shall then be done in such manner as the 
court shall order, and he shall be allowed to prove for the 
amount so ascertained." 

The liability of the sureties of a guardian attaches when- 
ever the guardian receives property of his ward, and be- 
comes a debt on, and to the extent of, the guardian's de- 
fault, with a right of action accruing in law against them 
on the rendition of a decree or judgment ascertaining the 
fact and amount of the default. — Ward & Davis v. Yonge, 
adni'r, January term. 1871. It is a contingent liability, 
within the comprehensive meaning of section 19 of the 
bankrupt law of 1867, capable of being fixed, or having its 
present value ascertained by the modes therein indicated. 
And it is the contract imposing the liability from which the 
party is relieved. 

The exception from discharge, under the 33d section of 
the law, ot debts created by the fraud or embezzlement of 
the bankrupt, or by his defalcation as a public officer, or 
while acting in any fiduciary character, from its very com- 
prehensiveness, conveys, as a reason for the exception, the 
idea of some moral turpitude or culpable neglect of duty. 
The sureties of a guardian have no control of his conduct. 



JUNE TERM, 1871. 61 

stringer v. Echols et al. 

Their obligation is entirely different from his. They un- 
dertake to pay money on his account, while he, in addition, 
engages to be honest and faithful and carefuL It is for 
failure in this latter respect that the law refuses to release 
him from his debt. The liability of the sureties was not 
of a fiduciary character. 

The decree is reversed, and the cause remanded. 

To an application for re-hearing, the following response 
was made : 

SAFFOLD, J.— We think it is the contract or obliga- 
tion to be liable for the default of the guardian that the 
discharge in bankruptcy relieves from, and not the mere 
liability when fixed- There is no difficulty in ascertaining 
the amount of the claim to be filed for allowance. It might 
be done by calling the guardian to a settlement. 

A re-hearing is denied. 



STKINGER vs. ECHOLS et al. 

[appeal fbom obdeb setting aside statdtobt jttdobiemt on fobfeited 
beplevt bond, ac.] 

1. Judgment on motion affecting adverse party, made after final judgment; 
when erroneous. — After final judgment, the parties are not presumed to 
be in court ; therefore, any motion made in the cause, after that time, 
materially aflfecting the interests of the adverse party, must be on no- 
tice, otherwise the judgment will be erroneous. 

Appeal from the Circuit Court of Henry. 
Tried before Hon. J. McCaleb Wiley. 

The opinion contains the facts. 

J. A. CoRBiTT, and Seals &. Wood, for appellant. 
W. 0. Gates, contra. 



62 FOETY-SIXTH ALABAMA. 

stringer v. Echols et al. 

PECK, C. J. — In October, 1866, the appellant eom- 
menced his suit, in the circuit court of Henry county, 
against the appellee, Echols, by summons and complaint, 
founded on a promissory note, and then sued out an ancil- 
lary attachment, and had the same levied on defendant's 
horse, which was replevied by defendant, and a replevy 
bond given, with the other appellees as his sureties. 

At the fail term of said court, in the year i867, the plain- 
tiff recovered judgment, and on the 18th day of November, 
in the same year, the said replevy bond was returned for- 
feited, by the sheriff. 

At the fall term, 1868, two of the sureties on the replevy 
bond moved the court to set aside the statutory judgment 
on said bond, which motion was granted, and the said 
bond, by the order and judgment of the court, was declared 
to be null and void, and the plaintiff was taxed with the 
costs. From the record, it does not appear that the plain- 
tiff had any notice of said motion, and the minute entry 
fails to state that he appeared. The plaintiff has appealed 
to this court, and assigns the said order and judgment of 
the circuit court for error. 

After final judgment, the parties are not presumed to be 
in court ; therefore, any motion made in relation to the 
cause, after final judgment, that materially affects the in- 
terest of the adverse party, must be on notice ; otherwise, 
the judgment of the court will be erroneous. — Yonge v. 
Broxton, 23 Ala. 684 ; Murray & Durand v. Tardy, 19 Ala. 
710. As the record fails to disclose that the appellant had 
notice of the motion in this case, the judgment of the cir- 
cuit court declaring the replevy bond null and void, and 
taxing him with the costs, is reversed, and the cause is re- 
manded for further proceedings. 



JUNE TERM, 1871. 63 

Mobile & Girard Railroad Co. v. Prewitt. 



MOBILE & GIRARD RAILROAD CO. vs. PREWITT. 

[A.CmON AGAINST COMMON OABBIBB TOB FAILUOZ TO DELITEB GOODS.] 

1- Bailroad companies are common carriers. — A railroad company in this 
State is a common carrier, and whilst the goods are in transitu it is 
liable to all the responsibilities of common carriers. 

2. Same ; when liability of, as common carrier, ceases. — But \vhere the bill 
of lading shows that the goods transported were shipped to the owner 
as consignee, "care of the railroad company," to be delivered at a 
station on the railroad, if the goods are transported with the usual ex- 
pedition, and the owner or his agent is not at the depot designated for 
the delivery at the time the goods arrive, ready to receive them, the 
goods may be deposited in the warehouse of the company, and from 
such deposit the liability of the company as common carrier ceases. 

3. Same; when responsible as warehouseman for hire. — Goods so deposited 
must be kept by the company under the responsibility of warehouse- 
men for hire, whether actual storage be charged or not, and the com- 
pany must act without fraud or bad faith. 

4- Same ; when charge that carrier is liable only for loss occasioned by gross 
negligence, is correct: — In a suit for damages for loss of the goods in 
such a case, if there are two counts in the complaint, the one on a 
contract of common carriers, and the other on a contract of a ware- 
houseman without hire, a charge asked by the defendant under the lat- 
ter count, that the company is only responsible for losses and injuries 
occasioned by gross negligence, is proper, and should be given. 

Appeal from Circuit Court of Bullock. 
Tried before Hon. J. McCaleb Wiley. 

The facts are sufficiently stated in the opinion. 

Rice, Semple & Goldthwaite, for appellant. 

J. N. Arrington, and Stone, Clopton & Clanton, contra. 

PETERS, J. — This is an action for damages instituted 
by the appellee against the appellant as a common carrier. 
There are two counts in the complaint, which are as follows : 

"The plaintiff claims of the defendant, a corporate 
body, two hundred and eighty-three dollars and fifteen 
cents, as damages for the failure to deliver certain goods, 
namely, two boxes of merchandise, containing sundry ar- 



64 FORTY-SIXTH ALABAMA. ^__^ 

Mobile & Girard Railroad Co. v. Prewitt. 

tides of dry goods, received by said Mobile & Girard rail- 
road company as a common carrier, to be delivered to the 
plaintiff at station No. 6 on said railroad, for a reward, 
which he failed to do. 

"And the plaintiff claims of the defendant, a corporate 
body, five hundred dollars as damages, for that heretofore, 
to-wit, on the 20th day of October, 1869, (?) the said de- 
fendant, at his special request and instance, had the care 
of certain other goods and chattels, to-wit, two boxes of 
merchandise, containing sundry articles of dry goods, the 
property of the plaintiff, and thereupon it then and there 
became and was the duty of the said defendant, whilst he 
so had the care of the said goods and chattels, to take due 
and proper care thereof ; yet the said defendant, not re- 
garding his duty in that behalf, did not nor would, whilst 
he so had the care of the said last mentioned goods and 
chattels, take due and proper care of the same, but wholly 
neglected to do so, and took such bad care thereof that 
afterwards, to-wit, on the twentieth day of October, 1869,(?). 
became and were greatly damaged and injured, and wholly 
lost to the said plaintiff, to the damage of the plaintiff as 
aforesaid." 

To this complaint the defendant pleaded "not guilty, in 
short by consent, with leave to give in evidence anything 
which, if specially pleaded, would constitute a bar to the 
action." And the plaintiff joined in issue, " with like leave 
to give in evidence anything which, if specially replied, 
would be a good replication." 

Upon this issue the parties went to trial by a jury. 
There was a verdict for the plaintiff for three hundred and 
fifty-five dollars and sixty-five cents. And a judgment for 
this sum was rendered, and for costs. From this judgment 
the defendant in the court below brings the cause by ap- 
peal to this court. 

On the trial in the court below, the defendant in that 
court took a bill of exceptions. From this, it appears that 
the plaintiff below introduced evidence tending to show 
that he had purchased in the city of New York the articles 
and goods referred to in the complaint ; that said goods 



JUNE TERM, 1871. 65 

Mobile &, Girard Railroad Co. v. Prewitt. 

were " billed " to plaintiff at an aggregate cost of two hun- 
dred and eighty-two dollars and sixty-five cents ; that this 
purchase was made on September 28th, 1868 ; that the 
goods were properly put up in separate packages and 
shipped on September 29th, 1868, to the plaintiff at Mid- 
way, Alabama, via Savannah, Georgia, care of defendant, 
and to be deUvered to plaintiff at defendant's station No. 
6, as shown by the bill of lading. In this bill of lading 
are the following stipulations : 

"And it is further expressly stipulated, that in case any 
claim shall arise from any damage or injury to the articles 
mentioned in this bill of lading while in transitu, and be/ore 
delivery, the extent of such damage or injury shall be ad- 
judged in the presence of an officer of the railroad, before 
the same (is) removed from the station. And the amount 
of such claim, when so ascertained, shall (be) preferred at 
the office of the chief of transportation -of the road which 
shall have delivered the goods, within ten days after such 
delivery. And in case such claim, whatever it may be, 
shall not be preferred within the time and at the place 
hereinbefore designated, such loss or damage shall be held 
to be waived. And it is further stipulated, that in all cases 
of loss of such goods or merchandise, the amount of claim 
and damages shall be restricted to the cash value of such 
goods or merchandise at the port of departure at the time 
of shipment, and shall be presented as above, within ten 
days after the proper time for their delivery in due course ; 
and that all claims for partial loss or damage shall be 
ascertained and adjusted upon the same basis of value." 

It was shown in connection with this bill of lading, that 
the goods sued for reached said station No. 6 at about 
three o'clock P. M. on the 10th day of October, 1868, and 
were ready for delivery in about one half of an hour there- 
after. No one was there ready to receive them, and they 
were stored in the warehouse of the railroad company at 
that station, and catefuUy kept without hire for delivery to 
the owner when called for. On the morning of the 17th 
day of October, 1868, the warehouse aforesaid was acci- 
dentally burned, and two boxes of the goods mentioned in 



66 FORTS-SIXTH ALABAMA. 

Mobile & Girard Railroad Co. v. Prewitt. 

the bill of lading were destroyed by the fire, in spite of 
every effort made by the servants and agents of the said 
railroad company to prevent it. The goods were not 
called for until after the burning, and that portion which 
had been burned up and destroyed could not be delivered. 
The transportation of such goods on the railroad was for 
hire. It was shown by the defendant that the goods had 
been diligently and carefully kept by the agents of the 
company, in said warehouse, until they had been destroyed 
by said burning, on the night of the 17th day of October, 
1868, as above said. It was also shown that the plaintiff 
had been in the habit of having goods sent to said station 
No. 6, and receiving them there, for some several years ; 
that it took goods shipped from New York city to said sta- 
tion about ten or twelve days to reach said station ; and 
thai the warehouse there was a good, secure, substantial 
building, and was. burned without any fault of said rail- 
road company or its agents. It was also shown that said 
plaintiff resided about twenty miles away from said station 
No. 6 on said railroad. This was the substance of the 
testimony given. On this testimony the court gave a num- 
ber of charges, some for the plaintiff and some for the de- 
fendant. But it is only necessary to notice those which 
were excepted to by the defendant, and those which were 
asked by the defendant and refused by the court. These 
charges were all asked in writing. 

The first charge asked by the plaintiff and given by the 
court, and excepted to by defendant, was in these words : 
" If the jury believe from the evidence that the defendant 
was a common carrier, and as a common carrier received 
the goods of the plaintiff described in the complaint, to 
be delivered to plaintiff at their point of destination for a 
reward ; that the goods arrived at their point of destina- 
tion ; and that after said arrival there they were destroyed 
by fire, then the defendaut is responsible as a common 
carrier, that is, an insurer against all losses, except those 
caused by the acts of God or the public enemy." This 
charge was excepted to by the defendant. The defendant, 
among other charges which were given, asked the follow- 



JUNE TEEM, 1871. 67 

Mobile & Girard Railroad Co. v. Prewitt. 

ing, which were refused : 7. " That upon the second count, 
the defendant can only be made liable for gross neglect." 
8. " That if the jury believe from the evidence that the 
goods sued for did reach their destination, and were de- 
posited in the warehouse or depot of defendant, and were 
made ready for delivery, then the liability of defendant as 
common carrier ceased, and the liability of defendant as a 
bailee without hire began, provided defendant did not 
charge storage on said goods." 9. " That the liability of a 
bailee without hire is only for gross negligence." 

Railroad companies in this State are common carriers, 
and so long as they are engaged in the office of common 
carriers their liabilities require the utmost strictness in the 
performance of their duties. — Selma & Meridian Railroad 
Co. V. Butts <& Foster, 43 Ala. 3:^5 ; Mobile & Ohio Railroad 
Co. V. Hopkins, 41 Ala. 486 ; 2 Redf . Law of Railw. 9, § 152. 
Then, one of the chief questions in this case is, when do 
the extraordinary liabilities of railroad companies as com- 
mon carriers end ? It has been very well said by this 
court, in a carefully considered opinion, that " it must be 
remembered, that in contracts for the carriage of goods, 
the obligation is not all on one side. It is as much a part 
of the contract that the owner or consignee shall be ready 
at the place of destination to receive the goods when they 
arrive, or within a reasonable time thereafter, as that the 
carrier shall transport and deliver them." And, " If goods 
transported by railroad are not called for by the consignee 
when they arrive at their destination, and are then deposi- 
ted in the warehouse of the company without additional 
charge, until the owner or consignee has a reasonable time, 
by the exercise of proper diligence, to remove them, the 
liability of the company as carriers is at an end. And if 
after this, the goods remain in their warehouse, they are 
responsible only as keepers for hire." — Ala. & Tenn. Rivers 
Railroad Co. v. Kidd, 35 Ala. 209. This opinion was an- 
nounced in 1859, now about twelve years ago. And sub- 
sequent experience has not shown that the principles upon 
which it was made to rest have proved to be unsafe or un- 
just. In this case, the goods were consigned to the owner, 



68 FOETY-SIXTH ALABAMA. 

Mobile & Girard Bailroad Co. v. Prewitt. 

"care M. & G. E, E.," and a place was appointed for their 
delivery. This is the contract of transportation. The 
letters above named can only mean the Mobile & Girard 
railroad. To deliver the goods to the owner, or accord- 
ing to his direction, was sufficient to put an end to the con- 
tract of transportation, which also would put an end to 
the liability of the railroad company as common carriers. 
Story Bailm. § 509 ; 1 Pars. Cont. p. 743, bottom. Here, 
then, there was a delivery as the owner had directed ; that 
is, to the railroad company itself, or to its agents, which 
was the same thing. This delivery was sufficient to put 
an end to their contract as common carriers. In this view 
of the law, the first charge above quoted was incorrect. 
- When the railroad company thus undertakes to receive 
ana keep the goods for the owner, it is an assumption of 
control that can not be treated as a mere bailment without 
hire. For it can not be in justice said that such a bail- 
ment is without hire, though no charges for storage are 
demanded. The accommodation itself is one that has a 
strong tendency to bring business to the company, because 
goods transported by them thus find a safe deposit until 
they can be removed by the owner. Thus, too, the com- 
pany is paid for the use of its depots by the increase of 
its business. And when they assume thus to act as ware- 
housemen for their customers, they must be treated as 
warehousemen for hire. And as the warehouse system in 
connection with the great business of transportation is a 
powerful inducement to increase the amount and value of 
the transportation itself, they must be regarded as ware- 
housemen demanding and receiving a very liberal reward. 
They are therefore bound to use ordinary diligence in 
keeping the goods deposited in their station-houses or de- 
pots ; and also to act without fraud or bad faith. — Story 
Bailm. §§ 3, 62 ; 1 Pars. Cont. 700, bottom. 

But the second count of the plaintiff's complaint is a 
count on a contract of bailment as a warehouseman with- 
out hire. — 2 Chitty on PI. Such a contract imposes on 
the bailee a liability for gross negligence only, as the bail- 
ment is for the benefit of the bailor alone. — 1 Pars. Cont. 



JUNE TEEM, 1871. 69 

Jackson v. Dinkins. 

pp. 6i9, 650, bottom ; Story Bailm. §§ 3, 62. The court 
then, ought to have given the 7th, 8th and 9th charges^ 
asked by the defendant, as above set out, under the form 
of pleading adopted in this case. 

The judgment of the court below is reversed, and the 
cause is remanded for a new trial. 



JACKSON vs. DINKINS. 

[appeal from oedek gbanting mandamus.] 

1. County, claims against ; what must he alloimd ty commissioners court. 
A jury certificate is not such an authenticated claim against the county 
as may be paid by the county treasurer without the previous allowance 
of the commissioners court. 

Appeal from Circuit Court of Montgomery. 
Tried before Hon. J. Q. Smith. 

The proceedings in this case were instituted in the cir- 
cuit court by Dinkins, the appellee, by a petition for man- 
damus, against the appellant, as the county treasurer of 
Montgomery county, to compel him to pay a jury certifi- 
cate. 

At the January term, 1869, Dinkins was regularly sum- 
moned, drawn and sworn as a petit juror, and served as 
such for five days. He received from the clerk a regular 
certificate in due form, certifying that he was entitled to 
receive for his services and mileage the sum of $7.90. This 
certificate Dinkins presented to Jackson, the county treas- 
urer, and demanded its payment. Jackson admitted that 
he had funds to pay jurors, as such, for their services when 
properly audited, but refused to pay the jury certificate, 
because Dinkins presented no authority or warrant from 
the probate judge, as ex-officio judge of the court of county 
commissioners, for the payment of said claim. Jackson 



70 EOBTY-SIXTH ALABAMA. 

Jackson v. Dinkins. 

having waived the issue of a rule nisi, &c., the court granted 
a peremptory mandamus, in accordance vs^ith the prayer of 
the petition, and hence this appeal. 

A. J. Walker, and Hamilton McIntyre, for appellant. 
1. It is, beyond dispute, the general rule of law in this 
State, that " all claims " chargeable against a county, (un- 
less specially excepted by statute,) must first be " avdited, 
examin£d and allowed " by the court of county commission- 
ers ; and the judge of probate must give the " claimant a 
warrant on the county treasurer " for the same, before the 
county treasurer is authorized to pay. — Rev. Code, § 832, 
subd. 3 ; §§ 907, 926. 

2. Is a " juryman's certificate" claim excepted from the 
above general rule by any law of Alabama ? 

Shall the fact that it is the custom in some counties for 
county treasurer's to pay such claims before they are " au- 
dited, examined and allowed " and warrants issued therefor, 
be permitted to overturn the only means provided by law 
to prevent collusion and fraud from being practised by dis- 
honest clerks and their confreres upon the public treas- 
uries ? 

Does the fact that the last clause of section 4345 of the 
Revised Code, (in these words, to-wit : " Which certificate is 
receivable in payment of any county dues, and payable out of 
the county treasury,") requires a juryman's certificate to 
be received by the treasurer of a county in payment of any 
dues, make such claim an exception to the general rule ? 
It is a well settled rule, that two statutes, in pari materia, 
must be construed together, and both given efi'ect. Will 
not this rule be violated whenever a county treasurer is 
allowed to pay a juryman's certificate before it is audited, 
examined, and a warrant issued therefor ? 

It is true, the words " receivable in payment of any county 
dues," would seem to give these certificates a sort of cir- 
culatory or current character, inconsistent, perhaps, with 
the scrutiny and delay to which they are subjected when 
"audited and examined " by the commissioners court. Yet, 
are not " warrants " equally as current, per haps more so 



JUNE TERM, 1871. 71 

Jackson v. Dinkins. 

than a mere certificate unapproved by the proper author- 
ity ? 

But, be that as it may, the clause in these words, " re- 
ceivable in payment of any county dues," was repealed, 
and still stands so, as to Montgomery county, and there- 
fore can not be considered in this cause, because taxes and 
licenses were, and are, the only dues payable to the county. 
See Acts of 1868, p. 253, section 2 of " An act to empower 
the commissioners court of Montgomery county to issue 
bonds," &c. 

Chilton & Thorington, contra. 

B. F. SAFFOLD, J. — Is a jury certificate such a claim 
against the county as may be paid by the county treasurer 
without the previous allowance of the commissioners court ? 
There would be no difficulty in the question, were it not 
for the provision in section 4345 of the Revised Code, mak- 
ing them receivable in payment of county dues. The cer- 
tificate of the clerk is not an adjudication by any court of 
the correctness of the cla\m and the liability of the county. 
Unless its receivability in payment of county dues is in- 
consistent with its presentation to the commissioners court, 
it must be presented and allowed before the treasurer is 
authorized to pay it, because all claims against the county 
must be adjudicated by some competent judicial tribunal 
before they can be paid. — Rev. Code, §§ 926, 907 ; Dale 
County V. Gunter, January term, 1871. Upon the allow- 
ance of a claim by the commissioners court, the probate 
judge is required to give the claimant a warrant upon the 
treasury for the amount allowed. — Rev. Code, 907. Claims 
so allowed necessarily become merged in the warrant, if it 
be taken, otherwise, there would be two vouchers for the 
same debt. But suppose the claim is a jury certificate, and 
the complainant prefers to retain it in order to settle with 
the tax collector. There is no prohibition against his do- 
ing so, and thus its capability of paying county dues is 
undiminished ; his choice of using it either way is unin#- 
paired. 



72 FORTY-SIXTH ALABAMA. 

Brigman et al. t. The State. 

The inference against the necessity of presentation and 
allowance authorized by section 4345, is at least neutral- 
ized by the contrary one that may be drawn from the "Form 
of keeping County Treasurer's Accounts," on page 259 of 
the Revised Code, which is a law. There the " Register of 
Claims" contains a jury certificate with the date of its al- 
lowance. 

Ample redress is provided against the treasurer, if he 
fails to pay on demand an allowed claim. — Revised Code, 
§980. 

The judgment is reversed, but the cause is not remanded. 
The appellee will be charged with the costs of this court 
and of the circuit court. 



BRIGMAN ET AL. vs. THE STATE. 

[STKIKING CASE FKOM DOCKET.] 

1. Supreme court; when has no jurisdiction to determine cause. — Where 
the transcript of the record and proceedings of the lower court were 
filed in the supreme court, it no where appearing, either in the record 
or clerk's certificate, that an appeal had been taken, there being no ap- 
peal bond or security for costs of the appeal, the supreme court ordered 
the case stricken from the docket, as one of which it has no jurisdic- 
tion. 

Brigman and others have filed in this court a transcript 
of the record and proceedings upon a forfeited undertak- 
ing of bail in the circuit court of Dallas, from which it 
appears that Brigman, having been indicted for forgery, 
he and others entered into an undertaking of bail for his 
appearande at the next term of court. Failing to do this, 
judgment nisi was rendered against the obligors on said 
undertaking of bail, which was afterwards made final. 
The clerk certifies simply that the transcript is a full and 
complete transcript of the record and proceedings in the 



JUNE TERM, 1871. 73 

Thornton v. Bledaoe et al. 

circuit court in the matter of the undertaking of bail, and 
proceedings and judgment thereon. There is no appeal 
bond, nor any evidence whatever in the record that any 
appeal has been taken. 

The clerk having docketed the case, the Attorney-Gen- 
eral now submits the same on motion to dismiss it out of 
this court. 

# 

John W. A. Sanfobd, Attorney-General, for motion. 

contra, 

PECK, C. J. — On looking into this transcript, we find 
no where in the record, or the certificate of the clerk of 
the circuit court, any evidence that an appeal was taken, 
or any appeal bond, or security for the costs of an appeal, 
given, as required by § 3509 of the Eevised Code ; conse- 
quently, the case is not properly in this court, and we can 
take no jurisdiction of it, either to hear it, or to dismiss it 
as an appeal irregularly and improperly here. The only or- 
der we can make is, to direct the case to befstricken off the 
docket. This we must do to get the case out of our way. 

Let the case be stricken from the docket, because no 
appeal appears to have been taken. 



THORNTON vs. BLEDgOE et al. 

[AFPEAIi FBOM OBDEB DISS0I.VINO INJUNCTION.] 

1. Act of October lOtft, 1868, "for the protection of bona fide purchasers 
for valuable consideration ;'^ construed. — The act of the general assem- 
bly "for the protection of bona fide purchasers for a valuable considera- 
tion," is not a mere registration act for the protection of innocent pur- 
chasers without notice, but it is a law regulating the liens of judgments 
by prescribing the conditions upon which they shall be created and 
preserved. 

6 



74 FOBTY-SIXTH ALABAMA. 

Thornton v Bledsoe et al. 

2. Same; " bona fide purchase'' defined. — A iona fide purchase for valua- 
ble consideration does not embrace, as essential ingredients, want of 
notice and the payment of purchase-money. 

Appeal from the Chancery Court of Bullock. 
Heard before Hon. B. B. McCraw. 

In October, 1867, one Walker recovered judgment in the 
circuit court of Bullock against John W. Bledsoe, com- 
plainant's vendor, and another person. Execution issued 
on this judgment November 16th, 1867, and was returned 
without levy on the 17th of January, 1868, endorsed by 
the sheriff, " returned of law." 

On the ist day of November, 1869, complainant pur- 
chased certain lands mentioned in the bill from the defend- 
ant in execution, Bledsoe, and then went into possession, 
and has so continued ever since, and paid for the same 
$500, on the 26th November, 1869, and the remainder of 
the purchase-money on the 25th day of January, 1870, at 
which time she received a fee simple deed to the lands thus 
purchased. On the 21st of December, 1869, (no execution 
having issued since the 17th January, 1868,) Walker caused 
the issue of execution on his judgment, which was levied 
on property of Bledsoe, and claimed by him as exempt. 

After the Spring term, 1870, of the circuit court, another 
execution issued on said judgment, and was levied by the 
sheriff on the lands purchased by complainant, as the 
property of the defendant in execution, Bledsoe. The bill 
is filed to enjoin the sale of the land, and to correct the 
deed of Bledsoe as to certain misdescriptions of the lands 
conveyed, and which is not necessary to be further noticed. 
Bond being given, the injunction issued as prayed for. 

The defendant Walker demurred to the bill — 1st. Be- 
cause the bill shows that at the time the purchase-money 
was paid, the judgment in favor of Walker was a lien which 
still exists, and the legal title to the land was in said Bled- 
soe ; 2d. The bill shows that before the purchase-money 
was paid, the execution issued on the judgment described 
in the bill had acquired a lien on the land ; '6d. The bill 
shows that respondent had a lien on the land at the date 



JUNE TERM, 1871. 75 

Thornton v. Bledsoe et al. 

of the purchase, and there is no offer to pay the purchase- 
money which was unpaid at the time the lien accrued. 

The chancellor sustained the demurrer, dissolved the in- 
junction, and dismissed the bill as to the respondent Walker, 
and hence this appeal. 

C. J. L. Cunningham, for appellant, — Mrs. Thornton hav- 
ing purchased at a time when, not only an entire term, but 
over two entire years had elapsed and intervened between 
the return of the original execution and the delivery of the 
alias to the sheriff, no lien could attach as against her by 
virtue of the issue of said alias, unless she had actual no- 
tice of the process. There was no lis pendens as to her, 
either in said judgment or the writs of execution issued 
thereon. — Bouv. Law Die. title Lis Pendens ; 1 Vern. 459 ; 
Center v. P. & M. Bank et al., 22 Ala. 757, 

The bill shows that Mrs. Thornton went into possession 
of the land at the time of her purchase. If, therefore, the 
issue of the alias fi. fa. could have the effect to revive the 
lien, or to create a new lien in favor of appellee, he would 
be in no better position as to Mrs. Thornton than he would 
have been had he been simply a purchaser at the time from 
Bledsoe. The law would have charged him as purchaser 
with notice of Mrs. Thornton's equities, and that she was 
in possession under such claim as a court of equity would 
uphold and enforce as against Bledsoe or any one holding 
under him. It was therefore obligatory upon the plaintiff 
in execution, if he desired to enforce the collection of his 
judgment out of the lands purchased by Mrs. Thornton, to 
have inquired into the nature of her possession and title, 
and notified her of his intentions. His third ground of 
demurrer is, therefore, insufficient. This view of the case 
is sustained by the authority last above cited. Center v. 
P. dt M. Bank et al. 

We raise the point, under the construction of the act of 
1868 for the protection of bona fide purchasers, that after 
a sale, bona fide as to the purchaser, under the circumstan- 
ces of the purchase in this case, no. lien attaches or is re- 
vived by the issue of subsequent writ or writs of execution. 



76 FOBTY-SIXTH ALABAMA. 

Thornton v. Bledsoe et al. 

This ought certainly to be the force and effect of the act 
where notice of the revival of the lien is carried home to 
the purchaser. 

NoEMAN & Wilson, and DAYm Clopton, contra. 

B. F. SAFFOLD, J.— The statute approved October 
10th, 1868, " for the protection of bona fide purchasers for a 
valuable consideration," is not a mere registration law, the 
essence of which is notice. 

It declares that the liens of judgments created or pre- 
served by certain acts and sections of acts, and by the Be- 
vised Code, shall be null and void against purchasers in 
good faith for valuable consideration, in certain cases. One 
of these cases is, when the property subject to the lien is 
purchased after the return of one execution and before the 
delivery of another to the sheriff, an entire term inter- 
vening. 

Want of notice and payment of the purchase-money are 
not necessary ingredients of a purchase in good faith for 
valuable consideration. The faith of a transaction involves 
the motive with which it is entered into. Thus, if a pur- 
chaser knowing of a judgment, not itself a lien, has the 
view and purpose to defeat the creditor's execution, his 
purchase is iniquitous and fraudulent, and is void against 
the creditor, notwithstanding he may give a full price. But 
if his intention is pure, the sale is valid. — Beals v. Guernsey , 
8 John. 448 ; 8 Taunt. 678 ; 1 Burr. 474. Mere knowledge 
of a lien is not incompatible with good faith, because the 
purchaser may buy subject to it. 

The freedom of sale and purchase of property is as es- 
sential as the securit}^ of debts. The statute seems to have 
been intended to accomplish both of these ends. It pre- 
scribes the conditions of the lien, and protects the pur- 
chaser unless they are complied with. Without the re- 
quired precautions, there is no lien ; it is null and void. 

The bill was filed to correct a mistake in a deed, and to 
obtain the protection of the statute above referred to 
against a threatened sale of the complainant's land under 
an execution against her vendor. The demurrer to the bill 



JUNE TERM, 1871. 77 

Ex parte Locke. 

on the ground of failure to allege want of notice, and pay- 
ment of all the purchase-money, was erroneously sus- 
tained. 
The decree is reversed, and the cause remanded. 



Ex Parte LOCKE. 

[applioation fob mandamus.] 

1 . Costs, security for, when sufficiently lodged in suit by corporation. — In 
a suit by a corporation, security for costs under section 2804 of the 
Bevised Code, is sufficiently lodged with the clerk by endorsing or en- 
tering it upon the summons or complaint before they are handed to 
the sheriff to be executed. The facts of this case show that section 
2804 of Eevised Code was substantially, if not literally, complied with. 

Tms was an original application by petition, by W. M. 
Locke et al. to this court for a mandamus, or other appro- 
priate process or writ, to compel the judge of the city 
court of Eufaula " to dismiss the action pending in said 
court in favor of the Importing and Exporting Company 
of Georgia, against petitioners, for the reason that secu- 
rity for costs was not lodged with the clerk before the com- 
mencement of the action," &c,, the said city court having 
overruled the motion made by petitioner to dismiss said 
suit, &q. 

In support of the motion in the court below, petitioners 
proved that the complaint was written on one side of a 
sheet of " foolscap" paper ; that it filled up one side of 
said leaf of paper, and about one half of the opposite 
and only other side ; and that upon this last mentioned 
side of foolscap paper, and immediately following the close 
of the complaint, security for costs appeared, as follows : 

" The plaintiff being a corporation, we hereby bind our- 
selves as security for costs in this case. 

Eufaula, April 28, 1871. Shorter & McKleroy." 



78 FOETY-SIXTH ALABAMA. 

Ex parte Locke. 

The record does not show that there was any written 
approval of the security for costs. 

In support of the motion, petitioners further proved 
that John Gill Shorter and John M. McKleroy, and either 
of them, were authorized by the clerk of the court in wri- 
ting to sign his name oflS.cially as clerk, &c., to all writs, 
&e., and approve all bonds, &c., for costs, &c. This 
authority was dated July 5th, 1870. It was also proved 
that John M. McKleroy, on the 29th of April, 1871, after 
having written out the complaint and the security for costs 
above mentioned, dated the same, and signed the clerk's 
name to the summons, handed the same to the deputy 
clerk, who had been duly appointed, taken the oaths re- 
quired by law, &G., and instructed said deputy clerk to de- 
liver the same to the sheriff, which was done on the same 
day. This being all the evidence, the court overruled the 
motion. 

F. M. Wood, and J. M. Bufokd, for the petitioners. — 
1. Section 2804 of the Revised Code requires corporations, 
before commencing suit, to lodge with the clerk security 
for costs. Nothing short of ^lodgment with the clerk will 
answer the requirements of this statute. 

Section 2804 of the Revised Code, as it originally stood, 
applied to ordinary suits, and required a lodgment of se- 
curity for costs with the clerk, or its endorsement upon the 
complaint. One of these things had to be done. — Ex parte 
Bobbins, 29 Ala. 74. This case arose prior to the 20th of 
February, 1860, when said section 2802 was amended so 
as to allow security to be given to the officer issuing the 
writ of attachment, or endorsed upon the writ of attach- 
ment ; but in construing that section of the Code before it 
was amended as above, the court held that in attachment 
cases, when the writ was issued by an officer other than 
the clerk of the court to which it was made returnable, the 
plaintiff could attach the complaint to the writ, and en- 
dorse the security upon such complaint. This would 
comply with the law. But either this or a lodgment with 
the clerk of tho court had to be done. Under section 2804 



JUNE TEBM, 1871. 79 

Ex parte Locke. 

of the Revised Code, as construed in Ex parte Bobbins, 
supra, nothing short of a lodgment with the clerk, or en- 
dorsement upon the complaint, would answer the demands 
of the law ; and the endorsement upon the complaint was 
good, because expressly allowed by that statute. 

Section 2804, which applies alone to suits by corpora- 
tions, is not in the alternate ; only one way of giving se- 
curity for costs is provided for — that is, by lodgment with 
the clerk— and this particular mode will admit of no sub- 
stitute. The statute must receive a strict construction. — 
Ala. dt Tenn. Rivers Railroad v. Harris, 25 Ala. 235. 

2. The security in the case now before the court was en- 
dorsed upon the complaint, and accepted by John M. 
McKleroy, one of the attorneys for the plaintiff, at the 
time he issued the summons, in the name of the clerk, 
under written authority shown in the bill of exceptions. 
This was not a lodgment with the clerk within the mean- 
ing of section 2804 of the Eevised Code. It can no more 
answer the demands of that section than the endorsement 
of the security upon the writ of attachment issued by an 
officer other than the clerk of the court to which it was re- 
turnable, would answer under section 2802 of the Revised 
Code before it was amended on the 20th day of February, 
I860.' And in Ex parte Bobbins, supra, it is expressly de- 
cided that the endorsement of the security upon the writ 
of attachment was insufficient under section 2802 of the 
Revised Code. 

3. Besides, the power to take and approve a bond for 
security for costs is an act judicial in its nature, and can 
not be delegated to an attorney either by a writing or ver- 
bally ; and the taking and approving of the security for 
costs by said McKleroy amounts to nothing. It can have 
no more validity than the judicial act performed by a pri- 
vate person appointed by a judge of a court to decide a 
given case. For this reason, if for no other, the security 
for costs, given and accepted in the manner shown by the 
evidence, is equivalent to no security, and the suit should 
have been dismissed. 



80 FOETT-SIXTH ALABAMA. 

Davis et al. v. The State. 

Shorter & McKleroy, contra. 

PECK, C. J.— Section 2804 of the Revised Code, if not 
literally, was substantially complied with by the plaintiff 
in the action against the petitioners, in the city court of 
Eufaula, before the suit in that behalf was commenced. 

Security for the costs was given and entered on the com- 
plaint, which was in the office of the clerk, and actually in 
the hands of the deputy clerk, before the summons and 
complaint were handed to the sheriff to be executed. This 
was sufficient. 

A writ, so far as giving security for costs is concerned, 
is not considered as commenced until the summons and 
complaint are handed to the sheriff to be served. — Ala. & 
Tenn. Rivers Bailroad Go. v. Harris, 25 Ala. 229. The 
sueing out the writ is the commencement of the action. 
Cox V. Cooper, 3 Ala. 256. A writ can not be said to be 
sued out until it passes from the hands of the clerk to the 
sheriff to be executed ; and security for the costs may be 
lodged with the clerk at any time before that is done. 

Let the application for a mandamus be denied, at the 
costs of the petitioners. 



DAVIS ET AL. vs. THE STATE. 

[indictment fob selling liqtjob to a minob.] 

. Indictment and proceedings thereon ; when void. — An indictment found 
by a grand jury at a term of court held at a time unauthorized by law, 
is a nullity, and so are all the proceedings thereon. Such an indict- 
ment should be quashed, and after conviction thereon, judgment 
should be arrested on motion. 

Appeal from Circuit Court of Randolph. 
Tried before Hon. L. B. Smith. 



JUNE TERM, 1871. 81 

Davis et al. v. The State. 

The facts are sufficiently stated in the opinion. 

C. D. Hudson, for appellants. 
Attorney- General, contra. 

PETERS, J. — This is an appeal from a conviction and 
judgment on an indictment for retailing, purporting to 
have been found at the spring term, in 1870, of the circuit 
court of Randolph county, in this State. The record 
shows that the said indictment was filed in said circuit 
court on the 12th day of March, 1870. There was a mo- 
tion to quash said indictment, and also a motion in arrest 
of judgment, for the reason that said indictment was found 
at a term of said court not authorized by law. 

It is known to this court that the law authorizing a term 
of said circuit court to be held on the first Monday in 
March, 1870, had been repealed on the 18th day of Feb- 
ruary, 1870, by an act of the general assembly of this 
State, entitled " an act to amend and repeal subdivision 
ten of section 750 of the Revised Code," approved Feb- 
ruary 18, 1870.— Pamph. Acts 1869-70, p. 166, No. 169. 
This act last said appointed the time of holding the spring 
term of said court on the third Monday in February, and 
permitted it to continue for two weeks. This could not 
bring the term of the court up to the 12th day of March 
in that year. So it was evident t^at the court was held at 
a time not appointed by law. When this is the case the 
proceedings of the court are void. — Garlick v. Dunn, 
42 Ala. 404 ; Wightman v. Karsner, 20 Ala, 446 ; CuUum v. 
Casey & Co., 1 Ala. 351. The indictment ought, therefore, 
to have been quashed, and the judgment ought to have 
been arrested. The learned judge in the court below erred 
in both these particulars. 

The judgment of the court below is reversed, but the 
cause is not remanded, as the proceedings in the court be- 
low are void. 



82 FOETY-SIXTH ALABAMA. 

Merrill et al. v. The State. 



MEERILL ET AL. vs. THE STATE. 

rSCIKE FACIAS ON FOEFEITED BAIL BOND.] 

1. Undertaking of hail ; when not void. — An undertaking of bail ap- , 
proved and taken by the sheriff under the order of a chancellor, is not 
void because the application for bail was not verified ; nor because 
proper notice was not given to the solicitor, and no writ of habeas cor- 
pus, or precept to the sheriff to produce the body of the prisoner, was 
issued. These requirements are directory, though they ought not to 
be omitted. 

2. Same ; plea, ivhat subject to demurrer. — A plea against the rendition of 
a judgment absolute on a forfeited undertaking of bail, that the ac- 
cused appeared at the court, and was arrested on a capias issued by 
the clerk after indictment found, without more, is subject to demurrer. 

Appeal from Circuit Court of Eandolph. 
Tried before Hon. L. E. Smith. 

Hudson, Eichards & Henderson, for appellants. 
Attorney-General, contra. 

The facts appear in the opinion. 

B. E. SAFFOLD, J.— The appeal is taken from a judg- 
ment absolute rendered gigainst the appellants on an un- 
dertaking of bail. One error assigned is, that the order 
of the chancellor authorizing the sheriff to take and ap- 
prove the undertaking was void. 

James A. Merrill being in jail under a commitment by 
the probate judge as an examiniog magistrate, charged 
with murder, made written application to the chancellor 
for bail. This petition was signed with the name of Mer- 
rill, written by his attorneys at his instance, but it was not 
verified. The chancellor, on receiving it, with a copy of 
the evidence taken on the preliminary examination ap- 
pended, made an order authorizing the sheriff to take the 
undertaking. He issued no writ of habeas corpus, or pre- 
cept to the sheriff or other officer to bring the body of the 



JUNE TERM, 1871. 83 

Merrill et al. v. The State. 

prisoner before him. Notice of the intended application 
was given to the solicitor, but the hearing was at another 
time and place than that designated. 

Section 42 dl of the Revised Code authorizes the appli- 
cation for a writ of habeas cor'giis to be made by any one 
in behalf of the prisoner. The verification is, that the 
statements are true to the best of the knowledge, informa- 
tion and belief of the petitioner. From the nature of the 
case, and the latitude allowed in the verification, the form- 
alities required must be deemed directory merely. There 
might be no statement of the application which the peti- 
tioner could verify as a witness, not even the imprison- 
ment. Nevertheless, the magistrate ought to require a 
verification to prevent imposition, and needless vexation 
of innocent persons. The chancellor obtained jurisdiction 
of the case. 

In bailable cases, where the prisoner waives an examina- 
tion into the facts, the judge may fix the amount of bail 
without notice to the solicitor or prosecutor ; though in so 
doing he must act on the presumption that the offense is 
of the highest grade. — Rev. Code, § 4270. As this charge 
was of murder, and the highest grade is not bailable, the 
matter was conducted irregularly. But shall the prisoner 
and his bail be allowed to escape the liability they volun- 
tarily assumed, on the ground that he was too guilty to go 
at large under any circumstances ? All of the objections 
made by the appellants are to irregularities in their behalf. 
But the chancellor acquired cognizance of the case. He 
decided it to be bailable, and empowered the sheriff to 
take the bail, which was done. The undertaking is not 
void. 

The plea of the defendants was, that the accused ap- 
peared at the next term of the court, and was arrested by 
the sheriff on a capias issued by the clerk upon an indict- 
ment found at that term. This was demurred to on the 
ground that it did not aver authority to the clerk to issue 
the capias, or that tne bail had surrendered their principal. 
The demurrer was sustained. Section 4153 of the Revised 
Code, which requires the clerk to issue writs of arrest as 



84 FORTY-SIXTH ALABAMA. 

Harrison v. HoUey. 

soon as practicable after the filing of the indictment, ex- 
cepts the cases where the defendant is in custody, or on 
bail. Section 4244 declares the undertaking of bail to 
bind the parties thereto, jointly and severally, for the ap- 
pearance of the defendant on the first day of the court, 
from day to day of such term, and from day to day of 
each term thereafter, until he is discharged by law. These 
provisions, taken in connection with the privilege of the 
bail of surrendering the defendant whenever they desire 
to do so, compel the conclusion that the demurrer was 
properly sustained. 
The judgment is affirmed. 



HARRISON V8. HOLLEY. 

[judgment by default — WITHDRAWAL OP APPEAEANCE.] 

1. Appearance, withdrawal of; presumption in regard to, under facts of 
this case. — Where the entry of a judgment by default recited that the 
plaintiff came by his attorney, "and the counsel of the defendant ask 
leave to withdraw their appearance, which is granted, and the defend- 
ant being called, came not, but made default, " &c. , and this was the 
only evidence of any appearance by the;defendant, — Held, on appeal, 
that it was not the defendant's appearance that was withdrawn, but 
that of the counsel, as erroneously entered. 

Appeal from Circuit Court of Lowndes. 
Tried before Hon. J. Q. Smith. 

The facts of the case appear in the opinion. 

R. D. RuGELEY, for appellant. 

Clements & Gilchrist, contra. 

B. F. SAFFOLD, J. — The summons was not signed by 
the clerk. The judgment entry recites that the plaintiff 



JUNE TEBM, 1871. 85 

Maynard v. The State. 

came by his attorney, " and the counsel of the defendant 
ask leave to withdraw their appearance, which is granted, 
and the defendant being called, came not, but made de- 
fault." The appeal is taken upon the record, and the 
above is all that is stated in reference to the appearance of 
the defendant. It was not the defendant's appearance that 
was withdrawn. This he might have done without leave. 
The counsel withdrew their appearance for him. The 
plaintiff was present and took his judgment by default 
without requiring any explanation of the condition in which 
his case was to be placed. The only conclusion to which 
we can come, is that the appearance of counsel for the de- 
fendant was improperly entered, and on that account was 
withdrawn. A summons not signed by the clerk, will not 
support a judgment by default. — Winnemore v. Mathews^ 
January term, 1871. 

The judgment is reversed, and the cause remanded. 



MAYNARD vs. THE STATE. 

[indictment fob labcent op hobse.] 

1. Indictment; sufficiency of. — An indictment for stealing "any horse, 
mare, gelding, colt, filly or mule," is sufificient, A»ithout alleging the 
value of the animal taken. — Kevised Code, § 3706. 

2. Same. — Such indictmenb is not bad, though it may consist of two 
counts, each of which charges a grand larceny, which is visited with 
the same punishment. 

3. Charge to jury ; what not erroneous. — A charge to the jury in a prosecu- 
tion for horse stealing, that the recent possession by the accused of the 
property taken, unexplained, is evidence of guilt, is not erroneous, but 
is a proper exposition of the law. 

4. Stolen property, possession of ; hy tohom can not he explained. — Such 
possession by the accused can not be explained by proof introduced by 
the accused of the declarations made by him showing how he came 
in possession of the property stolen. This would make him a wit- 
ness in his own favor, which is not permitted. — Rev. Code, § 2704. 



86 FORTY-SIXTH ALABAMA. 

Maynard v. The State. 

Appeal from Circuit Court of Wilcox. 
Tried before Hon. P. O. Harper. 

. The facts appear in the opinion. 

John McCAbKiLL, for appellant. 

John W. A. Sanford, Attorney- General, contra. 

PETERS, J. — This is an indictment for stealing a horse. 
It contains two counts, which are in the following words : 

" The grand jury of said county charge, that before the 
finding of this indictment, Gilbert Maynard feloneously 
took and carried away a horse, the personal property of 
Jordan Pickett, against the peace and dignity of the State 
of Alabama." 

" And the grand jury of said county further charge, that 
before the finding of this indictment, Gilbert Maynard felo- 
neously took and carried away a horse, the personal prop- 
erty of L. W. Godbold, against the peace and dignity of 
the State of Alabama." 

This indictment was demurred to by the accused in the 
court below, upon the ground that the indictment charged 
two distinct offenses. This demurrer was overruled. The 
accused then pleaded not guilty, and went to trial on this 
plea, was found guilty, and sentenced to the penitentiary 
for three years. From this conviction the said accused ap- 
peals to this court. 

On the trial below, a bill of exceptions was taken by the 
defendant, from which it appears that the horse named in 
the indictment was taken from the lot of said Jordan Pick- 
ett, and when found it was in the possession of the accused. 
And it was also shown that the horse was the property of 
said L. W. Godbold. It was not shown who took the horse 
from the lot. On this testimony, the accused moved the 
court to allow his explanation as to his possession of said 
horse to go to the jury. But the court refused, and the 
defendant excepted. The court then charged the jury, that 
" if the defendant had possession of the horse said to have 
been stolen, and did not explain said possession, it was 
prima facie evidence of his guilt, and the jury might con- 



JUNE TERM, 1871. 87 

Maynard v. The State. 

vict if they thought proper." This charge was excepted 
to by defendant. 

The indictment is not obnoxious to the objection raised 
by the demurrer. Generally, an indictment for larceny 
should allege the value of the property taken ; but for the 
stealing of " any horse, mare, gelding, colt, filly or mule," 
this is not necessary, because the stealing of any of these 
animals is made grand larceny by the Code, irrespective of 
the value of the thing taken. — Sheppard v. The State, 42 Ala. 
53i ; Revised Code, § 3706 ; Pamph. Acts 1866-67, p. 243 ; 
Act No. 240, § 1. 

And the offenses here charged are each grand larcenies. 
They are visited with the same punishment. When this is 
the case, it is not error to join two such charges in the same 
indictment. — Ward v. The State, 2 i Ala. 16, 18 ; Revised 
Code, § 4125. There was, then, no error in overruling the 
demurrer. 

I have carefully examined the charge of the court, and 
I find it free from error. The rule on this subject, as stated 
by East, and approved by Roscoe, is this : " It may be laid 
down generally, that whenever the property of one man, 
which has been taken from him without his knowledge or 
consent, is found upon another, it is incumbent on that 
other to prove how he came by it ; otherwise the presump- 
tion is, that he obtained it feloneously." — Roscoe's Cr. Ev. 
p. 18, marg.; Taylor v. The State, 42 Ala. 529. And the 
accused can not prove how he came by the property by 
his own declarations, because this would make him a wit- 
ness for himself in his own case. This is not permitted, 
by our law, in criminal cases. — Rev. Code, § 2704 ; Spivey 
V. The State, 26 Ala, 90. It is, however, required by this 
rule that the possession shall be recent ; but here the tes- 
timony shows that this was the case. — Roscoe's Crim. Ev. 
p. 19, marg. 

The judgment of the court below is afiirmed ; and its 
sentence will be carried into execution as required by law. 



88 FOBTY-SIXTH ALABAMA. 

Evins V. The State. 



EVINS vs. THE STATE. 

[CAEBYING CONCEALED WEAPONS. ] 

1. Pistol, what is not within the meaning of the statute prohibiting carrying 
of concealed weapons. — A pistol that has no mainspring or other neces- 
sary parts of a lock, and can only be fired ofi" by the use of a match, 
or in some other such way, is not a pistol, within the purview and 
meaning of the statute prohibiting the carrying of concealed weapons, 
and no person should be indicted and punished for carrying such a 
pistol. 

Appeal from the Circuit Court of Perry. 
Tried before Hon. M. J. Saffold. 

The facts appear in the opinion. 

MoOKE & LocKETT, for appellant. 

John W. A. Sanford, Attorney-General, contra. 

PECK, C. J. — The defendant below was indicted under 
section 3555 of the Revised Code, for carrying a pistol con- 
cealed about his person, against the peace and dignity of 
the State. . All the evidence, and the charge of the court 
given to the jury, and the charges asked by the defendant 
and refused by the court, are set out in the bill of excep- 
tions. 

The evidence shows, that the pistol carried by the de- 
fendant as aforesaid was harmless as a weapon ; that it 
could not be fired oif, as a pistol is usually fired oif ; that 
it had no mainspring, or other necessary machinery of a 
lock ; that the hammer or cock was disconnected and loose, 
and that the nipple or tube was so flattened as not to be 
touched by the hammer when down, and it was doubtful 
whether it could be fired off by a cap on the tube, &c. 

The court, on the evidence, charged the jury in substance, 
that the said pistol was a pistol within the meaning of the 
statute prohibiting the carrying of concealed weapons. 

In this we think the court erred. We hold, that a pistol, 



. JUNE TERM, 1871. 89 

Murrell v. The State. 

to be within the purview and meaning of the statute and 
the mischief and evil intended to be prevented, must have 
such a degree of perfectness, as that it may reasonably be 
carried and used as a weapon. It is not enough that it has 
a stock, and a barrel that may be loaded and fired off by 
a match or in some other such way. 

This was clearly not the character and condition of this 
pistol. It was certainly worthless as a weapon, and no 
sensible person would have relied upon it as a weapon to 
attack an adversary, or to defend himself. 

As this disposes of the case, we do not think it necessary 
to consider whether the charges asked by the defendant 
should or should not have been given. Let the judgment 
be reversed, and the cause be remanded for another trial. 



MURRELL V8. THE STATE. 

[INDICTMEMT FOB MTJBDEB.] 

1. Escape of accused during trial, when may be giwn in evidence. — The es- 
cape of the accused from custody during a criminal trial is evidence of 
guilt, which may be given in evidence against him on a second trial 
upon the same indictment and for the same charge, when it appears 
that there was no other reason for the escape than a fear of conviction 
on the first trial. But such evidence is not conclusive. 

Appeal from Circuit Court of Madison. 
Tried before Hon. W. J. Haralson. 

The facts appear in the opinion. 

Walker & Brickell, for appellant. — 1. The evidence 

admitted was irrelevant and illegal. Its direct tendency, 

and the only object of its introduction, was to prejudice 

the mind of the jury against the appellant, because of his 

7 



90 FOKTY-SIXTH ALABAMA. 

Murrell v. The State. 

commission of another offense than that with which he 
was charged. The offense with which he was charged was 
committed prior to the spring term, lc66, of the court, 
when the indictment was found. The evidence offered and 
admitted against his objection was, that at the spring 
term, 1870, four years afterwards, while on trial of this in- 
dictment, and while the jury were deliberating on a ver- 
dict, he escaped. Flight or escape, immediately on the 
discovery or accusation of crime, is evidence against the 
party accused or suspected, but in such case there is in 
point of time a connection between the flight or escape and 
the crime. Here there was no such connection. " Flight 
as a criminative circumstance, depends materially upon 
the time when it takes place." — Burr, on Cir. Ev. 474. 

2. This evidence was not only irrelevant — not having 
any connection with, or tending to elucidate the main fact 
to be proved, the appellant's guilt of the killing of Arthur 
Brown — but its obvious tendency was to prejudice the 
jury, by placing the appellant in the odious attitude of a 
man who, charged with a capital offense, adds to that an- 
other criminal offense — an escape from the custody of the 
sheriff. The case of Boles v. The State, 24 Miss. 456, 
though not precisely in point, in principle covers this case. 

Attorney-General, contra. — T. The conduct of the ac- 
cused before, at the time of, and after the perpetration of 
the crime, can always be regarded by the jury. — Burr. Cir. 
Ev. 280, 401. 

II. The flight of the prisoner is a circumstance indicat- 
ing a consciousness of guilt. The weight which the jury 
will give to the evidence of such a fact will depend some- 
what upon the time of the flight and its concomitants: If 
it occurred before accusation, it would be almost a confes- 
sion. "Fatetur facinus qui judicium fugit." If it took 
place afterwards, the fact should be submitted to the jury. 
It is a part of the conduct of the accused after the com- 
mission of the crime, which it is always proper to prove. 
Roscoe Cr. Ev. 18 ; Martin and Flynn v. The State, 28 Ala. 



JUNE TEBM, 1871. 91 

Murrell v. The State. 

71-81 ; Johnson v. The State, 17 Ala. 618-24 ; The People 
V. Rathhun, 21 Wend. 503-48 ; Burr. Cir. Ev. 469, et seq. 

PETERS, J.— William Murrell, the appellant, was tried 
in the circuit court of Madison county upon a charge of 
murder, at the spring term of said court, in the year 1871. 
The trial terminated in a conviction for manslaughter in 
the first degree, and the accused was sentenced to confine- 
ment in the penitentiary for five years. From this sen- 
tence he appeals to this court, and here assigns the matters 
set forth in the bill of exceptions for error. 

The bill of exceptions shows that there had been a for- 
mer trial of the accused on the same indictment, in said 
circuit court, on the same charge, in the year 1870, when 
the jury failed to agree, and there was a mistrial. On the 
trial in this case in the court below, the learned judge pre- 
siding permitted the State to offer evidence that on the 
former trial, after the " evidence was heard, the cause ar- 
gued, the jury charged and retired to consider of their 
verdict, and while the jury were deliberating, the defendant 
made his escape, and after the adjournment of the court 
he was again arrested." To this evidence the defendant 
objected, but his objection was overruled, and the evidence 
was permitted to go to the jury. It is now insisted that 
this was error. 

The escape was an attempt to flee, and it had reference 
to the charge in this case. Flight, in a criminal prosecu- 
tion, is one of the most common grounds for a presump- 
tion of guilt. And when the flight is connected with the 
offense charged and for which the accused is on trial, it is 
an act that indicates fear, and this fear points to guilt. 
Acts speak as well as words, and they are to be interpreted 
by the common experience of mankind. And a flight is 
universally admitted as evidence of the guilt of the ac- 
cused, though it is not conclusive.— e/oA?«.9o» v. The State, 
"17 Ala. 618, 624; Martin and Flinn v. The State, ^8 Ala. 
71, 81 ; Foxley's Case, 5 Co. 1096 ; Burr. Cir. Ev. 472 ; 
Bosc. Ev. 17, and notes ; McNally Ev. 577. Here the at- 
tempt was to flee, and to flee from this charge. The above 



92 FOETY-SIXTH ALABAMA. 

Wright and Wife v. Snedecor. 

authorities very clearly show that the action of the learned 
judge in the circuit court was free from error. 

The judgment of the circuit court is therefore affirmed. 



WRIGHT AND WIFE vs. SNEDECOR. 

[action commenced by attachment to enfoece liability cf separate 

ESTATE of NON-BESIDENT MABEIED WOMAN FOE DEBTS CONTEACTED TJNDEB 
SECTION 2376 OF BEVI8ED CODE. ] 

1. Attachment; variance between cause of action stated in affidavit, <^e., 
and that stated in complaint ; how may be taken advantage of. — In an 
action commenced by attachment, a variance between the cause of 
action stated in the affidavit and attachment, and the cause of action 
described in the complaint, may be pleaded in abatement. 

2. Attachment to enforce payment of debt against husband and wife, con- 
tracted under section 2376 of the Revised Code. — Whether or not an at- 
tachment can be issued against husband and wife to enforce payment 
of a debt contracted under section 2376 of the Revised Code, is an 
open question, which the court will decide when a proper case arises. 

Appeal from Circuit Court of Greene. 
Tried before Hon. Luther R. Smith. 

The appellee and his partner, Hutton, now deceased, in 
their firm name of Snedecor & Hutton, sued out an at- 
tachment against appellants, as husband and wife, on an 
affidavit that said firm had a moneyed demand, the amount 
of which could be certainly ascertained, to-wit, two hun- 
dred and forty-one dollars and thirty cents, due the first 
day of February, 1868, against the appellants, John V, 
Wright and Georgia H., his wife ; and that they were 
justly indebted to said Snedecor & Hutton, inclusive of 
interest, on said moneyed demand to date, (19th of April, 
1869,) in the sum of two hundred and sixty-four dollars 
and forty-four cents ; and that said John V. and Georgia 
H. Wright were non-residents, &c. The attachment, as to 



^ JUNE TEEM, 1871. 93 

Wright and Wife v. Snedecor. 

the character and amount of the alleged debt, conforms to 
the affidavit, and commands the sheriff to attach so much 
of the estate of said John V. and Georgia H. Wright as 
would be of sufficient value to satisfy said debt and costs, 
&G. The sheriff's return states that he had executed the 
attachment by levying the same on certain lands, describ- 
ing them as the separate property of the wife, Georgia 
H. Wright. 

The plaintiffs, by their complaint, declared under section 
2376 of the Revised Code, on an account for articles of 
comfort and support, <fec., sold to the defendants, as hus- 
band and wife, suitable to the degree and condition in life 
of the family, and for which the husband would be respon- 
sible at common law. The defendants craved oyer of the 
affidavit and attachment, and pleaded the variance between 
the cause of action disclosed in the affidavit and attach- 
ment and the cause of action described in the complaint, 
in abatement. To this plea the plaintiffs demurred, and 
the court sustained the demurrer. 

There were various other rulings and a charge of the 
court to which defendants excepted, which it is not neces- 
sary, in the view taken of this case by the court, to notice 
further. The defendants now appeal, and here assign 
among other errors, the sustaining of the demurrer to the 
plea in abatement. 

Wiley Coleman, and John G. Pierce, for appellants. 
1. There is no law in the State which authorizes an attach- 
ment to issue in a court of law against a married woman's 
separate estate in the first instance. — See TaUiaferro v. 
Lane, 23 Ala. 369. Nor is there any law of this State 
which authorizes an attachment to issue against a married 
woman in a court of law. It was void. 

This proceeding is attempted to be sustained under sec- 
tion 2376 of the Revised Code. 

This section has been strictly construed by this court for 
the protection of the property of married women. 

The action spoken of in this section is special and pe- 
culiar, and a different cause of action from that embraced in 



94 FOKTT-SIXTH ALABAMA. 



Wright and Wife v, Snedecor. 



the Code for which attachment may issue at law. If at- 
tachments are allowed under this section, it will lead in 
many instances to consequences fatal to the intention of 
the framers of the law. 

As heretofore such estates have been guarded to the ex- 
tent that before a sale of the property, there must have 
been a judgment of the court condemning it, after a trial 
showing its liability under said section. 

If a sheriff can levy on it in the first instance under at- 
tachment, in many instances where the property is perish- 
able he can and must sell before court, and before a trial, 
thereby destroying the separate estate, even if the plaintiff 
should fail in the action. 

No demurrers will be considered except those assigned 
specially. — Rev. Code, § 2656 ; also, § 2638. And the court 
erred in sustainiog the demurrer to the 1st, 2d and 3d 
pleas, as shown by the record and bill of exceptions. 
Summerlin v. Dowdle, 24 Ala. 428 ; Chapman v. Spcnce, 
22 Ala. 588; 1 Chitt. PI. 254; Morrison v. Taylor, 21 Ala. 
779 ; 18 Ala. 395. 

The complaint was a total departure from the cause of 
action disclosed in the affidavit, bond, and writ of attach- 
ment. The affidavit disclosed a simple contract debt, for 
which a married woman is not bound at common law, nor 
under the law of this State ; and it disclosed that Georgia 
H. Wright was a married woman. It disclosed a cause of 
action, then, for which she was not bound, although her 
husband might be, and for which she was not personally 
liable. In fact, the proceeding in any form of action at 
law is against her property, and not against her personally. 

The question is new in this State ; no case in point can 
be found, where an attachment has been sued out under 
said section ; and if it can be done, it will in many cases 
put upon the sheriff the difficult task of determining before 
hand what properly constitutes the separate estate of a 
married woman. If it can be allowed, the property to be 
levied on ought to be specified in the writ of attachment. 

Under section 2376 of the Eevised Code, " the liability 
of the separate estate is not to be enforced as in cases of 



JUNE TERM, 1871. 95 

"Wright and "Wife v. Snedecor. 

judgments operating personalter by an execution in the 
sheriff's hands, but by the action through the judgment of 
the court rendered in that action." — Ravesies and Wife v. 
Stoddard, 32 Ala. 603. This is conclusive to show, that in 
jthis peculiar action, the sheriff has no right to touch the 
property of a married woman's separate estate under exe- 
cution, nor can the action spoken of in said section be 
enforced in any, until there is a judgment of the court con- 
demning the property. If this action can not be enforced 
by eocecution in the hands of a sheriff, it can not be enforced 
by attachment in the first instance. 

R. Crawford, contra. — 1. The action of the circuit clerk 
in granting the attachment on the affidavit alleged to be 
insufficient can not be reviewed in the appellate court. 

When a statement is required in no prescribed form as 
a predicate for the action of a court or judge, and as a 
step in a remedial proceeding, conclusive upon no right of 
the party, whether that statement shall be more or less 
specific and definite, must be regarded as a matter of prac- 
tice resting in the discretion of the court of original juris- 
diction, and not a proper subject for a proceeding in error. 
Harrison & Wiley v. King, Corey & Howe, 9 Ohio St. R, . 
388, p. 393. 

2. The ground for an attachment may be stated in the 
affidavit in the language of the statute, without specifying 
more particularly the facts intended to be alleged. — Coston 
V. Paige, 9 Ohio St. R. 397 ; Bayburn v. Brockett c& Brock- 
ett, 2 Kansas, 227. 

3. If the affidavit in the case show enough to call upon 
the officer to exercise his judgment upon the weight of the 
evidence in establishing the grounds of the application, 
the affidavit on a motion to set aside the attachment for 
irregularity will be held sufficient. The same applies to a 
plea in abatement by analogy. — Furman et al. v. Walter, 
&c., 13 How. Pr. R. pp. 856, 349. 

4. Other special facts and circumstances are only re- 
quired in affidavits on application for attachments for 
damages. — Rev. Code, § 2932. 



96 FOBTY-SIXTH ALABAMA. . 

Wright and Wife v. Snedecor. 

5. To embody in the affidavit the allegations of the com- 
plaint, so as to prevent the alleged variance, requires cred- 
itors to swear to conclusions of law ; would, in effect, 
prevent subsequent amendments of complaint or the filing 
of additional counts, for fear of new variances. 

6. The rule prescribes in effect the filing of declaration 
at commencement of attachment, whereas the Code allows 
it to be filed within the first three days of the return term. 

7. Although no affidavit or bond be filed, unless there is 
a plea in abatement to the first term, the proceeding is not 
reversible.— Code, § 2989. 

8. As to non-residents, the Code specifically requires 
certain additional allegations in affidavit.— Code, § 2933. 

9. The use of the statutory word " demand," in the affi- 
davit, is generic, and more comprehensive than " debt," or 
" joint liability," and includes claims on persons or in rem. 

10. The affidavit need not disclose the evidence of the 
debt, as a bond or note, or how it accrued. — Starke v. Mar- 
shall, 8 Ala. 44; Fleming v. Burge, 6 Ala. 373. 

11. The writ of attachment is for the estate of the de- 
fendant or defendants, and so run the allegations of the 
complaint, and there is no material variance between them. 

12. Appellee pleads for a liberal construction of this 
remedial statute, so as to advance its manifest intent. 
Code, § 2990. 

13. It is submitted that there can be no abatement be- 
cause of defective affidavit. — Code, § 2989. 

14. The sheriff levied on said separate estate mentioned 
in the declaration, and the alleged variance did not mislead 
him. 

15. The defense as to variance is eminently technical, and 
totally destroys the remedy of a creditor against the sepa- 
rate estate of a non-resident married woman. 

PECK, C. J. — The court below erred in sustaining the 
demurrer to the plea in abatement. It is a general rule of 
pleading, that the declaration must correspond with the 
process. If the writ discloses one cause of action, and the 
plaintiff declares on substantially a different cause of ac- 



JUNE TEEM, 1871. 97 

Wright and Wife v. Snedecor. 

tion, the defendant may plead the variance in abatement. 
Summerlin v, Dowdle, 24 Ala. 428 ; Curry & Co. v. Payne, 
admWy 3 Ala. 154 ; Turner et al. v. Brown et al., 9 Ala. 866 ; 
Palmer v. Lesne, ih. 743. 

Although I have not been able to find, in our Reports, a 
case in all respects like the present, sustaining a plea in 
abatement for a variance between the affidavit and attach- 
ment and the complaint, I find many cases in principle 
analogous to it. In the case of Burt v. Parish, (9 Ala. 21,) 
it is decided, that defects in the bond and affidavit made on 
sueing out an attachment are not available on error, unless 
the exception has been taken by plea in abatement in the 
court below. So in Jones v. Pope, (6 Ala. 154,) it is held, 
that the want of a bond and affidavit, in a suit commenced 
by attachment, must be taken advantage of by plea in 
abatement. Again, in the case of Cobb v. Force, Brothers 
& Co., (6 Ala. 460,) the court decides, that in an attach- 
ment by one non-resident against another, the affidavit 
should show that the defendant has not sufficient property 
within the State of his residence to satisfy the debt, within 
the knowledge or belief of the person making the affidavit, 
and if it fails to do this, the defect is sufficient to abate the 
attachment when pleaded. And in the case of Roberts v. 
Burhe, (6 Ala. 348,) it is held, that where a suit is com- 
menced by attachment, the attachment is the initiatory pro- 
cess in the cause, and a variance between it and the declar- 
ation can not be reached by a demurrer, thereby clearly 
intimating that it might be by a plea in abatement. With- 
out citing other cases on this subject, we hold, that a ma- 
terial variance between the cause of action stated in an 
affidavit and attachment, and that described in the com- 
plaint, may be pleaded in abatement. If a variance be- 
tween the writ and declaration is a good ground for a plea 
in abatement, there is no good reason why it should not 
be for a variance between the affidavit and attachment, and 
the complaint. 

In this case, the variance between the cause of action 
described in the complaint, and that stated in the affidavit 
and attachment, is manifest and material. That stated in 



98 FOETY -SIXTH ALABAMA. 

Oxford Iron Co. ▼. Spradley. 

the affidavit and attachment creates a Joint common-law 
liability against the defendants, to which the coverture is 
a good defense as far as the wife is concerned ; whereas, 
the cause of action described in the complaint is special 
and peculiar in its character, and has no ''existence in- 
dependent of section 2376 of the Bevised Code. By 
that section, a new action unknown to the common law is 
given to a creditor, against husband and wife, to enable 
him, without being compelled to resort to a court of equity, 
to subject the separate estate of the wife to the payment 
of his debt, provided it be a debt of the character described 
in said section of the Code. 

The view which is here taken of this question disposes 
of the case, and renders it unnecessary to decide the oth- 
ers raised by the bill of exceptions. They will probably 
not arise on another trial. One of these questions is, can 
an attachment be issued against husband and wife, to en- 
force the payment of a debt contracted under said section 
2376 of the Bevised Code ? So far as we know, this ques- 
tion has never, before this, been presented in this court for 
decision, and, as it is a new question, and can not be said 
to be free from difficulty, and not required to be now de- 
cided, we prefer to leave it an open question, to be disposed 
of when a case arises making its decision necessary. Let 
the judgment of the court below be reversed, and the cause 
remanded, &c. 



OXFOBD IBON CO. vs. SPBADLEY. 

[action on pbomissokt note.] 

1. Section 2682 of Revised Code; to what applies. — Section 2682 of the Be- 
vised Code applies to written instruments, the foundation of the suit, 
purporting to be made by a corporation defendant, its agent or attor- 
ney, in like manner as it applies to instruments purporting to be made 



JUNE TEEM, 1871. 99 

Oxford Iron Co. v. Spradley. 

by natural persons, &c. , and must be received in evidence without 
proof of the execution, unless the execution thereof is denied by plea 
verified by affidavit. 

2. Manufacturing and other corporations ; what powers have. — Manufac- 
turing and other like corporations in this State, unless expressly pro- 
hibited by their charters, may borrow money, and make and receive 
promissory notes and bills of exchange, in carrying ou their lawful bu- 
siness. The presumption is in favor of the validity of notes and bills 
of exchange made by and to such corporations, and that they are made 
in the lawful course of their business, until the contrary is shown. 

3. Promissory note ; what void. — A promissory note by an iron company 
for money or other thing loaned to it, to be used by the company in 
erecting iron works and making iron for the late Confederate govern- 
ment for military purposes in carrying on the late rebellion against the 
United States, if known to the lender at the time of the loan, is illegal, 
against public policy, and no action can be maintained on it. 

4. Corporation aggregate; what, admits corporate character of. — Where 
the defendant is sued as a corporation aggregate, the appointment of 
an attorney, and an appearance entered by him, is an admission of 
record of the corporate character of the defendant. 

Appeal from Circuit Court of Caljioun. 
Tried before Hon. Wm. L. Whitlock. 

This was an action commenced by appellee against the 
appellant on promissory note, a copy of which is as fol- 
lows : 

" $154:0.00. Oxford Iron Works, 

April 7th, 1863. 

"On demand we promise to pay to M. D. C. Spradley, or 
order, one thousand five hundred and forty dollars, for 
value received, with interest at the rate of eight per cent, 
per annum. 

"Oxford Iron Company, 
'* Per Richard L. Campbell, President." 

The complaint is in the form given in the Eevised Code 
for " action on promissory note by payee against maker," 
and states that the note was made by the defendant. Ser- 
vice having been duly executed, the defendant appeared by 
attorney, and pleaded in short by consent — 

" 1st. Nul tiel corporation. 

" 2d. The note sued on was given for an illegal consid- 
eration. 



100 FOETY-SiXTH ALABAMA. 



Oxford Iron Co. v. Spradley. 



" 3d. The note sued on was given in consideration of one 
thousand five hundred and forty dollars of Confederate 
treasury-notes loaned by plaintiff to defendant, and with- 
out any other consideration, and said treasury-notes were 
not of any value when loaned by plaintiff to defendant, 
and were not of any value when plaintiff's supposed cause 
of action accrued on said note. 

" 4th. Failure of consideration. 

" 5th. Non assumpsit'^ 

No replication was filed by the plaintiff, so far as the 
record shows, and no further notice seems to have been 
taken of the pleas, although the judgment entry states that 
the parties came by their attorneys, and issue being joined, 
thereupon came a jury," &c. 

The plaintiff offered in evidence the note, and the de- 
fendant objected to its admission — 1st. Because the note 
on its face is the individual note of R. L. Campbell, and 
not the note of defendant. 2d. Because the execution of 
the note is not proved. 3d. Because the agency or official 
relation of Campbell to defendant was not proved, ith. 
Because it is not shown that defendant had the capacity to 
contract, or Campbell the po wer to bind it. 

The court overruled these objections, and defendant ex- 
cepted. The plaintiff then read the note in evidence to 
the jury, and there rested his case. 

It appears from the bill of exceptions that the plaintiff 
desired one Knox to get employment for him with the Ox- 
ford Iron Company, as he would thus be exempt from ser- 
vice in the Confederate army ; that he went into the em- 
ployment of the company in November, 1862, before the 
works had been so far completed as to make iron, and re- 
mained until the close of the war in 1865 ; that the com- 
pany commenced turning out iron in June, 1863 ; that at 
the time he went into the service of the company, plaintiff 
had been informed that defendant was erecting its works 
to make iron for the Confederate government, to aid in 
carrying on the war then being waged against the United 
States ; that it was generally known among the employees 
and persons in the county and neighborhood, that the 



JUNE TERM, 1871. 101 

Oxford Iron Co. v. Spradley. 

company was building its works to furnish iron to the Con- 
federate government for use in its mihtary operations. It 
further appeared that plaintiff held a note on one Harral- 
son, which the president of the company told plaintiff the 
company would take, collect, and use the money so col- 
lected in defraying the expenses of the company, and give 
the company's note therefor. The plaintiff assented to 
this, sent Harralson's note to Selma for collection, and 
shortly afterwards received therefor the note sued on, 
which was executed by Campbell in plaintiff's presence. The 
company used the money so collected in paying its liabili- 
ties and defraying its expenses. The proof was conflicting 
as to whether the note sued on was given for the note on 
Harralson, or for the Confederate money collected on it. 

The court, against the objection of the defendant, per- 
mitted the clerk to the judge of probate of the county of 
Calhoun to testify that he was clerk in 1862 and 1863, and 
as such recorded the articles of association between Wood- 
son, Knox and others to form a corporation called the Ox- 
ford Iron Company, for the manufacture of iron. The ar- 
ticles, when recorded, were taken from the office by a per- 
son who was not remembered. The record was destroyed 
loth July, 1864, by fire, and witness remembers nothing of 
their contents. The books of the company were all de- 
stroyed by the United States forces, who burnt the works 
in 1865, except one book produced in court. The defend- 
ant waived notice to produce the articles of association, 
but objected to and excepted to the admission of the evi- 
dence in relation to them. 

Among other charges asked, the defendant asked the 
following : 

'* If the jury believe from the evidence that Woodson, 
Knox and others executed and acknowledged, and caused 
to be recorded in the probate court of Calhoun county, ar- 
ticles of association or agreement for the promotion of a 
corporation by the name of the Oxford Iron Company, for 
the manufacture of iron, which was done in the last of the 
year 1862, or early in 1863, that this did not create a cor- 
poration." 



102 FORTY-SIXTH ALABAMA. 

Oxford Iron Co. v. Spradley. 

This charge the court gave with the qualification — " But 
if the jury believe that said corporation went into opera- 
tion and manufactured iron, it would be a corporation." 

To the refusal to charge as requested, and to the giving 
of the charge as qualified, the defendant excepted. 

" 5. That if the jury believe that the plaintiff loaned 
money or a note on Harralson to the defendant, with the 
knowledge that the proceeds of the note or money was de- 
sired by the defendant to enable it to erect iron works to 
manufacture iron for the Confederate government, to be 
used for military purposes by the Confederate government 
in the late war between the United States and the Confed- 
erate States, and the note sued on is given in consideration 
of the money or note so loaned by the plaintiff to the de- 
fendant, then the plaintiff can not recover in this action." 

" 6. That if the jury believe that the plaintiff let the de- 
fendant have money, or a note on a third person, with a 
knowledge that such money or note, or the proceeds of the 
note, was obtained by the defendant to enable the defend- 
ant to make iron for the Confederate government to be 
used for military purposes in the late war between the 
United States and the Confederate States, and the said 
money or note was so used in making iron, and the con- 
sideration of the note sued on is money or a note on a 
third person so obtained by the defendant of the plaintiff, 
then the plaintiff can not recover in this action." 

The court refused to give either of these charges, and 
the defendant excepted. 

The jury found a verdict in favor of the plaintiff for 
$1,788.71, and defendant appeals, and here assigns among 
other errors — 

1st. The admission of the evidence in relation to the ar- 
ticles of association or agreement for the formation of the 
corporation. 

2d. The refusal to give the 5th and 6th charges asked 
by the defendant. 

John T. Heflin, for appellant. 

(Appellant's brief did not come into Reporter's hands.) 



JUNE TERM, 1871. 103 

Oxford Iron Co. v. Spradley. 

Foster & Forney, for appellee. — 1. There was no plea 
verified by aflfidavit denying the execution of the note sued 
on. It purported to be made by the defendant, per Camp- 
bell, president of the company, and must therefore be re- 
ceived as evidence of the debt sued upon, and that it was 
made on sufficient consideration. — Ala. & Fhr. Railroad v. 
Watson, 42 Ala. 74 ; Ala. & Miss. Railroad Co. v. Sanford 
& Rice, 36 Ala. 704 ; Ala. Coal Mining Co. v. Brainard, 
35 Ala. 476 ; Talladega Ins. Go. v. Landers, 43 Ala. 

2. A corporation is liable for contracts made by its 
agents, and also upon a promissory note. If a note has 
been given in a manner not authorized by law, or for an ille- 
gal purpose, that must be shown by the defense. The pre- 
sumption of law is that the note is legal, and the corpora- 
tion was authorized to make it. — 3 Wend. 94 ; 7 Cowan, 
540 ; 1 lb. 513 ; 2 ib. 664. 

3. If a person assuming to act as agent of a corpora- 
tion, but without legal authority, make a contract, and the 
corporation receives the benefit of it and use the property 
acquired under it, such acts will ratify the contract and 
render the corporation liable. The defendants must show 
that they had no power to borrow money under their char- 
ter.— 1 Pick. 372 ; 19 Johns. 64. 

4. A corporation is bound by the same implications and 
inferences as a natural person ; it may appoint, and such 
appointment will be inferred by such acts as create a pre- 
sumption of agency, or by a ratification of his acts. The 
declarations of the agent in makiog a contract are evi- 
dence, not because he may be a member or an officer of 
the corporation, but because he is agent. — Bates dt Hines 
V. Bank of Alabama, 2 Ala. 451. 

6. They are liable upon an implied assumpsit, as well as 
an expressed one. — 1 6 Vermont, 86. 

6. If authorized by their charter to contract in a par- 
ticular mode, they may by practice render themselves liable 
on instruments executed in a different mode. — Walter v. 
Derby, Friley & Co., 2 Cowan, 260. 

7. This defense of illegal consideration as between plain- 
tiff and defendant, in the language of Lord Mansfield, 



104 EOBTY-SIXTH ALABAMA. 

Oxford Iron Co. v. iSpradley. 

" sounds at all times very ill in the mouth of the defend- 
ant." — Chitt. on Con. 658. The presumption of law is in 
favor of the legality of the contract. If it is susceptible 
of two meanings, one legal and the other invalid, that in- 
terpretation shall be put on it which will support and give 
operation to the contract. It is for the party who takes 
the objective to prove it, although the burden is thrown on 
him to establish a negative. And the proof should be 
positive and clear. — Chitt. on Con. 659. 

If, then, the consideration of this contract was not ille- 
gal — as the jury under the ruling of the court says it was 
not ; if the promise to pay the amount was not illegal — 
and it is not* pretended that it was ; if it was no part of 
the contract, and the defendant had no intention or pur- 
pose to aid the rebellion, a bare knowledge of the illegal 
purpose to which the money was to be applied by the de- 
fendant can not vitiate the contract. The consideration, 
promise and purpose of the contract being valid, that in- 
terpretation shall be put upon the contract that will give 
it operation. If the contract, as in this case, is free from 
vice, it can not be avoided on the ground that it may prob- 
ably facilitate an illegal transaction. If no part of the 
consideration or promise was illegal, the contract is not 
invalid, although the plaintiff knew the defendant was en- 
gaged in an illegal pursuit, and although the agreement 
might tend in some degree to facilitate the illegal opera- 
tion and business of the company.- — Dz Groot vs. Van Dusen, 
17 Wend. 170. 

PECK, C. J. — 1. Under the pleadings in this case, the 
note, or copy of which is given in the bill of exceptions, 
was properly admitted in evidence, without proof of its 
execution. The suit is against the defendant as a corpo- 
ration, and the complaint states that the note was made 
by the defendant. It is signed thus : 

" Oxford Ikon Company, 
Per Kichard L. Campell, Pres't." 
It purports to be the note of the corporation defendant, 
made by its agent, the president of the company, and is 



JUNE TERM, 1871. 105 

Oxford Iron Co. v. Spradley. 

the foundation of the suit. There was, therefore, no error 
in permitting it to be read to the jury without proof of its 
execution, as its execution was not denied by a plea verified 
by affidavit.— Rev. Code, § 2682 ; Ala. Coal Mining Co. v. 
Brainard, 35 Ala. 476 ; Ala. & Miss. Rivers Railroad Co. v. 
Sanford, 36 Ala. 703. In the first named of these cases, 
it is held, that said section 2682 applies not only to cases 
where the instrument purports, on its face, to be executed 
by the defendant, his partner, agent, or attorney, but also 
where the complaint states it to have been so made. This 
disposes of the three first objections of the defendant to 
the reading of the note to the jury. 

The fourth objection is, that it was not shown that the 
corporation defendant had the capacity to contract, or 
that Campbell, the president, had the power to bind it. 
The latter part of this objection is substantially like the 
third, and is therefore already disposed of. The other 
part of the objection, as to the capacity of the defendant 
to contract, is not well taken. 

There are certain powers and capacities incident to 
every private corporation ; among these is the capacity to 
sue and be sued, to take and grant property, to contract 
obligations, and do all other acts, not inconsistent with its 
charter, as natural persons may. — Angell & Ames on Corp., 
2d ed., pp. 65-6. These powers may be freely exercised, 
whenever their exercise is essential to the accomplishment 
of the objects and purposes for which a corporation is 
created. An express authority is not required to confer 
on a corporation the right to draw, indorse, or to accept 
bills of exchange, or to make or receive promissory notes, 
provided the exercise of such a power is not obviously 
foreign to the purposes of its creation. — Angell & Ames, 
192-y. And it will be implied, if not expressed, whenever 
it is directly or indirectly necessary to accomplish the pur- 
poses of its charter. 

Under our general credit system, and the manner and 
modes of doing business, the success and prosperity of 
manufacturing corporations, and other enterprises of like 
8 



106 FORTY-SIXTH ALABAMA. 

Oxford Iron Co. v. Spradley. 

character, would be greatly impeded and embarrassed, if 
not utterly destroyed, without the capacity and powers to 
contract debts, borrow money, and make and receive bills 
of exchange and promissory notes. Therefore, these pow- 
ers will be inferred, where there are no prohibitions to the 
contrary in their charters. The presumption is in favor of 
the validity of notes made by or to such corporations, and 
that they are made in the lawful course of their business, 
until the contrary is proved. — Angell & Ames, 198 ; The 
New York Fir em. Ins. Co. v. Sturges, 2 Cowan, 664. 

2. In the case of the Oxford Iron Company v. Quinchett, 
44 Ala. 48 ^ we held that *' a contract made during the late 
rebellion, to loan or hire mules to a party known, at the 
time, to be engaged in the manufacture of iron for the late 
Confederate government, with a knowledge on the part of 
the bailor that said mules are wanted by said party, and 
are borrowed or hired by him to be employed in the manu- 
facture of iron for said Confederate government, to be 
used by said government for military purposes, in carrying 
on said rebellion against the United States, is in violation 
of public policy, and void; and no action can be main- 
tained on the same." 

We can see no substantial difference, in principle, be- 
tween that case and the present. The evidence in this 
case tends to show that the note sued on was given for 
money loaned, or for a note that the plaintiff held on one 
Haralson, which he left the company to collect, and when 
collected the money was to be used by the company in 
erecting its iron works, and in making iron for the Confed- 
erate government, for military purposes, and to aid it in 
carrying on the rebellion against the United States, and 
that this was known to the plaintiff. 

The plaintiff was examined as a witness in his own be- 
half, and among other things, stated that when he went 
into the employment of the defendant in 1862, he had been 
informed that the Oxford Iron Company was erecting its 
own works to make iron for the Confederate government, 
to be used for military purposes against the United States. 
He also stated that the note on Haralson was the consid- 



JUNE TEEM, 1871. 107 

Oxford Iron Co. v. Spradley. 

eration of the note sued on ; that E. L. Campbell told him 
that the company would take the note on Haralson and 
collect it, and give the plaintiff the company's note for the 
amount of said note, and use the money collected on Har- 
alson's note in defraying the expenses of erecting the iron 
works. This, with the other evidence in the case, we think^ 
tends to show that the note sued on was made upon an 
illegal consideration, and formed a part of a transaction in 
violation of public policy. Therefore, the fifth and sixth 
charges asked by the defendant were proper charges, and 
should have been given, that the jury might have deter- 
mined the true character of the entire transaction between 
the parties. 

This defense on the part of the defendant and the per- 
sons composing the corporate body, we readily admit, is 
dishonest, unconscientious and immoral, and is not allowed 
for its or their sake, but is permitted solely on principles 
of public policy. If the plaintiff has made an illegal con- 
tract with the defendant, the courts can not, without a 
violation of judicial propriety, help him to enforce it. 

3. The question as to the corporate character of the de- 
fendant is not properly raised on this record. The plea of 
nul tiel corporation, where a defendant is sued as a corpo- 
ration aggregate, is an inappropriate plea, and an incon- 
sistency in itself. We find no precedent for such a plea in 
such a case, nor any case in which it has been pleaded. 
The appointment of an attorney, and an appearance by 
him for the defendant, is an admission on the record that 
the defendant is a corporation ; therefore, if the court has 
been mistaken in any of its charges on this subject, it is 
an error that does not prejudice the defendant. 

For the errors above noticed, let the judgment of the 
court below be reversed, and the cause remanded at ap- 
pellee's costs. 



108 FOBTY-SIXTH ALABAMA. 

Shropshire v. Burns, Adm'r. 



SHKOPSHIRE vs. BURNS, Adm'r. 

[action on peomissobt note given by minok for ptjechase of hoese, 
and solo by administkatoe aftee his death.] 

1. Infant, contract of ; generally voidaile, not void. — Generally in this 
State, the contracts of an infant are voidable, but not void. And such 
contracts may be affirmed or avoided by such infant after he becomes 
of age. 

2. Infancy, defense of; hy whom only can be pleaded. — Infancy is a per- 
sonal privilege, and it can only be taken advantage of by the infant 
himself, or by his personal representative. 

3. Infant, ratification of contract of; lohat will amount to. — In like man- 
ner-, the infant or his personal representative may affirm and ratify his 
contracts after he becomes of age ; and the acts which will amount to 
ratification by an infant himself, will amount to a ratification after his 
death by his administrator or executor. 

4. Same. — If a minor above the age of twenty, but under the age of 
twenty-one years, purchase a horse and give his promissory note for 
the purchase-money, and the horse is delivered to him, and the minor 
then dies before he attains his majority, and the horse comes into the 
possession of the administrator of the infant's estate, who sells the 
horse as the decedent's property, with a full knowledge that it had 
been so purchased by the infant, and had not been paid for, this is a 
a ratification of the sale. 

Appeal from Circuit Court of Dallas. 
Tried before Hon. B. L. Wheelan. 

The facts are sufficiently stated in the opinion. 

Pettus & Dawson, for appellant, — The contracts of in- 
fants, not made for necessaries, are generally voidable, not 
void, and may be ratified by the infant after he is of age. 
1 Pars, on Cont. 243 ; Chitt. on Cont. 145-6, and notes. 
A promise to pay the debt, made to the creditor, is gen- 
erally a ratification ; and there are acts from which such 
promise will be inferred. If an infant have the property 
purchased, after attaining his majority, and sell it, he 
thereby ratifies the contract of purchase, and the law in- 



JUNE TERM, 1871. 109 

Shropshire v. Burns, Adm'r, 

fers a promise to pay. — Chitt. on Cont. 145-6 ; 1 Pars, on 
Cont. 268, 271, 272. 

The contract of an infant may be ratified by his admin- 
istrator. The case of Jeffords, AdmW, v. Ringgold (& Co., 
6 Ala. 54:4:, is directly in point. There, as here, the infant 
died under age, and his administrator ratified the contract. 

It being, then, settled that an administrator of an infant 
may ratify the contracts of his intestate, without any new 
consideration, it is a necessary inference that any act 
which, if done by the infant, would be a ratification, will, 
when done by the administrator, be alsp considered a rati- 
fication of the contract. In fact, this necessarily follows 
from permitting the administrator of an infant to plead 
his infancy. 

In this case, the infant died in possession of the horse 
purchased by him ; and the defendant, as the administrator 
of the infant, took the horse and sold him, knowing at the 
time all the facts of the case. This sale alone was a rati- 
fication. The court, in the first charge given, says in sub- 
stance, that no act will amount to a ratification, unless the 
defendant intended to ratify the contract. This rule ap- 
plies only to mere promises ; but there are many acts from 
which a ratification will be absolutely deduced, without 
any regard to the intent. If an infant buy a horse and 
retain him after age, and payment should be demanded 
and refused, and then the plaintiff demand the horse and 
a rescission of the contract, and this also be refused, no 
intention to ratify could be inferred ; yet this would be in 
law a complete ratification. — 1 Pars, on Cont. 270-j . But 
the court not only charged that the intention to ratify must 
be proved, but the charges deny to the jury the right to 
infer that intention from the sale of the horse. 

Alexander White, contra. — Under the law, the adminis- 
trator was bound to take into possession a horse left by 
his intestate, and claimed by him as his property ; and as 
whatever is done by an administrator, unless shown to the 
contrary, must be presumed to be lawfully done, the court 



110 FQBTY-SIXTH ALABAMA. 

Shropshire v. Burns, Adm'r. 

must assume that he sold him under an order of court and 
in conformity and obedience to law. 

These acts had no reference, as a matter of fact, to the 
contract between appellant and the intestate of appellee ; 
it does not appear that defendant knew of the existence of 
the note, or that the plaintiff looked to him for payment 
of the note. It is not shown that defendant gave any 
assent of the mind to the act done by the infant in giving 
the note, nor that he ever thought of it. 

Ratify, signifies " to approve, to sanction." Katification 
is the act of ratifyJtg something done by another. — Webster's 
Diet., Ratification, and Ratify. In sanctioning or approv- 
ing an act done by another, there must be recognition in 
the mind of the act done, or else a man can approve some- 
thing he knows nothing of, or does not think of. That is, 
that he can give the assent of his mind to a thing without 
knowing what it is that he assents to. This is an impossi- 
bility and absurdity. 

The law requires the assent of the infant himself, when 
made after he comes of age, to be precise and explicit. 

There must be such a promise to pay, or such express 
acts, as would be equivalent to a neio contract. — Bingham 
on Infancy, 67 ; Chitt. on Cont. 146. 

The promise must be to the party in interest, or to his 
agent. 

It must be voluntary, free, and with a full knowledge 
that he would not be liable. — Bingham on Infancy, 68, 
note 6 ; Story on Cont. § 70. 

It can not reasonably be assumed that an administrator 
of an infant would be held to have ratified an act of the 
infant, when the same act would not have been a ratifica- 
tion by the infant, had he lived. 

The act by which the administrator is sought to be 
charged, is the sak of the horse. 

This alone would not have bound the infant ; certainly 
not, unless he had sold him after he came of age. 

No binding ratification of a contract can be made by an 
infant until he comes of age. — Story op, Cont. § 68 ; An- 
nual Dig. 24, 339, § 10 ; 16 N. H. 385. 



JUNE TERM, 1871. lU 

Shropshire v. Burns, Adm'r. 

This is an executory contract ; and as to such there must 
be not only an acknowledgment of liability, but an express 
promise, voluntarily and deliberately made by the infant, 
wpon Ms arriving at tJie age of maturity, and with the. 
knowledge that he is not legally liable. — Story on Cont. 
§ 69 ; Curtin v. Patton, 11 S. & R. 305 ; Obin v. Hondlett, 
iS Mass. 237 ; Boston Bank v. Chamberlain, 15 Mass. ; Bob- 
bins V. Eaton, 10 N. H. 5(31 ; Bainsford v. Bainsford, 1 Spears 
Eq. 385 ; Tucker v. Montain, 10 Peters 73 ; Jackson v. Car- 
penter, 11 John. 537 ; 2 Kent Com., top page 26i, mar. 238, 
note (a). 

The same evidence ought to be required of the ratifica- 
tion of a voidable contract after full age, as of the execu- 
tion of a void one. — Bogers v. Hund, 4 Day, 57. 

There must be some act of the infant after he reaches 
maturity, showing an intention to ratify ; mere omission to 
ratify is not sufficient. — 2 Kent Com., top page 264, note 3 ; 
Wallace v. Leiois, 4 Harring. R. 75 ; Harris v. Cannon, 
6 Geo. 382 ; Scott v. Buchanan, 11 Humph. 468 ; Tibbitts v. 
Oerrish, 5 Fort, (N. H.) 41 ; Taft v. Sergent, 18 Barb. 320 ; 
Thurloio V. Gilmon, 40 Maine. 

Declaration must be very clear, and with a vieiu to ratifi- 
cation, to be sufficient. — Hoyle v. Stoiv, 2 Dor. & Battle, 320. 

An infant can not bind himself for necessaries, when he 
has a parent or guardian to supply his wants. — Hull v. 
Connoley, 3 McCord L. R. 6 ; Guthrie v. Murphey, 4 Watts, 
80 ; Edioards v. Higgins, 2 McCord Ch. 16 ; Khin v. Lar- 
ramore, 2 Paige, 41 J ; Warling v. Toll, 9 John. 141 ; Mor- 
tara v. Hall, 6 Sim. 465 ; Bainbridge v. Pickering, 2 Bl. Rep. 
1325. 

Here it is shown that he had a guardian who supplied 
him in the very particular, (a horse,) and who objected to 
this purchase because he had supplied him. — Cooke v. 
Deaton, 3 C. & P. 1 14. 

It is not necessary in this case to decide whether an ad- 
ministrator can in any case affirm the act of an infant in- 
testate who died without attaining his majority, but only 
whether the facts in this case constitute a ratification. 

The following is, however, respectfully submitted in ref- 



112 FOBTY-SIXTH ALABAMA. 

Shropshire v. Burns, Adm'r. 

erence to the case of Jefford, admW, v. Ringgold dt Co., 
6 A. K. 544 : 

In the head-note it is said that the administrator of an 
infant may verbally ratify the act of the infant, when the 
proof showed that the note was given for a house and lot 
in Lowndesborough, and that the defendant had received 
a deed for the house and lot. This deed could not have 
been made to a dead man, and must have been made to 
the defendant. Here was a distinct and direct act of re- 
cognition of and taking a benefit to himself personally 
under the contract ; after this, he may have been estopped 
from saying that the contract was not valid, but would this 
have been binding upon a subsequent administrator ? The 
deed to the defendant as administrator would vest no title 
in the estate. An administrator is not authorized to re- 
ceive a deed for the estate he represents. The deed 
should be made to the heirs ; and it is only in certain stat- 
utory contingencies that an administrator has anything to 
do with the lands, and never has anything to do with 
taking title to them. In that case, then, he was not only 
doing a thing in taking the deed not required by law, but 
a thing not authorized by law, and put himself in a posi- 
tion in which he could be estopped from denying the vajlid- 
ity of the contract, because he went beyond the line of 
his duty as administrator expressly to affirm the contract. 
The question occurs, could he biud the estate by taking, 
under a contract of his intestate, property to himself indi- 
vidually ? In taking the deed he was necessarily informed 
of the contract, for it had direct and special reference to 
the contract and the parties to the contract. 

An administrator succeeds to the rights and liabilities 
of his intestate, but this does not give to him the right to 
enlarge the liabilities of his intestate, nor to make valid 
that which is voidable. 

Ratification must be of an act done in infancy, after ar- 
riving at adult age. I mean ratification by the party him- 
self. 

The first thing is, an act done by the party while under 
the age of twenty-one years of age. The next is, a ratifi- 



JUNE TEEM, 1871. 113 

Shropshire v. Bums, Adm'r. 

cation of that act after he is twenty-one years of age. 
The party dies before he arrives at twenty- one years of 
age ; he therefore rve.ver becomes of age ; he is, and always 
must be, an infant. 

Now, he could not ratify himself, if living. Can his ad- 
ministrator, as his representative, do that which he himself 
could not do ? 

The administrator is his representative, as Ae xvas when 
he. died, not as he would have been had he lived longer. 
The administrator of an infant can not, by lapse of time, 
become the administrator of an adult ; nor can he, in his 
representative capacity, attain or impute to one who died 
an infant, the majority which he would have attained had 
he lived. 

In this case, there was a full knowledge that the guardian 
of the infant disapproved of the purchase ; and appellant 
took the infant's note, with security, which was perfectly 
good, lies by and allows the administrator to sell the horse 
as belonging to his intestate, without a notice of any claim 
for the horse, or upon the administrator, and attempts to 
fix upon him a ratification of the note of the infant by an 
act in the doing of which he never thought of the note, 
and it is not shown that he knew there was such a note, 
and which act was in the direct line of his duty as admin- 
istrator. 

If this be the law, that a mere sale by an administrator 
of property of his infant intestate, is to be regarded, " pro- 
priore vigore" as a ratification of the voidable purchase of 
the infant, then the administrator is in effect deprived of 
the right to disaffirm, and compelled to affirm, at least as 
to all contracts of which he was not advised as to the 
perishable property of the infant. He is required by law 
to sell it, or to distribute, (and distribution would have the 
same effect as an act of ratification as a sale,) and in either 
event, according to the rule laid down by the appellant's 
counsel, he would be liable. 

In such case, all that a creditor on such a contract as 
this would have to do, would be to lie by until the admin- 
istrator had sold or distributed the property, and then sue 



114 FORTY-SIXTH ALABAMA. 

Shropshire v. Burns, Adm'r. 

the administrator, and prove that he had sold or distribu- 
ted the property. 

PETERS, J. — This is an action at law founded on a 
promissory note, with security, made by an infant for the 
purchase-money of a horse. The infant died in possession 
of the horse before attaining his majority, and the admin- 
istrator of his estate, who is the appellee in this court, 
took possession of the horse after his intestate's death, as 
a part of his estate, and sold him as such, and converted 
the proceeds of the sale to the use of the estate which he 
represented. The proof also shows that the infant and 
the vendor of the horse were both warned by the infant's 
guardian, who is another person than the administrator, 
that the horse would not be paid for by the guardian if 
sold to his ward. It also appeared that the infant owned 
a pony horse before the purchase of the horse in contro- 
versy in this case, and that his estate consisted in one- 
fourth interest in twenty negro slaves, and four thousand 
dollars in cash in his guardian's hands. And when the 
purchase was made he was above twenty years of age. 

Upon these facts the court was asked by the plaintiff to 
charge the jury on the trial below, that if they " find from 
the evidence, that on the I'Zth day of September, 1860, 
the plaintiff sold and delivered a bay horse to R. V. Burns, 
the defendant's intestate, and that the note read in evi- 
dence was then and there executed by said R. F. Burns 
and R. E. Perry for the price of said horse ; and that at 
the time of said sale of said horse, said R. F. Burns was 
under twenty-one years of age and over twenty years of 
age ; and that said R. F. Burns took said horse at the time 
of the sale, and kept and used said horse until the said 
R. F. Burns died ; and that said R. F. Burns died in the 
fall of 1860, and under twenty-one years of age ; and that 
after the death of R. F. Burns, this defendant, as the ad- 
ministrator of said R. F. Burns, knowing all the facts in 
reference to the giving of said note and the purchase of 
said horse, and that said note had not been paid, took 
possession of said horse as such administrator, and sold 



JUNE TEEM, 1871. 115 

Shropshire v. Burns, Adm'r, 

said horse as such administrator ; then the plaintiff is en- 
titled to recover the value of saM horse and interest 
thereon, not exceeding the aqiount of the note and interest 
thereon." This charge was refused, and the plaintiff ex- 
cepted. In this the learned judge of the court below 
erred. 

For a long series of years our distinguished predeces- 
sors in this tribunal have treated the contracts of infants, 
in this State, as voidable, and not as void. — Freeman v. 
Bradford, 5 Port. 270 ; Slaughter v. Cunningham, 24 Ala. 
2 60 ; Manning v. Johnson, 26 Ala. 446 ; Clark dt Co. v. 
Goddard, 39 Ala. 164. But the contract of a minor can 
be avoided only by himself or his personal representative. 
It is a personal privilege, and only the person to be pro- 
tected by it, or his administrator or executor, in such case 
as he can make a will, can avoid or affirm it. — Jefford v. 
Binggold, 6 A\&. 544; Eev. Code, §§ 1910, 1916. And if 
the administrator or executor of the infant means to avoid 
or repudiate the contract made by the minor, he must do 
so in like manner as the minor would be required to do. 
If he fails to do this, the same rule which applies to a 
ratification or affirmance by the infant applies to him. 
6 Ala. 544, supra. Here the administrator retained pos- 
session of the horse after the death of the infant, and sold 
it as a part of his estate in his hands to be administered. 
Such acts would have bound the minor himself as an 
affirmance or ratification of the contract of sale. And I 
see no sufficient objection why they should not also bind 
his representative for like reason as they would bind the 
minor himself. Such, it seems to me, is the current of our 
decisions and the dictates of justice. These decisions nec- 
essarily become rules of property in this State, and for this 
reason they should not be departed from. — Manning v. 
Johnson. 26 Ala. 446 ; Weaver v. Jones, 24 Ala. 420 ; Baker 
V. Gregory and Wije, 28 Ala. 546. 

The judgment of the court below is reversed, and the 
cause remanded for a new trial. 



116 FORTY-SIXTH ALABAMA. 

Campbell v. The State. 



CAMPBELL vs. THE STATE. 

[indictment fob selling vinous oe spieituotjs liquoes without license.] 

1. Section 3618 of the Code not repealed by revenue law of 1868. — Section 
3618 of the Bevised Code, which forbids the sale of spirituous liquors 
without a license, is a criminal and not a revenue law, and is not re- 
pealed by the revenue law of 1868. 

Appeal from Circuit Court of Barbour. 
Tried before Hon. J. McCaleb Wiley. 

This is an indictment for selling liquor to a minor. The 
only evidence was, that the appellant sold one pint of whis- 
key to a minor, at the house of Atkinson Head in the 
county of Barbour. The court refused, at the instance of 
the defendant, to charge the jury, that if they believed the 
evidence they must acquit the defendant. The defendant 
excepted, and now assigns the refusal to give this charge 
as error. 

John A. Foster, for appellant. — 1. Under this indict- 
ment, a conviction can not be sustained for an offense un- 
der the revenue law of 1868. Under section 3618 a party 
could be convicted, if a single act of selling without license 
was proved. Under the revenue laws of 1868, a convic- 
tion can only be sustained when it is proved that the de- 
fendant engaged in the business of retailing, or is by oc- 
cupation a retailer, and failed or neglected to procure li- 
cense. One act of selling does not necessarily constitute 
the seller a retailer. And therefore the indictment fails to 
charge any offense against the revenue laws of 1868. — Gxr- 
ter V. The State, 41 Ala. 

2. The question, then, is, whether a conviction under an 
indictment made under section 3bl8 can be sustained ? In 
Mulvey v. The State, (13 Ala.) the court held, that the rev- 
enue laws of 1868 do not expressly repeal section 3618. 
But it is apparent that they are repugnant thereto, and 



JUNE TERM, 1871. 117 

Campbell v. The State. 

thus by implication repeal said section and render it of no 
eflfect ; otherwise, a party might be convicted under an in- 
dictment under the revenue law of 1868, and another un- 
der the section 3618 for one and the same act. It is evi- 
dent that the revenue law of 1868 repeals section 437 of 
the Code, and no license can now issue in this State except 
in the manner prescribed in said revenue laws of 1868. 
And certainly a conviction can not be had under section 
3618 for a single act of selling without procuring license 
under the revenue laws of Alabama of 1868. There is no 
provision now in existence by which a party may procure 
a license to sell liquor, but only a license to engage in the 
business of a retailer. In Ex parte Burnett, (30 Ala.) it is 
held, in eflfect, that before a conviction can be sustained for 
doing an act without license, some mode must be provided 
by which a license could have been procured. Such is this 
case. No law provides for issuing a license to a party to 
sell liquors, one time ; and it can not be held that before a 
citizen can sell a single pint of whiskey, he must consti- 
tute himself a retailer by occupation, and procure a license 
as such. As well might it be said that, before he can sell 
a single pint of liquor, he must procure a license to keep 
a livery stable. 

John W. A. Sanfobd, Attorney-General, contra. 

B. F. SAFFOLD, J.— The appellant was convicted un- 
der an indictment for selling vinous or spirituous liquors 
without license. The prosecution was for a violation of 
section 3618 of the Revised Code, which is not a revenue 
law, but one for the prevention of offenses against public 
morality and decency. It is not repealed by the revenue 
law of \86S.—Mulvey v. The State, 43 Ala. 316. 

The judgment is aflirmed. 



118 FORTY-SIXTH ALABAMA. 

Dale County v. Gunter. 



DALE COUNTY vs. GUNTEK 

[ACTION BY WIDOW TO EECOVEB DAMAGES FOE THE KILLING OF HEK HUSDAND 
BY A PEBSON IN AMBUSH, &C., UNDER ACT OP 28tH DECEMBEE, 1868, "TO 
SUPPBESS MUEDEE, LYNCHING, ASSAULTS, AND ASSAULTS AND BATTEEIES."] 

1. County, claim aguinst ; what, not required to be presented to commission- 
ers court before suit — The penalty given against a county by the act 
entitled " an act to suppress murder, lynching, assaults, and assaults 
and batteries," approved December 28, 1868, is not a claim required to 
be presented to the court of county commissioners before suit brought, 
but must be recovered by an action in the circuit court of the proper 
county, bj' summons and complaint against the county. 

2. Act giving penalty and providing special way to recover ; must be 
strictly pursued. — The act having provided a special way by which 
such penalty is to be recovered and collected, that way, and no other, 
must be pursued for that purpose. 

3. Outlaw; icord as used in section 1 of act of 28th December, 1868, de- 
fined. — The word " outlaw," as employed in the first section of said 
act, is not to be understood in the sense of that term as used in the 
English statutes and common law, but is to be understood as referring 
to the character of person or persons named in the act entitled "an 
act for the suppression of secret organizations of men disguising 
themselves for the purpose of committing crimes and outrages," ap- 
proved December 26, 1868, and who by said act, while under cover of 
such disguise, and while in the act of committing, or threatening, or 
attempting to commit, the oft'enses therein named, are put out of the 
protection of the law, and may lawfully be shot or killed by any per- 
son. 

4. Same ; outlatcry can not be pronounced by an act of the legislature. — 
Outlawry, legally speaking, is a judicial proceeding, and no one can be 
outlawed but in such a proceeding, and " by due process of law." An 
act of the legislature is not " due process of law." 

5. Act of December 28, 1868; the words ^' in disguise," i^c, construed. — A 
person " in ambush, or concealed in the bushes," is not a person in 
disguise, within the purview and meaning of the act first above named, 
and the assassination or murder of a party by a person so ambushed 
or concealed, does not inflict; upon the county the penalty given by 
the first section of said act, unless said party is so assassinated or 
murdered " for past or present party affiliation or political opinion.'' 

Appeal from the Circuit Court of Dale. 
Tried before Hon. J. McCaleb Wiley. 



JUNE TEBM, 1871. 119 

Dale County v. Gunter. 

On the 28th of December, ) 868, the general assembly of 
Alabama passed an act entitled, " an act to suppress mur- 
der, lynching, assaults, and assaults and batteries." The 
first, second, third, fourth and seventh sections of the act 
are as follows : 

" Sec. 1. Be it enacted by the General Assembly of Alabama, 
That whenever, in any county of this State, any person 
shall be assassinated or murdered by any outlaw, or per- 
son or persons in disguise, or mob, or for past or present 
party affiliation or political opinion, the widow or husband 
of such person so murdered or assassinated, the next of 
kin of such person, shall be entitled to recover of the 
county in which such murder or assassination occurred, 
the sum of five thousand dollars as damages for such mur- 
der or assassination, to be distributed among them accord- 
ing to the laws of Alabama, regulating the distribution of 
the estates of intestate decedents. 

" Sec. 2. Be it further enacted. That said damages allowed 
in section one of this act shall be recoverable in the folr 
lowing manner : The claimants shall, after the expiration 
of six months from the murder or assassination aforesaid, 
bring an action in the circuit court of the proper county, 
by summons and complaint against the county, alleging 
the murder or assassination of such person in said county 
by an outlaw, or person or persons in disguise, riot or 
mob, and that it was done at least six months before the 
commencement of the suit. The subsequent proceedings 
shall be according to the laws of the State and rules of 
practice in suits between individuals. 

" Sec. y. Be it further enacted, That if the issue shall be 
found for the claimants, judgment shall be rendered in 
their favor for five thousand dollars and costs against the 
county. If found for the county, the costs shall be ad- 
judged against the claimants. When judgment is rendered 
for the claimants, the court shall enter, with the judgment, 
an order to the court of county commissioners of said 
county, notice of which shall be issued by the clerk of the 
court, and served on the probate judge by the sheriff, com- 
manding said [ court of county commissioners] within 



120 FOKTY-SIXTH ALABAMA. 

Dale County v. Gunter. 

twenty days, to assess on the State tax of said county such 
a per centum as will realize the amount of said judgment 
for damages and costs. 

" Sec. 4. Be it further enacted, That the assessment so 
made shall be delivered to the tax collector of the county, 
who shall collect such tax, in the same manner as the State 
tax is collected, within sixty days. 

****** 

" Sec. 7. Be it further enacted, That if at any time before 
the payment of the money recoverable under any section 
of this act, the offenders shall be apprehended and duly 
tried, convicted and punished, such conviction and punish- 
ment shall operate as satisfaction of the judgment in the 
particular case. If the offenders herein described shall be 
apprehended and undergoing trial for the ojBfense about 
which the suit for damages is brought, the court, or in va- 
cation, the presiding judge of the court, may, on a proper 
showing, suspend proceedings in the suit for damages 
until the result of the trial of the apprehended person 
shall be known." 

This act being of force, as well as an act entitled " an 
act for the suppression of secret organizations of men dis- 
guising themselves for the purpose of committing crimes 
and outrages," approved December 26, 1868, (and which, 
for a proper understanding of the case, is sufficiently set 
out in the opinion,) the appellee, the widow of W. T. Gun- 
ter, brought suit against the county of Dale on the 28th 
of February, 1870, to recover the damages given by sec- 
tion one of the act of December 28, 1868, for the murder 
of her husband. 

The first count of the complaint, after averring that 
plaintiff is the widow of said Gunter, <fec., alleges that 
Gunter was murdered and assassinated in the county of 
Dale " by one Turner Riley, who was there and then an 
outlaw," and that the assassination and murder was done 
more than six months before the commencement of the 
suit, &c. The second, third, fourth and fifth counts were the 
same in substance as the first, with the exception that in 
the second count the murder or assassination was alleged 



JUNE TERM, 1871. 121 

Dale County v. Gunter. 

to have been done by " a person in disgaise," and in the 
third count by " persons in disgaise," in the fourth count 
by " a riot," and in the fifth by " a mob." 

The defendant pleaded — 

1st. The general issue. 

2d. That the claim or demand upon which the suit is 
brought was not presented to the court of county commis- 
sioners of Dale county for allowance, reduction or rejec- 
tion, before the commencement of the suit. 

3d. That the claim or demand upon which the suit is 
brought has never been presented to the commissioners 
court for allowance, reduction or rejection. 

The plaintiff joined issue on the first plea, and demurred 
to the second and third plea, specifying, among other 
grounds, that the court of county commissioners had no 
authority to levy a tax for the payment of said claim be- 
fore it was judicially established in the mode prescribed 
by law ; secondly, that the commissioners court had no 
power to allow said claim before it was judicially estab- 
lished in the manner prescribed by law ; and the court 
sustained the demurrer. 

The case was tried on an agreed statement of facts, 
which, so far as material to a determination of this cause, 
are as follows : 

"It is admitted that plaintiff is the widow of W. T. Gun- 
ter, deceased, who also left five children him surviving ; 
that he was killed in the county of Dale on the 27th of 
June, 1869, under the following circumstances : The fence 
on the back part of the plantation of said W. T. Gunter, 
deceased, on the 27th of June, 1869, was thrown down and 
a herd of cattle turned into the plantation. Gunter went 
into the plantation and drove the cattle out at the point 
where the fence had been thrown down, and then got over 
the fence, when some person in ambush, or concealed in 
the bushes, shot said Gunter with a load of large shot, 
killing him instantly. The signs of the person and of his 
concealment at the point where the gun was fired were 
about twenty steps from where deceased fell. Plaintiff 
9 



122 FOETY-SIXTH ALABAMA. 

Dale County v, Gunter. 

and her daughter heard the gun and saw the smoke of the 
same at the time when Gunter was shot. Several weeks 
previous to the killing of Gunter, he and one Turner Riley 
had a difficulty, in which said Riley shot Gunter and 
wounded him in the arm, and said Gunter shot at said 
Riley. Gunter caused Riley to be arrested on a warrant 
issued by a justice of the peace, and after the arrest said 
Gunter and Riley settled all matters between them, and 
Riley was not prosecuted any further ; although he was 
put under bond to answer at the next term of the 
circuit court the charge of an assault with intent to mur- 
der said Gunter, and was under bond at the time of 
the murder. This was the only criminal charge against 
him in said county. Shortly after this settlement Riley 
declared he intended to kill said Gunter and one Bar- 
row. Immediately after the killing of Gunter, a mule 

was stolen from ^ and Riley disappeared. In 

the fall of 1869 Riley was arrested in Corinth, Missis- 
sippi, by one Glover and a son-in-law of deceased, on a 
charge of murdering said Gunter, but when within a few 
miles of Abbeville he escaped, notwithstanding the efforts 
of his captors and two other men present. Riley acknowl- 
edged, while under arrest and manacled, that he had killed 
Gunter, and said if he was carried back to Dale county 
and convicted and hung for killing Gunter, he would go to 
hell and fight Gunter there as long as the devil would 
allow him to do it. Riley came to Dale county since the 
late war, as he said from Arkansas, and was and is re- 
garded as being a very dangerous, reckless and bad man. 
Shortly after Riley's escape, plaintiff, one Haley and one 
Glover, published and offered a reward for the apprehen- 
sion of said Riley, but Riley has never yet been arrested, 
tried, convicted or punished for the murder of Gunter. 
Dale county never offered any reward for the apprehen- 
sion of Riley, nor did said county, or the officers thereof, 
use any diligence beyond the usual course of law to ap- 
prehend Riley and have him brought to trial and convicted. 
More than six months had elapsed from the time of the 
murder to the bringing of this suit, and no person -has 



JUNE TERM, 1871. 123 

Dale County v. Gunter. 

been tried, or convicted and punished for the murder of 
Gunter. ****** 

Sometime after the killing of Gunter, the probate judge 
and sheriff of Dale county notified the governor of the 
death of Gunter, and that he was supposed to have been 
killed by said Riley, and requested the Governor to offer 
a reward for his apprehension, at the same time sending 
the governor a description of the person and appearance 
of Riley. Gunter was a man of violent temper^ was a 
Confederate soldier during the war, and repeatedly said he 
had never taken any oath of allegiance to the United 
States government since the war, and never intended to ; 

and in fact he had not done so up to the time of his death. 
******* 

The demand upon which this suit was brought had never 
been presented to the commissioners court for allow- 
ance, (fee. 

The court, at the request ot the plaintiff, charged the 
jury that " if they believed from the evidence that plaintiff 
is the widow of W. T. Gunter, deceased, and that said 
Gunter was murdered or assassinated in the county of 
Dale on or about the 27th day of June, 1869, and that 
more than six months had elapsed from the time of the 
assassination to the commencement of this suit ; and that 
said murder was perpetrated by a person in disguise, or 
by one Turner Riley, and that neither said Riley nor any 
other person has been prosecuted or is undergoing prose- 
cution therefor ; and if they further believe the evidence 
in regard to the character, conduct, and declarations of 
said Turner Riley, as admitted in evidence, and that said 
Gunter was murdered or assassinated by said Riley as ad- 
mitted, then they must find for the plaintiff." 

To this charge defendant excepted, and brings the case 
here by appeal, and now assigns as error — 

1st. Sustaining the demurrer to the second and third 
pleas of defendant. 

2d. The charge given to the jury. 

D. M. Seals, for appellant. — The demurrer to the com- 



124 FORTY-SIXTH ALABAMA. 

Dale County v. Gunter. 

plaint assigned as error ought to have been sustained. Sec- 
tion V^09 of the Rev. Code, in relation to the bar of all claims 
against counties, which are not presented to the court of 
county commissioners for allowance within twelve months 
after they accrue or become payable, is mandatory in its 
character. That it applies to a case like the one under con- 
sideration, there can be no doubt, unless the act of Decem- 
ber 28th, 1868, pro hac vice repeals this section of the Code. 
or excepts claims like this from its provisions. It is con- 
tended by appellee that said act, by implication, excludes 
from the operation of section 909 the necessity for the pre- 
sentation of this claim. The right of Mrs. Gunter to the 
precise sum of five thousand dollars as damages from Dale 
county, immediately upon the murder or assassination of 
her husband, was perfect and complete, unless the county 
proceeded forthwith to prosecute ; and hence, it was a 
claim against the county, and should have been presented 
within the time prescribed by law. It is true, that section 
2 of this act says that " the claimant shall, after the expira- 
tion of six months from the murder or assassination, bring 
an action in the circuit court of the proper county, by sum- 
mons and complaint against the county. What is the ob- 
ject of the statute in fixing the limitation of six months 
before the sa d suit can be brought? We submit that it is 
to allow the county at least six months within which to 
make payment betore incurring the additional expenses in- 
cident to a suit ; and if at the end of six months the county 
shall not have paid the said damages, the complainant may 
(shall) bring the suit ; but, nevertheless, the claim should 
be presented. Section 3 of the act does not forbid this 
construction of the law. That section simply provides, 
that if a judgment shall be rendered against the county 
upon the suit instituted under the first section as aforesaid, 
that " the court shall enter with the judgment an order to 
the court of county commissioners of said county, notice of 
which shall be issued by the clerk of the court and served 
upon the probate judge by the sheriff, commanding said 
court of county commissioners, within twenty days, to as- 
sess on the State tax of said county such a per centum as 



JUNE TERM, 1871. 125 

Dale County v. Gunter. 

will realize the amount of said judgment for damages and 
costs." We insist that there is nothing in section number 
3 which expressly or impliedly repeals the provisions of 
section 909 of the Revised Code, or removes the necessity 
^or the presentation of this claim within twelve months. 

The latter section only provides a cumulative remedy, a 
mode by which the judgment of the court and costs shall be 
collected from the county, if the claimant should be com- 
pelled to sue. Suppose this act had not provided an ex- 
press mode and means by which the judgment could be 
made available to the claimant, would not the county still 
be liiable and compelled to pay the judgment, which could 
have been rendered under the first section of this act? 
Without the remedy provided in said section 3, it would 
have been the duty of the court of county commissioners 
to have raised the money by taxation of the property 
of the county ; and upon the failure or refusal to do 
so, mandamus by the circuit court would have forced 
the discharge of said duty. So the presentation of the 
claim is the duty of the claimant ; the allowance of the 
claim, or the payment of the judgment, is the duty of the 
commissioners court. 

Section 2276 exempts executors and administrators from 
being sued in their representative capacity for six months 
after the grant of letters testamentary or of administration. 
The statutes do not, in express words, make it the duty of 
said personal representatives to pay the debts of the es- 
tate, yet no one will deny their right to pay before the ex- 
piration of six months, they risking the sufficiency of as- 
sets to meet all just demands, &c. Notwithstanding suit 
may be brought after six months, yet the failure of a claim- 
ant to present his demand within the eighteen months 
makes the plaintiff liable for costs of the suit. 

Under section 1396 of the Revised Code, " any person 
injured in person or property," by a defect in a bridge or 
causeway erected by contract with the county commission- 
ers, may sue and recover damages of the county, provided 
nd guaranty had been taken, or the period for which the 
guaranty had been taken, had expired. And yet this court 



126 FORTY-SIXTH ALABAMA. 

Dale County v. Gunier. 

have held that it was the duty of the claimant to make 
due presentation of his claim to the court of county com- 
missioners within twelve months of its accrual, or he could 
not recover. — Barbour County v. Horn. A person injured 
as aforesaid could have presented his claim, and if its al- 
lowance was refused, he could have sued immediately 
thereafter and recovered a judgment at the first term of 
the circuit court, although the twelve months had not 
elapsed. Under this section the damages, which may have 
resulted from the injury received by the defects of bridges 
and causeways, were not fixed by law, nor was there any 
mode or means by which said damages could be rendered 
certain as to the amount, except by proof to some compe- 
tent court. 

In the case now before this court, the statute made the 
damages a fixed and definite demand, dependent alone 
upon the existence of these facts, to- wit : That William 
Gunter had been murdered or assassinated " by an outlaw 
or person in disguise," within the limits of Dale county, 
and for which the county had failed to prosecute the of- 
fender. The right of a person injured by a defect in a 
bridge or causeway, was likewise dependent upon the ex- 
istence of certain facts, viz : That said bridges or cause- 
ways had been erected by contract, and that either no 
guaranty had been taken by the con nty, or that the period 
had expire4 ; and, further, that the injury to the person or 
property had resulted from said defects. It is certain that 
Barbour county had a perfect right at any time, even be- 
fore suit, through its fiscal agent, the court of county com- 
missioners, to have paid the claim of Horn, or to have ten- 
dered him a sufficient sum of money in full satisfaction of 
the damages, which would have defeated a vedoverj of the 
county. 

For the protection of counties, the legislature has en- 
acted a general statute of limitations, beyond which there is 
no liability. No special statute can contravene its provis- 
ions, except by a clearly expressed intention, or by such a 
certainly implied intention as leaves no doubt upon the 
mind of the court. Such is not the case in reference to 



JUNE TEBM, 1871. 127 

Dale County v. Gunter. 

the effect of section 3 of the act under review. The doc- 
trine of repeal or exception by implication is not a favorite 
of the courts. A county is a corporation — an ideal, intan- 
gible person, created by law, and acts only by and through 
certain agents. It does not, can not know of the existence 
of claims against it, either of the character referred to in 
section 1396 of the Revised Code, or of those arising under 
the special statute of December 28th, 1868. It is, there- 
fore, only by the presentation of the claim to the proper 
officers that the county can know that it is a debtor. For 
which cause, it is unjust and unreasonable that a county 
should, by law, be made a debtor, and that very law should 
not afford the county an opportunity of paying the debt 
without a suit, which would necessarily subject it to ex- 
pense and costs. Any other construction of all these stat- 
utes, than that maintained by us, does not accord with rea- 
son or authority. 

The charge given is erroneous. 

The whole evidence is set out in the record, in which 
there is not a particle of proof — neither fact nor circum- 
stance — proving, or tending in the remotest degree to prove 
that said Gunter came to his death by the hand of a per- 
son in disguise. The record discloses that the fatal act 
was committed " by some person in ambush, or concealed 
in the bushes," and " the signs of the person and of his 
concealment at the point where the gun was fired about 
twenty steps from where deceased fell." 

1st. Can " a person in ambush " be held as a " person in 
disguise?" "Ambush," in its primary meaning, is a military 
phrase signifying " a private or concealed station, where 
troops lie in wait to attack their enemy by surprise ;" and, 
secondly, it means " the state of lying concealed for the 
purpose of attacking by surprise ; a lying in wait." 

2d. Can " a person concealed in the bushes" be regarded 
as " person in disguise?" 

The word concealed has no other signification than that 
of being " kept close or secret ; hid ; withdrawn from sight ; 
covered ;" and hence, the person was kept close or secret. 



128 FOBTY-SIXTH ALABAMA. 

Dale County v. Gunter. 

bid — withdrawn from sight, or covered, by being "concealed 
in the bushes." 

"In disguise" is an expression importing a meaning en- 
tirely dissimilar to, and totally dijBferent from, either of the 
phrases " in ambush " or " concealed in the bushes." The 
word disguised, when employed as a noun, means "a coun- 
terfeit habit ; a dress intended to conceal the person who 
wears it." The attempt to construe the mere position of 
" a person in ambush, or concealed in tbe bushes," as sy- 
nonimous with, or similar to, the mere dress or mask of '* a 
person in disguise," would be a wanton outrage upon good 
sense and logic. A " person in disguise" is one who is vis- 
ible to the eye, but who can not be identified, because of 
the dress or mask in which he appears. A " person in am- 
bush, or concealed in the bushes," is one not visible to the 
eye, and may not be in disguise. Disguise has reference 
solely to the dress or mask assumed, by which the party 
can not be recognized when seen. Ambush and conceal- 
ment have reference aloiie to the position in which the per^ 
son hides himself. 

The purpose, in the one instance, is to avoid recognition 
of his person ; and in the other, to hide his person alto- 
gether. 

The foregoing criticism is rendered more apt, appropri- 
ate and conclusive, when reference is had to the acts of the 
legislature, in which are found the terms " disguises," 
" hideous and grotesque masks," of both the men and their 
horses, which are worn to prevent their recognition. 

Under a liberal, not to say a strict construction of this 
penal statute, is it possible to conclude that said Gunter 
was killed " by a person in disguise ?" Not even the shadow 
of a difficulty lies in the way of a negative answer to this 
question. 

2. In the second place, was said William T. Gunter 
killed by an outlaw? In discussing this branch of the 
subject, the most material question that presents itself for 
consideration is, what is meant by the term outlaw, con- 
tained in the act of the legislature, approved on the 28th 
day of December, 1868, page M4, entitled "An act to sup- 



JUNE TEEM, 1871. 129 

Dale County v. Gunter. 

press murder, lynching and assaults and batteries ?" What 
is the legal definition of outlaw ? Before the passage of 
the statute under which this action was instituted, the law 
attached a definite, fixed and certain signification to the 
character of persons designated as outlaws. An outlaw 
was defined, in substance, to be a rebel against the State 
or community of which he was a member ; being in con- 
tempt and contumacy in refusing to be amenable to, or to 
alride by the justice of that court which had lawful author- 
ity to call him before it ; subject to divers forfeitures and 
disabilities, whereby he lost liberam legem, and was out of 
the protection of the government. — Bacon's Abridgement, 
vol. 7, title "Outlaw," page 326. • 

While outlawry in civil cases has never been known or 
practiced in the United States, criminal proceedings for 
that offense have been repeatedly instituted in, and recog- 
nized by, the American courts, even within the last forty 
or fifty years. 

Laws of a somewhat similar character have been passed 
by the congress of the United States, in respect to that 
numerous class of citizens who engaged in the late war 
against said government. All persons obnoxious to these 
laws were, in a measure, placed beyond the protection of 
the courts of the country, until they availed themselves of 
the provision of pardon and amnesty held out to them by 
the government. The njost of these congressional enact- 
ments have been acquiesced in for seven or eight years, 
and have not been declared void for unconstitutionality by 
the highest judicial tribunal of the land. Nearly all the 
Southern States, after reconstruction under the laws of 
congress, imposed disabilities on certain classes of citizens, 
which deprived them of some rights and privileges. In 
addition to which, the State of Alabama has enacted two 
statutes in reference to the offense of the same character 
as outlawry, and which this court have held not to be in 
conflict with the organic law of the State, — Acts of lb68, 
pages 444 and 453 ; Gunter v. Bale County, decided at June 
term, 1870. 

There is nothing in the constitution of this State, or of 



130 FORTY-SIXTH ALABAMA. 

Dale County v. Gunter. 

the United States, in the way of the recognition of the 
common law right to outlaw a citizen for crimes against 
laws already prescribed, and for the government to withdraw 
its protection from those who persistently and contuma- 
ciously r^use to yield their allegiance to the government ; 
for, in the language of the opinion of our own supreme 
court in this very case, " protection and allegiance are re- 
ciprocal." At common law the odious character known as 
outlaw forfeited his right to the protection of the law, by 
withholding his obedience thereto, and by his acts of rebel- 
lion and contumacy. The same principle is recognized 
under our form of government, and has been asserted, as 
before ween, by this very court. The very word outlaw 
readily conveys its own meaning. 

The inhibition in the constitution of the United States 
against the passage of " bills of attainder " and " ex post 
facto laws " is no barrier to the recognition of technical 
outlawry of the common law in criminal proceedings, when 
they are made to conform to the rules aud practice of the 
American system of jurisprudence. Nor are the foregoing 
views obnoxious to the objection urged by the appellee in 
respect to the constitutional prohibition. " A bill of at- 
tainder is a legislative act which inflicts punishment with- 
out a judicial trial." — Gummings v. The State of Missouri, 
4 Wallace, 277. The case of Dreman v. Stifle, in same re- 
port, shows what legislation is not in the nature of a bill 
of attainder. — 4 Wallace, 595. The difficulty suggested 
by the appellee is more formidable to him than to the ap- 
pellant ; for it is an obstacle in the way of regarding Riley 
as an outlaw without a conviction of outlawry. He may be 
in fact an outlaw as at common law, still he can not be so 
regarded in law until so declared by a court. 

If the offense known as outlawry is to be ascertained by 
reference to the authorities, before Riley can be considered 
an outlaw, and before it could be properly alleged in the 
complaint that he was an outlaw, he should have been so 
declared by a court of competent jurisdiction. By law, no 
person can be outlawed without due notice, nor should he 
be held, regarded or punished as such, " nisi per legem ter- 



JUNE TEEM, 1871. 131 

Dale County v. Gunter. 

rce ;" or, in the words of our constitution, his rights should 
be forfeited " by due course of law," before its protection 
can or will be withdrawn from him. — 7 Bac. Abr. pp. 239, 
350, (e) 353, 354, 358 ; Constitution of Alabama, § 3. 

The two acts were passed by the same legislative body ; 
were under consideration at the same time, and were ap- 
proved by the governor within two days of each other ; and 
hence both these statutes may be taken together, in pari 
materia, to ascertain the mind of the law making power. 
This is the usual and legitimate mode of construing legis- 
lative enactments. 

Tested by this rule, the laws of Alabama recognize such 
a character as outlaw, and withholds its protection from him. 
Does the description of Turner Kiley's character, as con- 
tained in the record, show him to have been an outlaw 
within the meaning of these statutes ? 

The evidence recites, that said Riley was, and is regarded 
by those who knew him, as being " a very dangerous, reck- 
less and bad man ," that he came from Arkansas ; had had 
a previous difl&culty with said Gunter, in which he had 
wounded him and that Gunter at the same time shot at 
Kiley ; that Eiley had entered into bond for his appearance 
at the next term of the circuit court of Dale county, to 
answer the offense of assault with intent to murder said 
Ounter, growing out of said difficulty ; that the difficulty 
had been adjusted between them, and that afterwards, (for 
a cause not stated,) Eiley had threatened to kill said Gun- 
ter. Do these characteristics come up to the measure nec- 
essary to constitute Eiley an outlaw ? It should be borne 
in mind, that the word outlaw is contained in only one of 
these acts, to-wit, that which gives the right of action under 
which the appellee recovered in the court below. The first 
section of the act last named alone uses the word "o^ltlaw." 
If this act alone reflected the legislative mind upon this 
subject, it would be clear that the term outlaw could bear 
no other meaning than that which the common law, of force 
in this State, attached to it. But when the previous legis- 
lation of the State, of a kindred character, is considered 
in connection with this statute* it will appear that there is 



132^ FOBTY-SIXTH ALABAMA. 

Dale County v. Gunter. 

one class of persons denounced therein, from whom the 
protecting gegis of the law is withheld, and who, for that 
reason, can well be denominated outlaws. At the same ses^ 
sion of the legislature, and two days prior to the approval 
of the law " for the suppression of murder," &c., an act 
was passed " for the suppression of secret organizations of 
men disguising themselves for the purpose of committing 
crimes and outrages." The preamble defines the object 
had in view in the enactment of that seemingly harsh meas- 
ure of preventive justice. 

[Here appellant's counsel commented at length on the 
act of December 26th, 1868, referred to in the opinion, and 
particularly the second section.] 

This section renders it too clear for argument to demon- 
strate what class of persons this law denounces as outlaws, 
and defines it to be " persons away from their usual resi- 
dences, disguised by masks, or otherwise, so as not to be 
easily recognized." Would " a person in ambush or con- 
cealed in the bushes" answer this description? "In am- 
bush" conveys but one idea ; disguised in ambush conveys 
not only one, but two ideas — that he was both masked and 
lying in wait ; " concealed in the bushes" likewise conveys 
but one idea — that of his person being hidden ; "disguised 
in the bushes" would indicate that his person was not con- 
cealed, but that his disguise prevented the identification of 
his person. 

In view of the highly penal character of this act, and 
the duty of the courts to construe it with the utmost strict- 
ness, we do not hesitate to afiirm that there can not be 
even the shadow of a pretense that Turner Riley was an 
outlaw. The most liberal, loose and latitudinarian con- 
struction of the statute can not, from the evidence, force 
the conclusion that he is an outlaw under the statutory en- 
actments of the State. It would be a solecism, a misno- 
mer, an outrage upon language to consider him an outlaw, 
when the evidence fails to show that he was disguised, and 
when the only evidence of character adduced showed him 
to be " a very dangerous, reckless and bad man." The 
evidence shows that, just before the fatal occurrence, he 



JUNE TERM, 1871. 133 

Dale County v. Gunter. 

had submitted himself in obedience to the laws of the coun- 
try, whose courts had jurisdiction of him. 

The court could not judicially know that the term under 
discussion had a signification different from that which the 
law gave to it, and different from that of the standard au- 
thorities employed by the people to distinguish the mean- 
ing, sense and import of the words of the language which 
communicated their ideas, thoughts and sentiments. It is, 
therefore, a legal as well as philological absurdity to call 
Turner Riley an outlaw. 

Again: Suppose it should be asked, if persons in dis- 
guise were intended by the statute to embrace the term out- 
law, why did it, also, include the very word itself ? And 
what office is left for the word outlaw to perform ? We 
answer, in the first place, it is not at all improbable that 
the legislature intended its legal and well defined meaning 
as recognized in the American courts ; or we may rationally 
conclude from the two statutes that the legislative mind 
regarded any persons as outlaws who threw down the bul- 
warks of the law, denied their allegiance, defied and over- 
rode the civil authorities, and from whom the law held back 
its protection, by allowing them to be shot, wounded, or 
killed with impunity ; and that outlaws and such characters 
were regarded as synonimous terms. 

In this manner all the words of both statutes can have 
their due signification, as well as perform their legitimate 
functions and have an appropriate field for their operation ; 
and then the law can be made to harmonize with itself in 
all its parts. Any other theory would convict the legisla- 
ture of ignorance and stupidity. 

The charge of the court below in relation to the perpe- 
tration of the murder by a person in disguise, was entirely 
abstract, there being no evidence to support it, and was 
Well calculated to mislead and distract the jury, and there- 
fore erroneous, and was certainly injurious to the appellant. 
The charge was also erroneous, because it submitted to 
the jury the decision of a question of law, in instructing 
them to find a verdict for plaintiff if Gunter was murdered 
or assassinated by some person in disguise,, or by said Riley. 



134 FOBTY-SIXTH ALABAMA. 

Dale County v. Gunter. 

The charge of the court should have been qualified by ex- 
planation of the facts which constitute murder or assassina- 
tion. The jury was competent to decide the fact of the 
killing, which was but one ingredient of murder or assas- 
sination. Without appropriate instructions as to these 
three distinct ingredients of murder, the jury was not law- 
fully authorized to find that said Gunter was murdered or 
assassinated, viz : 

1. That William T. Gunter had been deprived of his life. 

2. That he was killed unlawfully. 

3. That he was killed both unlawfully and with malice, 
and a statement of what facts constitute malice, or from 
which it may be inferred. 

W. C. Gates, for appellee, argued the case elaborately 
at bar, but no brief of his argument came into Reporter's 
hands. 

PECK, C. J. — But two questions need be considered in 
disposing of this case. First. Is the cause of action dis- 
closed in the complaint a claim required to be presented to 
the court of county commissioners, to be allowed or rejected 
by said court before suit brought ? Second. Do the facts 
admitted and agreed upon by the parties prove that the 
plaintiff's husband, William T. Gunter, was murdered or 
assassinated by an outlaw, or by a person or persons in 
disguise, or by a mob, within the purview ancv meaning of 
the first section of the act entitled " An act to suppress 
murder, lynching and assaults and batteries," approved 
December 28, 1868, Book of Acts, p. 452, a. 

First. — Sections 907-8-9 of the Revised Code are as fol- 
lows : § 907 declares that " the court of county commission- 
ers must, in term time, audit all claims against their re- 
spective counties ; and every claim, or such part thereof as 
is allowed, must be registered in a book kept for that pur- 
pose ; and the judge of probate must give the claimant a 
warrant on the treasury for the amount so allowed." 

Section 908 says : " If the claim is rejected, or not al- 
lowed in full, the claimant may withdraw the same." And 



JUNE TERM, 1871. ' 351 

Dale County v. Gunter. 

section 909 enacts, that " all claims against counties must 
be presented for allowance within twelve months after the 
time they accrue or become payable, or the same are barred, 
unless holden by minors or lunatics, who are allowed 
twelve months after the removal of such disability." 

The interpretation of these sections is, 1st that such 
claims only are required to be presented to the court of 
county commissioners as the said court is competent to 
allow, and when allowed, may be paid out of the funds of 
the county that may be in, or come to the treasury thereof, 
by a warrant of the judge of probate in favor of the 
claimant on the same ; 2d, that if such a claim, when pre- 
sented, is rejected, or not allowed in full, the claimant may 
withdraw the same, and may then proceed to collect such 
claim in the usual way, by suit against the county ; but 
3d, that no suit can be maintained against the county on 
any such claim, until the same has been presented for al- 
lowance, and if not presented within twelve months after 
the same accrues, or is payable, then such claim is barred, 
(saving the rights of minors and lunatics,) and ceases to 
be a claim that the county is legally bound either to allow 
or pay by warrant on the treasury, or in any other way. 

If a claim is given against a county by statute, and no 
mode is prescribed for its payment, then it must be pre- 
sented for allowance like other claims, and paid out of the 
county treasury in the usual way, by a warrant of the 
judge of probate. If such claim, when presented, is re- 
jected, or not allowed in full, then it may be collected by 
suit against the county, as other claims are collected that 
have been presented and rejected, or allowed only in part. 
But, on the contrary, if the statute by which the claim is 
given prescribed the way in which the claim is to be col- 
lected, and how the means are to be obtained by which it 
is to be paid ; then the claim must be enforced and paid 
in the mode and manner provided, and in no other way. 

The claim in this case is peculiar in its character, and is 
given by the first section of the act above referred to. It 
enacts that *' whenever in any county in this State, any 
person shall be assassinated or murdered by any outlaw. 



136 • FOKTY-SIXTH ALABAMA. 

Dale County v. Gunter. 

or person or persons in disguise, or mob, or for past or 
present party affiliation or political opinion, the widow or 
husband of such person so murdered or assassinated, the 
next of kin of such person, shall be entitled to recover of 
the couuty in which such murder or assassination occurred, 
the sum of five thousand dollars as damages for such mur- 
der or assassination, to be distributed among them accord- 
ing to the laws of Alabama regulating the distribution of 
the estates of intestate decedents." 

The second section provides how these damages are to 
be recovered, to-wit, by an action in the circuit court by 
summons and complaint, and not by presenting them to 
the court of county commissioners, as a claim against the 
county. 

The third section declares how the judgment, when re- 
covered, shall be provided for and paid, and says : "When 
judgment is rendered for the claimants, the court shall 
enter with the judgment, an order to the court of county 
commissioners of the county, notice of which shall be 
issued by the clerk of the court, and served on the probate 
judge by the sheriff, commanding said court [of county 
commissioners] within sixty days to assess on the State 
tax of said county such a per centum as will realize the 
amount of said judgment for damages and costs." The 
fourth section enacts that " the assessment so made shall 
be delivered to the tax assessor of the county, who shall 
collect the same as the State tax is collected, within sixty 
days." 

Here we see the legislature has provided how these 
damages shall be recovered, and the way and means by 
which they are to be paid. 

It seems to me, giving the language here used its clear 
and manifest meaning, that these damages are not to be 
presented to the commissioners court, but can only be 
recovered by suit, and when judgment is rendered for the 
plaintiff, it is not to be paid by a warrant of the judge of 
probate on the county treasury, nor is it to be collected 
like ordinary judgments, by execution, but in the mode 
prescribed by the third and fourth sections of said act. It 



^ JUNE TERM, 1871. m 

Dale County v. Gunter. 

is unnecessary to inquire into the purpose or policy of the 
legislature in prescribing the remedy and means of pay- 
ment in such cases. The law being plain, it is the duty of 
parties and the courts to obey it, unless it is in conflict 
with some fundamental law of the land ; but I do not un- 
derstand any objection of this sort to be made against this 
statute. To my mind, however, the purpose or policy of 
this law is by no means obscure. In the first place, the 
legislature intended the question, whether the assassina- 
tion or murder was perpetrated by an outlaw, or by a per- 
son or persons in disguise, or by a mob, should be inquired 
into and determined by a jury, and not by the court of 
county commissioners. It is a question rather of fact 
than of law, and, therefore, peculiarly proper for the con- 
sideration of a jury. Such a trial is required for the se- 
curity and protection of both parties, the county, as well 
as the plaintiff. When the fact and character of the as- 
sassination or murder is ascertained, the law itself fixes 
the amount of the damages ; it is five thousand dollars, 
and the jury can find neither more nor less. 

In the second place, the manner of payment is obviously 
intended to operate in the nature of a penalty and punish- 
ment upon each individual tax-payer in the county, ac- 
cording to the value of his property, and by this means to 
bring home to each individual the importance of using his 
influence to promote a humane and just public sentiment ; 
a public sentiment that will not only discourage and make 
violence and crime disreputable and disgraceful, but also 
stimulate every member of the community to be active to 
ferret out and bring to punishment violators of the laws 
and disturbers of the peace and good order of society. 
For these reasons, we hold that the plaintiff's demurrer to 
the second and third pleas was properly sustained. 

2. The second question to be considered is, do the facts 
admitted and agreed upon prove that the plaintiff's hus- 
band was assassinated or murdered by an outlaw, or by a 
person or persons in disguise, or by a mob, within the pur- 
view and meaning of the first section of the said act of 
the 28th of December, 1868? 
10 



138 FOBTY-SIXTH ALABAMA. 

Dale County v. Gunter. 

The difficulties surrounding this question are, in deter- 
mining who is an outlaw, within the meaning of this sec- 
tion of said act, and what we are to understand by the 
phrase there used, "person or persons in disguise," As to 
the word " mob," no trouble need be taken about it, as it 
is not claimed that the plaintiff's husband was assassinated 
or murdered by such an assemblage of persons, or that he 
was assassinated or murdered for " past or present party 
affiliation or political opinion." 

In examining this question, thus narrowed down, it must 
not be forgotten that the penalty inflicted by this section 
on a county is not inflicted for any or every assassination 
or murder, but only when the assassination or murder is 
perpetrated by an outlaw, or by a person or persona in 
disguise. 

The word " outlaw," as used in that act, does not mean 
an " outlaw " in the common law sense of that term. If it 
does, then I am prepared to hold that there is, and can 
be, no such outlawry in this State. 

By the common law, an outlaw is one who has been so 
declared by the judgment of a court of justice, in some 
regular proceeding for that purpose ; and this could take 
place in either a civil or criminal proceeding. — Bl. Com., 
Wendell's, 3d vol., 283-4, 319 ; Bacon's Abr. 3d vol., title 
Outlaivry, 746. This author says : " Outlawry is a punish- 
ment inflicted on a person for a contempt and contumacy, 
in refusing to be amenable to, and abide by, the justice of 
that court which hath lawful authority to call him before 
them ; and is a crime of the highest nature, being an act 
of rebellion against that state or community of which he 
is a member. So doth it subject the party to divers for- 
feitures and disabilities ; for thereby he loseth liheram. le- 
gum, is out of the king's protection," &g. In a civil case, 
outlawry puts a man out of the protection of the law, so 
that he is incapable to bring an action for the redress of 
injuries ; and it is also attended with a forfeiture of all his 
goods to the king. — 3 Bl. Com. 283-4. The punishment 
for outlawry upon indictment for a misdemeanor, is the 
same as for outlawry upon civil actions ; but outlawry in 



JUNE TERM, 1871. 139 

Dale County v. Gunter. 

treason or felony amounts to a conviction and attainder of 
the offense charged in the indictment, as much as if the 
offender had been found guilty by his country. — 4 Bl. 
Com. 320. 

Outlawry by the common law, if not inconsistent with 
the letter of our bill of rights, is so with its spirit. 1. It 
not only puts a man out of the protection of the law, but 
also renders him incapable to bring ap action for redress 
of injuries. This is in conflict with the 15th section of 
the bill of rights, which declares that " all courts shall be 
open, that any person for any injury done him in his lands, 
goods, person or reputation, shall have a remedy by due 
process of law ; and right and justice shall be administered 
without sale, denial or delay." 2. It works forfeiture of 
goods, and in case of treason or felony, of lands also. 
This is repugnant to the 21st section of the bill of rights, 
which says that " no person shall be attainted of treason 
by the general assembly," and that " no conviction shall 
work corruption of blood, or forfeiture of estate." If 
there can be no forfeiture of estate on a conviction for 
treason, certainly there can not be on conviction for any 
less offense. 

Anciently, an outlawed felon was said to have caput Ivr- 
pinum, and might be knocked on the head like a wolf by 
any one that should meet him ; but to avoid such inhu- 
manity, since Bracton's time it has been otherwise, and 
to kill an outlawed person wantonly is murder. — 4 Bl. 
Com. 320. 

By magna cJiarta it is ordained that no freeman shall be 
outlawed, that is, put out of the protection and benefit of 
the law, but according to the law of the land. — 1 Bl. Com. 
142 ; 2 Part. Coke's Institutes, 46. 

In England there are statutes, and an ancient and well 
settled practice of the courts, according to which a man 
may be outlawed ; but where, in this country, do we find 
any statutes or practice of the courts, by which a man in 
either a civil or criminal case, can be outlawed according 
to the law of the land ? I know of none. The English 
common law and statutes, on this subject of outlawry, have 



140 FORTY-SIXTH ALABAMA. 

Dale County v. Guuter. 

never been recognized, or in any wise adopted in this 
State, and the whole system is inconsistent with our insti- 
tutions, and repugnant to our constitution and laws, and 
is without any force among us. 

We must, therefore, look somewhere else for the mean- 
ing of the word outlaw, as employed in the act of the 28th 
December, 1868. That is the only statute, so far as I 
know, in which this word is used, and, if possible, we must 
find a meaning for it not inconsistent with the constitution. 
Such a meaning, I think, is found in the act of the 26th of 
December, 1868, approved only two days before the act 
last named, and upon a kindred subject, entitled " An act 
for the suppression of secret organizations of men dis- 
guising themselves for the purpose of committing crimes 
and outrages." — Acts 1868, 444. The preamble to this act 
recites that " whereas, there is in the possession of this 
general assembly ample and undoubted evidence of a se- 
cret organization, in many parts of this State, of men who, 
under the cover of masks and other grotesque disguises, 
armed with knives, revolvers and other deadly weapons, do 
issue from the place of their rendezvous, in bands of 
greater or less number, on foot or mounted on horses, in 
like manner disguised, generally in the late hours of the 
night, to commit violence and outrages upon peaceable 
and law abiding citizens, robbing and murdering them 
upon the highway, and entering their houses, tearing them 
from their homes and the embrace of their families, and 
with violent threats and insults inflicting on them the most 
cruel and inhuman treatment ; and whereas, this organiza- 
tion has become a wide-spread and alarming evil in this 
commonwealth, disturbing the public peace, ruining the 
happiness and prosperity of the people, and in many 
places overriding the civil authorities, defying all law and 
justice, or evade detection by the darkness of night, and 
with their hideous costumes," &c. By the second section 
of this act it is declared that " any person or persons found 
away from the place of their usual residence, disguised by 
mask or otherwise, so as not to be easily recognized, who 
shall commit, or threaten to commit, any assault or assault 



JUNE TERM, 1871. 141 

Dale County v. Gunter. 

and battery, or any violence upon the person of another, 
or any trespass on the property or premises of another, 
shall be held guilty of a felony, and his disguise shall be 
sufficient evidence of his evil intent and of his guilt, and 
on conviction shall be fined one thousand dollars, and be 
imprisoned in the penitentiary not less than five years and 
not more than twenty years, at the discretion of the court 
trying the same ; and any one who may shoot, or in any 
way kill or wound such person while under the cover of 
such disguise, and while in the act of committing, or at- 
tempting, or otherwise, to commit such violence or tres- 
pass, shall not be held guilty, before the law, of any oflfense 
against such person, or the State, or be made to suffer any 
penalty for such act." 

Here we have a certain description and character of 
persons who, when disguised by masks or otherwise so as 
not to be easily known, commit or threaten to commit cer- 
tain offenses while so disguised, and it is made lawful for 
any one to shoot, or in any way to kill or wound them, 
while in the act of committing, or threatening to com- 
mit, such offenses, and the person slaying or wounding 
them is declared not to be guilty, before the law, of 
any offense against such person, or the State, or to 
be made to suffer any penalty for such act. This, in a 
very untechnical, loose and indeterminate sense, may be 
said to be a kind of outlawry. By this I do not intend to 
be understood as holding that any one can be, in any 
proper and legal sense, outlawed by a legislative enact- 
ment ; that can only be done in a judicial proceeding, and 
" by due process of law." An act of the legislature is not 
" due process of law." Due process of law, means a pro- 
ceeding " by indictment or presentment of good and lawful 
men, where such deeds be done, in due manner, or by writ 
original, of the common law." — 2 Institutes, 50 ; Dorman 
V. The State, 34 Ala. 220-237 ; Weaver et al. v. Lapshy, 
43 Ala. 232. 

It is in this loose sense we must find the meaning of the 
word outlaw, as it is employed in the said act of the 28th 
of December, 1868, otherwise it must be treated as with- 



142 FOETY-SIXTH ALABAMA. 

Dale County v. Gunter. 

oat meaning ; and with this meaning it adds nothing, in 
reality, to the force and effect of the act. It was, no 
doubt, employed by the legislature without any very defi- 
nite idea or comprehension of its true meaning, and to 
add a sort of force and strength to the expression " person 
or persons in disguise," having reference to the act for the 
suppression of secret organizations of men disguising 
themselves for the purpose of committing crimes and out- 
rages. Both these expressions, then, as there used, must 
be held to mean substantially the same thing ; and so it 
comes to this : does the evidence admitted and agreed 
upon prove that the plaintiff's husband was assassinated 
or murdered by a " person or persons in disguise ?" . This 
question, after the maturest reflection, I feel constrained 
to answer in the negative. 

The evidence of the plaintiff, as stated and admitted, 
says the plaintiff's husband was shot by some person in 
ambush, or concealed in the hushes. The noun ambush means, 
1st, the act of attacking an enemy unexpectedly from a 
concealed station ; 2d, a concealed station, where troops 
or enemies lie in wait to attack by surprise ; an ambus- 
cade ; yd, troops posted in a concealed place, for attacking 
by surprise. The verb ambush means, to lie in wait ; to 
surprise ; to place in ambush. Conceal means, 1st, to hide, 
or withdraw from observation ; 2d, to withhold from utter- 
ance or declaration. The synonims of conceal are, to 
liide ; disguise, dissemble ; secrete. To hide, is generic ; 
conceal, is simply not to make known what we wish to 
secrete ; disguise, or dissemble, is to conceal by assuming 
some false appearance ; to secrete, is to hide in some place 
of secresy. A man may conceal facts, disguise his senti- 
ments, dissemble his feelings, or secrete stolen goods. 
The verb disguise means, 1st, to change the guise or ap- 
pearance of, especially to conceal by an unusual dress ; to hide 
by a counterfeit appearance ; 2d, to affect or change by 
liquor ; to intoxicate. The noun disguise means, 1st, a dress 
or exterior put on to conceal or deceive / 2d, artificial lan- 
guage or manner, assumed for deception ; 3d, change of 
manner by drink ; slight intoxication. This learning I 



JUNE TERM, 1871. 143 

Fulgham v. The Sfate. 

derive from Mr. Webster, and I am satisfied with it. I 
can hardly conceive of things better distinctly marked and 
different, than that of a person or persons in ambush, or 
concealed in the bushes^ where a person so concealed lies 
in wait to attack by surprise ; and a person or persons in 
disguise, or disguised by an unusual dress, or, in the lan- 
guage of the preamble to the act, to suppress secret or- 
ganizations of men disguising themselves for the purpose 
of committing crimes and outrages, by the use of masks, 
hideous costumes, and other grotesque disguises. If I 
were to write a dozen pages on this subject, I should prob- 
ably not be better understood than I am now, and certainly 
I should not be more thoroughly convinced myself. My 
conclusion is, that the written charge of the court, given 
at the request of the plaintiff, is not sustained by the evi- 
dence, and should have been refused. 

Let the judgment be reversed and the cause remanded, 
at the appellee's cost. 



. FULGHAM vs. THE STATE. 

[assault and battery by husband upon wife.] 

. Husband; power of to correct wife. — In this State the husband can not 
commit a battery upon his wife, by way of inflicting upon her " mod- 
erate correction " in order to enforce obedience to his just commands. 
(Peck, C. J., dissenting.) 

. Same. — The authority for " wife whipping" rests upon a relic of a 
barbai'ous and unchristian " privilege," which, even in the mother 
country, was never claimed to be law, except among people of the 
"lower rank." The law in this country recognizes no such distinc- 
tion. 

Appeal from Circuit Court of Greene. 
Tried before Hon. Chables Pelham. 



144 FORTY-SIXTH ALABAMA. 

Fulgham v. The State. 

This was an indictment of the husband for an assault 
and battery upon his wife. The indictment charges that 
before the finding thereof, " George Fulgham assaulted and 
beat his wife, Matilda Fulgham, p,gainst the peace," &c. 
Appellant went to trial on plea of not guilty, and was con- 
victed and fined. 

From the bill of exceptions, it appears that the accused 
was chastising one of his children, when the wife remon- 
strated, thinking the punishment excessive. The child 
ran, pursued by the father, and both followed up by the 
wife. When the wife came up with her husband, he struck 
her twice on the back with a board, and she returned the 
blows with a switch. The blows inflicted on the wife made 
no permanent impression. Both were high tempered, and 
were emancipated slaves, and were husband and wife. 

This being all the evidence, the court charged the jury 
that " if they believed that defendant struck his wife with 
a board, as described in the evidence, in anger, and not in 
self-defense, he was guilty of an assault and battery ; that 
words of provocation and abuse by the wife, if she used 
any at the time of the fight, would, under the statute of 
Alabama, be in justification or extenuation, as they might 
see fit." The defendant excepted to this charge, and re- 
quested the court to charge the jury that " a husband can 
not be convicted of a battery on his wife unless he inflicts 
a permanent injury, or uses such excessive violence or cru- 
elty as indicates malignity or vindictiveness." This charge 
the court refused to give, and " further charged that the 
proposition that a husband could moderately chastise his 
wife, was a relic of barbarism, and no part of the law of 
Alabama, although it might be of North Carolina or Mis- 
sissippi. To the refusal to give the charge asked, and to 
the remark above, defendant excepted." 

The charges given, and the refusal to give the charge 
asked, are now assigned as error. 

R. Ceawtord, for appellant. — The first charge asked 
should have been given. — 1 Winslow, (N. C.) p. 1, case No. 



JUNE TERM. 1871. 145 

Fulgham v. The State. 

•266 ; Calvin Bradley v. Stale, Walker Miss. Rep. p. 157 ; 
2 Dev. & Bat. 365 ; 2 Humphries, 283 ; 27 Ala. 222. 

The closing remark and charge of the court mero motu 
was erroneous, and prejudicial to appellant. — Wicks v. 
State, 44 Ala. 

The first original charge given by the court was incom- 
plete, and tended to mislead the jury. 

Attorney-General, contra. — 1. The court did not err in 
charging the jury that a blow given in anger, and not in 
self-defense, is an assault and battery. — 1 Bish. Or. Law, 
§ 409 ; 2 t6. § 63. But that opprobrious and abusive words 
given by the person assaulted, might be considered in ex- 
tenuation or justification of the offense. — Revised Code, 
§ 419d. 

2. A married woman is as much under the protection of 
the law as any other- member of the community. And the 
old doctrine of the common law, that a husband might 
moderately chastise his wife, was never in force in Ala- 
bama, and since the reign of Charles the Second has been 
exploded in England. — 1 Bl. Com. 445 ; Schouler on Dom. 
Relations, 59. » 

The statement by the court of the difference between 
the laws of North Carolina and Mississippi and those of 
Alabama, is not error. 

PETERS, J. — This is a criminal prosecution by indict- 
ment upon a charge of assault and battery by the husband 
upon the person of the wife. The defense relied on by 
the accused is, that a husband may give his wife moderate 
correction in order to secure her obedience to his just com- 
mands. 

This authority, on the part of the husband, to chastise 
the wife with rudeness and blows in order to coerce her 
obedience to his domestic commands, was not admitted in 
the age of Judge Blackstone, or as he says, " in the polite 
reign of Charles the Second," except among " the lower 
rank of the people, who were always fond of the old com- 
mon law," by which " they claim and exert their ancient 



146 FORTY -SIXTH ALABAMA. 

Kulgham v. The State. 

privilege " to give their wives " moderate correction," to 
secure subordination in the family. — 4 Bl. Com. 444, 445, 
marg. page. It will be seen from this reference, that this 
eminent and classic commentator on the law of England 
confines this brutal and unchristian " privilege " wholly to 
the " lower rank of the people." The most zealous advo- 
cates of " wife-whipping " have never gone beyond this 
unhappy rank. It has never been contended that this lia- 
bility to be corrected with blows and stripes was the law 
for the wives of all the people — of those of the higher as 
well as those of the lower rank. The language of the 
authority relied on by the learned counsel for the accused, 
clearly shows that there was a rank of the people excluded 
from its operation. Such partial laws can not be enforced 
in this State. The law for one rank is the law for all ranks 
of the people, without regard to station. Judge Black- 
stone calls it merely an ancient privilege, and quotes no 
decided case, and possibly none such oould then be found, 
which supports the privilege referred to by him, as an uni- 
versal law. This distinguished author published his com- 
mentaries above one hundred years ago, when society was 
much more rude^ out of the towns and cities in England, 
than it is at the present day in this country ; and the ex- 
ercise of a rude privilege there is no excuse for a like 
privilege here. If it was, the offense of witchcraft and 
sorcery, which were crimes at common law, and most cru- 
elly punished against the voice of both reason and reli- 
gion, might be indicted here. — 4 Bl. Com. p. 60. Since 
then, however, learning, with its humanizing influences, 
has made great progress, and morals and religion have 
made some progress with it. Therefore, a rod which may 
be drawn through the wedding ring is not now deemed 
necessary to teach the wife her duty and subjection to the 
husband. The husband is therefore not justified or allowed 
by law to use such a weapon, or any other, for her mod- 
erate correction. The wife is not to be considered as the 
husband's slave. And the privilege, ancient though it be, 
to beat her with a stick, to pull her hair, choke her, spit in 
her face or kick her about the floor, or to inflict upon her 



JUNE TEEM, 1871. 147 

Fulgham v. The State. 

like indignities, is not now acknowledged by our law. — 
Turner v. Turvier, 44 Ala. 437 ; Goodrich v. Goodrich^ 
44 Ala. 670 ; Moyler v. Moyler, 11 Ala. 62U ; Saunders v. 
Saunders, 1 Rob. Ec. R. 549. The husband may defend 
himself, his children, and those relations whom the law 
permits him to . defend, against the violence of the wife. 
12 Ala. 087 ; 1 Bish. Cr. Law, 341. But in person, the 
wife is entitled to the same protection of the law that the 
husband can invoke for himself. She is a citizen of the 
State, and ife entitled, in person and in property, to the 
fullest protection of its laws. Her sex does not degrade 
her below the rank of the highest in the commonwealth. 

Speaking of the duty of the husband to the wife, a late 
expounder of the law of this great relation declares that 
he " is bound to love his wife and to bear with her faults, 
and if possible, by mild means to correct them." — Schouler 
Dom. Rel. 59 ; 1 Bouv. Law Diet. 675, Husband ; Goodrich 
V. Goodrich, 44 Ala. 670. This is the voice of the law, and 
the voice of politeness and humanity, and I think also the 
voice of religion, which is, after all, but pure and disinter- 
ested love. — St. Paul's Epists. ad Corinths., ubique. 

Besides this, the constitution has wisely and justly ex- 
tended the protective power of the State to all its people 
alike. It shield is stretched out over the high and the low, 
the rich and the poor, the strong and the weak, the wise 
and the simple, the learned and the unlearned, and the 
good and the bad, without distinction of rank, caste or 
sex. All stand upon the same footing before the law, '' as 
citizens of Alabama, possessing equal civil and political 
rights and public privileges." And no special "privilege " 
to any rank of the people is allowed to exist in this State, 
because such a privilege is forbidden by the fundamental 
law. — Const. Ala. 1867, Art. I, §§ 2, o2 ; Dale v. Governor, 
3 Stew. 387. I therefore think that the common law of 
" wife whipping " among " the lower rank of people " in 
Great Britain, has never been the common law of this 
State. It is, at best, but a low and barbarous custom, and 
never was a law. . 

The husband may exercise over the wife " gentle re- 



U8 FORTY-SIXTH ALABAMA. 

Brown et al. v. The State. 

straint." — 2 Keut, 181. And he may have security of the 
peace against the wife, and the wife against him. — 4 Bla. 
Com. 445. And they may be indicted for assault and bat- 
tery upon each other. — Bradley v. The State, Walker R. 
156. But beyond this, " the rule of love has superseded 
the rule of force." — Schoul. Dom. Rel. 59. 

There was, then, no error in the charge given, or in re- 
fusing the charge asked. Therefore, let the judgment of 
the court below be in all things affirmed. • 

Peck, C. J., dissenting. 



BROWN ET AL. vs. THE STATE. 

■[motion to re-tax costs allowing solicitob's fee against each of 

SEVERAL defendants. ] 

J. Si^idtor's fee, how taxed when several defendants found guilty. — On the 
conviction of several defendants on an indictment for disturbing reli- 
gious worship, but one solicitor's fee can be taxed against all the de- 
fendants found guilty, as a part of the costs. — Eev. Code, § 4343. 

Appeal from Circuit Court of Henry. 
Tried before Hon. J. McCaleb Wiley. 

The facts appear in the opinion. 

W. C. Oates, for appellant. 
Attokney-General, contra. 

(No briefs came to the Reporter's hands.) 

PETERS, J. — This is a motion to retax the costs in a 
criminal prosecution by indictment for disturbing religious 
worship, so as to allow but one solicitor's fee against sev- 
eral defendants, instead of a solicitor's fee against each of 



JUNE TERM, 1871. 149 

Brown et al. v. The State. 

several defendants. The record shows that several per- 
sons were indicted in the court below for disturbing reli- 
gious worship, under section 3612 of the Revised Code. 
There is but one count in the indictment, and the defend- 
ants for plea " severally say they are not guilty." On this 
plea the parties went to trial by a jury. And the verdict 
of the jury is, that they " find the defendants guilty, and 
assess a fine of twenty dollars each." And thereupon 
each of the defendants came into open court and " con- 
fessed judgment for the fine and costs against them." And 
on settling the bill of costs in the court below, the clerk 
taxed a solicitor's fee of $37.50 against each of the de- 
fendants who had confessed judgment for the fine and 
costs as above said. The defendants made their motion, 
in the court below, to have said costs re-taxed, so as to al- 
low but one solicitor's tax fee against all of the defendants 
against whom judgments were rendered, instead of a tax 
fee against each of said defendants. This motion the 
court refused, and the defendants excepted and appealed 
to this court. 

And the sole question made in this court is, whether, 
upon a conviction on an indictment for disturbing worship, 
where several persons are charged, the solicitor is entitled 
to a tax fee against each one of the defendants, or to one 
tax fee against all ? The answer to this inquiry depends 
on the construction of the law of the Revised Code which 
gives a right to a solicitor's fee in such a case as this. 
That portion of this law necessary to be considered here, 
is in these words : " Solicitors are entitled to the following 
fees, to be taxed as costs against the defendant on cunvic- 
tion, and if he is insolvent, to be paid out of the fines and 
forfeitures in the county treasury" — that is to say, * * * 
"For each conviction under sections 3598 (5(), 3599 (58), 
,3612 (71), 3617 (75), 3618 (76), 3619), 3730 (183), or 3731 
'(184)..$37.50."— Rev. Code, §4343. Section 3612 of the 
Revised Code contains the statute forbidding the disturb- 
ance of religious worship, under which the defendants in 
said motion were found guilty. The language of the Re- 
vised Code is different from that of the Code allowing so- 



150 FOBTY-SIXTH ALABAMA. 

Brown et al . v. The State. 

licitor's fees. The law of the Code is, " Solicitors are 
entitled to the following fees, to be taxed as costs and col- 
lected from each defendixntr ..." From each defendant 
convicted under sections," &c. — Code, § 3996. The lan- 
guage of the Code is perfectly clear. There can be no 
doubt about it. " Each defendant " is liable to pay a so- 
licitor's tax fee on conviction. But the Kevised Code rest? 
the liability on " each conviction." A conviction may be 
of one, or many defendants. The number of the persons 
charged and found guilty does not give plurality to the 
conviction. And where the conviction is single, there can 
be but one solicitor's fee allowed. This is the language of 
the law. About this there can be no rational doubt. A 
conviction means to put the matter beyond controversy, 
just as the verdict of a jury is supposed to do. This is 
done when the jury declare their verdict. If the parties 
are found guilty they are convicted, and this is a convic- 
tion. — Riddle's Lat, Diet. p. 337, word Convinco ; Bla. Com* 
p. marg. 362, 363. In such a case, the conviction is equiv- 
alent to the verdict. It precedes the judgment or sentence, 
and must be regarded as a unit, however numerous the de- 
fendants may be. — 1 Bouv. Law Diet. p. 362, word Convic- 
tion ; 1 Cain's R. 72; 34 Maine, 594; 16 Ark. 601. This 
construction is also in conformity with the previous deci- 
sion of this court. — Dent v. The State, 42 Ala. 514. Here 
there is but one prosecution, one indictment, one charge in 
this indictment, one plea in answer to it, one jury to try 
this plea, one verdict and one bill of costs. If we consider 
this verdict as the conviction, as I think we must, upon 
authority of the cases above cited, then there is also but 
one conviction. The judgment of the court is not prop- 
erly a conviction, but it is the sentence of the law giving 
eflfect to the conviction ; because there may be conviction 
and the judgment may be arrested. This could not be, if 
the conviction and the judgment were the same. — 1 Din. 
Cr. Cases, 568 ; 14 Pick. 88 ; 8 Wend. 204 ; 3 Park. Crim. 
567. The conviction or verdict may be a single act, and 
consequently a unit, while the judgment may be several, as 
in this case. Beside, this is a statute not to be expounded 



JUNE TEEM, 1871. 151 

Gregory v. The State. 



by construction. It must be strictly construed ; that is, 
confined to its narrowest limits. — Rev. Code, § 3534. Here 
the allowance of one solicitor's tax fee lies within the di- 
rect expressions of the statute, and a strict construction 
requires that it shall be kept within this limit. — Leiber 
Leg. and Pol. Herm. 20 ; 20 Wend. 561 ; 1 Whea. 326. 

The ruling of the court below is therefore set aside and 
annulled, and the cause is remanded, with instructions to 
re-tax the. costs in the case named in said motion so as to 
allow but one solicitor's fee against all the defendant's 
found guilty in the court below, and no more, in conformity 
with this opinion. 



GREGORY vs. THE STATE. 

[amedndment of indictment.] 

1. Indiotmenl, amendvient of; when error. — To permit an indictment to 
be amended, on motion of solicitor, even in an immateria imatter, with 
out the consent of the defendant and against his objection, is an error 
for which the judgment will be reversed. * 

Appeal from City Court of Montgomery. 
Tried before Hon. J. D. Cunningham. 

The facts are as follows : At the July, 18/0, term of the 
city court of Montgomery, an indictment was found against 
the appellant for living in adultery, &c. The indictment, 
in its caption, gave the title of the court as the "city court." 
No other title appeared elsewhere in said indictment. Ap- 
pellant demurred to the indictment for its failure to state 
in what court it was found. The demurrer was sustained, 
and the State moved to amend by inserting after the words 
" city court," in said indictment, the words " of Montgom- 
ery," which motion was granted, against the objection of 



152 FORTY-SIXTH ALABAMA. 

Gregory v. The State. 

appellant. To the allowance of the motion to amend ap- 
pellant excepted, and here assigns the same as error. 

FiTZPATRiCK, Williamson & Goldthwaite, for appellant. 
"Caption," as used in section 4111, means the heading of 
the indictment, and is a part of it that must be returned 
by the grand jury. 

In this indictment the name of the court did not appear 
correctly, either in the caption or body. It was, therefore, 
defective, and the court properly sustained the demurrer. 
The defect, established by sustaining the demurrer, was 
one that could not be amended except by consent of de- 
fendant, and in permitting the amendment, against the con- 
sent of defendant, the court erred. 

Even if the indictment had been good, yet, when the 
court sustained the demurrer, the indictment was gone, and 
could not be restored except by defendant's consent. The 
amendment, against defendant's protest, was in effect a 
finding by the court of a new indictment. 

John W. A. Sanford, Attorney-General, contra. 

PECK, C. J. — We do not think it necessary to determine 
whether the demurrer to the indictment might not have 
been overruled without error, but, being sustained, the court 
below thereby hfeld it to be insuflficient. 

An indictment is the act of the grand jury, and should be 
held to be inviolable. To permit it to be amended, even 
in a matter that might seem to be immaterial, without the 
consent, and against the objection of the defendant, would 
be a dangerous practice, that, so far as we know, has never 
received the sanction of this court. 

Section 4 143 of the Revised Code says, " an indictment 
may be amended with the consent of the defendant, when 
the name of the defendant is incorrectly stated, or when 
any person, property, or matter, therein stated, is incor- 
rectly described." We think this equivolent to a declara- 
tion, on the part of the legislature, that an indictment can 
not be amended in any case, without the defendant's con- 
sent. 



JUNE TERM, 1871. 153 

Vaughan and Wife v. Bibb . 

We therefore feel constrained to reverse the judgment of 
the court below, and to remand the case for further pro- 
ceedings in that court. 



VAUGHAN AND WIFE vs. BIBB, Guardian. 

[SETTLEMENT OF GUABDIANSHIP ACCOUNTS.] 

1. Beceipt of married woman and husband; when binding. — K a married 
woman and her husband join in a receipt to her guardian for a sum of 
money due her as the ward of such guardian, the receipt is binding on 
her, unless there is mistake or fraud. — Ordin. No. 38, 1867. 

2. Receipt for Confederate money not void. — Though the consideration of 
such a receipt may have been land or Confederate money, it would not 
be void for this reason . And the ward would be bound for the amount 
at which she and her husband re-sold the land thus obtained, though 
she only received Confederate money in payment, when there was no 
dissatisfaction manifested by her and her husband with the sale thus 
made. 

3. Probate court, power of, to re-state accounts during same term. — The 
court • of probate may recall and re-state an account of a guardian, 
once allowed and passed, during the same term at which it was so 
passed. The court's power over such a proceeding does not end until 
the court is adjourned without day for the term. 

4. Exception, when not noticed. — An exception which is not unintelligible 
on account of the blanks in it, will not be noticed on a general assign- 
ment of errors. 

5. Same, when not sustained. — Exceptions not supported by facts set out 
in the record will not be sustained. 

6. Interest, guardian's general liability for. — Generally, a guardian is only 
liable to account for simple interest. He .can not be charged com- 
pound interest unless he receives compound interest, or has been 
guilty of a gross abuse of his trust. 

Appeal from Probate Court of Montgomery. 
Heard before Hon. David Campbell. 

The facts appear in the opinion. 
11 



154 FOBTY-SIXTH ALABAMA. 

Vanghan and Wife v. Bibb. 

Watts & Troy, for appellants. 
Stone, Clopton & Clanton, contra. 

(No briefs came into the Reporter's hands.) 

PETERS, J. — This is an appeal from the decree of the 
court of probate of Montgomery county upon a guardian's 
final settlement. There is also an agreement of counsel 
filed with the transcript of the record, that the same 
transcript " may be considered as an appeal from the final 
settlement of W. C. Bibb's admiuistration of the estate of 
Priscilla Ann Bibb, and that the two cases may be consid- 
ered together on this record." There is no record in the 
case of the administration suit filed, and no appeal taken, 
and so far as I have been able to ascertain, no final decree 
rendered in that suit, and there is but one assignment of 
errors made. Under such a state of the record, the ad- 
ministration suit can not be treated as a proceeding prop- 
erly in this court, and no notice will be taken of that cause. 
The mode of bringing a cause to this court is too well 
known to allow such an irregularity to take its place. — 
Eev. Code, § 3485, et seq. 

Without further notice of the administration, I will, 
then, proceed to dispose of the appeal on the guardian's 
settlement. — 24 Ala. 375. 

The guardian's account was stated and filed for allow- 
ance in the usual form, and a day was fixed by the court 
for the hearing of the same. Upon the hearing, the ward 
and her husband objected to the allowance of one item of 
credit of ten thousand dollars. This item was supported 
by the receipt of the ward and her husband for that 
amount, which was paid December 5th, 18(30. On this ob- 
jection, the record of the settlement of the guardian as 
the administrator of the estate of Priscilla A. Bibb, de- 
ceased, was introduced, but it was in no wise connected 
with this item of the guardian's account. It was also 
shown that after the marriage of the ward, who was the 
daughter of the guardian, with Vaughan, the guardian had 
sold to said ward and her husband a tract of land for nine 



JUNE TERM, 1871. 155 

Yanghan and Wife v. Bibb, 

thousand five hundred dollars, and paid them in money 
five hundred dollars beside ; that the value of the land and 
the sum thus paid amounted to ten thousand dollars. And 
the amount thus made up was received by Vaughan and 
wife (the ward) as so much of her estate in the hands of 
said guardian. It was shown that Vaughan and his wife 
became dissatisfied with the land thus sold to them, and 
sold the same back to said guardian for eight thousand 
dollars, which was paid in treasury notes of the Confed- 
erate States. There was Some evidence that the guardian 
had said on the first sale of land as above said, that he 
owed his ward about ten thousand dollars, but this was 
contradicted, there being but a single witness on each side 
as to this fact. There was no proof that there was ever 
auy dissatisfaction expressed with the second sale of the 
land, as above shown, by Yaughan and wife to her guard- 
ian, or that they suffered any loss on the Confederate 
money that was paid to them, at that time. There was 
also considerable evidence as to the value of the land 
above said when it was first sold by the guardian to the 
ward and her husband ; some of the witnesses stating that 
it was worth three dollars per acre, others stating it was 
worth five, and the guardian himself testifying that it had 
not been sold above its true value. 

Upon this testimony the court below allowed the objec- 
tion to the extent of two thousand dollars, and decided 
that the guardian was entitled to a credit of eight thous- 
and dollars, "the amount of the Confederate treasury 
notes," which the guardian had paid to the ward and her 
husband in the fall of 1862, when the land was re-conveyed, 
and interest thereon. To this allowance the ward and her 
husband excepted, and now base an assignment of error 
in this court on this exception. 

The bill of exceptions also shows that the court permit- 
ted the guardian to strike out of his account " the sum, 

to-wit, of $ , with which he had charged himself, and 

to insert in lieu thereof the sum of $ ;" which was 

also excepted to by the ward and her husband. 

The bill of exceptions likewise shows that the guardian 



156 FOKTY-SIXTH ALABAMA. 

Vaughan and Wife v. Bibb. 

was permitted by the court to " re-state his account as the 
same was passed and allowed by the court." Tp this the 
ward and her husband also objected and excepted. But 
no reason is shown for the exception. 

The ward and her husband also excepted to " the allow- 
ance of each alteration in said account as originally filed, 
save only the rejection of the said item of ten thousand 
dollars." 

The ward and her husband liJiewise asked the court to 
charge the guardian with " the difference between com- 
pound and simple interest on the several sums " which said 
guardian had received from the estate of Edward Sims, 
who was the grandfather of the ward, and from whom the 
estate of her mother had been received, and which was the 
estate from which her own was derived. But this the 
court refused, and the ward and her husband excepted. 

Upon the hearing of the guardian's account in the court 
below, the ward was found indebted to him in the sum of 
$3,573.33, and he was discharged. The ward and her hus- 
band appeal to this court from said decree of discharge, 
and assign the same for error, and base other errors upon 
the exceptions above stated. 

It does not appear that the ward was a minor when the 
receipt for the ten thousand dollars was executed. But 
whether this was so or not, it seems that the receipt of the 
husband alone would be sufficient. And this would bar 
her, equally with himself, if there was no fraud or mistake 
in its procurement. — Eev. Code, § 2375. The receipt given 
by the ward and her husband is in the following words : 
" Received, Montgomery, Ala., December 5th, A. D. 1860, 
of William C. Bibb, administrator of the estate of Pris- 
cilla A, Bibb, deceased, and as guardian of my wife, Cor- 
nelia D. Bibb, ten thousand dollars in full payment to date 
as administrator and guardian aforesaid, including the 
proceeds of the lease of land in Noxubee county, Missis- 
sippi, up to the 1st of January, A. D. 1863." Signed, 
"Yernon Henry Vaughan," "Cornelia D. Vaughan." No 
doubt that parties who are competent to act for themselves 
may settle their affairs without going into court and invok- 



JUNE TERM, 1871. 157 

Vaughan and Wife v. Bibb. 

ing its aid, if they choose to do so. And such settlements, 
if free from mistakes and fraud, are final and binding as if 
done in court. — Carter v. Owens, 41 Ala. 217; Rev, Code, 
§§ 2685-86 ; Motley v. Motley et al., 45 Ala. 555. The fact 
that the receipt thus given measured the value of the 
thing received in what is called " Confederate treasury 
notes," does not render it invalid. There is no pretense 
that there was any fraud in the transaction, or that the 
parties did not know perfectly well what they were about. 
Adams' Eq. 183, note C. It has been settled by the highest 
court of the nation, that a sale of lands for Confederate 
money is not void, but that the party bound is liable for 
the value of the consideration, however spurious it may 
have been as a currency. — Thorington v. Smith, 8 Wal. 1 ; 
see Anderson v. McGoioan, 45 Ala. 462. On the re-sale of 
the land to the guardian, the husband and the wife, who 
was the ward, fixed the value of the consideration for 
which they had given the receipt. If they are now per- 
mitted to set this at naught, there would be no finality in 
such transactions. This does not seem to have been the 
purpose of the statute governing such instruments. — Mot- 
ley V. Motley et al., supra. Then there was no error in the 
action of the court below upon the matter of the receipt, 
and the decision upon the objection based upon it. 

The third exception is not well taken. There was no 
error in merely permitting the re-statement of the account, 
if it was done during the term. Such matters are under 
the control of the court until the term of the court is 
closed by adjournment. 

The third exception is based upon no facts that serve to 
make it intelligible. And the same may be said of the 
fourth and the fifth exceptions. They are too indefinite to 
raise any clear question of error in the court below. 

The sixth exception can not be sustained. A guardian 
is not liable to account for more than simple interest, un- 
less he receives more. Here it does not appear that he 
did, or that he has been guilty of any gross abuse of his 
trust.— Rev. Code, §§ 1827, 1828, 1829 ; 17 Ala. 306 ; 23 Ala. 
385. 



158 FOKTY-SIXTH ALABAMA. 

Bates V. Aldermen, &c., of Mobile. 

The very general terms in which the assignments of 
error have been made in this ease, has compelled me to 
deal rather with the questions made in the bill of excep- 
tions than with the assignments. — 21 Ala. 504; 20 Ala. 
477 ; Kev. Code, p. 816, Rule I Pr. in Sup. Court. 

There is no error in the judgment and proceedings in 
the court below. Its decree is therefore aflSjmed. 



BATES vs. MATOE, ALDERMEN, &c., OF MOBILE. 

[FINE rOB FAILUEE TO OBTAIN CITY LICENSE TO DO BUSINESS.] 

1. City license tax of Mobile, who liable to pay. — A party who carries on 
business in the lower bay of Mobile, some thirty miles below the city, 
and outside of the corporate limits of the city, but whose residence is 
in the city, and who keeps the capital employed in his business there, 
is not liable to pay a city license tax. 

Appeal from the Circuit Court of Mobile. 
Tried before Hon. John Elliott. 

Appellant was tried before the mayor of the city of Mo- 
bile for carrying on business without license, and was fined 
twenty-five dollars. On appeal to the circuit court, the 
judgment of the mayor was affirmed, and hence this ap- 
peal. 

The case was tried in the circuit court upon an agreed 
statement of facts, as follows : " The appellant is a stevel- 
dore, and was engaged in the business of storing cotton in 
the lower bay, about thirty miles from the city of Mobile, 
and outside of the corporate limits thereof, apd had no of- 
fice or place of business within the corporate limits of said 
city. Appellant resides in the city of Mobile, and keeps 
there the capital employed in his said business. Appel- 
lant's business " is principally confined to the winter and 



JUNE TERM, 1871. 159 

Bates V. Aldermen, &c., of Mobile. 

spring months, during the movement of the cotton crop. 
Occasionally, when in the city, appellant makes contracts 
with masters of vessels to load their ships lying in the lower 
bay as aforesaid, outside of the corporate limits of said 
city. The performance of said contracts, and all the work 
and labor necessary and incident thereto, is carried on out- 
side of the corporate limits of said city, and all the tools 
and implements of appellant's said trade are kept and used 
where said trade is conducted, to-wit : outside of the cor- 
porate limits of said city." There was also an agreement 
of the parties as to the judgment, which need not be fur- 
ther noticed. 

BoYLES & Overall, for appellants. — The license is re- 
quired for persons carrying on a business, pursuit, trade or 
profession in the city. It is the business prosecuted and 
conducted within the city that is taxed ; a business, in order 
to carry on which, the streets are used, the protection of 
police and corporate authorities are required, and which 
has the advantage of an aggregate population. 

A license is not required for the privilege of a bodily ex- 
istence in the corporate limits, or because a resident keeps 
his money or capital in a bank or at home within said lim- 
its, or because he occasionally meets a person and makes 
a contract to do something elsewhere. It is for following 
an avocation, by the pursuit of which he supports himself 
and family, or in which he is engaged as a business pur- 
suit, trade or profession. 

Section 388, Code of Ordinances, shows by its whole con- 
text that it never was intended to include the stevedores. 
It contemplates that the license shall have a business " lo- 
cal habitation and a name " within its corporate limits. 

It speaks of the place of business of the license, the 
changing of the place of business and the name, and the 
taking in of a partner. 

The agreed state of facts show that this class of persons 
have no place of business in, or do they perform and carry 
on their trade within, the corporate limits. 

It seems clear that they (stevedores) are not included in 



160 FORTY-SIXTH ALABAMA. 

Bates V. Aldermen, &c., of Mobile, 

the letter or the spirit of the ordinancea on this subject, or 
the charter. — City Charter, § 56. 

Raphael Semmes, contra. — [Appellee*s brief did not come 
into Reporter's hands.] 

PECK, C. J.— The authority of the city of Mobile to 
assess a license tax is contained in section 56 of the city 
charter. By that section it is enacted, " that the authori- 
ties of the city of Mobile shall have authority to assess and 
collect from all persons and corporations, trading or carry- 
ing on any business, trade or profession, by agent or oth- 
erwise, within the limits of the city, a license tax," &o. 

The city ordinance on this subject conforms, substan- 
tially, to the charter, and declares, " all persons trading or 
carrying on any business, pursuit, trade or profession in 
the city, shall obtain a license for the same, in the manner 
hereinafter prescribed," &c. 

To subject a party to this license tax, his business, trade 
or profession must be carried on *' within the limits of the, 
city." These are the words of the charter. 

It makes no matter where such party in fact resides, 
whether within or without the city limits. It is the place 
where his business is carried on that determines his liabil- 
ity to this tax. If that is within the limits of the city, his 
liability is fixed. 

If a party has his residence in the country, yet if his 
business, &c., is carried on within the city, whether by him- 
self or his agent, he must pay this license tax. This, it 
seems to us, is very clear, and we think it equally clear, 
that the converse of this is true ; therefore, if he lives in 
the city, and carries on his business some where else, out- 
side of the city limits, he is under no obligation to obtain a 
license for that purpose from the city authorities. 

The facts agreed state, that the appellant's business was 
storing cotton in the lower bay, about thirty miles from the 
city, and outside of the corporate limits ; and that he had 
no olB&ce or place of business within the city. This being 



JUNE TERM, 1871. 161 

Kennedy et al. v. Marrast et al. 



true, he was certainly not liable to pay a city license tax. 
The fact that his residence was in the city, and that the 
capital employed in his business was kept there, does not 
alter the case. 

Let the judgment of the circuit court be reversed, and 
the cause remanded to that court, that the agreement of 
the parties may be carried into effect. The appellee will 
pay the costs. 



KENNEDY et al. vs. MARRAST et al. 

[BII<L in equity to set aside CONVBTANCB on OBOUND of mental INCAPA-. 
CITY, INADEQUACY OF OONSIDEBATION, AND FBAUD.] 

1. Deed by one of non-sane mind void. — A deed made by a party of non- 
sane mind, to such a degree as to incapacitate him for making con- 
tracts, is void, and his heirs may file a bill in chancery to set it aside. 

2. Decree of chancellor, when will not be reversed ; preponderance of evi- 
dence. — When the decree of the chancellor is not opposed to the evi- 
dence on which it is based, it will not be reversed because the evidence 
which supports it is weak and suspicious. Before such a decree is dis- 
turbed, there must be a strong preponderance of the evidence against it. 

Appeal from Chancery Court of Mobile. 
Heard before Hon. A. C. Feldeb. 

The appellees, minors, filed in May, 1867, by next friend, 
a bill in equity against appellant, John P. Kennedy, seek- 
ing to set aside the conveyance to said Kennedy of a house 
and lot in Mobile, made by their father, J. C. Marrast, de- 
ceased, on the 30th November, 1863. One Strange, who 
was in possession of the property at the date of the filing 
of the bill, under a lease from Kennedy, and Harriet E. 
Marrast, widow of J. C. Marrast and his administratrix, in 
her individual capacity and as administratrix of said Mar- 
rast, were made parties defendant, the bill alleging, as to 
her, that she claimed dower in said house and lot, &c. 



162 FORTY-SIXTH ALABAMA. 

Kennedy et al. v. Marrast et al. 

The bill alleges that " at the time of making gaid sale 
and deed, Marrast was in his last sickness, was a paralytic 
and did not possess a sane mind; that at that time his 
mind was so destroyed that he had not capacity to contract ; 
that his condition was such that any person proposing to 
deal with him was bound to take notice of the fact, or be 
put upon enquiry as to the state of his intellect," <fec. The 
bill also alleged fraud and inadequacy of consideration, 
and prays that the deed, &c., be declared void ; that the 
title to said property be divested out of respondents and 
invested in complainants ; that respondents be decreed to 
account for the rents and profits, &c., and offers to pay re- 
spondent Kennedy the value of the Confederate money 
paid by him, with interest. 

Appellant answered, denying the allegations of mental 
incapacity, fraud, inadequacy of consideration, pleads that 
he is a bona fide purchaser for a full and valuable consider- 
ation, and demurred to the bill for want of equity. 

The defendant Strange, in his answer, admitted indebt- 
edness to Kennedy for rent of the premises, and offered to 
pay the same to those legally entitled to receive it. A de- 
cree pro confesso was taken as to Harriet Marrast. 

The record is quite voluminous, and the details of facts 
connected with the sanity and mental capacity of Marrast 
are quite lengthy and minute ; but in the view taken of the 
case by the court it is only necessary, for a proper under- 
standing of the opinion, to make a brief abstract of the 
testimony of the parties. 

By the appellees, it was proved that their father, John C. 
Marrast, died on December Hth, 1863, of paralysis, from 
which he had been suffering for many months ; that on the 
30th of November, 1863, said Marrast and wife executed a 
deed for the house and lot to Kennedy, in consideration of 
the payment of $17,000 Confederate money, which then 
was worth in market seventeen dollars in Confederate notes 
for one dollar in gold. 

There was proof tending to show the utter physical and 
mental incapacity of Marrast several months prior, and 
continuously up to his death ; that he was not capable of 



JUNE TERM, 1871. 163 

Kennedy et al. v. Marrast et al. 

contracting, and in such a state of mind that his wife feared 
fatal results to him if she refused to sign the deed and 
thereby break off the sale. There was evidence tending to 
show that the house and lot in 1863 was worth $12,000 in 
United States currency, and that the price paid for it was 
grossly inadequate, &c. 

On behalf of appellant, there was much testimony on 
the part of several practicing physicians and others, tend- 
ing to show, that the mind of Marrast gave no evidence of 
insanity or unsoundness up to the very hour of his death. 
It was proved that all the negotiations for the sale, &c., 
were made with one Evans, as agent of Marrast ; that Ev- 
ans had been offering the house and lot for sale for several 
months, and that Marrast and wife signed the deed, and 
no dissatisfaction with the sale by any one was ever ex- 
pressed to Kennedy until the filing of the bill. Kennedy 
testifies, that he knew nothing whatever of the unsound- 
ness of Marrast's mind, and there ie no proof that he did. 
Appellant also offered much testimony going to show that 
the price paid for the house and lot was, for the times and 
condition of -.the country, a high price, &c. 

On the hearing, the chancellor decreed that the deed to 
Kennedy be rescinded and annulled ; that the title to said 
property be divested out of respondent and invested in 
complainants ; that respondent account for the rents and 
profits from the date of the purchase, and that respondent 
be reimbursed the value in lawful money of the Confeder- 
ate money at the time it was paid, with interest, &c. A 
reference was ordered to the register to take and state an 
account, &c., and upon the coming in of the report, the 
chancellor confirmed the same. 

Kennedy appeals and now assigns as error the decree of 
the chancellor on the hearing. 

Dahgan & Taylor, for appellant, commented at length 
upon the evidence, contending that it did not sustain the 
decree, and presented the following argument on the law 
of the case : 

1. The court will bear in mind that this was a completely 



164 FORTY-SIXTH ALABAMA. 

Kennedy et al. v. Marrast et al. 

executed contract. Kennedy received the house, and Mar- 
rast the purchase-money ; and, also, that the contract is 
voidable only, and not void. — See 2 Kent Com., 7th ed., p. 
662 ; 12 Barb. 237, and cases cited. Consequently, when 
it is sought to be set aside, the court requires the com- 
plainants to put the defendant in statu quo, and in all 
cases to do equity where the defendant is an innocent 
party. — Wharton & Steele, M. J., p. 15. Now, we insist 
that Mr. Marrast, if living, could not rescind the sale and 
recover the house without accounting for the use of the 
money. Suppose he invested it in cotton, and made large 
profits by the sale ; bought other valuable property, or 
used it in the taking up of old gold debts, dollar for dol- 
lar, or in any other profitable manner, could he keep to 
himself all those profits or benefits arising from the use of 
our money, and then rescind the sale and take the house 
to boot ? If he could not, his children, who occupy his 
shoes, can not. The court is ready to make them ivhole, 
but will not aid them to speculate ; nor will the court take 
the risk of being imposed upon, by their refusing to ac- 
count for the use made of the money. The complainants 
demand the house, and all the rents and profits made by 
us since it has been in our hands. Now, we ask the same 
of them as to the purchase-money. They have failed 
utterly. Their simple reply to this plea is. Never mind 
what we did with the money, or how much we have made ; 
this is none of your business ; we will pay you upon the 
then value of the money — that is, one dollar for sixteen in 
gold, and no more. This is no answer or defense to our 
plea. 

2. The rule in equity is, that the court will not set agide 
the sale, unless the defendant can be placed in statu quo. 
In this case, the defendant can not be placed where he 
was. The money, and the government that made it, were 
dead before they made the ofier to rescind. All the uses 
and purposes to which it could have been put, are gone, 
with the extraordinary times which gave it existence, never 
to return. The complainants, or their father, took to 
themselves the money, and assumed all the chances of in- 



JUNE TEBM. 1871. 165 

Kennedy et al. v. Marrast et al. 

vestment and speculation, and of which we have been de- 
prived forever, and put upon us all the risks of the war. 
Defendant's intention to invest and not risk the money, is 
manifest by his act in this purchase. Had he not made 
this, would have made others, which he could have done 
anywhere in this city at the same or better rates ; or he 
could have done otherwise ; all of which he has been de- 
prived of. To say you will value his then money for him, 
with gold as the standard, is not meeting the equitable 
rule ; his right to exercise his own judgment was taken 
from him, until all chances are gone ; besides, why take 
gold as the standard ? There is clearly no equity in this. 
We prove that gold was not used as money, but was bought 
and sold like other articles. Gold was higher than any 
other article. Take corn, bacon, cotton, and real estate, 
and we could have bought them at two or three for one ; 
and yet gold is forced on us at sixteen for one. Why is 
this ? We did not want gold at that price ; besides, you 
take Confederate money and reduce it to gold, and give it 
to them then, and return us the same amount now, when it 
was then worth two or three times more than it now is. 
With one dollar then, we could have bought two or three 
times as much as now. Even at the North, about the same 
time, it was worth as high as $2.80 in greenbacks, for one. 
The fact is, we can never be placed in statu quo. " True 
and generous equity" can not now be done. — 1 Story Eq, 
§ 228 ; 1 Pars, on Cont. 312 ; Wharton & Stelle, p. 15, § 11 j 
ib. p. 7, note B ; 2 Paige, 158 ; 7 S. & M. 103. 

3. Mr. Marrast first placed the house in the possession 
of Mr. Evans, some two or three months before the sale 
was made. It will hardly be contended that he was in- 
competent when he gave this power of sale. No notice of 
subsequent insanit^f was ever given to the agent or pur- 
chaser. The authority was never revoked, but was con- 
summated into a legal title. It is said by good authority, 
that "where authority is given by a sane man, who subse- 
quently becomes insane, and without knowledge a sale is 
made to an innocent purchaser, it shall stand good." — 
2 Kent Com. 645, side page; 1 Pars, on Cont. 61, note E; 



166 FOETY-SIXTH ALABAMA. 

Kennedy et al. v. Marrast et al. 

Story on Agency, p. 501, note 3 ; 1 Bell Com. 4th ed-, p. 
395, § 413 ; 10 N. H. 156. Whether the power to Evans 
was in writing or not, can not affect the case, for if the in- 
sanity revokes the power at all, it would do so whether it 
were in writing or in parol. The rule is based on a prin- 
ciple of equity, not the statute of frauds, and grows out 
of the following well settled eqtiity doctrine, that " when 
one of two innocent persons must suffer, equity will put it 
upon him whose acts and conduct furnished the opportu- 
nity and induced the result." Mr. Marrast having in this 
case, when he was rational and sober, armed Mr. Evans 
with authority to seek and find a purchaser, and make the 
contract of sale, if Mr. Evans' action, under his power, has 
caused injury, who must suffer — the innocent purchaser, or 
he whose action induced the evil ? If Mr. Marrast set the 
deadfall, can his representatives complain if it fell on him- 
self ?— See Story on Sales, 161, § 202 ; 25 Barb. 484, top 
page; 37 Barb. 509; 37 N. Y. Rep. 509; Smith's Merch. 
Law, 288-9. 

It is also a well settled principle in equity, that " where 
the equities are equal, the law must prevail." In this case, 
both plaintiff and defendant claim under J. C. Marrast. 
Mr. Kennedy, a purchaser for value, and complainants, by 
descent only ; otherwise, they may be said to be equally 
innocent and equally diligent. — See Story's Eq., vol. 1, § 57. 

The following cases show the rule to be, that the court 
will not grant relief against an innocent person, especially 
where he can not be placed in statu quo. In many cases 
statu quo is not mentioned, where the purchaser is inno- 
cent, and objects. And in all cases where the subject is 
destroyed, it is held the parties could not be put in statu 
quo. There is no such thing as vahiing the loss and making 
him whole with money. The parties must be placed back 
exactly as they were, or not at all. Can the Confederate 
money paid be now returned as it was, with all the oppor- 
tunities to use it that then existed ? — 9 Vez. 478, 482 ; 
9 Wills, H. & G. 309 ; 24 Eng. L. & Eq. 48(3 ; 26 ib. 540 ; 
7 ih. 284 ; 1 McOarter, (N. J.) 389 ; 13 Iredell, 106 ; 32 Vt. 
652 ; 28 Conn. 127 ; 18 111. 282 ; 8 Rich. E. 286. 



JUNE TERM, 1871. 167 

Kennedy et al. v. Marrast et al. 

Taking these things altogether, the decision of the chan-. 
cellor should be reversed, and the case dismissed. 

Hebndon & Smith, contra. 

PETERS, J.— The deed under which the appellant, Ken- 
nedy, seeks to support his title, was made by Marrast him- 
self, and not by his agent. And Kennedy must be charged 
with notice, just as if he dealt directly with Marrast him- 
self. If Marrast was of non-sane mind to such a degree as 
to incapacitate him from making such a contract when the 
deed was signed by him, and he did not afterward aflSrm 
it when he was of sound mind, it was void. A legal ca- 
pacity to consent is the essence of all contracts, whether 
by deed or parol. Without this they are absolutely void. 
1 Story Eq. §§ 222, 223, 227, 228, 229, 230 ; 1 Pars. Cont. 
883, et seq.; 5 Bac. Abr. (Bouv.) 5, 26 ; 2 Poth. Obi. by 
Evans, note III, p. 22, et seq.; Hawdon v. Rawdon, 28 Ala. 
665. A bill to set aside such a deed may be filed by the 
heirs of the maker. — Newland Cont. p. 19, note C. 

The capacity of John C. Marrast, deceased, the ancestor 
of the complainants in the court below, is the question 
put in issue by the pleading. This is a fact, and not a 
question of law. This fact was submitted upon the 
proofs taken in the cause to the decision of the chancellor. 
His decision was favorable to the complainants and against 
the capacity of Marrast to make the deed. In such a case 
the decision of the chancellor will not be disturbed, unless 
there is a decided preponderance of the evidence against 
the conclusion attained by him. — Phillips, admW, v. Phil- 
lips, 39 Ala. 03. I think the testimony in this case suflS- 
ciently sustains the decree. It will therefore be left to 
stand. 

The decree of the chancellor is therefore affirmed, and 
said John P. Kennedy, appellant, will pay the costs of this 
appeal in this court and in the court below. 

[Note by Reporter. — At a subsequent day of the term, 



168 FOETY-SIXTH ALABAMA. 

Kennedy et al. v. Marrast et al. 

appellant applied for a re-hearing, and filed in support 
thereof the following argument :] 

The rule ol law is well settled, and has been stated with 
clearness by Peck, C. J., in the case of Cotton v. Ulmer, as 
follows : " Reason is the common gift of God to man ; 
hence every man is presumed to be sane, and insanity can 
only be proved by clear and unexceptional evidence." 

Partial insanity will, however, invalidate a will or a con- 
tract, but it must be fully and clearly established that the 
act was the result of such partial insanity; for to hold 
that testimony of a doubtful or suspicious character, even 
as to partial insanity, would defeat a solemn act, would in 
truth and in legal effect be to annul the proposition that 
insanity, to invalidate a deed or will, must be clearly es~ 
tablished. 

The question, therefore, is not whether the testimony in 
this case renders it doubtful whether Marrast was compos 
mentis at the time of executing this deed ; but it is, whether 
the evidence clearly establishes his mental incapacity. 
And we insist that this is a rule of law that is binding on 
the court. The burthen is on the complainants to over- 
come the deed. It is assailed on the ground of mental in- 
capacity alone, for neither fraud or undue iofluence is pre- 
tended ; and before it can be annulled, " the proof must 
be dear and unexceptionable y" that is, the mind of the court 
must be satisfied of incapacity, for we must be guided by 
the rule laid down in Cotton v. Ulmer, which only an- 
nounces a rule that has been recognized for ages. 

It may be true, as stated in the opinion delivered, that 
in cases of doubt this court will not reverse the decision 
of the chancellor on a mere question of fact ; yet we ought 
to look at the case in 39 Ala. 63, FMllips v. Phillips. 

In that case, the bill was filed to impeach a deed. The 
testimony rendered the question of capacity doubtful. 
The bill was dismissed, and the decree was affirmed in this 
court, in harmony with the general principle just adverted 
to, and announced by the Chief Justice in Cotton v. Ulmer. 
And if the court, in 39 Ala. 63, had put the decision on 



JUNE TERM, 1871. 169 

Kennedy et al. v. Marrast et al. 

this ground, its reasoniug would have been as cogent as its 
judgment or decree was correct. But to say that if a 
chancellor, upon doubtful testimony, sets aside a deed for 
want of mental capacity, this court will not reverse, is to 
say that if the chancellor disregards a cardinal rule of law, 
this court will not examine it, because he committed the 
€rror in looking to the evidence, or the weight of evidence. 
To such a proposition this court will not commit itself. 

It may be added, that the language in 39 Ala., used by 
the court, is apt to mislead, and in the case at bar may 
have misled this court ; for the well-considered rule is laid 
down in the celebrated case of Kennedy v. Kennedy, 2 Ala., 
in which Collier, C. J., says : " We will not undertake to 
«ay that the appellate court will not reverse a decree on 
the ground that an issue was not directed to be tried by a 
jury, when it appears that the facts are so disputed as to 
render it impossible to explicate them, even although no 
issue was prayed in the court below. In such a case, a 
viva voce examination before a jury seems indispensable." 

Now, if there ever was a case where an issue should be 
directed, it is this ; for no human mind can read all the 
depositions and say, " I have no doubt but Marrast was 
mentally incapable of making a contract of this charac- 
ter." He must say, indeed all must say, that at the least 
the question of his mental capacity is doubtful. 

The whole proof thus answered, the rule seems to apply • 
the deed must prevail, and the bill be dismissed. 

If, however, the mental capacity be so involved in doubt 
that the court should be unwilling to dismiss the bill, then 
the issue should be directed, as stated in 2 Ala. 

The following response to the petition was made by — 

PETERS, J. — The evidence in this case was carefully 
examined in the preparation of the opinion in the first in- 
stance. I have again examined it in connection with the 
authorities furnished by the eminent counsel in support of 
the application for a re-hearing, and I do not feel that the 
testimony did not justify the decree of the learned chan- 
12 



170 FOETX-Si:^TH ALABAMA. 

Brame v. McGee et aL 

cellor in the court below. It is true that in the court be- 
low the presumption is in favor of the sanity of the maker 
of a deed. But when the case comes here, the presump- 
tion is the other way. It is in favor of the correctness of 
the chancellor's decree, the verdict of the jury, or the de- 
cision of the judge below upon the facts, unless there is a 
strong preponderance of the evidence against the judg,- 
ment below. — Phillips v. Phillips, adriir, 39 Ala. 63. 
The re-hearing is therefore denied, with costs. 



BRAME vs. McGEE et al. 



[bill in EQtHTT TO SUBJECT CONTRACT SEPAEATE ESTATE OF MAEEIED WOMAtf 
TO PAYMENT OF A NOTE GIVEN BY HEE WITHOUT CONSENT OF HEB HUSBAND, 
DUEING COVEBTUEE, FOR PAYMENT OF HEE OWN DEBT. } 

1. Separate estate of married woman; what will he subjected in equity to 
payment of note executed ly her duririg coverture. — Where a feme sole, in 
contemplation of marriage, by an ante-nuptial deed conveys her prop- 
ertj"^ to a trustee, in trust to her sole and separate use, for the support 
and maintenance of her intended husband and herself, and such chil- 
dren as they may have, chancery will charge it with the payment of a 
promissory note, made by her after the marriage, for her own debt. 

2. Same; Mil filed to suhject ; what need not state. — A bill, filed for that 
purpose, need not state that the debt was contracted for "family sup- 
plies or maintenance." 

Appeal from Chancery Court of Greene. 
Heard before Hon. A. W. Dillakd. 

In 1860 one of the appellees, Mrs. McGee, then a Miss 
Mason, in contemplation of marriage with James McGee, 
joined with him in a deed by which they conveyed her es- 
tate, real and personal, to appellee, Foster M. Kirksey, to 
hold the same in trust for the sole and separate use of Mrs. 
McGee after the marriage, which, as the bill of complaint 
states, took place on the day after said deed was made, 



JUNE TEBM, 1871. 171 

Brame v. McGee et al. 

■without being subject, in any manner, to the debts of her 
intended husband, and that said trustee should permit her 
and her husband to keep and retain in their possession, 
during their joint lives, the slaves belonging to the wife, 
and take the issues, profits and labor of said slaves for the 
support, maintenance and use of themselves and any chil- 
dren they might have, and also to occupy and cultivate the 
lands thereby conveyed ; but said property was not to be 
sold or disposed of, without the joint consent of Mr. and 
Mrs. McGee and said trustee ; and, if Mrs. McGe j survived 
her husband, she was then to hold said property, and the 
rights and interests therein, discharged from the said trusts, 
but if Mrs. McGee died first, then said property to be dis- 
posed of as she might direct by her last will and testament, 
and if she failed to make a will, then to go to her heirs- 
at-law. 

In lfc67, Mrs. McGee made a promissory note, commonly 
called a due bill, to the complainant for fifty-seven dollars, 
and the same being unpaid, complainant, in 1869, filed his 
bill to have said promissory note paid out of said separate 
estate. The bill states, that at the time the same was filed, 
the separate estate of Mrs. McGee consisted of a house 
and lot in the town of Eutaw, the residence of said hus- 
band and wife, several hundred acres of land, and between 
four and five thousand dollars in the hands of said trustee, 
and prays that said note and the costs of said suit might 
be decreed to be paid out of the trust funds in the hands 
of said trustee, &c., and for general relief. 

Mr. and Mrs. McGee and said trustee are made parties 
defendant. Decrees pro confesso were taken against all the 
defendants, which were afterwards set aside, and said par- 
ties filed answers and demurrers. The answer of the trus- 
tee was required to be on oath, but was without oath, and 
assigns several grounds of demurrer. The husband and 
wife filed an answer and several grounds of demurrer to 
the bill. The second only need l^e noticed, and that is 
based on the ground that the bill does not state that the 
said note was given for the support and maintainance of 
the family, &c. 



172 FOBTY-SIXTH ALABAMA. 

Brame v. MeG-ee et al. 

All the several causes of demurrer were overrated, ex- 
cept the one above named, which was sustained, and the 
chancellor required the complainant to amend his bill " so 
as to charge that the note was for family supplies or main- 
tenance." The answer of the trustee admits the fifth 
paragraph of the bill, which states that he had between 
four and five thousand dollars, in money, in his hands be- 
longing to said trust estate. The answer of husband and 
wife states that the said note was given without the hus- 
band's knowledge. 

The complainant not being able to amend his bill, as re- 
quired by the chancellor, it was dismissed for want of 
equity. 

E. Crawfoeb, for appellant.— 1. The deed does not vest 
in Mrs.. McGee a separate estate, under the Cod© of Ala- 
bama — 1st. Because the husband is trustee for the wife, and 
does not enjoy the profits of the estate. — Rev. Code, § 2372. 
2d. The property can not be conveyed by them jointly, by in- 
strument of writing attested by two witnesses. — Rev. Code, 
§ 2373. 3d. The proceeds of the sale of any property can 
not be used by the husband, even in such manner as is most 
beneficial for the wife.— Rev. Code, 2374. 4th. The hus- 
band has no power to receive the property coming to the 
wife, but the trustee, Kirksey, alone, — Rev. Code, § '2375, 
5th. In case Mrs. McGee should die intestate, the property 
goes to her heirs-at-law, which would be in the course pre- 
scribed in Part 2, Title lY, Chapter 1, page 416, Revised 
Code ; whereas, if it were her separate estate under the 
Code, McGee, the husband, is entitled to one-half of the 
personalty of such separate estate absolutely, and to the 
use of the realty during his life. — Rev. Code, § 2379 ; see, 
also, Coivles and Wife v. 3Iorgan, 34 Ala. 535. 

2. As a general rule, a person can not hold a valuable 
beneficial interest in property which can tiot be subjected, 
either at law or in equity, to ihe payment of his debts. — 
Hugely & Harrison v. Robinson, 10 Ala. 731. The interven- 
tion of a trustee does not protect the property, since equity 
considers the cestui que trust as the real owner, and the 



JUNE TERM, 1871. 173 

Brame v. MoGee ■et. al. 

trustee as a mere man of straw. — iMmb v. Wrigg <& Stew- 
art, 8 Porter, 82. 

3. There is nothing in the expression, " for her support 
and maintenance," which can prevent a court of equity 
from selling the property. Such effect has been allowed 
to the words, where the property was given to the wife, 
without other words of exclusion of the husband's rights ; 
and not in cases where the attempt was to subject the wife's 
interest. — Bugdy <fe Harrison, v. Robineon, supra ; Spear v, 

Wdkley, 10 Ala. 328 ; Jasper v. Howard, 12 Ala. 652. The 
case of HiU v. McRae, (27 Ala. 181,) is very unlike the case 
at bar. There the trustee was to retain the possession of 
the property, and apply a portion of the profits to the rea- 
sonable support of the beneficiaries; here, the property 
itself is given. 

4. Trust property is liable to be disposed of by operation 
of law in invitum, like any other property, although indi- 
rectly the purposes of the trust may thereby be defeated. 
2 Story's Eq. Jur. § 974, citing a case in point ; Greene v. 
Spear, 1 Eussell & Mylne, 395 ; Graves v. Dolphin, 1 Si- 
mons, 66. See particularly Robertson & Fettihone v. John- 
ston, (56 Ala. lOl,) re-affirming Riigely & Harrison v. Rob- 
inson, (10 Ala. 902,) and principle further illustrated in case 
in point in 17th Ala. 617 — McCroan, Triistee, v. Pope et al. 
See, also, Young v. Kin^brew ; Spragiie v. Tyson, January 
term, 1870. 

5. A feme covert having a separate estate under deed, 
giving her note, intends thereby to charge her separate per- 
sonal estate. — lO Ala. 572 ; Gunter v. Williams and Wife, 
20 Ala. 332 ; Odey v. IMheimer, 20 Ala. 229 ; Blevins v. 
Buck, 13 B. Monroe, 381. In 19 Ala. 146, it is ruled, that 
the intention of the parties to the instrument must govern. 
Consider herein — ist. All the property was Mrs. McGee's ; 
2d. She could dispose of it by will ; 3d. In case she made 
no will, it was to go to her heirs ; 4th. It could not be sold 
or disposed of unless she joined, and it could not be sub- 
jected to his engagiments, &c.; 5th, In the event of Mc- 
Gee's death, the trust was at an end. 

The requisition that the three together only could sell or 



174 FORTY-SIXTH ALABAMA. 

Brame v. McGee et al, 

dispose of the property, is not inconsistent with the idea 
that it was her separate estate. 

Again — Any keeping, retaining, or possessing by McGee 
must be construed to mean for the use of the wife. 

Again — In the construction of deeds, if there are two 
clauses which are inconsistent and irreconcilable with each 
other, the last must give way to the first. — 19 Ala. R. 634 ; 
2 Story's Eq. Jur. 1394. 

6. The words, " for the sole and separate use and main- 
tenance of her and her children," do not manifest an inten- 
tion to limit the quantity of her interest, but merely to show 
the motive of the settlement. — McCroan v. Pope et al. 
17 Ala. 612. 

John G. Pieece, and Wm. P. Webb, contra. 

PECK, C. J. — 1. I think it very clear, that the separate 
estate of Mrs. McGee in this property is not a statutory 
separate estate. The husband has none of the rights and 
privileges to which a husband is entitled, when the wife 
has what is called a separate estate under the Revised 
Code, or the statutes on this subject in existence at the 
time said Code was made. — Goivles et ux. v. Morgan, 34 Ala. 
535. Her separate estate is created by the said ante-nup- 
tial deed, and her rights and liabilities depend upon, and 
must be determined by it ; in other words, it is a common 
law separate estate, and consequently may be charged with 
the payment of her debts in a court of equity. 

2. If a feme covert, having a separate estate by an ante- 
nuptial settlement, after her marriage, enters into a bond, 
jointly with her husband, for the payment of her own 
debt, chancery will subject such separate estate to its pay- 
ment, although nothing is said in the bond, directly, mak- 
ing the debt a charge upon the separate estate. — Forrest et 
ux. V. Bobinson, ex'r, 4 Porter, 44, decided in 1836. The 
principle of that case has uniformly been recognized as the 
rule of decision in this court, from that time to the present. 
Bradford et ux. v. Greenioay, Henry and Smith, 17 Ala. 797 ; 
Collins V. Budolph, 19 Ala. 616 ; Collins v. Lavenburgh (k Co., 



JUNE TERM, 1871. 175 



Brown et al. v. The Stata 



ih. 682 ; Cowles et ux. v. Morgan^ 34 Ala. 535 ; Gunter v- 
Williams et ux. 40 Ala. 561. 

In the case of Forrest et ux. v. Robinson, eicV, supra, as 
in this, the property embraced in the ante-nuptial settle- 
ment was the property of the wife before the marriage. In 
such a case, it would be inequitable to permit her to settle 
her property to her separate use, for the support and main- 
tenance of her intended husband and herself, and such 
children as they might have, in such manner as to withdraw 
and exempt it from the payment of her own debts, unless 
contracted for the support of the family. The chancellor, 
therefore, was mistaken in supposing it was necessary to 
be stated in the bill that the note was given for " family 
supplies or maintenance." And in the ease made by the 
bill and answers, the note should have been decreed to be 
paid by the trustee, out of moneys in his hands belonging 
to the said trust estate. 

Let the decree be reversed, at the costs of the appellees, 
to be paid by the trustee out of the moneys in his hands 
belonging to said trust estate, and the cause remanded for 
further proceedings in conformity with this opinion. 



BROWN ET AL. vs. THE STATE. 

[indictment fob DISTUBBINO BEI<IOIOtJS WOBSHIP.] 

, Religwus worship, disturhance of ; what necessary to constitute offense cf 
under section 3612 of Bevised Code. — To constitute an offense under sec- 
tion 3612 of the Revised Code, for disturbing religious worship, there 
must be not only an actual interruption or disturbance of an assem- 
blage of people met for religious worship, by noise, profane discourse, 
mde or indecent behavior, or by some other act or acts of like charac- 
ter, at or near the place of worship ; but such interruption or disturb- 
ance must also be toillfully made by the person or persons accused. 
The intent of the parties is of the very essence of the offense, and to 



176 FORTY-SIXTH ALABAMA. 

Brown et al. v. The State. 

be willful it must be something more than mischievous — it must be in. 
its character vicious and immoral. 

2. G-eneral good character ; viugt refer to time before commission of offense. 
In such a case, evidence of general good character must have reference 
to a time before, and not after the act or acts complained of were com- 
mitted ; and when the defendant has voluntarily put his character in 
issue by introducing evidence of his general good character, the State, 
even on cross-examination, can not inquire into the defendant's char- 
acter subsequent to the time the offense charged was committed. 

3. Section 3612 of Revised Code; meaning of woi'd ^'interrupt," as usedin; 
what improper definition of. — A charge given by the court, of its own 
motion, that "the word 'interrupt,' as used in the statute under 
which the defendants are indicted, means anything done by the de- 
fendants, or any other persons, which takes the attention of the hearers 
away from the services, or discourse of the minister, '' is erroneous. 
The meaning of the word 'interrupt,' as here giv^n, is too general and 
inapplicable, and the tendency of the charge was to mislead the jury. 

4. Charge to jury ; what erroneous. — A charge that instructs the jury that 
"although the evidence might fail to show that all the defendants en- 
gaged in a conversation in the church yard, so near as to create an in- 
terruption or disturbance of a portion of the assemblage of people in 
the house, yet if they stood by, thus encouraging others, by their 
presence, to talk, that such would be as guilty as though they had en- 
gaged in the conversation themselves," is an improper charge, and 
calculated to mislead the jury, as it does not require it to be shown 
that there existed any combination, or common purpose, to make an 
interruption or disturbance. 

^. Section 3612 of Revised Code ; what proper charge on indictment under. 
A charge that instructs the jury that " they must believe from the evi- 
dence, beyond all reasonable doubt, that there was a willful interrup- 
tion or disturbance of a congregation of people met together for reli- 
gious worship ; and that they must also believe from the evidence, 
beyond all reasonable doubt, that such disturbance was caused by 
noise, profane discourse, rude or indecent behavior, or some other im- 
proper act, at or near the place of worship, intentionally performed by 
the defendants, before they can find them guilty ; and if the jury be- 
lieve that such act or acts were performed heedlessly or recklessly, that 
is, carelessly, or without thinking of the probable consequences of 
such act or acts, then the jury should return a verdict of not guilty" — 
states the law correctly, and to refuse to give it, when asked in writing, 
is an error for which the judgment will be reversed. 

Appeal from Circuit Court of Henry. 
Tried before Hon. J. McCaleb Wiley. 

The appellants, Burrell Brown, William Ashley, William 
Weems and Wesley McKissock, who were jointly indicted 



JUNE TERM, 1871. 177 

Brown et al. v. The State. 

under section 3612 of the Revised Code for disturbing re- 
ligious worship, went to trial on plea of not guilty, were 
found guilty, and fined. 

From the bill of exceptions taken on the trial, it ap- 
peared that when a portion of the congregation had as- 
sembled for public worship at Sale Chapel, in Henry 
bounty, but before service commenced, the appellants came 
by on horseback, at a gallop, some fifty yards from church, 
and just then appellant Weems,. who had been riding be- 
hind, and was just catching up, called out to the others : 
" You have been ahead of me all night, but damned if I 
am not up with you now." When they went through the 
church yard they checked the pace of their horses. After- 
wards they came into the church, and one of the defend- 
ants laid down on a " ricketty bench," which made a noise 
every time he moved, but this attracted no particular at- 
tention. Shortly after this all the defendants walked out, 
asking a witness named Cole to go with them, and Cole 
had some cofnversation in a low tone, near the church, with 
defendants, and soon afterwards appellants came in and 
took seats as before, remaining until the congregation was 
dismissed. 

While the appellants were outside the church some loud 
talking was heard, which disturbed some of the congrega- 
tion, and which ceased when they returned. No witness 
recognized any of the parties talking outside except the 
appellant Brown, although there were five or six in the 
crowd ; and while they were outside some one threw a 
bottle against a tree, or something making a like noise, 
and this frightened a lady witness, who, as she testified, 
thought a pistol had fired. The appellants had a bottle, 
and some of them had been drinking. Rev. Mr. Holder- 
berry, the minister holding service, testified that the con- 
duct of defendants on the aforesaid Saturday and Sunday 
nights was so disorderly that he called in his appointments 
at that place, and ceased to preach there for a while. 

This was in substance all the evidence tending to show 
the guilt of appellants ; and on the part of the defense 
several witnesses were introduced, who testified that they 



178 FOETY-SIXTH ALABAMA. 

Brown et al. v. The State. 

were not disturbed ; that the talking outside was very low, 
and did not disturb the meeting, &c. 

The defense then introduced successively two witnesses, 
who testified that they knew the character of defendants, 
&c.; that their character was good, and that they were 
peaceable young men, and witness had never heard of their 
being charged with disturbing religious worship before the 
present indictment was found. 

On cross-examination, the solicitor for the State asked 
these witnesses if they had not heard that defendants dis- 
turbed the congregation at Sale Chapel the next day after 
the alleged disturbance for which they were indicted. 
The defendants objected to the question, upon the ground 
that evidence of character should be confined to the time 
of the commission of the act for which they were indicted, 
and anterior thereto. The court overruled the objection 
and allowed the witnesses to answer, and the defendants 
excepted. 

One witness then stated, in substance, that he was at 
Sale Chapel the next day (Sunday) after the commission 
of the alleged offense for which defendants were indicted, 
and heard a cow bell at the time referred to, and had heard 
that defendants had caught a cow by the tail up the road, 
and disturbed the congregation thereby, but it did not dis- 
turb him. The other witness stated the same thing in 
substance. 

The defendants introduced a witness, who testified that 
the cow which was caught by the tail was two hundred and 
fifty yards from the church ; that the cow jumped out of 
the road, and Ashley's hold was jerked loose at once. 
When the cow jumped off, the bell made some noise. 
Two of the defendants. Brown and Weems, were not pres- 
ent when the cow was caught by the tail. 

This was substantially all the evidence. And there- 
upon the court, of its own motion, charged the jury that 
" the word ' interrupt,' as used in the statute under which 
the defendants are indicted, means anything done by the 
defendants, or any other person, which takes the attention 
of the hearers from the services, or discourse of the min- 



JUNE TERM, 1871. 179 



Brown et al. v. The State. 



ister." The defendants excepted to the giving of this 
charge. 

The court also charged the jury that " although the evi- 
dence might fail to show that all the defendants engaged 
in the conversation in the church yard, so near as to create 
an interruption or disturbance of a portion of the assem- 
blage of people in the house, yet if they stood by, thus 
encouraging others to talk, that such would be as guilty as 
though they had engaged in the conversation themselves." 

The defendants excepted to this charge. 

The defendants asked the following written charges : 
1, " That the jury must believe from the evidence, beyond 
all reasonable doubt, that there was a willful interruption 
and disturbance of a congregation met together for reli- 
gious worship ; and that they must also believe from the 
evidence, beyond all reasonable doubt, that such disturb- 
ance was caused by noise, profane discourse, rude or in- 
decent behavior, or some other improper act, at or near 
the place of worship, intentionally performed by the de- 
fendants, before they can find them guilty ; and if the 
jury believe that such act or acts were performed heed- 
lessly or recklessly, that is, carelessly, or without thinking 
of the probable consequences of such act or acts, then the 
jury should return a verdict of not guilty." 

2. " That if the evidence shows that there was no talk- 
ing near the church door and in the church yard near the 
church, until the defendants Brown, Ashley, Weems and 
the witness Cole went out, and that ther6 was no talking 
of a disturbing character after they came in, and that 
while they were out, a bottle was thrown against a tree 
some eighty yards off, and broken, creating a loud noise, 
these are circumstances against defendants ; but if this 
circumstantial evidence is inconclusive, or if they can ac- 
count for the existence of such circumstances on any rea- 
sonable hypothesis consistent with the innocence of de- 
fendants, they must do so ; and before they can find all 
the defendants guilty of disturbing the assembly, they 
must believe, beyond all reasonable doubt, that each 
one of them participated in doing the act which created 



180 FORTY-SIXTH ALABAMA. 



Brown et al. v. The State. 



the disturbance ; and before they can find any of the de- 
fendants guilty, they must believe from the evidence, to a 
moral certainty, that such defendant intentionally did the 
act or created the noise which disturbed the congregation, 
knowing at the time that such noise or acts were calculated 
to disturb ; but if done carelessly or thoughtlessly, and 
not pursuant to design, they must find the defendants not 
guilty." 

3. " That the word * interrupt ' means stopped, hindered 
from proceeding, and as used in section 3612 of the Ke- 
vised Code, under which the defendants are indicted, it 
means a stopping or hindering the progress of such wor- 
shipping assembly in efi'ecting the objects and purposes 
for which such congregation has assembled; and that an 
interruption which merely breaks the chain of thought, or 
which merely attracts the attention momentarily of a por- 
tion of such assembly, is not an interruption of such wor- 
shipping assembly within the meaning of said section of 
the Code." 

The court refused to give any of the charges asked by 
the defendants, and they severally excepted, and now bring 
the case here by appeal, and assign as error that the court 
below erred — 

1st. In allowing defendant's witnesses to be cross-exam- 
ined as to hearsay of particular acts of appellants subse- 
quent to the commission of the offense for which they were 
indicted, in order to rebut proof of good character. 

2d. In the charges given the jury. 

3d. In refusing to give the charges asked by appellants. 

W. C. Gates, for appellants. — 1. It was competent for 
the appellants to prove on the trial their general good 
characters up to the time of the alleged commission of the 
offense. — Felix v. The State, 18 Ala.; Rosenbaum v. The 
State, 33 Ala. 

The circuit court erred in allowing the State to prove by 
hearsay that appellants disturbed the congregation at the 
same church the next day. The State is permitted to re- 
but the evidence of good character, even by particular acts 



JUNE TERM, 1871. 181 



Brown et al. v. The State. 



of bad character, committed before the alleged commis- 
sion of the ofifense, but not after. — -.3 Greenl. Ev. § 25, 1 ; 
Felix V. The State, 18 Ala. But there is no authority for 
proving by hearsay a subsequent rumor of an act deroga- 
tory to their good character. — Roscoe Cr. Ev. 97 ; 2 Rus- 
sell, by Greams, 786 ; 2 Phil. E. 490, 8th ed. 

2. The charge of the court to the jury defining the 
meaning of the word * interrupt,' as used in the statute 
under which the defendants were indicted, waR latitud- 
inous, and most clearly erroneous. The word 'interrupts' 
is not a word of technical meaning, hence it is to receive 
a construction according to its usual and popular sense. 
In that sense the legislature used it in section 3612 of the 
Code. It means " hindered, stopped from proceeding." — See 
Webster's Unabridged Dictionary, title Int. " Interrupt — 
To stop or hinder by breaking in upon / to prevent from pro- 
ceeding ; to disturb." — Worcester's Dictionary. 

3. The second charge given to the jury by the court, 
mero motu, invaded the province of the jury, by assuming 
as a fact that all the defendants were present and encour- 
aging, by their presence, others in talking in the church 
yard, to the disturbance of a portion of the worshipping 
assembly.— i^rawA; v. The btate, 27 Ala. 37 ; 17 Ala. 687. 

4. Each and every one of the written charges which tho 
appellants requested the court below to give to the jury, 
asserted correct legal propositions, and should have been 
given. To constitute the offense for which appellants were 
indicted, there must have existed in the mind of each one 
of them a specific intention to disturb the assemblage, 
provided we construe the statute by the necessity of its 
enactment and the history of its origin. It was unknown 
as an ofi'euse at common law. It is of statutory origin. 
It was enacted by the parliament for the protection of the 
dissenters, and was adopted by our own legislature, and in 
fact by nearly every State in the Union, to carry into efi'ect 
the declaration of the constitutional right to worship God, 
each man according to the dictates of his own conscience. 
In its origin it was intended to guard worshipping assem- 
blies from assaults and intentional interruptions by reli- 



182 FORTY-SIXTH ALABAMA. 

Brown et al. v. The State. 

gious fanatics who were intolerant towards those differing 
from them in religious notions and practices. I am aware 
that by the former decisions of this court, the statute 
under consideration has received a somewhat broader con- 
struction than I am contending for. My construction is, 
that although the inference of an intent to disturb is raised 
by law, when the act done or noise created is of such a 
nature or character as that a disturbance is the natural 
consequence thereof, yet the presumption or inference thus 
raised is traversable, disputable, and not conclusive ; and 
that unless the jury can say, upon a survey of the whole 
of the evidence, that such intent existed in the minds of 
the defendants when the act was performed which created 
the interruption or disturbance, they can not in any case 
find them guilty. 

But in this case it is unnecessary to indulge in specula- 
tions. Tried by the adjudged cases, the charges which the 
court below refused to give are correct legal propositions, 
and puts that court manifestly in error by refusing the in- 
structions as prayed by appellants. — Harrison v. The States 
37 Ala. 154. 

Attorney-General, contra. — 1. The court did not err 
after the accused had put their " characters in issue," in 
permitting testimony showing their bad conduct as dis- 
turbers of public worship, to be introduced. — Harrison v. 
The State, '6l Ala. 154. In such cases, particular instances 
of improper conduct may be proven. — Commonivealth v. 
Moon, 2 Dana 402 ; Sacket v. May, 3 Dana, 80. And evi- 
dence of bad conduct or character subsequent to the com- 
mission of the offense may be given. — CommomoeaUh v. 
Sacket, 22 Pick. 394 ; Rose. Or. Ev. p. 91, and notes. 

2. Any noise intentionally made, which disturbed the 
worship of the congregation, was a violation of the law, 
and on proof of this fact the accused could be rightfully 
convicted. — Kurney v. The State, 38 Ala. 224. 

3. The charges asked by the defendants were properly 
refused. If the act was done by any one of the party en- 
gaged in a common enterprise, all were guilty. — 1 Bish. 



JUNE TEBM, 1871. 183 

Brown et al . v. The State. 

Cr. Law, § 264; Rey v. Sackett ; The People v. Mather ^ 
4 Wend. 229, 255-56. 

If the charges asked by defendants contained in each 
an incorrect proposition, although the remainder of the 
charge was correct, the court did not err in refusing to 
give it, or them. 

PECK, C. J.— By section 3612 of the Revised Code it is 
provided that " any person who loillfvRy interrupts or dis- 
turbs any assemblage of people met for religious worship, 
by noise, profane discourse, rude or indecent behavior, or 
any other act, at or near the place of worship, must on 
conviction be fined not less than twenty, nor more than 
two hundred dollars, and may also be imprisoned in the 
county jail, or sentenced to hard labor for the county, for 
not more than one year." 

To constitute an ofifense under this section, there must 
be not only an actual interruption or disturbance of an 
assemblage of people met for religious worship, by noise, 
profane discourse, rude or indecent behavior, or by some 
other act or acts of like character, at or near the place of 
worship, but such interruption or disturbance must be 
mUlfully made by the person or persons accused. The in- 
tent of the party or parties is of the very essence of the 
offense, and to be willful, it must be something more than 
mischievous — it must be in its character vicious and im- 
moral. The evidence in this case is all set out in the bill 
of exceptions, and I have examined it carefully ; it is very 
indefinite and uncertain, and it seems to me barely suflBl- 
cient to have put the accused on their defense. 

This offense, if clearly proved, should be severely pun- 
ished, but in doubtful cases, I am persuaded the cause of 
religion and the public good will be better subserved and 
promoted by suffering it to pass without the notoriety and 
excitements of a criminal prosecution. The best interests 
of religion are seldom, if ever promoted, by being too 
careful to mark what is done amiss. 

We have discovered several errors in the record for 
which we think the judgment should be reversed. 1. After 



184 F OBTY-SIXTH ALABAMA. 

Brown et al . v. The State. 

the State had closed the evidence for the prosecution, the 
bill of exceptions states that " the defendants then intro- 
duced and examined one John Morris, who had been sworn 
by the State, but not examined, who testified, in substance, 
that he was acquainted with defendants, and knew their 
general character ; that their characters were good ; that 
they were peaceable young men. He was then asked if 
he had ever heard them charged with disturbing worship 
hefore this charge. He answered he had not. 

" The solicitor for the State then asked, on cross-exam- 
ination, if he had not heard that they disturbed the con- 
gregation at Sale Chapel church the next day after the 
alleged disturbance for which they were indicted. The de- 
fendants objected to this question, upon the ground that 
evidence of character should be confined to the time of 
the commission of the act for which they were indicted, 
and anterior thereto." The court overruled the objection, 
and allovyed the witness to answer, and the defendants ex- 
cepted. The witness then stated that he was at said 
church next day, on Sunday, after the alleged disturbance 
on Saturday night before, and that he heard the cow bell, 
but that it did not disturb him , that he heard that defend- 
ants had caught a cow by the tail up the road, and dis- 
turbed the congregation thereby. 

This question was not a proper question to be asked, 
even on cross-examination, because it referred to a time 
different from that embraced in the defendant's question, 
and because it referred to a particular act, and not to the 
general character of the defendants. 

It is not permissible, in a criminal prosecution, for the 
State to inquire into the general character of a defendant, 
until he has voluntarily put it in issue, and then the in- 
quiry must be confined to a time antecedent to the time 
when the offense charged is alleged to have been com- 
mitted. 

I am aware it has been held otherwise in Massachusetts, 
in the case of The Commonwealth v. Sackett, 22 Pick. Rep. 
394, This, if not an isolated case, is not sustained by the 
current of authorities, either text writers or reported cases 



JUNE TERM, 1871. 185 

Brown et al. v. The State. 

Wharton's Am. Cr. Law, 4th rev. ed., 636-38 ; Greenl. Ev. 
§ 54 ; Bish. Cr. Pro. § 488-89, and the cases cited by these 
authors. 

The State, against the defendants' objection, was permit- 
ted to ask a like question of several other witnesses ex- 
amined by the defendants to prove their general good 
character, and defendants excepted. 

2. After the evidence was closed, the court, of its own 
motion, charged the jury that " the word ' interrupt,' as 
used in the statute under which the defendants are in- 
dicted, means anything done by the defendants, or any 
other persons, which takes the attention of the hearers 
from the services, or the discourse of the minister." This 
charge is clearly erroneous. Its tendency was to mislead 
the jury, by withdrawing their attention from the essence 
of the offense, the intention of the defendants, and that 
the interruption or disturbance of the assemblage was wil- 
ful on their part. 

The second charge given by the court is objectionable, 
for the reason that it makes the defendants that did not 
participate in the conversation alleged to have disturbed 
the assemblage, as guilty as though they had engaged in 
the conversation themselves. This could not be, unless 
the proof showed a combination or common purpose on 
the part of the defendants to do the unlawful act. 

The first written charge asked by the defendants should 
have been given. It states the law correctly in regard to 
the character of the doubt that will entitle a defendant to 
an acquittal. — Bish. Cr. Pro. § 818-19. In the case of 
Jane v. The Commoniuealth, 2 Met. (Ky.) Rep., Chief Jus- 
tice Simpson says : " The evidence must be sufficient to 
produce a full conviction of guilt, to the exclusion of all 
reasonable doubt." 

The second and third written charges asked by the de- 
fendants were properly denied. The third is by no means 
clear and perspicuous, but involved and complicated, and 
would no doubt have embarrassed and misled the jury. As 
courts are required to give written charges in the very 
13 



♦ 
186 FOBTY-SIXTH ALABAMA. 

Nelson v. The State. 

terms in which they are written, (Eev. Code, § 2756,) and 
are not permitted in any manner to explain or alter them, 
therefore, unless they are altogether right, they may be re- 
fused without error. 

The third gives an incorrect meaning and application of 
the word ' interrupt,' as used in section 3612 of the Revised 
Code, and was rightly overruled for that reason. The of- 
fense may be committed, without necessarily stopping or 
hindering tlie progress of a worshipping assembly in effect- 
ing tlie objects and purposes for which such assembly has 
met together. 

For the errors mentioned and pointed out in this opinion, 
the judgment of the court below is reversed, and the cause 
is remanded for another trial. 



NELSON vs. THE STATE. 

[indictment fob assault with intent to mubdek. J 

Fine ; when can only he fixed by jury. — 1. A party who is prosecuted for 
au assault with intent to murder, by indictment, in the circuit court, 
and who confesses himself guilty of an assault and battery with a pistol 
must have "the amount of the fine" "fixed and determined by a jury." 
The fine can not be fixed by the court in such a case. — Reyised Code, 
$§ 3670, 3672, 3757, 4170. 

2. Costs; what judgment may he rendered on failure to pay . — And if such 
party pays the fine during the term of the court at which he is so found 
guilty, but fails to pay the costs or to confess judgment for the same 
with good and sufficient securities as required by the Code, he may be 
sentenced to hard labor for the county in which the trial is had, for a 
period of time in proportion to the amount of the fine, or for a period 
necessary to pay the costs, at forty cents a day. — Revised Code, §§ 3759' 
3760, 4061. 

3. Quere. — Can such a person so convicted be imprisoned to enforce the 
payment of the costs thus imposed, if he fails to pay them or secure 
them, as allowed by the statute? — Const. Ala. 1867, art. I, § 22. 



JUNE TERM, 1871. W 

Nelson v. The State. 

Appeal from Circuit Court of Dallas. 
Tried before Hon. James Q. Smith. 

The facts are stated in the opinion. 

Reid & May, for appellant. — 1. The sentence of 
the 9th June was without authority of law. Ist. Be- 
cause the sentence of the court (31st May,) had been 
complied with; 2d, The defendant could not be held 
in custody for failure to pay . the costs, and 3d, the 9th 
June sentence is too uncertain. The State's constitution, 
art. 1, § 22, says : "There shall be no imprisonment for debt 
except in case of fraud." The supreme court of Indiana 
uses this language — " The costs in a criminal case are mat- 
ters of private right, and constitute a mere indebtedness, 
for which, in the absence of fraud, a defendant can not be 
ordered to be imprisoned." — Thompson's case, I6th Ind. 
R. 517 ; Shafer's case, 18th Ind. R. 444. The judgment or 
sentence of the 9th June is void for uncertainty. From it 
can the clerk, the sheriff or the defendant determine the 
term he is to do hard labor ? There is too much room for 
injustice. 

2. The controlling tests, whether costs in criminal cases 
are debt or penalty, are shown by the several sections of 
the Revised Code, §§ 3763, 4220, 4221, 4336, 4340. Sec- 
tion 3760 is controlled by amount of the fine, and by the fact 
that the Governor can remit a f,ne but can not cos#,9. — Chis- 
holm's case, 42 Ala. 527 ; Farley s case, 8 Blackford R. 280. 

Attorney-General, contra. 

PETERS, J. — This is a criminal prosecution by indict- 
ment upon a charge bf assault with intent to murder, com- 
menced in the circuit court of Dallas county. The trial 
took place on the 31st day of May, 1871, " when the 
defendant being arraigned pleaded guilty of an assault and 
battery with a pistol. And the judgment recites — " It is 
therefore considered by the court that the defendant be 
fined the sum of twenty-five dollars." It does not appear 
that there was any jury inpanneled in the case to " fix and 



188 FORTY-SIXTH ALABAMA. 

J* elson V. The State. 

determine the amount of the fine," but that the same was 
fixed by the court, without the intervention of a jury. 
This fine was paid by the defendant during the term of the 
court, but no judgment for the costs was confessed by the 
defendant, with securities, as required by the Revised Code. 
And there was no judgment rendered against the defendant 
in the court below for costs, except as hereinafter shown. 
On the 9th day of June, after the defendant pleaded guilty > 
as above shown, and was fined twenty-five dollars, the fol- 
lowing entry of judgment was made, to- wit : "This day came 
S. W. John, solicitor for Dallas county, who prosecutes 
this case on behalf of the State, and came also the defend- 
ant in his own proper person ; and the defendant failing to 
pay the costs imposed upon him at a former day of this 
term, or to confess judgment for the same, it is ordered by 
the court that defendant be sentenced to hard labor for the 
county of Dallas until the said costs are paid at the rate 
of forty cents per day. And the clerk of this court is 
ordered to ascertain the amount of costs, estimate the 
number of days the prisoner is to be held, and furnish the 
same to the sheriff." And at a subsequent day of the term 
of said court, to- wit, on the 13th day of June, 1871, the 
said defendant moved the court " to be discharged from 
further custody, under the sentence in said behalf of date 
31st May, 1871," on the ground that said sentence was 
unauthorized, and contrary to law ; and that the costs 
imposed on him, said defendant, was a civil demand or 
debt. This motion the court refused and the defendant 
excepted. From the judgment thus rendered the said 
defendant appeals to this court. 

The judgment in this case was without warrant of law. 
In prosecutions by indictment, the jui«y alone can " fix and 
determine the amount of the fine," except " when an offense 
may be punished, in addition to a fine, by imprisonment or 
hard labor for the county." — Revised Code, §§ 3757, 3758, 
and 4 1 70. Here the charge was for an offense punishable 
by imprisonment in the penitentiary, without fine ; and the 
conviction was for an offense punishable by fine, " not more 
than two thousand dollars, or imprisonment in the county 



JUNE TERM, 1871. 189 

Nelson v. The State. 

jail, or sentence to hard labor for the county, not more than 
twelve months."— Revised Code, §§ 3670, 3672 and 4199. 
From this, it is evident that the imprisonment was not in 
addition to the fine, but in lieu of it, and the punishment 
could not be fixed by the court, but only by a jury. — Rev. 
Code, § 4170. Then, the fixing of the fine by the court, 
without the intervention of a jury, was erroneous. In such 
a case as this, a jury should determine the fine. — Revised 
Code, § 3757. Beside this, the judgment should have been 
rendered for a definite amount, or for " the costs of the 
prosecution." And the imprisonment should have been 
fixed in proportion to the amount of the fine, (Rev. Code, 
§ 3760,) or in proportion to the amount of the costs, at forty 
cents per day. — Rev. Code, § 4061. 

But beyond this, the appellant contends that he could 
not be held in custody for the costs alone, after the fine 
was paid. This depends upon the construction to be given 
to the present constitution of the State, and the law in ref- 
erence to the collection of the costs in criminal prosecutions 
in the circuit court. The Revised Code directs that "where 
a fine is assessed, the court may allow the defendant to con- 
fess judgment, with good and sufficient sureties for the fine 
and costs." — Revised Code, § 3759. But " if the fine and 
costs are not paid, or a judgment confessed according to 
the provisions of the preceding section, the defendant must 
either be imprisoned in the county jail, or, at the discretion 
of the court, sentenced to hard labor for the county." — Re- 
vised Code, § 3760. Here, the fine was paid, but the costs 
were not paid ; and no judgment was confessed and secu- 
rity given for the same, as required by law. And the de- 
fendant was condemned " to hard labor for the county of 
Dallas until the said costs are paid, at the rate of forty 
cents per day." This judgment is not equivalent to a sen- 
tence of imprisonment until the costs are paid. It does 
not, then, violate that section of the constitution of the 
State, which declares, " that no person shall be imprisoned 
(or debt."— Const. Ala. 1867, Art. I, § 2 ; Pamphlet Acts 
1870-71, p. 5. How the payment of the costs shall be en- 
forced in criminal cases is for the general assembly to de- 



190 FOBTY-SIXTH ALABAMA. 

Nelson v. The State. 

termine, and for the courts to carry into effect. I am of 
the opinion that a party can not be imprisoned to enforce 
the payment of costs in such a case. For the reason that 
costs are not strictly a part of the punishment, but only a 
debt, the collection of which may be enforced by execution 
as any other debt. — Kev. Code, § 3761. But, if the costs 
are not paid, or secured as allowed by law, I know of no 
restraint on the legislature which forbids the State to im- 
pose a certain amount of work for the county on the de- 
fendant, as the mode of securing the payment of the costs 
in a criminal case. The public good — which is the " solus 
populi," — demands the prosecution of persons charged with 
offenses forbidden by-law. And such prosecutions can not 
be carried on without incurring a liability for costs. Where 
there is no constitutional restriction, this liability may be 
enforced in such manner as the legislative authority may 
think fit. For, without restriction, the legislative authority 
is supreme. — Borman v. The State, 34 Ala. 216, 229, et seq.; 
Eev. Code, § 4061. A party, then, under such a conviction 
as this, for a public offense, may be sentenced by the court 
to hard labor for the county during the time prescribed by 
law, unless he secure the payment of the fines and costs, as 
required by the statute. That is, " if the fine does not ex- 
ceed twenty dollars, ten days ; if it exceeds fifty, and does 
not exceed one hundred dollars, thirty days ; if it exceeds 
one hundred, and does not exceed one hundred and fifty 
dollars, fifty days ; if it exceeds one hundred and fifty, 
and does not exceed two hundred dollars, seventy days ; 
if it exceeds two hundred, and does not exceed three hun- 
dred dollars, ninety days ; and for every additional one 
hundred dollars, or fractional part thereof, twenty-five 
days." — Rev. Code, § 3760. When both the fine and costs 
are not paid by a party found guilty on an indictment for 
a public offense, punishable by fine or imprisonment in the 
county jail or to hard labor for the county, the foregoing 
section of the Revised Code prescribes the limits of the 
period during which he may be sentenced to hard labor for 
the county, if the sentence is under this section. And he 
is not entitled to be discharge^ until he serves out the 



JUNE TERM, 1871. 191 

Gardner, Adm'r, v. Pickett, Adm'r. 

period thus designated or secures the fine and costs, or the 
costs where the fine is paid, as required by the Code. — 
Rev. Code, §§ 3749, 4061. The court, then, did not err in 
refusing the motion of the defendant in the court below, 
without payment of the costs as well as the fine, or without 
confessing judgment for costs with good and sufficient secu- 
rities, as allowed by law. 

Doubtless the legislature may make the payment of costs 
a part of the punishment, and in case of a failure to pay or 
secure them, then to imprison as an alternative, as in case 
of a fine. But until this is done the courts must be con- 
tent with power to enforce the law as it now stands, pro- 
vided the imprisonment is not cruel. — Constitution Ala. 71, 
§17. 

For the error first above pointed out, the judgment of 
the court below is reversed and the cause remanded for a 
new trial ; but the said Aaron Nelson, the defendant in the 
court below, will be kept in custody until discharged by 
due course of law. 



GARDNER, Adm'r, vs. PICKETT, Adm'r. 

[BILL IN EQUITY FOE INJUNCTION.] 

1. Bill in chancery; what without equity. — The executors of an estate 
were indebted to an attorney for services rendered during their admin- 
istration, and he was indebted to them for money of the estate loaned 
to him, the payment of which was secured by a mortgage. On final 
settlement they charged the estate in their favor with the value of his 
services, but failed to execute an agreement with him to credit his debt 
with the amount allowed to them, — Held, that a bill in chancery by 
him to enjoin a sale of the mortgaged property by the administrator of 
a distributee to whom his debt and mortgage had been transferred in 
the distribution of the 'estate, and to credit his debt with the amount 
due him for his services, was without equity. 

2. Same; what amendment is a departure.— kn amendment to such a bill. 



192 FOETY-SIXTH ALABAMA. 

Gardner, Adm'r, v. Pickett, Adm'r. 

setting up a claim of another person to the mortgaged property as a 
prior incumbrancer, is an inadmissible departure from the original bill. 

Appeal from Chancery Court of Pike. 
Heard before Hon. Adam C. Felder. 

The facts are set forth in the opinion. 

J. L. PuGH, for appellant. — This is not a bill to establish 
a set-off, or collect a debt with which the estate of Siler is 
charged by the contract of the executors for lawyer's fees, 
and hence the cases cited by appellee's counsel do not 
apply. 

On the contrary, it is a bill to perpetually enjoin the sale 
of real estate under a mortgage to secure a note which has 
already been paid and extinguished by the executors of 
Siler, while they were executors and authorized to receive 
payment of the note in services rendered by the maker of 
it. After the services were recognized as a proper charge 
against the estate, and allowed as a credit to the executors, 
they agreed to satisfy the note and credit each with the 
other. 

The division made of the assets, money and property by 
commissioners in December, 18(52, does not show that 
Mclntyre's note was among the notes turned over. The 
l)ill states that Mclntyre's note was turned over on final 
division, and that at the final settlement, Parks, the secre- 
tary, had the note, and that after the allowance on the final 
settlement of the $1,632, Parks, having possession of the 
note, placed a credit on it of the identical six hundi ed and 
thirty-two dollars allowed for the services rendered on the 
final settlement. Certainly, then, the note had not passed 
from under the control of the executors when the agree^ 
ment was made to extinguish it with the allowance for 
Mclntyre's professional services. 

If the executors employed Mclntyre, and reported the 
amount they had charged the estate with for his fees, and 
the amount was allowed them, indisputably they could ac- 
cept payment of that allowance in Mclntyre's note, which 
the bill distinctly shows they agreed to do at the time the 



JUNE TEBM, 1871. 193 

Gardner, Adm'r, v. Pickett, Adm'r. 

credit was allowed on final settlement. This arrangement 
by the quasi trustees of the legatee extinguished Mclntyre's 
note as an asset belonging to the estate and subject to dis- 
tribution. Then, how can the complainant be required to 
go on the executors, and the legatee be permitted to collect 
a note that has once been paid and satisfied by the lawful, 
just, and equitable contract of her trustees ? The legatee 
does not stand in the position of a creditor or purchaser. 
The legacy she has was properly chargeable with the debts 
and just claims and allowances against the estate. She 
was entitled to nothing until all these were discharged. 
The note she has, the executors have appropriated and 
vnthdramn from the assets of the estate, with the consent 
and approbation of the probate court. What right has 
the legatee to the note in equity and conscience ? 

The case of Coopwood et al. v. Wallace et at, 12 Ala. 790, 
has been restored as an authority to support the right of 
executors to charge the estate in the lawyers' fees, by the 
case of Mulhall v. Williams and Wife, 32 Ala. 489. 

" It is a self-evident truth," says Justice Dargan in Coop- 
wood V. Wallace, " that an administrator has the right to 
employ lawyers to aid him in the collection of the debts 
and property belonging to the estate, and to charge the es- 
tate with just compensation for such services." 

This being the undoubted law, the executors had a clear 
right to collect Mclntyre's note in services, instead of 
money, and having been once collected by the trustees of 
the legatee, she can not collect it again out of Mclntyre, 
and turn him over to her trustees for redress. 

As to the amended bill making a new case, and joining 
complainants : Soles made a sale of the real estate mort- 
gaged, before the mortgage was executed. The purchase- 
money had never been paid him by Mclntyre. After 
Mclntyre's note was satisfied by the agreement with the 
executors, Soles re-purchased the real estate, and credited 
the amount paid for the lot on the re- sale with the 1300 
purchase- money due him. Soles' lien for /the $oOO was 
older than the mortgage, (the mortgage was made to se- 
cure an antecedent debt,) and in equity Soles has the older 



194 FORTY -SIXTH ALABAMA. 

Gardner, Adm'r, v. Pickett, Adm'r. 

and better lien. Besides, Mclntyre's estate 'would be re- 
sponsible to Soles, if this mortgage is foreclosed by a sale 
of the lot, as in the absence of covenants of warranty the 
laiv would bind Mclntyre's estate to remove the incum- 
brance. This associates Soles' and Mclntyre's adminis- 
trators and heirs in interest in the bill now filed, to per- 
petually enjoin the enforcement of a lifeless incumbrance. 
4 Ala. 21 ; Story Eq. PL §§ 224, 229. They are p-oper, if 
not necessary parties. 

Stone, Clopton & Clanton, contra. — 1. The bill is with- 
out equity. — Jones v. Dawson, 19 Ala. 672-78 ; Kirkmany 
Ahernathy & Hanna v. Benham, 28 Ala. 501. 

2. The bill is fatally deficient as a bill for equitable set- 
off. — T.y G. & D. Railroad v. Rhodes, 8 Ala. 2l6; Carroll 
V. Mdone, 28 Ala. 621. 

3. The amendment makes a new case. — Winter v. Quarles, 
43 Ala. 692. 

B. F. SAFFOLD, J.— The case made by the bill is, that 
Edward L. Mclntyre was the attorney of the executors of 
Solomon Siler, deceased, in their administration and final 
settlement of his estate. He had borrowed money from 
them, and secured its payment by a mortgage on a house 
and lot. They were indebted to him for his services. On 
their final settlement they charged the estate with the 
amount of these services, and credited Mclntyre's debt 
with a portion of the amount allowed them. They agreed 
with him that the entire allowance should be so credited, 
but in the distribution of the estate by commissioners his 
note and mortgage were transferred to one of the distrib- 
utees, Mary A. Siler, afterwards Mrs. Pickett, and the 
credit was not made. The administrator of Mrs. Pickett, 
who was about to foreclose the mortgage, is made a party 
defendant, together with the surviving executors and the 
heirs-at-law of those who had died. The prayer is, that 
the credit allowed the executors be set aside, and that his 
debt be credited with the amount he may be entitled to re- 
ceive, and for an account between him and the executors ; 



JUNE TEEM, 1871. 195 

Cabbell v. The State. 

and for an injunction to restrain the sale of the property 
mortgaged by him. 

The bill was dismissed for want of equity, and misjoin- 
der of parties, with leave to amend. The amended bill 
introduced Lemuel B. Soles as a party complainant with 
Mclntyre, and propounded his interest, the substance of 
which was, that he had originally sold the mortgaged prop- 
erty to Mclntyre, and had purchased it back again for 
something more than the purchase-money, which had never 
been paid, and was in possession. This bill was also dis- 
missed for the same reasons as the other. 

The claim of Mclntyre was upon the executors, and not 
upon the estate of Siler. His debt was assets of the es- 
tate. When the executors charged the estate with the 
amount of his claim, it was a preclusion of any possible 
recourse upon it in favor of Mclntyre, even if he had oth- 
erwise had such a right. The agreement between him and 
the executors was not executed by them, but they had, by 
their action, chosen to be accountable themselves to him. 
Jones V. Daioson, 19 Ala. 672-78. 

The amended bill did not help Mclntyre's case by set- 
ting up the claim of Soles as a prior incumbrancer. It 
made a new case, inadmissible as an amendment, besides 
being subject to the objections of misjoinder of parties 
and multifariousness. — Winter v. Qvarles, 43 Ala. 692. 

The decree is aflSrmed. 



CABBELL V8. THE STATE. 

[indictment fob assault with intent to mubdeb.] 

, Defendant, indicted for assault with intent, <)rc./ what must be proved as 
to words of encouragement, <^'C., to parties committing assault, ^c. — On 
the trial, of a party indicted for an assault with intent to murder, if it 
appears the assault was, in fact, made by a mob, and not by the do- 



196 FORTY-SIXTH ALABAMA. 

Cabbell v. The State. 

fendant, and he is sought to be convicted by proving that he encour- 
aged, aided and abetted the mob to commit the assault, by words 
uttered by him, it must be shown that they were addressed to, or at 
least heard by, the persons, or some of them, composing the mob. 

2. Same; tvhen loords not sufficient to make out offense. — If the words were 
not addressed to, or heard by, the persons, or some of them, constitut- 
ing the mob, then they are not of themselves evidence of any combi- 
nation or common design between the defendant and the mob. 

3. Same; particular intent must be proved. — On the trial under such an 
indictment, the State must prove the particular intent charged in the 
indictment. 

4. Same ; accountability of defendant and effect of words of encouragement 
to mob ; what not destroyed by. — The legal effect of words of encourage- 
ment addressed to a mob, whatever it be, can not be destroyed by th& 
after repentance of the speaker. 

Appeal from Circuit Court of Dallas. 
Tried before Hon. M. J. Saffold. 

The defendant and two other persons were jointly in- 
dicted for an assault with the intent to murder one Andrew 
J. Baxley. The indictment was in the form prescribed by 
the Revised Code. 

On motion of the defendants, a severance was allowed 
by the court, and a separate trial granted to each defend- 
ant. Thereupon appellant was put upon his trial, on the 
plea of not guilty, was convicted, and sentenced to be con- 
fined in the penitentiary for two years. 

The evidence for the State and the defense, as set out in 
the bill of exceptions, discloses, in substance, the follow- 
ing case, to-wit : 

On the 5th day of November, 1870, the said Baxley shot 
and killed a negro man, in the city of Selma, named Alfred 
Granger, and was immediately arrested by the marshal, 
and was being carried to prison, when suddenly a mob of 
negroes collected around the marshal and violently took 
him out of his custody, and dragged him along the street 
about a square, and entered a house with him called the 
" Old Dominion," which was immediately filled with the 
mob. 

The marshal states that he followed the mob into the 
house, and endeavored to prevent the injuries being in- 



JUNE TERM, 1871. 197 

Cftbbell V, The State. 

flicted upon the said Baxley ; that notwithstanding his ef- 
forts, said Baxley was badly beaten and injured by the 
crow/3, and efforts were once or twice made to cut his 
throat ; that the room was densely packed with white and 
black, principally the latter ; that there were cries of " kill 
him," " he must die," &c.; that it was about an hour and a 
half before the crowd could be got out of the room, dur- 
ing all which time efforts were made to injure said Baxley ; 
that he did not see the defendant during the day, or hear 
him say anything. 

The evidence for the State shows, that soon after*the 
mob entered the house, the defendant, who was a drayman, 
drove up on his dray in the street in front of the house 
and asked, " what is all this fuss about?'' A negro woman 
standing on a dray near by answered, " they are killing the 
man who killed Alf. Granger ," that defendant said, " that 
is right, kill him, God damn him," and jumped off his dray 
to the side-walk in front of the Old Dominion, which was 
densely crowded with men around the door of the room, 
and the witness who testified to this saw him no more. 

The evidence for the defense tends strongly to show that 
defendant was at the depot of the Selma, Rome & Dalton 
railroad when the mob first assembled, and remained there 
until a shojt time before the mob separated, and knew 
nothing of what was going on when he drove up, coming 
from the direction of said depot, on his dray, and asked 
what was the matter, and was told that Alf. Granger and 
another man was killed, and were in the house there, 
(pointing to the Old Dominion,) and upon being told by 
the witness it was too bad a place for him, he turned his 
dray up street and drove off. 

After the evidence was closed, and the court had given 
its general charge, to which defendant excepted, the de- 
fendant asked the court to give the following written 
charges : • 

1. That an assault with the intent to murder differs from 
a riot in this — that on a charge for a riot, it is sufficient to 
prove a general intent to do an act, or aid and abet in 
doing the act ; but for an assault with intent to murder, it 



198 FORTY-SIXTH ALABAMA. 

Cabbell v. The State. 

is necessary for the State to prove the specific intent to do 
the thing charged in the indictment. 

" 2. That the gravamen of the offense charged is the 
"intent to murder A. J. Baxley," and that if the jury be- 
lieve from the evidence that the defendant, at the time he 
made the remark, " kill him," &c., did not know who was 
being assaulted, and did not know A. J. Baxley, that then 
they must find the defendant not guilty. 

"3. If the jury believe that the defendant made the re- 
mark or exclamation, " kill him," &c., not knowing actually 
what had been done, or what was being done to A. J. Bax- 
ley, and that upon going into the house and seeing Baxley 
inhumanly treated, repented and went away, then they 
must find defendant not guilty. 

"4. That the jury must believe, beyond all reasonable 
doubt, that the words of the defendant, "kill him," &c., 
were addressed to, or heard by, some of those persons en- 
gaged in the common design, before these words can 
operate to his prejudice in this case. 

** 5. That if the jury believe that the words alleged to 
have been spoken by the defendant is all the evidence to 
connect him with the common design, then they must be 
satisfied, beyond a reasonable doubt, that these words were 
spoken to, or in the hearing of, some of those engaged in 
the common design, before they can find the defendant 
guilty as charged." 

The court refused to give any of these charges, and de- 
fendant duly excepted, and now assigns the refusal to give 
the charges asked, as well as the general charge given by 
the court, as error. 

SuMPTER Lee, for appellant. 
Attorney-General, contra. 

,(No briefs came into the Reporter's hands.) 

PECK, C. J. — In disposing of this case, we do not think 
it necessary to consider and determine the propriety of 
the general charge given to the jury and excepted to by 



JUNE TERM, 1871. 199 

Cabell V. The State. 

the defendant. On another trial, it will probably not be 
thought necessary to give this charge. 

The first charge asked, I think, might have been given 
without error; nevertheless, its denial was not erroneous. 
Although the difference between an assault with intent to 
murder, and an act done by a riot, as to the character of 
the intent, may be admitted to be correct, it was not nec- 
essary to determine that question on this trial. 

Under this indictment, it was necessary for the State to 
prove the particular intent charged. — Ogletree v. The State, 
28 Ala. 693. If the defendant did not know who was 
being assaulted, and did not know A. J. Baxley, the words 
imputed to him, under the circumstances, did not prove 
the intent charged in the indictment ; therefore, the second 
charge should have been given. 

The third charge was correctly refused, whatever may 
have been the legal effect of the defendant's exclamation, 
"kill him," &c. If it had any legal force, it was not de- 
stroyed by after repentance. 

It is not pretended that the defendant committed the 
assault, — it was the act of the mob ; nor was it seriously 
contended that he was, in fact, a member of that unlawful 
assembly ; consequently, the words uttered by him can not 
be held to have encouraged or aided the persons by whom 
the assault was committed, unless addressed to, or at least 
heard by them, or some of them. It was therefore error 
to refuse the fourth charge. 

No argument is necessary to show the correctness of the 
fifth charge. 

If the defendant did not himself commit the assault, 
and the only evidence to connect him with the common 
design, if any such design was proved, are the words 
alleged to have been uttered by him, it is very clear he 
should not be convicted, unless the words were spoken to, 
or in the hearing of, the persons engaged in the common 
design. 

If these words are the only evidence of a common de- 
sign on the part of the defendant, they certainly can prove 



200 FORTY-SIXTH ALABAMA. 

Wright et al. v. Stott, Adm'r. 

no common design with persons by whom they were never 
heard. 

For the errors in refusing to give the second, fourth and 
fifth charges asked, the judgment of the court below is re- 
versed, and the cause is remanded for another trial, and the 
said defendant will remain in custody until discharged by 
due course of law. 



WEIGHT ET AL. vs. STOTT, Administrator. 

[action on pbomissoby note.] 

1. Administrator; tvhat contract of makes liahle.— "Where a purchaser at 
an executor's sale of his testator's personal property made in 1860, by 
agreement with the executor in 1864, settled his debt with Confederate 
currency, which he immediately received back as administrator of a 
deceased distributee's estate in part payment of his intestate's share, — 
Held, the contract was supported by such partial payment, and the 
purchaser was liable, as administrator, to the estate he represented, 
and not as debtor to the estate from which he purchased. 

Appeal from Circuit Court of Butler. 
Tried before Hon. P. O. Harper. 

At a sale of the personal property of the estate of James 
Craigg, made by his executors in 1860, the appellants pur- 
chased a mule and gave their promissory note therefor, 
payable to the executors on the 1st of March, 1861. In 
1864 the appellant, Wright, paid the note with Confederate 
currency, which one of the executors agreed to receive, on 
the condition that Wright, who was the administrator of 
Wm. G. Craigg, one of the distributees of the testator, 
would receive it back in payment of so much of his intes- 
tate's interest. The condition was complied with and the 
note was given up. This executor, in his final settlement 



^ JUNE TERM, 1871. 201 

Wright et al. v. Stott, Adm'r. 

in 1866, reported this note as still the property of the 
estate of his testator, received credit for it as uncollected 
assets and turned it over to his successor, Stott, who 
brought this suit for its collection. The court charged that 
it was a subsisting demand against the defendants in favor 
of the plaintiff. 

Gamble & Powell, for appellants. — The charge of 
the court, however, as given, withdraws from the jury 
the consideration of any fact tending to show that 
the party rightfully -entitled to the proceeds of the note 
sued on had ratified the transaction, and hence tended 
to mislead the jury. "A charge is erroneous which with- 
draws from the jury any facts, however weak, which tend 
to establish the point in issue ;" because such charges 
tend to mislead, — See Edgar v. McArn, 22 Ala. 796 ; 
Pritchett v. Munroe^ 22 Ala. 501 ; Beese v. Beck, 24 Ala. 651 ; 
Upson V. Baiford, 29 Ala. 188. The point in issue in the 
case at bar is, the payment of the notes and the charge 
given, withdrew from the jury every fact of a ratification 
of the payment by the party rightfully entitled to the notes 
or the proceeds. 

2. Now, if Wright, clothed with authority and being the 
only party legally entitled to receive this legacy, ratified 
the payment made by Wright and Rouse, the appellants 
in this case, and received the money in discharge of such 
legacy due to him as such representative, we insist that 
this was a good payment and extinguished the debt. — See 
Chapman, Lyon & Hays v. Gowles, 41 Ala. 103 ; DuJiherly v. 
Black's Adm'r, 38 Ala. 193 ; West, Olive & Go. v. Ball & 
Grommdin, 12 Ala. 340. Hence the pertinency of tbe evi- 
dence of R. R. Wright and the other witness for the 
defendant, and the court therefore erred in giving the 
charge. Because it withdrew from the jury the consider- 
ation of these facts. — See Edgar v. McArn, supra, etc. A 
payment of a debt in Confederate money is not ipso facto a 
void payment. — See on this point Cannxm v. McNah, Janu- 
ary term, 1871 ; HcAe v. Houston, Sims & Co., January 
14 



202 FOETY-SIXTH ALABAMA. 

Wright, et al. v. Stott, Adm'r. 

term, 1870 ; Herbert & Gessler, v. Easton, 43 Ala. 547, June 
term, 1869. If, then, the payment in Confederate money is 
not ipso facto void, .the charge given withdrew the consid- 
eration of any fact in this point from the jury, and was 
therefore erroneous as tending to mislead the jury. 

Herbert & Buell, contra. — The charge complained 
of simply asserts that an administrator had no right 
to collect in Confederate treasury notes a note payable 
to the estate in "dollars," the note having been made 
before the war, without showing some valid reason why 
he did so. 

The decisions of this court, to the effect that such cur- 
rency was not money, are too many and too familiar to 
require quotation. 

The only show of excuse shown to the court was that 
Henry, the executor of Craig, had at the same time paid 
the Confederate money he had taken from Wright, as an 
individual, back to Wright as administrator of one of the 
distributees. 

If Henry had no right to take as executor, Wright had 
no authority to take as administrator. If Henry was 
guilty of a conversion, Wright had no power to ratify this 
conversion. To allow this, would be to permit these two 
representatives to entirely destroy the estates they repre- 
sented — one of them ratifying the wrong of the other, for 
if Wright could ratify for Henry, Henry could ratify for 
Wright, and the estates would be at their mercy. 

American Law Review for October 1869, p. 125, under 
head of State decisions, says: "Administrators, attorneys, 
and the like, never had the right to receive Confederate 
money in payment of debts due them in their representa- 
tive capacity," citing Succession of Lagarde, 20 La. An. R. 
148 ; Davis v. Lee, ib. 248 ; Fry v. Dudley ib. 368 ; Wing- 
field V. Crosby, 5 Cold. 241 ; to which could be added numer- 
ous decisions of this court. 

But it is contended that it was error to withdraw from 
the consideration of the jury the fact that Wright, as ad- 



JUNE TERM, 1871. 203 

Wright, et aL v. Stott, Adm'r. 

ministrator of W. G. Craig, one of the distributees of the 
estate of James Craig, deceased ? 

The charge is not obnoxious to the criticism made by 
appellant. This was no application" of the fund to the 
payment of a debt of the estate. 

2. It was not even payment to the administrator of an 
estate not connected with the estate represented by Henry. 
The distributees of the estate of Wm. G. Craig were really 
interested in the estate Henry was controlling. Henry 
and Wright were both responsible to these distributees for 
their trusts, and the law would not permit them to combine 
to destroy the trust fund. What injury was it to with- 
draw this transaction from the consideration of the jury, 
when it could not possibly amount to any justification. It 
did not tend to prove any ratification by the cestui qui 
trusts, who alone had the power to ratify this illegal con- 
version. If that transaction was in the judgment of this 
court legal, then it follows that neither the distributees of 
James Craig nor of Wm. G. Craig can hold either admin- 
istrator responsible, and that Wright, who represents one 
of these estates, has a right to account to the distributees, 
whom he represents, in worthless currency for property in 
which they were interested, and for which he agreed to 
pay in good money. 

This is opposed by all the decisions of this court upon 
the subject. 

B. F. SAFFOLD, J.— The charge can only be sustained 
on the assumption that Wright's acquisition of the note 
was in consideration only of his payment of the Confed- 
erate currency, and that this amounted to nothing at all. 
Such is not a proper apphcation of the principles governing 
the use of Confederate currency as declared by this court. 
Under certain circumstances an executor or administrator 
is entitled to credit for assets of the estate he represents 
collected in this currency. — Houston v. Ddoack, 43 Ala. 364. 
A party can not of his own volition repudiate an executed 
contract made with him, as the executor, Henry, attempted 
to do in his final settlement. — Ponder v. Scott, 44 Ala. 241. 



204 FOETY-SIXTH ALABAMA. 

Boles V. The State. 

It was not shown that the plaintiff had exhausted 
his remedy against the executor or that he was insolvent. 

On the other hand, Wright made himself responsible to 
the estate he represented for the amount of the debt. 
He gave other consideration for the note than the Confed- 
erate currency. He acknowledged payment to him of part 
of the interest of his intestate. This was the real and suf- 
ficient consideration of the contract between him and the 
executor of James Craig. The note was mere evidence 
of a debt, which the parties, authorized to do so, settled. 
They became responsible to their respective beneficiaries 
for the settlement made. 

The judgment is reversed and the cause remanded. 



BOLES vs. THE STATE. 

[indictment foe abson.] 

■ Witness ; what question can not he compelled to answer. — A female wit- 
ness, for the prosecution in a criminal case, may be asked on cross- 
examination if she is unmarried, and she may be compelled to answer. 
But she can not be compelled to answer a question the response to 
which involves hev in the confession of a crime. 

. Same ; ill fame of tvitness, founded on what, not sufficient to impeach. — A 
female witness in a criminal case may be asked on cross-examination, 
whether she is not a person of such "ill fame as to exclude her from 
society,'' but the court should not compel her to answer, unless it 
appears that the cause of her " ill fame '' would be a proper reason to 
impeach her veracity as a witness. If her exclusion is founded on a 
prejudice against her religious creed, her mode of dress, her political 
sentiments or nativity and the like, it should not be allowed to discredit 
her. 

. Arson, indictment for; ownership of property must he proved as laid. — The 
forms of indictment found in the Code are prescribed Vjy law. And on 
a charge of arson, where they allege an ownership of the hoijse set fire 
to or burned, the ownership must be proved as charged in the indict- 
ment. 



JUNE TERM, 1871. 205 



Boles V. The State. 



Appeal from Circuit Court of Coffee. 
Tried before Hon, J. McCaleb Wiley. 

The facts appear in the opinion. 

G. T. Yelverton, for appellant. 
Attorney-General, contra. 

PETERS, J.— The appellant, Boles, with one Yarbrough, 
was indicted in the circuit court of Coffee county for arson 
in the third degree, for betting fire to or burning a corn 
house of Dennis Howell. There were three counts to the 
indictment. The defendant below pleaded not guilty, was 
tried by a jury and convicted, and was fined five hundred 
dollars and sentenced to hard labor for the county of Cof- 
fee for six months. And having failed to confess judgment 
for the fine and costs with good and sufficient securities, he 
was also condemned "to hard labor for said county for one 
hundred and forty days more." From this judgment the 
said Boles appeals to this court. 

There was a bill of exceptions taken at the trial, from 
which it appears that there was some evidence offered by 
the prosecution on the trial below, which tended to show 
that the accused was guilty of setting fire to the corn crib 
of said Howell within the time alleged in the indictment. 
And for the purpose of impeaching a witness offered for 
the State, the defendant's counsel asked her if she was an 
unmarried woman. She answered, yes ! She was then 
asked if she was not the mother of a negro bastard child. 
The State objected. The court then informed the witness 
that she might answer or not, as she might choose, and wit- 
ness refused to answer and the defendant excepted to the 
ruling of the court. The defendant then asked her if she 
was not of "such ill fame as to be excluded from society." 
The State objected, and the court sustained the objection, 
and the defendant excepted. There were also some other 
exceptions by the defendant to the evidence introduced by 
the prosecution, which need not be noticed further. And 
beside these exceptions, there were several others to the 



206 FORTY-SIXTH ALABAMA. 

Boles V. The State. 

charges given and to the refusal to charge, as asked by the 
defendant in the court below. 

It was certainly competent for the defendant to ask the 
witness, Eliza Williams, if she was an unmarried woman, 
and it was proper to compel an answer, because such an 
inquiry could not in any wise tend to criminate her. But 
the question intended to develop the fact that she was the 
mother of a negro bastard child was different. The state 
of facts to which an answer to this question pointed in- 
volved the confession of the crime of fornication or adul- 
tery. — Rev. Code, § 3598. In such a case the witness is 
not bound to answer, unless she chooses. And here the 
court very properly left it to her choice. In this there was 
no evror.— Campbell v. The State, 23 Ala. 44, 82. But 
the question as to the "ill fame" of the witness stands 
upon a different footing. "Ill fame" is not necessarily 
criminal. Therefore, a witness may be compelled to testify 
as to her ill fame, provided the character of her ill fame is 
such as impeaches her veracity, but not if the ill fame is 
founded on a mere prejudice. If such ill fame arises from 
a want of veracity or chastity, then it may be shown ; be- 
cause these are defects that render a female witness less 
worthy of belief. — The State v. Crowley, 13 Ala. 172 ; Rose. 
Ev. 181 ; People v. Mather, 4 Wend- 229. The witness 
must depose in open court and upon oath to speak the 
whole truth, except in privileged cases. — Const. Ala. 1867, 
art. 1, § 8 ; Rev. Code, § 2703 ; 1 Phill. Ev. pp. 14, 15, 16, 
and C. and H. Notes. And when a witness testifies in 
court he is not only bound to answer truthfully as to his 
knowledge of the facts put in issue by the pleadings, but 
he puts his own character in issue as an instrument of 
proof. And this allows an inquiry into his general char- 
acter. — Ward V. The State, 28 Ala. 53, 64. Hitherto there 
has been less doubt as to the effect of a want of chastity 
on the part of a female witness than on the part of one of 
the other sex, but doubtless this has been occasioned 
rather from the fact that men make the law, and women 
are compelled to obey it, than any just distinction in prin- 
ciple for the difference. And were the question as to the 



JUNE TERM, 1871. 207 

Boles V. The State. 

effect of a want of chastity on the veracity of a witness 
res Integra, I would be disposed to hold that it was the 
same without regard to sex. But the rules of what is called 
society are too fickle, and sometimes too unjust to make 
an "exclusion from society," a test of truthfulness in a wit- 
ness. Society has no rule of exclusion — in many cases 
some mere whim, growing out of a difference of religion, or 
politics, or dress, or nativity. Then, the ill fame that may 
exclude from society is not necessarily such as should be 
allowed to impeach the veracity of a witness. And as the 
question here did not show what character of ill fame was 
meant, or the extent and character of the exclusion, it was 
properly excluded by the court. The other objections to 
the testimony in support of Mrs. Williams are put with too 
much looseness for a clear comprehension of their meaning 
and purpose. When this is the case the court may over- 
rule the objections.— Rev. Code, §§ 2755, 4302 ; Rule Sup. 
Court, No. 1 ; Rev. Code, p. 816. 

The first charge asked by the defendant in the court 
below should have been given. It was in these words, 
to-wit : " That if the State failed to prove by evidence of 
title, ownership of the property fired as charged in the in- 
dictment, the jury can not find the defendant guilty." The 
form of the indictment requires this allegation. These are 
the forms prescribed by law. What they contain is 
required to be alleged. And what is required to be alleged 
must be proven.— Rev. Code, p. 811, No- 38, 37 ; Ih. § 4141 ; 
1 Greenlf. Ev. § 51 ; Rose. p. 270 ; Overstreet v. The State, 
June term, 1871. 

As this must necessarily reverse this cause, it is unneces- 
sary to go into the other exceptions, as they are of such 
a character as will not, in all likelihood, again occur. 

Let the judgment of the court be reversed and the cause 
remanded for a new trial, unless the said Boles, the de- 
fendant below, be otherwise legally discharged. 



• 



208 FOKTY-STXTH ALABAMA. 

Hudgins V, The State. 



HUDGINS vs. THE STATE. 

[indictment fok selling liqxjob, &c., contkaky to provisions of sec- 
tion 2 of act to incoepoeate foet beowdee male academy.] 

1. Corporation, cause of forfeiture against; can only be taken advantage 
of by direct proceeding. — A cause of forfeiture can not be taken advan- 
tage of, or enforced against a corporation collaterally or incidentally, 
or in any other mode than by a direct proceeding for that purpose 
against the corporation. 

2. Same.— On an indictment under section 2 of the act entitled "An act 
to incorporate the Fort Browder male academy, in Barbour county," 
approved February 8, 1858, for selling spirituous liquors or wines 
within half a mile of said academy, except for medical purposes, it 
can not be collaterally shown, as a defense, that the charter granted 
by said act has been forfeited by non-user, or otherwise . 

3; General license ; tvhat not defense to. — Nor is a general license to retail 
spirituous liquors, &c,, issued by the probate judge, any defense to 
such an indictment. 

Appeal from Circuit Court of Barbour. 
Tried before Hon. J. McCaleb Wiley. 

Appellant was indicted and convicted at the fall term, 
1870, of Coffee circuit court, under the provisions of sec- 
tion 2 of an act to incorporate the Fort Browder male 
academy, approved February 8, 1858, which makes it an 
indictable offense to sell liquors or wines within half a 
mile of said academy, except for medical purposes. 

It was admitted that the appellant sold spirituous liquors 
to the person, and at the time and place, as charged in the 
indictment ; but the defense set up was a general license 
from the probate judge of the county, taken out in pur- 
suance of the revenue law, and that the Fort Browder 
male academy had forfeited its charter and franchises by 
non-user. 

'* It was admitted that the corporators named in the act 
had organized according to the provisions of the charter 
soon after its passage, and employed a teacher for one 
year, and since then have done nothing in respect to said 



JUNE TEEM, 1871. 209 

Hudgins v. The State. 

school ; that teachers have been employed by the township 
trustees and other persons in the neighborhood ; that for 
a considerable length of time there has been no school at 
Fort Browder ; that for the last five years spirituous liquors 
have been sold within half a mile of the academy ; that 
there has been no meeting of the trustees of said academy 
in ten years, and that during this time they have exercised 
no control whatever over said academy. It was further 
admitted that Wilson, one of the incorporators, had been 
engaged in business and selling spirituous liquors at Fort 
Browder for five years, under license from the probate 
judge, and at the time charged in the indictment defendant 
had taken out a license to sell spirituous liquors from the 
probate judge." 

This was all the evidence in the case. 

The appellant requested the following written charges : 

" 1. That the act incorporating the Fort Browder male 
academy created a private corporation. 

" 2. That private corporations may forfeit their fran- 
chises by non-user. 

" 3. That private corporations may be dissolved by the 
assent of the incorporators themselves, and that assent 
need not be by formal resolution or action on the part of 
the incorporators, but may be inferred from the facts of 
each case ; and that in determining the question whether 
they had surrendered their corporate franchise or not, the 
jury may look at all the facts of the case." 

The court gave these charges, and then refused to refer 
to the jury the question of the forfeiture of the franchise 
by non-user or otherwise, but charged them that the act to 
incorporate the Fort Browder male academy remained in 
force until repealed by the legislature or vacated by a judi- 
cial proceeding. The court, at the request of the State, 
further charged the jury, that if they believed the evidence* 
they must find the defendant guilty. 

The defendant excepted to the refusal of the court to 
refer the question as to the dissolution of said incorpora- 
tion to the jury, and to each of the charges given, and 
these rulings are now assigned as error. 



210 FOETY-SIXTH ALABAMA. 

Hudgins v. The State. 

Shorter & Brother, for appellant. — Although the rule 
is different with municipal corporations, (24 Ala. 398,) pri- 
vate incorporations may be dissolved by the action of the 
incorporators themselves, either by a surrender of its priv- 
ileges, or " by any act equivalent to such a surrender." 
They may also forfeit their franchise by non-user. — 9 Ala. 
738 ; 11 Ala. 47li. 

The evidence in the case clearly showed that the incor- 
poration of the Fort Browder male academy had for many 
years been dissolved by the action of the incorporators. 
They had held no meeting for ten years. The people in 
and around the town of Fort Browder treated the incorpo- 
ration as dissolved, and had been accustomed for many 
years to retail spirituous liquors in the town and within a 
half a mile of the school house, under license granted by 
the probate judge of Barbour county. 

After giving all three of the charges asked by the de- 
fendant's counsel, the court in effect refused the charges, 
by declining to let the jury decide the question whether 
the charter or franchise had been forfeited by non-icser or 
otherwise, or whether the incorporation had been dissolved 
by any act of the incorporators themselves. This was the 
only material question in the case, and it was a question 
of fact which the jury alone had the right to determine. 

The act to incorporate the Fort Browder male academy 
created a private incorporation. — 33 Ala. 106 ; 31 Ala. 552. 

2. In the event that the forfeiture of the charter by non- 
user will not avail the defendant, and protect him from a 
prosecution in this instance, we present to this court the 
precise question decided in Dorman v. The State, 34 Ala. 
Private acts incorporating particular localities, and pro- 
hibiting the sale of whisky within a given territory, are as 
much unconstitutional as if they prohibited the sale of 
meat and bread. See the able argument of the attorney 
for the appellant in Dorman v. The State, supra. 

Attorney- General, contra — Contended that the forfeiture 
could only be taken advantage of by a direct judicial pro- 
ceeding ; that therefore it was proper to withdraw the con- 



JUNE TERM, 1871. 211 

Hudgins v. The State. 

sideration of this question from the jury ; that the act 
incorporating the academy being still of force, the judge 
of probate had no lawful authority to grant a license to 
sell Lquors within the limits prescribed by the charter, and 
that this being so, and defendant having admitted the facts 
charged in the indictment, it was proper to charge the 
jury that defendant was guilty if they believed the evi- 
dence. He further contended that the question settled- in 
Dorman v. T/ie State, 84 Ala. 218, had been acquiesced in 
for years, and came directly within the influence of the 
doctrine of stare decisis. 

PECK, C. J. — The circuit court committed no error in 
refusing to refer to the jury the question of the forfeiture, 
by non-user or otherwise, of the charter and franchise 
granted by the act entitled "An act to incorporate the Fort 
Browder male acacfemy, in Barbour county," approved 
February 8, 1858, Acts 1857-8, p. 85. That question could 
only be inquired into and determined in a direct proceed- 
ing instituted in the name of, and by the authority of, the 
State. 

The franchise granted by said act could not be collater- 
ally assailed on the trial of this indictment. — The State v. 
Moore dt Ligon, 19 Ala. 514; Angell & Ames on Corpora- 
tions, § "( 77. 

2. Nor was there any error in the charge of the court, 
that said act would continue in force until repealed by the 
legislature, or until the charter thereby granted was vaca- 
ted by a judicial proceeding instituted for that purpose. 

3. As the defendant admitted that he sold spirituous 
liquors at the time, place, and to the person charged in 
the indictment, the court properly charged the jury, that if 
they believed the evidence, they must find the defendant 
guilty. The license issued by the probate judge was no 
defense for selling spirituous or vinous liquors within the 
limits specified in said act, except for medical purposes. 

4. The constitutionality of special acts of the legisla- 
ture prohibiting the sale of spirituous Hquors, &c., within 
certain districts, or within a certain distance of places 



212 FORTY-SIXTH ALABAMA. 

Johnson v. The State. 

named in such aots, except for medical purposes, &c., was 
settled by this court in the case of Dorman v. The StatCy 
34 Ala. 216. 

For myself, I do not approve of that decision, and think 
it would have been better if it had declared such acts un- 
constitutional ; but that decision has been acquiesced in 
from that time to this, and we are not now disposed to 
disturb it. 

Let the judgment be affirmed, at appellant's costs. 



JOHNSON vs. THE STATE. 

[amendment of indictment.] 

1. Indictment; amendment of ; whennot permissihle. — The nmendment of 
an indictment, without the consent of the accused and against his 
objections even in an unmaterial particular, is an unsafe practice and a 
reversible error. 

2. Same; form of given in the Revised Code sufficient. — An indictment in 
the form prescribed by the Revised Code sufficiently shows a prosecu- 
tion carried on in the name and by the authority of the State. 

Appeal from City Court of Montgomery. 
Tried before Hon. John D. Cunningham. 

The indictment in this case, which was properly filed and 
endorsed, was as follows : 

State of Alabama, ) City Court, 

County of Montgomery, i October Term, 1870. 

The grand jury of said county charge, <fec., that before 
the finding of this indictment, Andrew Johnson (colored) 
on his examination, &c., falsely swore, &c.. Inhere follows the 
facts constituting the perjury,] against the peace and dig- 
nity of the State of Alabama. J. S. Winter, 

Solicitor of Montgomery county. 



JUNE TERM, 1871. 213 

Johnson v. The State. 

• The defendant demurred to the indictment — 

1. Because there is no such court as the "city court" 
known to the laws of Alabama. 

2. Because it does not appear from the indictment that 
the prosecution was carried on in the name of and by the 
authority of the State of Alabama, but, on the contrary, 
appears that it is carried on in the name and by the au- 
thority of the grand jury of Montgomery county. 

Thereupon the solicitor asked leave to amend the indict- 
ment by inserting in the caption the words "of Montgom- 
ery," just after the word "court," and by inserting below 
the date, "1870," the words, "in the name and by the 
authority of the State of Alabama," and the court, against 
the objection of defendant, allowed the motion, and the 
indictment was accordingly amended. The defendant 
reserved this objection by bill of exceptions, and having 
gone to trial on plea of not guilty, and been convicted, 
brings the case here by appeal, and now assigns as error 
the overruling of his objection to the amendment of the 
indictment, together with other rulings not necessary to be 
further noticed. 

J. Falkner, for appellant. — Indictments may be amended 
in some particulars by the consent of the accused, but in 
no case without his consent. — See Rev. Code, § 4143 ; 
Gregory v. The State, at this term. 

2. The constitution of the State, art. 6, § 19, is as follows: 
" The style of all processes shall be TJw State of Alabama, 
and all prosecutions shall be carried on in the name and 
by the authority of the State of Alabama, and shall con- 
clude against the peace and dignity of the same." Under 
the forms in use before the adoption of the Code of 1853, 
all indictments commenced in this way : " The grand jury 
of the State of Alabama, impanneled, sworn and charged 
to inquire for the body of (such a county) upon their oaths 
present, &c." Under this form of indictment it is plausi- 
ble at least to say that the indictment " was in the name 
and by the authority of the State of Alabama." But un- 
der the form of inUictment used in this case, there is noth- 



2U FORTY-SIXTH ALABAMA. 

Johnson v. The State. 

ing in the indictment to indicate that the " prosecution is 
carried on" either in the "name" or " by the authority of 
the State," but it is really in the name and by the author- 
ity of the grand jury. It does not aver that the grand 
jury in the name and by the authority of the State "charge 
&c," but they make the charge in their own names, or in 
the name of the foreman or the solictor, as their names 
alone appear to the indictment. Should it be said that the 
indictment commences " The State of Alabama," to this we 
reply that this is "the style of the process," and is also the 
style of all process in civil suits which are confessedly not 
in the name of the State, but are in the names of the par- 
ties beginning the suit as they appear in the body of the 
process, but the name or authority of the State does not 
appear in the' body of this process (indictment); therefore, 
the indictment does not come up to this requirement of the 
constitution, and " in the name and by the authority of the 
State of Alabama," as required by the constitution. If it 
does fill this requirement, then it may be contended just as 
well that every civil action is in the name and by the 
authority of the State of Alabama, because the process in 
those actions commence " The State of Alabama," and the 
proceedings are authorized by the laws of the State, and in 
that sense they are by the authority of the State. But 
this constitutional requirement evidently means more than 
this, else why insert it in the constitution as to State cases, 
and not as to civil suits. The framers of the constitution 
certainly intended that the process (indictment) should 
show upon its face that the charge should be made by the 
State and by its authority, and that this should appear 
upon the face of the 3harge or indictment, and that the 
accused should be able to see, from reading the document,* 
that "the sovereign State was his accuser, and that the 
charge was made by the authority of the sovereign peo- 
ple," and this is the very thing that does not appear. The 
constitutional provision, above quoted, meant something 
and has some force, and the only way to give it meaning 
and force is to require indictments to be in the exact lan- 
guage of the constitution. It will not do to say that the 



JUNE TERM, 1871. 216 

Johnson v. The State. 

name of the State is indorsed on the back of the indict- 
ment, and also on the docket. This is no part of the work 
of the grand jury, but a mere memoranda, made by the 
officers of the court to distinguish cases, and is done after 
the prosecution before the grand jury is at an end. It is 
true that this court has frequently decided that the forms 
given in the Code are sufficient, but the rule universally 
obtains in all courts that decisions on points, or rather 
embracing and covering points, which have not been pre- 
sented or considered, are never considered binding even on 
the courts or judges making such decisions. Applying this 
rule in this case, we do not find that this question has ever 
been raised or considered in this court. We, therefore, 
propose to raise it for the first time in this court. It being 
a constitutional question, and a provision inserted in that 
instrument for the benefit of the citizen, every citizen has a 
right to insist on it for his protection. 

3. Again, it is apparent from the language at the conclu- 
sion of the indictment, that the constitution has been 
departed from. Its language is, "and shall conclude against 
the peace and dignity of the same'' In this indictment, and 
in all the forms laid down in the Code, the conclusion is 
"against the peace and dignity of the State of Alabama." 
Now, we say that the word ^^same^ in the constitutioni 
refers back to the other words, which were required by 
that instrument to be in the body of the indictment, to- wit, 
"^tn the name, and by the authority of the State of Alabama" 
and if these words were in the indictment, then it would 
be natural and good language to say "against the peace 
and dignity of the same," in the language of the constitu- 
tion ; but, those words being left out of the indictment, it 
becomes necessary to change the language as to the words 
put into the indictment, and instead of the constitutional 
word "same," the pleader, to make sense, has to drop that 
word and say "against the peace and dignity of the State 
of Alabama." 

Attorney-Genekal, contra. 

B. F. SAFFOLD, J.— The sentence in this case must be 



216 FORTy-SIXTH ALABAMA. 



Barker v. Bell et. al. 



reversed on the authority of Gregory v. The State, at the 
present term. 

The objection made by the appellant that the indictment 
in the form prescribed by the Kevised Code is defective in 
not showing sufficiently that the prosecution is carried on 
in the name and by the authority of the State of Alabama, 
is not well taken. The objection is applicable to all indict- 
ments. The provision of the constitution referred to is 
the same as that contained in the constitution of ldl9, on 
the same subject. This court has repeatedly held that the 
form of indictment prescribed by the legislature in the 
Revised Code is sufficient. 

The indictment shows that the grand jury of a particular 
county in the State charged the defendant with a specified 
offense. They are the tribunal especially appointed to 
inquire into all offenses against the criminal law commit- 
ted in their county, and due presentment make of them by 
indictment. The charge averred that what was done, was 
against the peace and dignity of the State of Alabama, 
and it was signed by the solicitor, an officer appointed to 
prosecute all such cases in behalf of the State. This 
abundantly shows a prosecution carried on in the name 
and by the authority of the State. 

The judgment is reversed and the cause remanded. 



BARKER vs. BELL et al. 

[contest on phobate of will.] 

1. Will ; hoio only can he re2)uUi8hed. — In this State, the republication of 
a will is the making of a new will, and such republication must be 
made with all the formalities required by law. 

2. Same. — A will with the name of the maker and the names of all the 
subscribing witnesses save one torn off, can not be republished without 
a new signing and attestation, as required by the statute in the case of 
making a new will, where it appears that the cancellation was commit- 
ted by the testator himself with the intention to cancel the will ; and 



JUNE TERM, 1871. 217 

Barker v. Bell et. al. 

this, although after such cancellation, the testator may have spoken of 
such canceled will as " his will." 

3w Probate court; rules of evidence in.— The same rules of evidence govern 
in trials of contested wills as in courts of common law. Interest does 
not disqualify a legatee from testifying. 

4. Witness, recall of ; rests in discretion of oonrt. — It rests in the sound 
discretion of the court to allow a witness to be recalled. Where a wit- 
ness is recalled against the objection of the party summoning him, 
after he had dismissed him, such witness is the witness of the party so 
calling him back, and can not be impeached by such party. 

Appeal from Probate Court of Cleburne. 
Tried before Hon. W, R. Hunnicdtt. 

The facts are set out in the opinion. 

Jas. Aikin, Sol. Palmer, and T. J. Burton, for appellant. 
A will once revoked, in this State, can not be republished 
by parol— Witter v. Mott, 2 Conn. 67 ; 1 Redfield, 374, 
§ 14 ; Love v. Johnson, 12 Iredell, 355 ; 9 ih. 280 ; Jackson 
V. HoUoivay, 7 Johns. 394 ; Jackson v. Potter, 9 Johns, 312 ; 
4 Desaussure, 305 ; 3 ib. 346 ; 1 Williams on Ex'rs, side 
p. 103. 

The English statute of frauds is a part of the American 
common law. When section 1933 was enacted by the leg- 
islature, it was with reference to what was then the law of 
the land. 

Therefore, they meant by the phrase, " duly republish 
the previous will," the re-execution of it, with the same 
formalities as if he were executing an original will. — See 
Rev. Code, § 1933. 

Section 19 1 3 of Revised Code passes all the real estate 
of testator at his death. 

It is admitted by appellees that a will can not be repub- 
lished so as to convey -after acquired real estate, but under 
the above section it would convey that as well as any 
o ther. 

Does the law prohibit a testator from revoking a written 
will, except by the same formalities as are observed in its 
execution, or by tearing, &c., and yet republish one which 
has been revoked by parol ? — See Rev. Code, § 1933. 
16 



218 FORTY-SIXTH ALABAMA. 

Barker v. Bell et al. 

2. Even if a will could be republished by parol, the evi- 
dence in this case is wholly insufficient. It is all set out, 
on this point, in the bill of exceptions. — 1 Williams on 
Ex'rs, 103, et seq.; Lomax. 

Ellis & Caldwell, and Foster & Fokney, contra. — When 
a will is found among the papers of the testator immedi- 
ately after his death, in a mutilated condition, the pre- 
sumption of law is that the mutilation is his act, and was 
done for the purpose of revocation ; but rather the con- 
trary is to be inferred when it is found two days afterwards 
in the possession of one who has an' interest to defeat the 
will, or if it has been for that length of time under her 
control. — Bryant Bennett, exV, v. Elizabeth Shenace, 3 Ired. 
(Law) 303. 

A republication may be by a re-execution, or by an act 
or declaration of the testator, that he intended the instru- 
ment which had been revoked should operate as his will. 
Bouv. Inst., 2 vol., 464. 

This may be by parol, except in the case of after ac- 
quired lands, which will not pass by a parol republication, 
5 Bacon Abr. 320 ; Harvard v. Davis, 2 Binney, 406 ; Jones 
V. Harthy, 2 W^heat. 103. 

It is true that in England, since the statute of frauds, a 
will in writing can not be revoked by a parol republication 
of a former will. But the English statute contains this 
provision which our statute does not : " That no will shall 
be revoked except, <fec., unless by some other will in writing y 
or other loriting of the testator, signed in the presence of 
three or four witnesses, declaring the same." Our statute 
provides how a will may be revoked, but does not provide 
how it may be republished ; leaving the republication as 
at common law, unaffected by the English statute of frauds, 
or by the statute of other States. — Barnes v. Grow, 1 Ves. 
485 ; Jarman on Wills, vol. 1, p. 11)9 ; Com. Digest, 365 ; 
Powell on Devises, 652. 

The second will was destroyed with the express intention 
of reviving the first, the will in question. The act of can- 
celing that will and the declaration of republishing the 



JUNE TERM, 1871. 219 

Barker v. Bell et al. 

first will, were one and the same transaction, and did have 
the effect of republishing the present will. — Jackson v. Pot- 
ter, 9 Johns. 314, and cases cited in note ; Burns v. BurnSy 
4 Serjt. Racfi, 295. 

A parol republication might not pass after purchased 
lands, but no such question arises in this case on the 
charge given. — Jackson v. Potter, 9 Johns. 814 ; Jackson v. 
HoUoway, 7 Johns. 394 ; Lessee of Reynolds v. Shirley ^ 
7 Hammonds, (Ohio) 363. 

To pass after acquired lands, there must be not only a 
republication, but a re-execution. Not so in this case. — 
Roberts on Wills, 477 ', Ram. on Wills, 165. 

A will may be republished so as to enlarge tlve operation 
of the words used in a will, or it may not, as there may be 
more property for them to operate on, if property has 
been purchased by the testator. In this case, the repubh- 
eation does not affect the sense or operation of the words 
used in the will. — Roberts on Wills, 477 ; Reynolds v. Shir- 
ley, 7 Hammond, 363. 

At common law, a will might be revoked or republished 
by parol. Our Code ( § 1932) provides how wills may be 
revoked, changing the common law, but is silent on the 
subject of republishing (§ 1933) ; consequently, it may be 
fairly presumed the legislature did not intend to change 
the common law on the subject of republication. 

At common law, the cancelation of a second will repub- 
lished the first ; then there was not merely a cancellation 
or destruction of the second will, but it was accompanied 
with an express intention of reviving the first will. — Good- 
night V. Gleezie, 4 Barr, 251-2. 

PETERS, J. — This is a proceeding on the contest of a 
will before its probate, under our statute. There was a 
jury trial in the court below, and a verdict in favor of the 
will offered for probate, and a judgment of the court al- 
lowing the probate of the instrument offered, according to 
the verdict. 

The evidence tends to show that there were two wills 
made by the decedent, Wm. M. Bell. The one was made 



220 FOETY-SIXTH ALABAMA. 

Barker v. Bell et al. 

in January, 1868, and the other in May or June, {868. 
This latter will was not produced on the trial, and there 
was no written evidence to show that it had been revoked 
or canceled. The testamentary paper of January, 1868, 
was the will offered for probate, and the one that was es- 
tablished by the decree of the court. It disposes of the 
real and personal estate of the testator. The issue cov- 
ered all the ground of contest that could be made on such 
an instrument. The evidence tends to establish the alle- 
gation that it had been regularly made and attested, and 
declared to be the will of the party making it, to-wit, said 
Wm. M. Bell, as required by the Oode. But after the 
death of Bell, the alleged testator, it was found in posses- 
sion of his widow, with his name torn off and the names 
of the attesting witnesses very much mutilated, so as to 
leave all but one illegible. The name of the alleged maker 
could not be read at all, and the full name of only one of 
the attesting witnesses, of whom there were three, re- 
mained legible. There was proof going strongly to show 
that these obliterations had been made by the testator 
himself, while the will was in his possession ; that he had 
handed it to his wife, or she had gotten it from his pocket, 
and that it was so obliterated when she obtained it, and 
that he had then declared that the obliteration was his 
work, and he intended it as a cancellation of the will. 
There was no testimony that this will had been canceled 
or torn by any other person. There was proof, also, that 
the testator had spoken of this paper, after the making 
and publication of the subsequent will of May or June, 
1868, as " his will," and declaring that he had destroyed 
the will of May or June, 1868. This was in April, 1870, 
just before decedent's death. 

On this evidence the court gave several charges to the 
jury which were excepted to by the contestants, and re- 
fused to give several others which were asked by the con- 
testants, and the refusals were each made the basis of an 
exception. It is not necessary to notice the exceptions 
arising on the charges given, as like questions arise on the 



JUNE TERM, 1871. 221 

Barker v. Bell et al. 

charges refused. One of these charges is recited in the 
record in the following terms : 

" The contestants asked the court to charge the jury in 
writing, that the testator could not republish the will pro- 
pounded by parol declarations alone." 

This charge should have been given. To refuse it was 
error. 

The Code is intended to contain all the statute law of 
this State of * a public nature, designed to operate upon 
all the people of the State up to the date of its adoption, 
unless otherwise directed in the Code." — Code, § 10. This 
law is not merely cumulative of the common law, and 
made to perfect the deficiencies of that system, but it is 
designed to create a new and independent system, appli- 
cable to our own institutions and government. — Rev. Code, 
§ 10. In such case, where a statute disposes of the whole 
subject of legislation, it is the only law. Otherwise, we 
shall have two systems, where one was intended to oper- 
ate, and the statute becomes the law only so far as a party 
may choose to follow it. Besides, the mere fact that a 
statute is made, shows that so far as it goes, the legislature 
intended to displace the old rule by a new one. On some 
questions the common law conflicts more or less with our 
constitutional law, and is necessarily repealed and dis- 
placed and repealed by it. And on others it has, by lapse 
of ages, and mistakes inevitably attendant on all human 
affairs, become uncertain and diflBcult to reconcile with the 
principles of justice. Hence, the legislature intervenes to 
remove such difficulties, uncertainties and mistakes, by a 
new law. This new law, to the extent that it goes, neces- 
sarily takes the place of all others. For it would be illogi- 
cal to contend that the old rule must stand, as well as the 
new one, because this would not remedy the evil sought to 
be removed and avoided. 

Judged upon these principles, the statute law found in 
the Code, and such others as may have been since enacted 
on the subject of wills, in this State, include the whole law 
upon the making of wills, and their revocation, and the 
making of other wills in the place of those revoked. — Rev. 



222 FORTY-SIXTH ALABAMA. 

Barker v. Bell et al. 

Code, § 420, Chap. II, ad finem. A will made in conform- 
ity with the requirements of this law, without fraud or 
undue influence, is valid as a testamentary disposition of 
the maker's estate. But if it is not so made, it can have 
no force as a will. Under this statute, the revocation by 
cancellation or obliteration, by the testator himself, de- 
stroys the instrument. From the date of the revocation, 
the will revoked ceases to be a testamentary disposition of 
the maker's estate. Such revoked will is nothing. It can 
have no effect as a will. And if the party who made it 
desires to make a testamentary disposition of his estate, 
he must make a new will, in the manner required by the 
statute. But in doing this, he may use the same form of 
words, without variations or with variations, as often as he 
pleases, and the same written or printed document that 
was used at first, but the process of making the will must 
be the same each time ; that is, it must be done as pre- 
scribed by the statute. By our law, there can be no re- 
publication of a will that has been revoked by tearing off 
the names of the maker and the attesting witnesses, unless 
the will is re-signed and re-attested, as required by the 
statute. The signing of the will and the attestation of 
this signature are essential formalities that can not be dis- 
pensed with.— Rev. Code, §§ 1910, 1930-1 ; Powell's Distr. 
V. PoiveWs Legatees, 30 Ala. 697, 705 ; Biley v. Eiley, 36 Ala. 
496 ; 1 Redf. Wills, p. 191, bottom, §§ 206-7. The charge 
asked, as above set out, was confined to the instrument of- 
fered for probate in this case. The proof in this instance 
is not sufficient to establish the republication of such a 
will. Where a testator has made two wills, and wishes to 
destroy the one last made and revive the one first made, 
both of which have been duly executed, he may do so by 
the cancellation or destruction of the last made will, and 
the due republication of the previous will. But this due 
republication of the previous will can not bei made of a 
will mutilated and canceled by the testator himself, without 
a re-making of the same, as required by the statute. 
Otherwise, a paper without the signature of the testator, 
and without attesting witnesses, might become a will. 



JUNE TERM, 1871. 223 

Barker v. Bell et al. 

This, except in certain cases, ( and this is not one of the 
excepted cases,) the law forbids. — Rev. Code, §§ 19iJ2-4:, 
1936 ; Jackson v. HoUoway, 7 Johns. 394 ; Jackson v. Rodger s 
et al, 9 Johns. 312 ; 1 Redf. Wills, p. 354, bottom, §§ 373-4 ; 
James v. Marvin, 3 Conn. 576 ; 1 Bac. Abr. Bouv. p. 605. 
A republished will is a new will, and it must have all its 
parts complete. — 1 Williams on Ex'rs, 113, 121, margin. 
This instrument can not be made a new will without the 
testator's signature, and the signatures of the proper num- 
ber of attesting witnesses. These requisites it does not 
possess.— Rev. Code, § 1930 ; 1 Redf. Wills, 347, bottom, 
et seq. 

In all matters in relation to the evidence and mode of 
proceeding in the court of probate on the contest of a 
will, where there is no special exception, the court must 
proceed and be governed by the same rules and regulations 
as courts of common law. — Rev. Code, § 1962. In such a 
contest, the legatees are competent witnesses for the pro- 
ponent, or for the contestant. — Rev. Code, § 27C4 ; Pamph. 
Acts 1866-7, p. 335, No. 403. The court did not err in 
permitting one of the legatees to testify in favor of the 
validity of the will. 

The conduct of the trial is under the sound discretion of 
the court. The court may therefore allow a witness to be 
called back for re-examination, but can not compel either 
party to call back his witness, unless he choose to do so. 
In case a witness is so called back after being dismissed 
by the party who summoned him, he becomes the witness 
of the party calling him back against the objection of the 
other party ; and such witness can not be impeached by 
the party so calling him back. In this view of the law the 
contestants were not injured, as the testimony strengthened 
their case. 

The other exceptions are such as are not likely again to 
arise on a new trial. I therefore omit their consideration. 

The judgment of the court below is reversed, and as the 
parties are entitled to a trial by jury, (Rev. Code, § 1956,) 
the cause is remanded and a new trial is ordered. 



224 FOBTY-SIXTH ALABAMA. 

Thompson v. Kay. 



THOMPSON vs. KAY. 

[TEOVEB FOE OONTEB8ION OF COTTON.] 

1. Sale, contract of; non-performance of condition; what does not excuse. 
If by the terms of a sale the property in the thing sold is to pass to the 
vendee upon bis deposit of the purchase-money at a particular bank, 
the refusal of the bank to receive it will not excuse the non-perform- 
ance of the condition. 

2. Contract, assent of parties tg; to what has not reference. — The principle 
of the law of contracts that both parties must assent to the same thing, 
and in the same sense, has no reference to the misconceptions of the 
parties not authorized by the terms of the agreement. 

Appeal from the Circuit Court of Montgomery. 
Tried before Hon. J. Q. Smith. 

The facts are sufficiently stated in the opinion. 

Elmore & Gunter, for appellants. — I. The first charge 
asked is in these words : "That if the title to the cotton was 
to pass to the defendant upon his deposit of the thing 
agreed to be given, into the bank, the refusal of the bank 
to receive the same is no excuse for not making the deposit, 
and the title would not pass until it was made." 

This first charge asserts a correct proposition of law and 
should have been given to the jury. — 1 Parsons on Cont. 
637 ; Benj. on Sales, 425 ; Siinson v. Dousman, 20 How. 461 ; 
Neil V. United States, Dev. C. C. 117 ; Beebe v. Johnson, 19 
Wend. 500 ; Blacksmith v. Fellows, 7 N. Y. (3 Seld.) 401 ; 
People V. DihUe,, 16 N. Y. (2 Smith) 208; Dill v. Camp, 22 
Ala. 249 ; ih. 27 Ala. 553 ; Morrow v. Camjleld, 7 Porter, 42. 

The charge was not abstract, for the bill of exceptions 
states that there was evidence in the cause to the effect 
that the contract of sale was upon the express condition 
that the money or thing agreed to be given was to be de- 
posited in the bank on the next day. 



JUNE TERM, 1871. 225 

Thompson v. Ray. 

II. The second and third charges asked and refused, 
involve the principle of law in the first charge with this 
other one, viz : "That there is no contract, unless the par- 
ties assent to the same thing and in the same sense" ; which 
is too clear to admit of doubt. — See 1 Parsons on Con- 
tracts, 475, and cases there cited ; FaJls & Caldwell v. Gai- 
ther, 9 Port. 605; Eliasm v. Eenshaw, 4 Wheat. 228 ; Dill 
V. Camp, 22 and 27 Ala. ; Benj. on Sales, p. 36. 

Martin & Sayre, contra. — [Appellee's brief did not come 
into Reporter's hands.] 

B. F. SAFFOLD, J.— The appellant having sued the 
appellee for the conversion of twelve bales of cotton, the 
issue became resolved into the question whether a contract 
for the sale of the cotton, made between the parties, had 
been so far completed as to pass the property to the ven- 
dee, Ray. The plaintiff claimed that it was a precedent 
condition of the sale that the defendant should deposit the 
purchase-money at the Central Bank of Montgomery on 
the next day, which he failed to do for some time after- 
wards, and until he had notified the warehousemen not to 
deliver the cotton to him. The defendant denied the con- 
dition, insisting that the sale was absolute. He admitted 
that the money was not deposited at the bank, or tendered 
to the plaintiff, until two or three weeks after the sale, but 
claimed that he had offered to deposit it at the bank a day 
or two thereafter, and the bank refused to receive it. 

The plaintiff asked the following charge, which was 
refused : 

"If the title to the cotton was to pass to the defend- 
ant upon his deposit of the thing agreed to be given 
into the bank, the refusal of the bank to receive the same 
is no excuse for not making the deposit, and the title would 
not pass until it was made." This charge ought to have 
been given. It was the point of the controversy, and 
contained the essence of the contract. If a party covenant 
to do an act, the difficulty or improbabiUty of accomplish- 
ing it, not involving any fault of the other party, will not 



226 FORTY-SIXTH ALABAMA. 



Thompson v. Ray. 



excuse him. — Beehe vs. Johnson, 19 Wend. .^)00. The prop- 
erty in the thing sold passes to the purchaser upon the 
completion of the sale, whether the sale is completed or 
not being a question of fact for the jury. — 1 Parsons on 
Contracts, 440-441. Whether this deposit, though agreed 
to be made, was in fact a material ingredient of the sale, 
was also embraced in the charge and might have been 
more prominently exhibited by appropriate charges asked 
by the defendant. 

There were two other charges asked by the plaintiff and 
refused. These charges are as follows : 

"If Thompson's understanding of the contract was that 
the cotton was sold on condition of Ray's depositing the 
money on the next day in the Central Bank, and Ray did, 
not make the deposit on the day fixed on, then the title 
did not pass to Ray, although Ray's understanding of the 
contract was different, and Ray sold the cotton, he is 
liable." 

"If the jury find from the evidence that Thompson in- 
tended to sell the cotton on condition that Ray should 
deposit the thing or consideration agreed to be given in 
the Central Bank on the next day, and Ray did not make 
the said deposit in said bank on the next day, and after- 
wards sold the cotton, he is liable to the plaintiff, although 
the jury believed from the evidence that Ray in making 
the contract did not intend to buy the cotton on such con- 
dition." 

The charges refused assert that a disagreement between 
the parties as to the conditions of the sale would vitiate the 
contract without regard to the reasonableness of the con- 
struction given to its terms by the one or the other of the par- 
ties. It is true, that there is no contract unless the parties 
assent to the same thing, an'd in the same sense. But if one 
seeks to convey his meaning by expressions importing 
something different, or attaches to the proposition of the 
other a significance not authorized, whatever injury may 
result from the misunderstanding must be visited upon 
him. 

The judgment is reversed and the cause remanded. 



JUNE TERM, 1871. 227 

Slocovitch V. The State. 



SLOCOVITCH vs. THE STATE. 

[TBIAIi or INDICTMENT FOB SELLING LIQUOB, &C., WITHOUT PEBSONAL PSES- 
ENCE OF ACCUSED.] 

1. Trial for indictable offense, cannot be had without personal presence of 
prisoner. — No person indicted for a criminal offense, whether it be for 
a felony or a misdemeanor, can be tried without being personally pres- 
ent in court, and a judgment rendered upon a conviction obtained in 
his absence, if for a fine only, is erroneous, and will be reversed on 
appeal. 

Appeal from the Circuit Court of Mobile. 
Tried before Hon. C. F. Moulton. 

The case is fully stated in the opinion. 

Neither the docket nor transcript shows the name of 
appellant's counsel. 

Attorney General, contra. 

PECK, C. J.— At the last February term of the city 
court of Mobile, the appellant was indicted for selling 
vinous and spiritous liquors without a license, and contrary 
to law. 

Before the close of the term, he was arrested on a capias, 
issued for that purpose, and entered into an undertaking 
of bail, with two sureties, befoire the sheriff, for his appear- 
ance at the then present term of said court, and from term 
to term, until discharged by due course of law. 

During the said term, the accused was called, and failing 
to appear, a judgment ni si was entered against him and 
his sureties ; thereupon, on motion, tha solicitor was per- 
mitted to proceed with the trial, without the appearance 
of the accused, and in his absence. The jury found him 



228 FORTY-SIXTH ALABAMA. 

Slocovitch v.The State. 

guilty, and assessed a fine against him of fifty dollars, and 
a judgment was rendered for that sum and the costs of the 
prosecution. From this judgment the accused appeals to 
this court. The judgment must be reversed. In this State 
from the beginning, and, so far as we know, without excep- 
tion, the practice has been to allow no one to be tried for 
an offense, whether for a felony or misdemeanor, in hia 
absence. Section eighth of our bill of rights declares, 
"That in all criminal prosecutions, the accused has a right 
to be heard by himself and counsel, or either ; to demand 
the nature and cause of the accusation ; to have a copy 
thereof ; to be confronted by the witnesses against him ; to 
have compulsory process, for obtaining witnesses in his 
favor ; and in all prosecutions by indictment or informa- 
tion, a speedy public trial, by an impartial jury of the 
county or district, in which the offense was committed ; 
and that he shall not be compelled to give evidence against 
himself, or be deprived of his life, liberty or property, but 
by due process of law." 

To try a party in his absence, in such a case, is to deprive 
him of many of the rights and privileges secured to him by 
this section of the bill of rights. 

In this case, the trial was had, not only in the absence 
of the accused, but also without any plea or issue either of 
law or fact. 

There can be no trial on the merits, in a criminal case, 
until the defendant has pleaded not guilty, or this plea has 
been entered for him by the court. — 1 vol. Bishop's Grim. 
Prac. § 468 ; Sartorious v. The State, 24 Miss. 602. Sec- 
tion 4169 of the Revised Code provides, that "if a defend- 
ant, when arraigned, refuses or neglects to plead, or stands 
mute, the court must cause the plea of not guilty to be 
entered for him." 

This shows the necessity of the personal presence of the 
defendant, on a criminal trial, and that no trial can be had 
in his absence. If absent, he cannot be said to refuse or 
neglect to plead, or to stand mute ; and it is only when he 
refuses or neglects to plead, or stands mute, that the court 
can cause the plea of not guilty to be entered for him. 



JUNE TEEM, 1871. 229 



Moses V. Clark. 



Let the judgment of the court below be reversed, and the 
cause be remanded for further proceedings. 



MOSES vs. CLARK. 

[action on pbomissoby note.] 



1. Executors ; promissory note payable to ; when title to vests in holder. — A 
promissory note payable to executors, transferred by them in pay- 
ment of a liability of the estate of equal amount, may be sued on by the 
holder. These facts will protect the maker against any suit instituted 
by an administrator de bonis non or other representative of the estate. 

Tried before Hon. J. McCaleb Wiley. 
Appeal from Circuit Court of Barbour. 

The appellant was the plaintiff in a suit for the col- 
lection of a promissory note, which the appellee made in 
favor of Shorter and Baker, the executors of the will of 
Milton A. Browder, deceased. The consideration was 
property bought by him at a sale of the personal property 
of the estate by the executors, under an order of the pro- 
bate court. 

The defendant pleaded that the plaintiff was not the 
owner of the note. The evidence showed that the above 
named executors endorsed the note to the executor of Mrs* 
Browder in payment of so much of her distributive share 
of her husband's estate, and he had charged himself with 
it, and had accounted for it in his final settlement of her 
estate, upon which he had been discharged. The executors 
of M. A. Browder had charged themselves with the amount 
as money collected, and had accounted for it as above 
stated on a partial settlement of their administration. 
There had been no final settlement of the last mentioned 
estate, and no partial distribution under any order of the 



230 FORTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

probate court. The disposition made by the executors of 
this note was of their own motion, without any authority 
from the court. This being all the evidence, the court, at 
the request of the defendant, charged the jury that "if they 
believed the evidence they must find for the defendant." 
The appellant excepted, took a non-suit and bill of excep- 
tions, with leave to set aside the non-suit in the supreme 
court. 

John M. McKLEEOt, for appellant. 
F. M. Wood and D. M. Seals, contra. 

B. F. SAFFOLD, J.— The plaintiff was entitled to recover 
if the judgment would protect the defendant against any de- 
mand that might be set up in behalf of M. A. Browder's 
estate. No representative, distributee or creditor of that 
estate could regain from him the property purchased. If 
sued by any of them, in any form, the facts shown in the 
bill of exceptions would be a defense to the suit. 

The estate of Browder had received an equivalent, and 
plaintiff was not bound to see that the executors commit- 
ted no devastavit. 

The judgment is reversed and the cause remanded. 



EX PARTE SELMA AND GULF RAILROAD CO. 

[application roK mandamus.] 

1. Act amending act to regulate tlie publication of legal and other notices in 
the State of Alabama; tvhat not ^repealed hj. — The act of the 10th of 
October, 1866, entitled, "An act to amend an act entitled an act to reg- 
ulate the publication of legal and other notices in the State of Ala- 
bama," does not repeal § 830 of the Revised Code, and, therefore, a 
special term of a commissioners court, held by direction of the judge 
of probate, upon ten days notice, by advertisement in some newspaper 



JUNE TERM, 1871. 231 

Ex parte Selma & Galf Bailroad Company. 

in the county, or by posting up at the court-house door and two other 
public places in the county, notice of the same, is a lawful special term 
of said court. 

2. Proposal of railroad company to commissioners court ; may be made to 
a special term.— A proposal of a railroad company, under the act enti- 
tled, "An act to authorize the several counties and towns, and cities, 
of the State of Alabama, to subscribe to the capital stock of such rail" 
roads throughout the State as they may consider most conducive to 
their respective interests," approved 31 st December, 1868, if it conform 
to the provisions of said act, may be made to a special term of a court 
of county commissioners, and such proposal will give said court juris- 
diction to make an order to submit said proposal te the qualified elect- 
ors of said county for their acceptance or rejection ; and an election 
duly held under such order, if it result in favor of subscription, will 
authorize said court to subscribe, on behalf of such county, to the cap . 
ital stock of said railroad company, and to issue the bonds of such 
county in payment of the same. 

3. Mandamus ; wlien tvill be granted to compel subscription, dec; what prop- 
osition gives court no jurisdiction to order election, 4c- — ^^ said court, 
after such election, if in favor of subscription, refuses to subscribe for 
the amount of stock named in such proposal, and issue the bonds of 
the county in payment of the same, it may be compelled to do so by 
mandamus, • but if said proposal contains another proposition in addi- 
tion, as to build a passenger and wagon bridge across a river run- 
ning through said county free of toll to all the people of the State, such 
proposal, containing such an additional proposition, will confer on 
88ud court no jurisdiction to submit such proposal to the qualified elect- 
ors of the county for their acceptance or rejection, and an order of 
said court, and an election held under it, will be invalid, and will give 
to said court no authority to subscribe to the capital stock of said rail- 
road company, and issue the bonds of the said county in payment of 
the same. 

4. Same. — An application for a mandamus, in such a case, to compel a 
court of county commissioners to subscribe to the capital stock of a 
railroad company, and pay for the same in the bonds of the county, 
will be denied. 

f). Alternative mandamus ; return to, need not he single. — A return to an 
alternative mandamus need not be single, but may contain several 
causes or defenses, and if one be sufiicient, a peremptory nuindamus 
will not be issued. 

At a former day of the term the court, on the petition 
and motion of the Selma &Gulf Railroad Company, granted 
an alternative mandamus to the court of county commis- 
sioners of Dallas county, commanding said court to sub- 
scribe $250,000 to the capital stock of the Selma & Gulf 
Railroad Company, and to issue bonds of said county in 



232 FORTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

payment of such capital stock, &c., in accordance with the 
proposition of petitioner, submitted to said court, and the 
vote of the people of Dallas county, at an election ordered 
thereon, and held on the 6th day of August, 1870, or else 
show cause on the 6th day of July, 1871, why said sub- 
scription was not made and said bonds issued according to 
the mandate of the writ, &c. — See Ex parte Sdma & GvJf 
Railroad Company, 45 Ala. 696. 

On the 3d day of July, 1871, the court of county com- 
missioners made a return to the writ, and set up in sub- 
stance the following grounds why the peremptory man' 
damns should not issue : 

1. That there was no regular term or adjourned term of 
the court of county commissioners held on the 28th day of 
June, A. D. 1870, the day when the proposal or proposi- 
tion of the Selma & Gulf Railroad Company for said sub- 
scription, &c., was made to said court, &c. 

2. That said special term, at which said proposition, &c., 
was made, was begun and held by virtue of a notice pub- 
lished by direction of the judge of probate in the " Selma 
Times," (a newspaper published in said county,) on the 
19th day of June, A. D. 1870, and daily thereafter until 
the 28th day of June, 1870, which notice, so published, 
was in the following words : 

"Commissioners Court. 
" A called meeting of the commissioners court will be 
held on the 28th day of June. 

John F* Conoly, 
jel9-dtd Judge of Probate." 

On the 25th day of June, 1870, the same notice, by 
direction of the probate judge, was published in the "Selma 
Press," a newspaper published in said county. No other 
notice than the above was given. "Prior to the 28th day of 
June, 1870, and some time in 1869, the probate judge of 
Dallas county, in pursuance of the authority invested in 
him by law, had, on the Idthday of January, 1869," desig- 
nated the " Selma Press," a newspaper published in the 
city of Selma, "as the medium through which all legal 



JUNE TERM, 1871. 233 

Ex parte Selma & Gulf Railroad Company. 

advertisements, notices or publications of any and every 
character, required by law to be made in the county, should 
be published," and this order or designation was of force 
and not changed or modified in any manner at the time of 
said publications, and this notice was only published in 
the " Selma Press " until the 25th day of June, A. D. 1870- 

3. That the election held in Dallas county, on the 6th 
day of August, A. D. 1870, on said proposition of the 
Selma & Gulf Railfoad Company, which resulted in favor 
of "subscription," &c., was held under virtue of the order 
of the court of county commissioners, made as aforesaid 
on the 28th day of June, A. D. 1870. 

4. The fourth ground set up is, in substance, that in 
the proposition of the railroad company, which was sub- 
mitted to the people of Dallas county, it was agreed that 
the county of Dallas, represented by the court of county 
commissioners, and the railroad Company, should have an 
equal voice in determining the use of the bridge by other 
railroad companies ; said right of the county of Dallas not 
to.be affected or impaired by any sale, transfer or assign- 
ment of the corporate rights and franchises of said rail- 
road company, but the right to remain intact with the 
county of Dallas to an equal vote upon the allowance of 
the use of such bridge to any other railroad, &c., and "since 
that time said railroad company has accepted an endorse- 
ment of its bonds from the State of Alabama under the 
laws in such cases made and provided, &c." 

5. That the Selma & Gulf Railroad Company, in their 
proposition, and as a part thereof, also proposed, " that in 
connection with the said railroad bridge, the said company 
will build a passenger and wagon bridge across the Ala- 
bama river, to be free to all the people of the State of 
Alabama," and the said election, so held on the 10th day 
of August, 1870, was held on the entire proposition sub- 
mitted as aforesaid, and not on any separate part thereof. 

The proposal of the railroad company to the court of 
county commissioners and its action thereon, and the min- 
16 



234 FOETY-SIXTH ALABAMA. 

Ex parte Belma & Gulf Railroad Company. 

utes of the court, are made an exhibit to the petition and 
prayed to be taken as part thereof. 

The caption of the minutes of the court of county com- 
missioners, in the record of the proceedings of that court, 
is as follows : 

"State of Alabama, ) Court of County Commissioners, 
Dallas county. J Special Term. 

June 28th, 1870. 

This being the day directed by the Honorable John F. 
Conoly, judge of probate of Dallas county, for the holding 
of a special term of the court of county commissioners for 
said county, and of which due and legal notice has been 
given by advertisement for ten days in newspapers pub- 
lished in Dallas county, thereupon came the Hon. John F. 
Conoly, judge of probate, and R. C. Goodrich, C. L. Math- 
thews and J. E. Kennedy, county commissioners, and the 
court being duly organized, opened and in session, the fol- 
lowing proceedings were had," &c., &c. 

The proposal of the railroad company was as followSi : 
" To the Honorable, the Court of County Commissioners for the 

county of Dallas and State of Alabama : 

The undersigned, the president, and a majority of the 
directors of the Selma & Gulf Eailroad Company, a cor- 
porate body, having a line of railroad situate upon antl 
running through a portion of the county of Dallas, respect- 
fully propose to the county of Dallas, to take two hundred 
and fifty thousand dollars, in the capital stock of said rail- 
raoad company, amounting to twenty-five hundred shares, 
at the price of one hundred dollars per share, to be ex- 
pended in the construction of a railroad bridge across the 
Alabama river, at the city of Selma, and to pay for such 
stock, in bonds of the county, having twenty years to run, 
with interest at eight per cent, per annum, payable semi- 
annually at such place in the city of New York as may be 
agreed on and designated on the face of such bonds, with 
coupons attached, for the semi-annual interest. 

" Said railroad bridge to be for the use of such other 
railroad companies as may be agreed on between said 



JUNE TERM, 1871. 235 

Ex parte Sehua & Gulf Eailroad Company. 

Selma & Gulf Railroad Company and the county of Dal- 
las, (each having an equal voice in determining such use,) 
represented by the court of county commissioners, said 
right of the county of Dallas not to be affected or im- 
paired by any sale, transfer or assignment of its corporate 
rights, by said Selma & Gulf Railroad Company, or any 
sale or transfer of its railroad and appurtenances, but the 
right to continue intact with the county of Dallas, to an 
equal vote upon the allowance of the use of such bridge 
to any other railroad company than the said Selma & Gulf 
Railroad Company or its assigns. 

"The undersigned further propose in behalf of said 
Selma & Gulf Railroad Company, that in connection with 
the said railroad bridge, that said company will build a 
passenger and wagon bridge across the Alabama river, to be 
free of toll to all the people of the State of Alabama. 
(Signed,) D. S. Smyley, 

Pres't Selma & Gulf R. R. Co. 
J. W. Lapsley, 

J. W. PURIFOY, 
Wm. H. LiNAN, 

J. W. Calhoun, 

Directors. 
On the filing of the return the Selma & Gulf Railroad 
Company appeared by counsel and moved the court to 
quash said return, on the ground of uncertainty and in- 
sufficiency, &c., and prayed that a peremptory mandamus 
issue. 

J. C. CoMPTON, and Pettds & Dawson, contra. — A special 
term of a court is not a part of a regular term. It is 
entirely distinct, and the power to hold a special term must 
be given by statute. — 20 Ala. 446 ; 6 Yerger, 395 ; 2 Scam* 
mon, 303; 7 Yerger, 365 ; 2 Pike (Ark,) 229 and 250. 

Special terms of courts of county commissioners must 
be held in cases provided by Revised Code, § 830. 

The judge of probate is made the officer to determine 
when any one of these requirements are to be done ; one 
of these essential conditions must exist ten days prior to 



236 FOKTY-SIXTH ALABAMA. 



Ex parte Selma & Gulf Railroad Company. 



the meeting of the court, for the court can only legally 
assemble after ten days notice given in one or the other 
manner required by this section of the Code. The notice 
in this case was published in the "Selma Times, a newspa- 
per published in said county on the lUth day of July, and 
daily thereafter until the 28th day of June, 1870," on which 
day the court was held. 

Was this notice a ten days notice by advertisement in 
some newspaper in the county as is required by section 830 
of the Revised Code ? — Garner v. NeviU & Johnson, 22 Ala. 
494, and cases cited ; Owen v. Slatter, 26 Ala. 547, and cases 
cited. 

"One essential ingredient to the exercise of jurisdiction 
by any court, for the sessions of which a time is appointed 
by law, is, that it act within the time prescribed, and should 
it fail to do so, or presume to act at another and a differ- 
ent time, such acts are absolutely void." — 20 Ala. 446 ; 1 
Ala. 351 ; 27 Maine, 114 ; 1 Scammon, 227; 2 Scammon, 
555; 3Blackf. 501. 

The court of county commissioners is a court of special 
and limited jurisdiction, and every fact necessary to sus- 
tain its jurisdiction must affirmatively appear on the face 
of its records. As a general rule nothing will be intended 
in favor of its jurisdiction. — Cooley's Const. Lim. page 406 ; 
3 Phil. Evidence, 1013, 987, 1021, 1104 ; Trammel et al. v. 
Pennington, 45 Ala. 673, and cases there cited. 

In this case we insist that it must appear that the court 
was called after ten days notice in one of the ways provided 
by law, by the judge of probate, and for one of the three 
purposes for lohich such a term of the court could he held ; no 
intendment can assist the record to show that this special 
term was directed by the judge of probate to be held to 
"perform a special duty required by law," to-wit : to sub- 
mit the proposal of the Selma and Gulf Eailroad Company 
to the electors of the county. Their proposal was never 
made to the court, nor was it filed until the 28th day of 
June, 1870, the day on which tbis term of the court was 
held. 



JUNE TERM, 1871- 237 

Ex parte Selma & Gulf Railroad Company. 

A record is not commonly suffered to be contradicted by 
parol evidence, but in the case of a court of special and 
limited authority, it is permitted to show a want of juris- 
diction even in opposition to the recitals contained in the 
record. — Cooley's Const. Lim. page 407, and cases cited. 

When several matters in the progress of a cause have 
been acted on by an inferior court, and the court ascertains 
before the final act in the cause that it has erred in its 
proceedings, it is the duty of the court, and it has the 
right not to proceed further ; and when an effort is being 
made by mandamus to compel it to do the final act, it may 
set up in its answer or return to the superior court, all the 
facts concerning its previous procedure in the cause, even 
if it sets out in the answer or return facts which conflict 
with its record of the proceedings. This it may do, that 
the superior court may determine whether or not an error 
has been made in its proceedings, and whether it should 
be compelled to proceed with the cause. 

The counsel for the motion insist that the record of the 
court in this case, shows that the court ascertained the 
preliminary jurisdictional fact, that this special term had 
been properly convened, and that the return of the court 
can not question it. This doctrine is true in regard to 
third parties and coUateral proceedings. When the case 
is not determined it is otherwise. — Cooley's Const. Lim. 
pages 406 to 409, and cases cited. 

The Selma and Gulf Railroad Company having mort- 
gaged to the State of Alabama by its acceptance of the 
State endorsements of its bonds to the extent of sixteen 
thousand dollars per mile, its "entire road within" the 
State, and the franchise granted by the State or under 
its authority, including the right of way, grading, bridges, 
masonry, rails, spikes and joint fastenings, and the whole 
superstructure and equipments, and all the property owned 
by the company as incident to or necessary for its business, 
including depots and depot stations, and all other property 
real or personal belonging to said company, or hereafter to 
he a£quired by tJiem, for the payment of all of said bonds 
endorsed for the company." — (Acts 1869-70, page 151.) 



238 FOETY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

It is insisted that this action of the railroad company was 
in violation of the terms of the accepted proposal made by 
them to the electors of the county, and that they can not 
enforce the payment of the subscription. 

The return is not inconsistent, nor does it set out incon- 
sistent causes why it does not obey the rule. It states the 
truth of the manner in which notice by the judge of probate 
was given, and the words of the notice, and the number of 
times of its publication, and in express terms negatives 
that notice was given in any other manner. "The return 
must state facts and not conclusions of law, must not be 
argumentative nor aver material facts by way of recital, 
but must positively and expressly assert, deny, or answer 
all facts in their full extent, the assertion, denial or avoid- 
ance of which may be for justification or defence." "It 
may contain several defences or justifications ; and if one 
of these be sufficient the return must be allowed to that. 
It is sufficient, if it contain a legal reason for not obeying 
the writ, though certain facts of it are unsatisfactory ; for 
these may be considered surplusage and the remainder 
tried."^— Angel & Ames on Corporations, p. 709 and 710, 
and cases cited ; Tapping on Mandamus, pages 352, 356, 
357, 358 ; Moses on Mandamus, pages 210 and 214. 

"Where the return is insufficient, the court will not or- 
dinarily, in the first instance, order a peremptory writ, 
where there is the appearance of having a valid defense, 
but will direct the respondent to file a fuller and more 
perfect answer." — State v. Jones, 10 Iowa, 65. 

Alexander White and S. F. Rice, for petitioner. — "The 
Statute of Ann. ch. 20, which allows the facts stated in the 
return to the alternative writ in cases of mandamus, to be 
traversed and tried by a jury, not being in force in this State, 
the facts must be pleaded with such a degree of certainty 
as to enable the court to decide whether they are in law 
sufficient to justify the party in failing to do the act." — 
ComWs Court of Tallapoosa v. Tarver, 21 Ala. 661 ; 1 Har. 
& Johns. 557. 

"Nor is a return sufficient, if it merely aver matter of fact 



JUNE TERM, 1871. 239 

Ex parte Selma & Gulf Railroad Company. 

which the prosecutor may be able to falsify in an action 
on the case for a false return ; because such matter should 
be 80 particularly alleged, that the court should be able to 
judge of it, and determine whether it be sufficient or not." 
Tappan on Mandamus, 400; Mar. 359. 

In the answer or return of defendant, according to the 
strict rules of the common law, the same certainty is re- 
quired as in indictments, returns to writs of habeas corpus, 
counts, replications, &c. — CuUum v. Latimer , 4 Texas, 831. 

The return, to be siifficient, must answer the writ with 
the strict and technical precision required by the ancient 
rules of the common law. Its averments must have cer- 
tainty to every intent, or the same as in estoppels, indict- 
ments, or returns to writs of habeas corpits. It must set 
out facts, and not state conclusions only. If it denies the 
supposal of the writ, the trg,verse must be single, direct 
and certain. — Harmon v. Marshall, 10 Maryland, 451, 466; 
Brosus V. Bucter, 1 Har. & Johns. 557 ; Ang. & Ames on 
Corp. 937 ; Bex v. Ipsivich, 2 Ld. Raymond, 481. 

The return must state facts and not conclusions of law, 
must not be argumentative, nor aver material facts by way 
of recital ; but must positively and expressly assert, deny or 
answer aU facts in their /m?Z extent, the assertion, denial or 
avoidance of which may be necessary for justification or 
defense. — Ang. & Ames on Corp. 737 ; Bex v. Maiden, 1st 
Ld. Raymond, 481 ; Bex v. Ipswich, 2 Ld. Raym'd, 1239 ; 
Com. Bank v. Canal ComWs, 11th Wise, 25. 

The record of the commissioners court is made a part 
of the return ; and it shows upon its face that the ten days 
notice was given and every other fact necessary to consti- 
tute this a special term. Now, if it were allowable to dis- 
pute the record, (which we deny,) it would have to be set- 
tled by this court which averments of the return to believe, 
those which state that ten days notice was given, or those 
which say it was not given in due and legal form. 

Repugnancy vitiates a return, and the court will on mo- 
tion quash it and award a peremptory mandamus, and 
notwithstanding one of the inconsistent causes would have 
been good of itself. — Tappan on Mand. 403. marginal, 362. 



240 FOETT-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

Previous to the adoption of the Code the commissioners 
court could only hold regular terms. Before that time, 
when special terms were held, they were held by virtue of 
special acts. 

The Code was designed (section 830) to supply this 
omission or vacuum, which was developed by the decision 
of this court. — Wightman v. Karsner, 20 Ala. 446, in Janu- 
ary, 1852. 

Section 830, Kevised Code, provides, under the head of 
"The Court of County Commissioners," "Special Terms, 
notice thereof" — 

"In cases where officers are to be appointed, or vacan- 
cies supplied, or any oilier special duty required by law to 
be performed, a special term must be held by direction of 
the judge of probate, upon ten days notice by advertise- 
ment in some newspaper in the county, or by posting up 
at the court-house door and two other public places in the 
county, notice of the same." 

Under this statute the judge of probate is the officer 
appointed by law to judge of the exigency or occasion which 
requires that a special term of the commissioners court 
shall be held, and the direction by him and the advertise- 
ment of the fact that a special term of the court will be held 
is a judicial ascertainment of the fact that the exigency has 
arisen. The cases in which the special court may be held 
are numerous and diversified, and are of such a character 
that they may arise at any time, and when they have arisen 
or do arise must depend upon the discretion of the judge 
of probate. 

This discretion is put into exercise and manifested when 
he directs a special term to be held and gives notice of the 
fact. The giving the direction and the notice by him, is 
an adjudication of the fact upon which the organization 
and constitution of the court depended, and his adjudica- 
tion thereon is conclusive. — Hamner v. 31ason, 24th A. R. 
480 ; Stuyvesant v. The Mayor, 7 Cow. 588 ; Martin v. Mott, 
12th Wheaton, 19. 

When the fact upon which the power to act depends is 
referred by the law maker to be determined by the court or 



" JUNE TERM, 1871. 241 

Ex parte Selma & Gnlf Bailroad Company. 

oflScer, the determination of the fact by such court or officer 
is res adjudicata and can not be questioned. — Mason v. 
Hamner, supra, citing Wyatt's admW v. Bambo, 29th A. R. 
622 ; Brittain v. Kinnard, 1 Brod. & Bing. 432 ; Mackaboy v. 
Commonwealth, 2 Va. Cas. 269. 

The record, when regular upon its face, is conclusive, 
though the proceedings are ex parte. — See cases above 
cited, and Mather v. Hood, 8 John. 36. 

The jurisdictional facts being found by the court itself, 
in this case, and not by a jury or by any secondary instru- 
mentality, and being put upon the record by the court, 
must in the very nature of the case be held to be conclu- 
sive. "It must be presumed that the court has kept a 
faithful record of its proceedings." — Wait's Law & Prac- 
tice, vol. 2, 423. 

What the law requires to be done and appear of record, 
can only be done and made appear by the record itself. 
EUiott V. Pursol, 1 Peters, 340. 

The record of the commissioners court in this case, 
shows by the recitals of the record all the facts necessary 
to constitute it a special term, and like all other records of 
courts having jurisdiction, it imports absolute verity. 

"If the court of limited jurisdiction is charged with the 
ascertainment of jurisdictional facts, and its proceedings 
show that these facts were ascertained, they can not be 
denied, because the making of the jurisdiction of the court 
to depend upon a preliminary fact, imjolies authority to ascer- 
tain that fact." — Wyatt's AdmW v. Bambo, 29 A. K 624. 

The court, in the case cited, proceeds further to say, 
"The case cited in Wyatt v. Steele, (26 A. E.), does not sus- 
tain it." — Brittain v. Kinnard, 1 Brod. & Bing. 432. (5th C. 
C. L. R.) 

It really asserts nothing more than that the ascertainment 
of jurisdicticmol facts, by a court of limited jurisdiction, is 
condusive. 

"The general principle appHcable to cases of this descrip- 
tion is perfectly clear. It is established by all the ancient, 
and recognized by all the modern, authorities, and the 
principle is, that a conviction by a magistrate who has 



242 FOETY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

jurisdiction over the subject matter is, if no defects appear 
on the face of it, conclusive of the facts stated.'^- — Dallas, C. J., 
quoted in Wyat't & Ramho, supra, 524, 

"The proceedings of the court disclosed the jurisdictional 
facts, and the question was whether they could be contra- 
dicted." — Wyatt V. Ramho, supra, 524. 

A court deciding a question within its jurisdiction can 
never be liable for its decision. While unreversed it is final 
and conclusive. — 1 Talk. 396 ; 1 Ld. Eaymond, 469 ; Stuyve- 
sant V. The 31ayor, 7th Cow 588. 

The notice in this case is given under the authority of a 
special act, having reference to a particular subject, and 
being a part of the machinery of the law by which to ac- 
complish the end, the express object, that is, "Special 
Terms of the Court of County Commissioners." — Revised 
Code, § 8o0. 

Before the passage of this act, the court of county com- 
missioners could hold no special terms. This was devel- 
oped by the decision of Wightman v. Karsner, at the Jan- 
uary term of this court, 1852. 

Section 830 of the Revised Code is a special law ; it is 
very far from apparent that it was the intention of the 
legislature to repeal it, by the act of Oct. 10, 1868 ; this 
section was not set out by name and repealed expressly as 
other sections of the amended act were, which shows that 
it was not intended to be repealed. To hold a special law 
repealed by implication, by the passage of a general law, 
would be contrary to the settled rule of the Supreme Court 
of Alabama on this subject. — 29 Ala. 573. 

PECK, C. J. — The return of the court of county com- 
missioners of the county of Dallas to the alternative man- 
damus issued by this court, at a former day of this term, 
commanding said court to subscribe two hundred and fifty 
thousand dollars to the capital stock of the Selma & Gulf 
Railroad Company, and issue the bonds of said county in 
payment of said capital stock, &g., or that they show cause 
why said subscription was not made, &c., shows two causes 



JUNE TERM, 1871. 243 

Ex parte Selma & Gulf Bailroad Company. 

why said capital stock had not been subscribed according 
to the mandate of said writ. 

1. It shows and states that the proposal of said railroad 
company to said county of Dallas, to subscribe for and 
take two hundred and fifty thousand dollars of the capital 
stock of said company, and pay for the same in the bonds 
of said county, was made to a special term of said court, 
on the 28th day of June, 1870, and not to a regular term 
of said court ; and that said special term of said court was 
not a legal term of said court, held by the direction of the 
probate judge of said county, upon the notice required by 
law, and that, therefore, the order of said court to submit 
said proposal to the qualified electors of said county, for 
their acceptance or rejection, and the election held under 
said order, were invalid, and gave to said court no legal 
authority to subscribe to the capital stock of said railroad 
company. 

2. That the said proposal of said railroad company was 
not a proposal authorized to be made by the act of the 
general assembly of this State, entitled "An act to authorize 
the several counties, towns and cities of the State of Ala- 
bama to subscribe to the capital stock of such railroads 
throughout the State as they might consider most condu- 
cive to their respective interests," approved the 31st of 
December, 1868, (Acts 1869, p. 514.) And that said court 
of county commissioners, by said proposal, acquired no 
jurisdiction to make an order submitting said proposal to 
the qualified electors of said county for their acceptance 
or rejection ; and that said order, and the election held 
under it, were invalid, and for this reason, also, said court 
had no authority, and should not be required by the man- 
date of this court, to subscribe, in behalf of said county, 
to the capital stock of said railroad company, and issue 
the bonds of said county in payment of the same. 

The said court of county commissioners attach to their 
return, as an exhibit, and part thereof, a full certified 
transcript of the proceedings, &c., had in said court, on 
said proposal of said railroad company to said county of 



244 FORTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

Dallas for a subscription, &c., including a copy of said 
proposal. 

On the filing of said return, said railroad company ap- 
peared in open court, by their attorney, and moved to 
quash said return, on the ground of its uncertainty and in- 
sufficiency, and prayed that a peremptory mandamus might 
be issued, &c. 

A return to an alternative mandamus may contain sev- 
eral causes or defenses, and if either be sufficient, a per- 
emptory mandamus will not be issued. — Moses on Mand. 
214 ; Wright v. Fawceit, 4 Burr. 2041. 

As the return in this case contains two distinct defenses 
or justifications on the part of said court of county com- 
missioners, for refusing or declining to subscribe to the 
capital stock of said railroad company, we will consider 
them in the order in which they are made. 

1st. Was the said special term of said court of county 
commissioners a lawfully convened and organized special 
term of said court ? The said return states that it was 
not, and that said court was convened on a notice pub- 
lished in a newspaper called the Selma Times, published 
in the city of Selma, in said county, and not in the Selma 
Press, the official organ in and for said county. That the 
Selma Press was the official organ of said county, duly 
designated for that purpose by the probate judge of said 
county, under an act of the general assembly of this State, 
entitled "An act to regulate the publication of legal and 
other notices in the State of Alabama," approved October 
10, 1868, (Acts 1868, p. 220,) and that the notice published 
in the Selma Times did not authorize the said court of 
county commissioners to hold a special term of said court, 
under said notice, and that said special term of said court 
was, therefore, held without authority of law, and that all 
its acts, proceedings and orders were invalid. This objec- 
tion depends upon the legal effect of the said act of the 
10th of October, 1868, Did said act repeal, modify or 
control section 830 of the Revised Code, authorizing spe- 
cial terms of said court to be held ? If it did not, then 
this objection is without force. Said section 830 is in the 



JUNE TEEM, 1871. 245 



Ex parte Selma & Gulf Railroad Company. 



following words, to-wit : " In cases where officers are to be 
appointed, or vacancies supplied, or any other special duty 
required by law to be performed, a special term must be 
held, by direction of the judge of probate, upon ten days 
notice, by advertisement in some newspaper in the county, 
or by posting up at the court-house door and two other 
public places in the county, notice of the same." 

This section is clearly a special law, and was not re- 
pealed by said act of the 10th of October, 1869, unless it 
manifestly appears, by said act, that such was the inten- 
tion of the legislature. A special st^ute is not repealed, 
modified or controlled by a subsequent general act on the 
same subject, unless the latter clearly manifests on its face 
such an intention. — Mobile & Ohio R. R. Co. v. The State, 
29 Ala. 673. 

The act of the 10th of October, 1869, sets out thirty-two 
sections of the Revised Code requiring notices in the cases 
named in said sections, respectively, to be published, &c., 
and says : "All the provisions of the Revised Code, as 
above set forth, which are in conflict with the provisions 
of this act, are hereby repealed ;" and then enacts that " it 
shall be the duty of the probate judge of each county in 
the State to designate a newspaper in which all legal ad- 
vertisements, notices or publications of any and every 
character, required by law to be made in his county, shall 
be published, which paper, so designated, shall be the offi- 
cial organ in and for said county." This language is 
broad and general, but we think it by no means clearly 
manifests, on its face, an intention to repeal said section 
830 of the Revised Code. If such was the intention of 
the legislature, why was it not named with the other sec- 
tions set out in said act, and by name repealed by it? 
The obvious answer to this question is, that section 830 
being a special law, was not intended to be repealed, mod- 
ified or controlled by said act, and therefore was not set 
out in it. We therefore hold that the fir^t cause, &c., sta- 
ted in said return, is insufficient. Besides, the record of 
said court, as to the organization of said special term, 
states that due and legal notice had been given by adver- 



246 FOBTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

tisement, for ten days, in a newspaper published in Dallas 
county. The said section 830 of the Eevised Code not 
being repealed, this entry of record shows a strict compli- 
ance with its provisions as to the notice required to be 
given in such cases, and shows that said special term was 
convened on proper notice, for that purpose, and was a 
legal special term of said court. 

2d. The second' cause shown in said return is, that the 
proposal of said railroad company, made to said court of 
county commissioners for a county subscription, <fec., was 
not a proposal authorized to be made by said act of the 
31st December, 1868, and that said court, by said propo- 
sal, acquired no jurisdiction to make an order submitting 
said proposal to the qualified electors of said county for 
their acceptance or rejection, and that the order of said 
court, and the election held under it, were invalid, and 
gave to said court no authority, in behalf of said county, 
to subscribe to the capital stock of said railroad company, 
and to issue the bonds of said county in payment of the 
same. 

The said proposal is set out in said return. 

The court of county commissioners is a court of special 
and limited jurisdiction, and can exercise such powers only 
as it is specially authorized to exercise, and these powers 
must be exercised in the mode and manner and in the cases 
specified. — Wright v. Karsner, 20 Ala. 446. 

In the case of Trammell et al. v. Pennington et al. , at this 
term, we decided that the only authority of a county to 
subscribe to the capital stock of railroad companies was a 
special statutory authority, and being a special authority, 
it must be strictly pursued. So we decide now. The 
people are permitted, under said act of the 31st December, 
1868, to vote for a county to subscribe to the capital stock 
of a railroad company to build a railroad, and that the 
bonds of the county may be issued to pay for said stock ; 
but the statute gives no authority to the people to vote for 
a county to subscribe to the capital stock of a railroad 
company for the purpose of building a passenger and luagon 
bridge across a river, to be free of toll to all the people of 



JUNE TERM, 1871. 247 

Ex parte Selma & Gulf Railroad Company. 

the State. The proposal of a railroad company authorized 
by the statute, to a county, to subscribe to the capital 
stock of such company, is manifestly confined to a sub- 
scription to build a railroad. The statute gives no author- 
ity to add to the proposal something else as a make- weight 
to catch the people, and to induce and influence them to 
vote for a proposition containing two objects, one to build 
a railroad, and the other to build a passenger and wagon 
bridge across the river, or any other enterprise not con- 
nected with the building of a railroad. If that can be 
done who can tell which of the two objects had the 
greater weight with the people to induce them to vote for 
subscription — the building of the railroad, or the building 
of the bridge? Who can tell, in any given case, if the 
proposal had been to build a railroad merely, the people 
would have voted for subscription at all ? It can not be 
told. In this case, the proposal contains two distinct 
•propositions, the one lawful, the other unlawful. The said 
raUroad company joined the two together in their propo- 
sal, and they can not now be separated. The whole pro- 
posal, therefore, is unlawful, and must be so declared. It 
is insisted by the said railroad company, that the proposal 
to build said bridge was for the benefit of said county. 
That may be so, but if admitted, it does not avoid the ob- 
jection. The gist of the objection is, that the county had 
no authority to vote a subscription to the capital stock of 
said railroad company to build, or to help to build, a pas- 
senger and wagon bridge across said river, free of toll to 
all the people of the State. The statute only authorizes a 
county to vote a subscription to the capital stock of a rail- 
road company to build a railroad, and nothing else. And 
furthermore, adding to said proposal the proposition to 
build a bridge across said river free of toll, &c., had a di- 
rect tendency, and such was no doubt its purpose, to pre- 
vent an unbiased and impartial election on the single and 
only question that the statute authorizes to be submitted 
to the suffrages of the people. For these reasons, we de- 
cide that said proposal was not such a proposal as the said 
act of the 31st December, 1868, permitted or authorized 



248 FORTY-SIXTH ALABAMA. 



Ex parte Selma & Gulf Railroad Company. 



the said railroad company to make, and that the said com- 
missioners court, by said proposal, acquired no jurisdic- 
tion, by virtue of said act, to make an order to submit said 
proposal to the qualified electors of said county for their 
acceptance or rejection ; and that said order, and the elec- 
tion held under it, were invalid, and conferred on said 
court no authority to subscribe to the capital stock of said 
company and issue the bonds of said county in payment of 
the same, for the purposes stated in said proposal. Con- 
sequently, the application for a peremptory mandamus 
must be denied, and the said Selma & Gulf Railroad Com- 
pany will pay the costs, <fec. 

[Note by Reporter. — At a subsequent day of the term, 
the petitioner, the Selma & Gulf Railroad Company, ap- 
plied for a re-hearing, and filed in support thereof an 
elaborate written argument, the main points of which are 
given below.] 

Alexander White, in support of the petition, argued 
as follows : 

It is admitted in the opinion, that if the application had 
not contained the proposal about the foot bridge, the man- 
damus would be allowed. 

It is in the nature of right, that a party having the right 
may concede it in whole or in part. A right claimed or 
held under a special authority, can not be extended or en- 
larged by the party claiming under it ; but it can be con- 
ceded, or it may be modified, provided the modification is 
clearly within the limit of the right. 

The limitations which are put upon the railroad com- 
panies in this act, are, that the companies shall receive the 
bonds of the county for stock at par, and not any limita- 
tion as to the right of the companies to the bonds, or to 
the absolute control and use of them. There is nothing in 
the act which requires the company to use the proceeds of 
the bonds in the building of the railroad. It is implied, 
perhaps, that this should be done, and doubtless it would 
be in most, if not all cases ; but it is no term of the con- 



JUNE TERM, 1871. 2^ 

Ex parte Selma & Gulf Railroad Company. 

tract, no more than in the case of the railroad company 
receiving pay for stock from a private individual. The 
money, when paid, becomes the property of the company 
absolutely, and there is no contract on its part to appropri- 
ate it in any specific manner. It belongs to the company, 
and the company can do with it what, in its discretion, it 
thinks proper to do. 

This principle, and the application of it, is recognized in 
the opinion in this case. Thus far the proposition is con- 
nected with the bonds of the county and the appropriation 
of them to the building of the railroad bridge. That is the 
purpose to which they were to be applied. To that extent 
the railroad company limited its right to the use of the 
bonds of the county, by designating the use and binding 
itself to that special appropriation of the bonds — all the 
bonds, not a part of them. 

Here, then, is a proposal, authorized by the act of 31st 
of December, 1868, to the county of Dallas, made in regu- 
lar form, voted upon and accepted by a large majority of 
the people, in accordance with the provisions of said act. 
It is, then, valid and legal, unless rendered invalid and ille- 
gal by something else in the proceedings. 

Next follows a proposal by the railroad company to 
build in connection with the railroad bridge, a wagon and 
passenger bridge. This is a separate thing, conn£cted with, 
but no part of the railroad bridge. The people of the 
county have no part in building this bridge, and no part in 
contributing the means necessary to building it. 

The two propositions are kept distinct. That to which 
the county is asked to subscribe, and for which its bonds 
are to be given, is the railroad bridge. 

The language is, "respectfully propose to the county of 
Dallas to take two hui^dred and fifty thousand dollars in 
the capital stock of said company — to be expended in the 
construction of a railroad bridge across the Alabama 
river." 

The county was not asked to vote stock in the railroad 
company to build a wagon bridge, nor was it asked to con- 
17 



250 FOETY-SIXTH ALABAMA. 



Ex parte Selma & Gulf Railroad Company, 



tribute in any way whatever for the building the wagon 
and passenger bridge. Such a thing was never thought of 
or intended by the railroad company. 

The proposal of the railroad company was to build the 
wagon and passenger bridge out of its own means, inde- 
pendent of the subscription of stock in the railroad com- 
pany, and as inducement to the people to vote the stock in 
the company, the company proposed to build the wagon 
bridge, not out of funds gotten from the county, for these 
were to be expended in the construction of the railroad 
bridge, but out of independent funds. The way of it is 
this : In the construction of a railroad bridge, the abut- 
ments, pillars and most of the other material needed for 
the railroad bridge can be utilized in building a wagon and 
passenger bridge, without interfering with the use of the 
bridge for railroad purposes. Hence, the expense of build- 
ing such a bridge in connection with a railroad bridge, is 
very small comparatively, and the railroad company were 
willing to build this bridge if the county would aid them 
in building the railroad bridge. 

The distinct proposition to the county, was to take so 
much stock in the company, to be paid for in the bonds of 
the county, to be expended in building a railroad bridge. 

There was no proposal to subscribe stock, &c., to be used 
in building a wagon and passenger bridge. 

Reason and right require that the railroad company be 
allowed to stand upon the terms of its petition. It asks 
for the bonds to be expended in the construction of the 
railroad bridge. 

This being so, the people could not and did not under- 
stand that they were voting stock in the railroad company 
to build a wagon bridge. 

The language was explicit, and it was so understood by 
every one who took the trouble to try to find out. 

The proposition submitted to the people of the county 
was to take so much stock in the Selma and Gulf Railroad 
Company, to be paid for in bonds of the county at par. 

The amount thus proposed to be subscribed, was to be 



JUNE TERM, 1871. 251 

Ex parte Selina & Gulf Railroad Company, 

expended in the building of a railroad bridge, which, it is 
submitted, was legitimate. 

The purpose, then, for which the county was asked to 
contribute, was authorized by the act of December 31st, 
18(58, and to this extent the proceeding is valid. 

The other proposal is this : " The undersigned further 
propose in behalf of said Selma & Gulf Railroad Com- 
pany, that in connection with said railroad bridge, that 
said company will build a passenger and wagon bridge 
across the Alabama river." It is not proposed to build 
said passenger and wagon bridge out of the proceeds of 
the bonds of the county, or by the help of the county, but 
it was this, and no more : If you will subscribe $250,000 to 
stock in the railroad company, the railroad company will 
expend it in the building of a railroad bridge, and will also 
build in connection with the railroad bridge, a passenger 
and wagon bridge. By the law, all that the county could 
get for its subscription was stock in the railroad company. 
It can scarcely be maintained that the contract would be 
vitiated by the railroad company giving it the stock, and 
building a bridge which would be beneficial to the county 
and the State. 

The misapprehension, I respectfully submit, in the mind 
of the court is, that the proposition of the railroad com- 
pany to build the wagon and passenger bridge, was to 
build it out of funds furnished by the county ; that it was, 
in other words, a proposal to the county to furnish bonds 
for stock in the company to build the wagon and passenger 
bridge. That such is not the fact, will be seen by reading 
and comparing the two propositions. The design of the 
company was to separate the two propositions and make 
them, as they are, distinct; the one embracing- specifically 
the appropriation of the proceeds of the county subscrip- 
tion to the railroad bridge, and the other being an addi- 
tional undertaking by the railroad company, not out of 
funds obtained from the county, but from its other re- 
sources. 

The proceeds of the bonds of the county are to be 
expended in the building of a railroad bridge. Now, if 



252 FOKTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

they are expended in the building of a railroad bridge, how 
can they be used in the building of a wagon bridge ? And, 
in proposing to build the wagon bridge, the railroad com- 
pany does not propose to build it of the proceeds of the 
county bonds. Can it be assumed that it does, in the 
absence of any proposition to do so, and in the face of a 
proposition to expend the proceeds of the bonds in the 
building of a railroad bridge ? 

It is said, in the opinion of the court, that this proposi- 
tion was unlawful, because it proposed a county subscrip- 
tion to a railroad company to build a common bridge. I 
have endeavored to show, and think I have shown, that 
this is a misconception of the proposal of the railroad com- 
pany. It certainly does not say so in terms ; it certainly 
does say that the proceeds of the county subscription are 
to be expended upon the railroad bridge. 

The rule requiring a strict construction of acts of the 
kind of that of 31st December, 1868, or the rule that the 
intendments are against courts of limited jurisdiction, do 
not imply a spirit of hostility to such acts, or to such 
courts, but only that they are special grants of power ; that 
the power is not presumed, but must be shown ; but in 
each case it is law which confers the power, and its sanc- 
tion is as emphatic within the purposes of a special law 
and the jurisdiction of a limited tribunal, as in any general 
jurisdiction. 

The meaning of language, the purport of statements or 
recitals, are to be tested by those rules which are estab- 
lished by law as guides in interpretation and construction. 

The petition of the railroad company embraces two sev- 
eral propositions, distinct in subject matter and separate 
in form, as already stated. 

The proposal of the railroad company is not that the 
county shall subscribe stock in the railroad company to 
build a wagon bridge — and thereupon it is not objection- 
able on that ground. 

Is it illegal upon any other ground ? If so, it must be 
because it is prohibited by law, contrary to public policy, or 
vicious and immoral in itself ; for these embrace all the 



JUNE TERM, 1871. 253 

Ex parte Selma & Gulf Railroad Company. 

grounds upon which, in a general aspect, an act can be 
denounced illegal. 

The proposal to build the wagon and passenger bridge 
was by the railroad company, to be built by it, and not by 
the county. Now, if the people of the county had confi- 
dence in this offer of the railroad company that they would 
comply with this proposal, I submit whether it was not a 
legitimate subject for their consideration in determining 
whether they would vote for the subscription. It did no 
violence to the act under which this proceeding was au- 
thorized. It did not propose that the county should sub- 
scribe for the purpose of building this wagon bridge. The 
act of 3i.st December, 1868, does not prohibit the railroad 
company from presenting any and every lawful induce- 
ment to the people to vote for the subscription. 

The offer of the railroad company to build the wagon 
bridge was simply an inducement to them to vote for the 
subscription to the railroad bridge, and was not a proposal 
to the county to build the wagon bridge, or to aid in any 
way whatever with its bonds in the building of the wagon 
bridge. 

The act of December 31st, 1868, prescribes the things 
to be done (in cases of this kind) and the manner of doing 
them. It does not limit the railroad company in the legiti- 
mate inducements which it may offer to the people to vote 
for the subscription, nor to the manner in which it shall 
present those inducements ; on the contrary, it contem- 
plates reasonably the presentation of the whole question 
to the people, and leaves the decision to them. And in 
reviewing their action the law does not regard the people 
as incompetent, as easily gulled or deceived. 

If, then, the proposition which was submitted to the vote 
of the people of the county to take $250,000 in stock in 
the Selma & Gulf Railroad Company, was authorized by 
the act of 31st December, 1868, and in form and substance 
was good, as is decided by this court, then the $250,000 
bonds is to be expended in the building of a railroad 
bridge, and there was no contribution to be made or pro- 



254 FOETY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

posed to be made by the county to build the wagon and 
passenger bridge. 

This proposal of the railroad company, then, stands as 
an unnecessary and gratuitous offer by the company to 
build the wagon bridge. Does it operate back upon the 
proposal submitted to the county, proper in itself and in 
proper form, and complete in this respect, so as to inval- 
idate it? 

I have called the attention of the court to the features 
of that proposal, that it was not illegal, contrary to public 
policy, immoral or vicious in any sense or degree. 

It does not conflict with the other proposition, neither 
does it add to or diminish the burthens or liabilities of the 
county in any way whatever, nor impair its rights under 
the proposed subscription. It is all good and beneficial so 
far as the county and the people are concerned, and casts 
no burthen upon any one except the railroad company, 
which does not seek to avoid the burthen. 

The act of 31st December, 1868, having invested the 
county with the power to take stock in railroad companies, 
and the proposition having been made to the county of 
Dallas in conformity with the act, to take $250,000 in 
stock, and pay for the same in bonds, the proceeds of 
which were to be expended in the construction of a rail- 
road bridge, and the proposition having been voted upon 
and accepted by the people of the county, it becomes a 
contract. It has parties competent to contract ; a subject 
matter of contract, and an agreement between these par- 
ties relating to that subject matter. 

Now, the proposal to build the wagon bridge was either 
valid or invalid. If invalid, it was superfluous, and could 
not affect the terms of a contract complete in itself and 
legal and binding upon both the parties to it, the railroad 
company and the county of Dallas. If valid, it was only 
binding in accordance with its terms, and in consonance 
with the other proposition, which obhgate the railroad 
company to build the wagon and passenger bridge, and 
that without the use of any of the proceeds of the county 
subscription, which by the terms of the railroad company's 



JUNE TERM, 1871. 255 

Ex parte Selma & Gulf Railroad Company. 

proposal were to be expended in the construction of the 
railroad bridge. 

"A form was prescribed by the charter of a railroad 
company in which subscription to stock should be taken, 
and it was further provided that the company should have 
all the powers incident to a corporation at common law. 

"A subscription followed the language of the form, and 
contained additional stipulations not inconsistent with those 
prescribed by the form, which would have been competent 
at common law for the parties to make. Hdd, that the 
subscription was valid." — FisJierv. EvansviUe & Grawfords" 
viEe B. B. Co., 7th Ind. 407. 

The proceeds of these bonds were to be expended in the 
building of a railroad bridge across the Alabama river at 
Selma. This was a part of the railroad in Dallas county, 
and is ruled by the court to be proper and legitimate. 

A railroad subscription is a contract which the railroad 
company may enforce against the party subscribing the 
stock.— 29 Ala. K 651 ; 5 Ala. K 587 ; Ang. & Ames on 
Corp. § 517 ; 8 Ala. E. 586. 

The proposal, and the one to which alone the vote of the 
people had any reference, when accepted, was a legal con- 
tract by Dallas county to take 2,500 shares of stock in the 
railroad company. 

This of itself, is unquestionably good because it is liter- 
ally the thing which was authorized by the general assem- 
bly, and being prima facie legal and valid, it must remain 
of force unless it was vitiated and rendered of no effect, by 
some other thing done by the parties. It is the declared 
will of the people of Dallas county. They have expressed 
in the most unequivocal manner their desire to subscribe 
for 2,500 shares of stock in the Selma & Gulf Railroad 
Company, and this will, it is the duty and doubtless the 
desire of the court to carry into effect, unless some insup- 
erable obstacle intervene. 

The only thing which it is said invalidates this act of the 
people of Dallas county is, that the railroad company, at 
the time of proposing to the court of county commissioners 
that the county of Dallas should take 2,500 shares of stock 



256 FORTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

in the company, also proposed to build a wagon and pas- 
senger bridge across the Alabama river in connection with 
the railroad bridge. It will be borne in mind that the 
county subscription by the express terms of the proposal 
to the county, was to be expended in the building of the rail- 
road bridge ; that this proposal was distinct and complete 
in itself ; that it was capable of being carried out by both 
parties without any reference to the other proposal of the 
railroad company. 

The county could make the subscription of stock in the 
company and pay for it in bonds, and the company could 
build the railroad bridge exclusive and independent of (en- 
tirely separate from) anything to be done or not done in 
reference to the wagon bridge. I do not admit that the 
proposal to build the wagon bridge was in any way, man- 
ner or degree illegal or immoral, ^'molum prohiMtum" or 
"malum in se" but taking it in the strongest sense against 
the railroad company, I propose to show that according to 
well established principles of law that if illegal it would not 
vitiate the proposal to the county to take stock in the 
company, and would not defeat the will of the people as 
expressed by their vote. 

"Whenever the contract which a party seeks to enforce, 
be it express or implied, is expressly or by implication for- 
bidden by the common or statute law, no court will lend its 
assistance to give it effect, and the test, as to whether a 
demand connected with an illegal transaction is capable of 
being enforced at law is, whether the plaintiff requires to 
rely on such transaction in order to establish his case ?" 
Chitty on Contracts, title, Illegal Contracts, chapter iv. 569, 
and cases cited ; 1 Carnes, 104 ; 6 Ohio, 21 , 11 Serg. & R. 
164 ; 4 Pick. 314 ; 11 Wheat. 258 ; 7 Taunt. 246 ; Gunter 
V. iec%, 30Ala.E. 595. 

In this case the railroad company would be entitled to 
recover upon the proof that the proposal to the county of 
Dallas had been made through the court of county com- 
missioners to take 2,500 shares of the capital stock of the 
company, and pay for the same in bonds of the county at 
par, and that said proposal had been submitted to the 



JUNE TERM, 1871. 257 

Ex parte Selma &, Gulf Railroad Company. 

people of the county at an election, &c., and that a majority 
of the people had voted in favor of the subscription. 
These facts all appear upon the record in this case ; and 
upon the proof of these facts the railroad company, if it 
were a plaintiff at law suing upon the subscription, would 
be entitled to recover. It would not be necessary, nor 
would it even be relevant, for it to introduce proof of the 
proposal of the railroad company to build the wagon bridge. 
The proposal to give its stock for the bonds of the county 
was, when accepted, a sufficient consideration (and the 
specific consideration) designated by the act of 3 1st De- 
cember, 1868, to sustain the contract, and all the proof 
needed would have been embraced in this proposal. It 
would not then be necessary for the railroad company to 
have introduced a^iy proof about or of the offer to build 
the wagon bridge. It could recover without such proof, 
and according to the test laid down by Mr. Chitty and 
recognized by this court as well as others, as quoted above, 
the railroad company, to make out its case not having to 
rely on this proof, the proposal to build the wagon bridge, 
does not affect the validity of the proposal to take stock 
in the company. 

The building of a wagon and passenger bridge in con- 
nection with a railroad bridge across the Alabama river, 
does not violate public policy or morality, nor does it con- 
travene any prohibition of any statute. 

It, then, cannot be, and is not illegal. The most that can 
be said of it and against it is, that the act of 31st Dec. 1868, 
gave no authority to make a proposition in connection 
with the proposal to the county to take stock in the 
railroad company, and being without authority of law it is 
void. 

This is the most that can be urged against it. There is 
certainly nothing immoral in it, and contracts are not void 
on the ground of "public policy, unless they expressly and 
unquestionably contravene public policy, and be manifestly 
injurious to the interests of the State." — Chitty on Con- 
tracts, 575, title. Illegal Contracts. 

The presumption of law is in favor of the legality of a 



258 FOETY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

contract — and, therefore, if it be reasonably susceptible of 
two meanings, one legal and the other not, that interpreta- 
tion shall be put upon it which will support and give it 
operatioD. Illegality of consideration shall not be inferred. 
Chitty on Contracts, 572 ; 1 B. & Aid. 471 ; 2 Starkie, 107 ; 
3 East, 192. 

There is no statute which prohibits the building of a 
wagon bridge across the Alabama river, nor would the 
building of such a bridge "expressly and unquestionably 
contravene public policy and be injurious to the interests 
of the State." On the contrary, building such a bridge 
would be beneficial to the interests of the community and 
the State. 

It is said that it was without authority of law to propose 
to build it out of the proceeds of the l^nds given by the 
county to the railroad company, or to propose to the peo- 
ple to vote bonds to the railroad company to build it. I 
answer to this, that no such proposition was made to the 
people of Dallas county ; they had n'othing to do with the 
expenditure of the company's money, not derived from 
their subscription ; there was no need to ask their consent. 

Under this state of facts and guided by these rules of 
law, which will meet with the ready assent of the court, I 
recur to the position that, at the most, this proposal to 
build a wagon and passenger bridge could only be void, 
because it was not authorized by the act of Dec 31, 1868. 

The first proposition is legal ; it is in strict accordance 
with the act of the general assembly, "a proposition by a 
railroad company building a railroad in the county, to the 
county, to subscribe a certain amount of stock in the rail- 
road company and to pay for the stock in the county bonds 
at par." 

The other is beyond the act and without its authority, 
and so far as it depends upon the said act of lb68 for its 
validity, is void. 

The. consideration of the former is the stock in the rail- 
road company, on the part of the railroad company, and 
the county bonds on the part of the county. 

The consideration of the latter was only the proposal of 



JUNE TERM, 1871. 259 

Ex parte Selma & Gulf Railroad Company. 

the railroad company, without any corresponding equiva- 
lent or promise by the county. 

This latter being regarded as beyond the authority of 
the act, the question presents itself, What is its legal effect 
upon the other proposition ? The maxim of law "applica- 
ble to every sort of writing by which legal rights are crea- 
ted or transferred," is ^'ut res magis vakat quam jpereal." 
In the Earl of Clanricard's case, Hob. R. 227, Lord Chief 
Justice Hobart says, "I do exceedingly commend the judges 
who are cunning and almost subtle to invent reasons and 
means to make acts according to the just intent of the 
parties, and avoid wrong and injury which by rigid rules 
may be wrought out of the act" quoted and approved by 
Lord Ch. J, Hale in Crossing v. Scudamore, 1 Ventr. 141 ; 
by Willes, Ch. J., in Roe ex dem. v. Transmarr, (Willes' R. 
682 ; 2 Wils. 75, 78). 

Justice Co wen, in Darling v. Rogers, 22d Wend. 490, 
quoting Ch. J. Gibbs, says, "The truth is, there is no differ- 
ence between a transaction illegal at common law and by 
statute, and the objection being that this deed conveys 
property in a way that is prohibited, whether by common 
law or the statute, the construction is the same. Taking 
it to go no further than as I now state, it follows that, that 
which conveys illegally is void, and that which conveys 
legally is valid." A statute, when it prohibits a thing, may 
go farther and say "that the deed by which the thing is 
done is void," and then a court of law must declare it void 
to all intents and purposes, because the legislature has 
said so." 

If a statute does not declare that contracts made in viola- 
tion of its provisions shall be wholly void, then, if the good 
part be separable from and not dependent on the bad, that 
part only will be void which contravenes the provisions of 
the statute.— 1 Mod. 35; 1 Vent. 237; 3 Taunt. 244; 2 
Wils. 351 ; 3 Taunt. 727 ; Chitty on Contracts, 597, 598. 

"We have already seen that whenever there are two con- 
siderations, and one of them be unlawful, the promise is 
void ; but if one of them be only void the other will sup- 
port a promise." 



260 FORTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

"The reason of this distinction is, that inasmuch as the 
entire consideration forms the basis of every portion of the 
promise in the one case, if a part of the consideration is 
illegal it vitiates the whole, while if a part be merely void 
it has no legal effect, being mere surplusage. When, 
therefore, the contract is severable, and there are different 
acts to be done, some of which are void and others are 
binding, the agreement may be treated as if it were com- 
posed of several distinct contracts with the same consider- 
ation, and enforced as far as it is lawful and rejected as to 
the residue." — Story on Contracts, ch. xix, 655, § 622 ; Ad- 
dison on Contracts, 147 ; Patton, Governor, &c., v. Gilmer 
and others, 42 Ala. R. 555. 

In the case under consideration the Selma & Gulf Rail- 
road Company, engaged in the construction of a railroad 
in the county of Dallas, applied by its president and a ma- 
jority of its directors, in writing, to the court of county 
commissioners of Dallas county, submitting proposals to 
the county to take $250,000 of stock in the railroad com- 
pany and pay for the same in bonds of the county, to be 
expended in building a railroad bridge across the Alabama 
river at Selma. 

Now this is literally and precisely the thing authorized 
by the act to be done — done by the parties and in the 
manner expressly authorized by the act, there is nothing 
wanting and no departure from the act, except in proposing 
to expend the bonds in building a railroad bridge, which it 
is decided does not vitiate. 

This is a separate and independent proposal, complete 
of itself, and it is either legal or illegal, valid or invalid. 

It is authorized by and has the express sanction of the 
law. The parties, the subject matter, the mode of proced- 
ure, the court before whom it is to be inaugurated, all are 
in strict conformity to the act of 31st of December, 1868. 
Under this act and on a procedure of this kind, the county 
receives stock in the railroad company, and the railroad 
company receive the bonds of the county. These are the 
mutual considerations fixed by the act itself which bind 
the parties and make the contract valid between them . 



JUNE TERM, 1871. 261 

Ex parte Selma & Gulf Railroad Company. 

This proposal, in strict conformity to the provisions of 
the act, was submitted to the people of Dallas county at an 
election after the proper notice, and was accepted by 
them. 

The proposal which was thus accepted by the people of 
Dallas was to subscribe $250,000 stock in the railroad 
company, and pay for it in county bonds to be expended 
in building a railroad bridge across the Alabama river at 
Selma, and when accepted by the people it became a con- 
tract which bound both the parties to it, according to its 
terms. 

This is so obvious that language cannot elucidate or ar- 
gument enforce it. 

The other proposal is, that the railroad company propose 
to build, in connection with the railroad bridge, a wagon 
and passenger bridge, free to all the people of the State. 

This is a separate proposition from the other, not made 
in terms dependent upon the other, nor proposed to be 
built out of the funds furnished by the county. This may 
be stricken out and the other remains complete and entire 
of itself, and in full conformity with the provisions of the 
act. 

This last proposal is not prohibited by the act of 31st 
of December, 1868. There is no provision in that act pro- 
hibiting the insertion of such a proposal in connection 
with the proposal authorized by the act. There is nothing 
in the act declaring that if any thing more than is expressly 
authorized by the terms of the act is engrafted upon, be 
attached to the authorized proposal, that either the addi- 
tion shall be void or that the whole proceeding shall be 
void. The act is silent on this point, and therefore this last 
proposition is not made unlawful or even void by the act 
of December 1st, 1868. 

Any implied restrictions or limitations grow out of the 
want of authority, and do not spring from any prohibition 
in the act. It is equally clear that the proposition to build 
the wagon and passenger bridge is not immoral, against 
public policy, or in violation of any other statute. 

It is, then, reduced to this — that the proposal is, at most, 



262 FOETY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

simply void — not unlawful or illegal, but void — because by 
the act which conferred the power to institute this proced- 
ure, there was no power given to the railroad company to 
make such a proposition, and no power given to the com- 
missioners court to submit such a proposal to the people, 
and no power given to the people to accept such proposal 
when made. 

The two propositions are several, and are separated in 
the form in which they are presented. 

A thing which is void is ineffectual, to do or to undo. It 
has no power to preserve or to destroy, to cure or to kill. 
It is nothing. It is, to use the language of Mr. Story, 
quoted above, "mere surplusage." A statute which has 
been declared unconstitutional and void, is as though it 
never had any existence, and so of any act of any person 
or court. 

When a statute is declared unconstitutional, it is as 
though it had never been — and what is true of an act void 
in toto, is true also as to any part of an act which is found 
to be unconstitutional, and which, consequently, is to be 
regarded as having never, at any time, been possessed of 
any legal force. — Cooley on Constit. Lim. 188 ; 5 Ind. 348; 
3 McLean, 107. 

The case, then, may be thus stated : Two proposals are 
submitted to the people of Dallas county, one of them legal 
and valid, distinct and entire in itself, by which the people 
are asked to subscribe to the railroad company a certain 
amount to be expended in the building a railroad bridge. 
This was exclusively the use to which the bonds of the 
county were to be appropriated. 

The other was a proposal by the railroad company to 
build in connection with the railroad bridge a wagon and 
passenger bridge, which proposal, for want of authority in 
the party to make it, is void. 

This proposal, being void, is a nullity. It is as though 
it had never been, and may be stricken out, and the case 
stands alone upon the first proposal. 

It is said that this last proposal, though void, had its 
effect doubtless upon the popular vote, and therefore it is 



JUNE TEEM, 1871. 263 

Ex parte Selma & Gulf Kailroad Company. 

impossible to say whether the people would have voted in 
favor of the first proposition had they known that the 
second was void. With great deference and sincere respect 
for the court, and the distinguished member of the court 
who proposed this position, I submit the following criticism 
and argument to show, not so much an error in logic as a 
misapprehension of the facts. That argument and conclu- 
sion of the court is based upon the assumption that the 
people of Dallas county were asked to vote a subscription 
of stock to the railroad company to build a wagon bridge. 
This I have shown is a misapprehension. Such was not 
the fact, as shown by the language of the proposal itself. 

The proposal to build a wagon bridge being without 
authority of law, and therefore void, does not vitiate the 
contract, because being void it is a nullity and is to be 
regarded as though it had never been. It may be stricken 
out, and it leaves the contract perfect, legal and complete 
in all its parts, and in its entirety between the railroad com- 
pany and the county of Dallas, 

When it is said that the second proposal entered into 
the minds of the people at the election and influenced their 
vote, the answer is that the same thing may be said of every 
contract which contains terms, some of which are legal and 
valid, and others which are void. In every case the terms 
of the contract which are valid had probably an influence 
in inducing the making of the contract, yet the rule is well 
settled, as I have shown by authorities cited in this argu- 
ment, that parts of a contract, some of which are legal and 
others void, will be enforced if capable of severance from 
those which are void. 

Both of the maxims, " Ut res magis vahat quam pereat" 
" Utile per inutile non vitiatur," must be ignored before the 
conclusion can be sustained that the legal and valid con- 
tract contained in the first proposition is vitiated by the 
void proposal contained in the second. 

If a corporation makes a contract valid in part and invalid 
as to the residue, for want of power in the corporation to 
make the entire contract, the contract will be valid to the 
extent of the power and void only as to the excess.— 8 Smedes 



264 FOETY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

& Mar. 151 ; 7 How. (Miss.) 508 ; 2 Ala. K. 457, 485, 486; 
10 Peters, 453. 

In reference to questions of this sort, corporations and 
natural persons stand upon the same footing. — Patton, Gov. 
V. Gilmer, 42 Ala. E. 554. 

"Every man must be charged at his peril, with a knowl- 
edge of the law. There is no other principle that is safe 
or practicable in the common intercourse of mankind." 
Kent, Ch., Lyon v. Richmond, 2 I. C. 60. 

This rule, applicable to individuals, must apply with 
equal force to a community ; and the proposition to build 
the wagon and passenger bridge being void, and every one 
being chargeable with a knowledge of the fact, it could 
exert no influence upon the election which the law or court 
can recognize, much less rest its judgment upon. 

The following response was made by — 

PECK, C. J. — I have carefully reviewed the opinion in 
this case, in connection with the argument of the learned 
counsel of the petitioner for a re-hearing. The argument 
is able and ingenious, I will not say subtle, though it 
comes very near it ; but it is not satisfactory. Instead of 
convincing me the opinion is wrong, it has the rather con- 
firmed me that it is right. 

The counsel labors skillfully to show that the proposal of 
the said railroad company, to- wit, the proposal to build, in 
connection with the railroad bridge, a passenger and wagon 
bridge across the Alabama river, to be free of toll to all 
the people of the State of Alabama, is a separate thing, 
connected with, but no part of, the proposal to build the 
railroad bridge ; that the people of the county have no 
part in building the passenger and wagon bridge, and no 
part in contributing the means necessary to build it ; that 
the two propositions are kept distinct ; that to which the 
county is asked to subscribe, and for which its bonds were 
to be given, was the railroad bridge ; that the county was 
not asked to vote stock to build the passenger and wagon 
bridge, nor was it asked to contribute, in any way what- 
ever, for the building of the passenger and wagon bridge. 



JUNE TERM, 1871. 265 

Ex parte Selma & Gulf Railroad Company. 

But the counsel concedes that the proposal of the said 
company to build the passenger and wagon bridge was in- 
tended as an inducement to the people to vote to subscribe 
$250,000 to the capital stock of said company to build the 
railroad bridge ; yet he insists the proposal to build the 
passenger and wagon bridge was not illegal, contrary to 
pubhc policy, immoral, or vicious, in any sense or degree. 
This, I think, a little reflection will show, is much easier 
said than proved. 

It is, undoubtedly, lawful for a railroad company to 
make the proposal named in the statute, but to add to, or 
connect with such proposal, anything that is intended to 
induce and beguile the people to vote for such proposal, is, 
in my poor judgment, not only illegal, contrary to public 
policy, immoral and vicious, but with all, dishonest. The 
purpose of the said company in making the proposal to 
build the passenger and wagon bridge being to induce the 
people to vote to subscribe to the capital stock of the com- 
pany, it is fair and legitimate to presume the said purpose 
was accomplished, and that the people would not have 
voted to subscribe to the capital stock of said company if 
this proposal to build the passenger and wagon bridge had 
not been made, and that they did so vote because of the 
said proposal of said company to build said passenger and 
wagon bridge. Now, I beg leave to ask the learned coun- 
sel, did or does this proposal of said company to build 
said passenger and wagon bridge (the vote of the people 
being for subscription to the capital stock of said com- 
pany, induced thereto by said proposal,) impose any legal 
obligation on said company to build said passenger and 
wagon bridge, — any obligation that could or can be en- 
forced by a court of justice? The counsel will hardly 
venture to answer this question in the afl&rmative. If no 
such obligation exists, then it is very certain the vote of 
the people for subscription was obtained by false and de- 
lusive inducements made to them by said company; in 
other words, the vote of the people for subscription was 
obtained by deceit and fraud, in law, if not in fact. It 
18 



2(56 FORTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

may, perhaps, be thought these are plain words, plainly 
spoken ; and so they are, but plain words, plainly spoken^ 
are always proper and becoming to a court of justice. 

It is said, however, " there is no law which prohibits the 
railroad company from proposing to build a wagon bridge, 
nor any law which would prohibit it from building the 
bridge." This railroad company is a corporation, and as 
a corporation it can only lawfully do such acts as it is au- 
thorized to do by its charter, and such acts as are or may 
be necessary and proper to accomplish and carry into 
effect the objects and purposes of its creation. The build- 
ing of passenger and wagon bridges, to be free of toll ta 
all the people of the State, are not such acts as the char- 
ter authorizes it to do, nor are they necessary and proper 
to accomplish the objects and purposes for which it was 
created. It is, therefore, unlawful for it to engage in the 
building of such bridges, although not, in so many words, 
prohibited from doing so, either in its charter or some 
other law. Furthermore, it is not only not authorized to 
build such bridges, but it has not the means to build such 
bridges. All it possesses, or can lawfully possess, as a cor- 
poration, belongs to its stockholders, and its president and 
directors are merely the officers and agents of the stock- 
holders, and bound to employ and use the means and funds 
of the company in the legitimate business of the company, 
and if they were to propose and attempt to use them in 
building free bridges for the use of the people of the State, 
on the application of one or more of the stockholders a 
court of equity would eujoiu them from doing so. 

It was, therefore, not only unlawful because unauthor- 
ized, for the president and directors of said company to 
make the proposal to build said passenger and wagon 
bridge, but it was also a proposal that they could not law- 
fully comply with, if even they had the will to do so. If 
they had not the legal power, and could not comply with 
said proposal, as it is very certain they could not without 
a breach of duty and good faith to the stockholders of said 
company, and without usurping powers not conferred on 
said company by its charter — all which said president and 



JUNE TERM, 1871. 267 

Mobile & Girard Railroad Co v. Edwards. 

directors knew, or are presumed to have known ; then, to 
say the least of it, it was disingenuous to make such pro- 
posal to the people for the purposes admitted, to-wit, to 
induce them to vote subscription, &c., which they would 
not have done without being moved thereto by said delu- 
sive inducement. 

Without consuming more time in the consideration of 
this subject, it is sufficient to say we remain satisfied with 
the decision already made, and therefore deny the applica- 
tion for a re-hearing. The petitioner will pay the costs of 
this application. 



MOBILE & GIRAJEID RAILROAD CO. vs. EDWARDS. 

[action fob damages fob bbeach of independent ageeement. ] 

1. Evidence; tchat inadmissible as. — A written agreement, the foundation 
of an action for damages, made in the year 1863, and unstamped, is 
inadmissible as evidence. 

2. Same, instrument made in 1863 ; hcno only can he stamped. — Such an in- 
strument can only be stamped, since the 1st day of January, 1867, by 
the revenue collector of the proper district. 

3. jSame, terms of such tmstamped agreem,ent; can not be proved by parol 
evidence. — Where the written instrument which is the foundation of the 
suit is unstamped, and excluded as evidence for that reason, the con- 
tract evidenced by such written instrument can not be proved by oral 
evidence. 

Appeal from Circuit Court of Henry. 
Tried before Hon. J. McCaleb Wiley. 

The appellant having brought an action against the ap- 
pellee to recover damages for the breach of an agreement 
to deliver certain bacon, &c., introduced as evidence the 
written contract for the delivery of said bacon, made by 
appellee in i863, when the court, on motion of appellee, 
excluded the instrument from the consideration of the 



268 FORTY-SIXTH ALABAMA. 

Mobile & Girard Railroad Co. v. Edwards. 

jury, because it had no United States internal revenue 
stamp affixed thereto. 

The appellant then offered to affix and cancel, in open 
court, the proper amount of United States internal revenue 
stamps upon said instrument, and the court refused to per- 
mit this done. 

The appellant then offered a witness to prove the con- 
tract made by appellee in regard to the delivery of the 
bacon, but the court, on its being made known that the 
contract which the witness proposed to prove and that set 
out in the written instrument were the same, refused to 
allow said witness to be introduced. 

To each of said rulings appellant excepted, and took a 
non-suit, <fec. 

The various rulings of the court excepted to are now 
assigned as error. 

W. C. Gates, for appellant. 
F. M. Wood, contra. 

B. F. SAFFOLD, J.— A written agreement, the founda- 
tion of an action for damages for a breach of it, made in 
1863, and unstamped, is not admissible in evidence. Nor 
can a party having an interest in it affix the stamp since 
the 1st day of January, 1867. This must be done by the 
collector of the revenue of the proper district. It is not 
void for being unstamped, unless the omission of the stamp 
was in fraud of the revenue laws. — U. S. Stat, at Large, 
39th Congress, 143, § 9. 

The refusal of the court to allow the plaintiff to prove 
the terms of the agreement by a witness, was correct. 
The general rule that oral evidence can not be substituted 
for any written conveyance or contract, applies with full 
force in this case. — 1 Phil. Ev. 576, and note 167. 

The judgment is affirmed. 



JUNE TEEM, 1871. 269 

stone & Matthews v. Gazzam. 



STONE & MATTHEWS vs. GAZZAM. 

[action fob DAM&aES FOB NEGLECT OF BEPAIES OF STEAMBOAT, AC,, BOUGHT 
BY IIABBIEO WOMEN, WHO OEBIVED TITIiE TO THE BOAT BT PTJBCHASE FBOM 
THEIB HUSBANDS.] 

1. Separate estate of married wonian ; of what consists. — Under the laws 
of this State, all the property of a married woman is her separate es- 
tate, if it .has accrued to her since the adoption of the Code of Ala- 
bama. 

2. Same; what deed is not void, and can not ie assailed by stranger.— The 
deed of a husband, made in this State since the adoption of the Code 
of Alabama, to the wife, on a valuable consideration paid by her to 
him, by which he conveys to her his interest in a steamboat and its 
equipments in this State, if free from fraud, is not void. Such a deed 
if voidable, can only be avoided by the parties to it, or their creditors, 
and not by a stranger. 

3. Same; possession of steamboat under su<;h deed; what contract ioill 
authorize wife to make, and sue on in her own name. — The possession de- 
rived from such a deed will authorize the wife to use the boat in the 
business of transportation on the navigable waters bf this State, and 
to enter into a contract for the repairs of its machinery, and upon a 
breach of a contract for such repairs, she may bring an action for dam- 
ages on such contract in her own name as owner of the boat. 

Appeal from Circuit Conrt of Mobile. 
Tried before Hon. C. W. Rapier. 

The facts are sufficiently stated in the opinion. 

Lyman Gibbons, for appellant. — It is admitted that a 
deed from the husband to the wife is void at common law. 
But it is not so in equity. On the contrary, a conveyance 
by the husband to the wife, whether by deed or by parol, 
and whether by way of gift or voluntary settlement, and 
whether supported by a consideration or not, where no 
question arises as to creditors or subsequent purchasers, 
and where the husband is affirming the gift, will always be 
supported in equity. — Rosser on Husb. and Wife, vol. 1, 
marg. p. 306-310 ; ib._ vol. 2, 133-140 ; 2 Kent, 163 ; Story 



270 FOKTY-SIXTH ALABAMA. 

stone & Matthews v. Gazzam. 

Eq. § 1380 ; Sianmug v. Styles, 3 P. Will. 837 ; Shepard v. 
Shepard, 7 Johns. Ch. 57. 

In all such cases, the wife at common law has an equit- 
able estate, which will be supported only in equity. But 
it will be supported there. 

2. Now the question arises, what eiffect has our statute 
on such estates, and on such deeds? 

The sections of the Code to which I refer are as follows : 
Sec. 2371. — " All property of the wife held by her previous 
to the marriage, or which she may become entitled to after 
marriage in any manner, is the separate estate of the wife, 
and is not subject to the payment of the debts of the hus- 
band." Sec. 2388. — " The provisions of this article take 
effect and are operative on the estates of all married wo- 
men who have beem married, or have received property by 
descent, gift, or otherioise, since the first day of March, 
1848." Also, section 2ci83. — " The separate estate of a 
married woman, acquired subsequently to the first of 
March, 1848, from and after the time this Code goes into 
operation, is subject to all the rules, regulations and limi- 
tations contained in this article for the regulation of the 
separate estates of married women." 

The court will observe the general and sweeping lan- 
guage employed in these sections as applied to the estates 
covered by them. Sec. 2371 says, "att property of the wife 
held by her previous to the marriage, or which she may 
become entitled to in any manner." This language covers 
equitable as well as legal estates, and every interest that 
can be imagined. Again, in section 2388 the terms are, 
by descent, gift, or otJierivise. What can be broader than 
this? If the legislature had sought to employ language 
that should cover every sort of estate, they could not have 
done it more effectually. 

Now, what is that which passes between the husband 
and wife by his deed or gift to her, where he is solvent and 
able to make the gift ? Agreed that by the common law 
the legal title did not pass, and yet something did pass, or 
else there would be nothing for equity to uphold. What 
is it, then, that does pass ? Simply an equitable estate, 



JUNE TERM, 1871. 271 

stone & Matthews v. Gazzam. 

which a court of equity seizes hold of and tfpholds. Now, 
this right, this equitable estate, this interest that passes by 
this deed to the wife, is property ; it is worth something, 
and is something on which a court of equity seizes and 
decrees to the wife, and therefore is an estate. Can there 
be any doubt that it is embraced in the language of the 
sections above quoted? None in the world. Therefore, 
these statutes , acting upon these'equitable estates, raise 
them to the dignity and effect of any other separate estate 
of the wife, and they give the wife on one of these estates 
the same status that she would have by the deed of a 
stranger. 

What, then, is the conclusion to which we arrive in this 
particular case? 1st, If this deed is one falling within 
the case of Stuhbs v. Fish, in 30 Ala. b35, then the wife has 
a standing in court by herself. I2d. If the deed is one fall- 
ing within the case of Gannon v. Turner, 32 Ala. 483, then 
the husband and wife must join in the suit. 

P. Hamilton, contra. — Such dealing between husband 
and wife as is shown in this case, is forbidden by the Code. 
Rev. Code, § i:374 ; Reed v. OveraU, 39 Ala. 138. 

Such suit must be brought in the name of the person 
having the legal title. — Rev. Code, § '2523. 

At common law, such dealing would be illegal ; a title 
can not pass from husband to wife. — 1 Pars. Cont. 358-59 ; 
8 Term Rep. 545 ; 14 Smedes & M. 59 ; 1 Greenl. R. 394 ; 
10 Cush. R. 550 ; 8 Vt. 187. 

The Code uses positive language : " Husband and wife 
can not contract with each other for the sale of any pi'op- 
ei'tyy This language is declared to be prohibitory. — 39 
Ala. 144, supra. It is certainly universal in its terms, and for 
very good reasons. Its intention is in accordance with the 
spirit of the new system, to remove the wife as far as pos- 
sible from the undue influence of the husband. 

PETERS, J. — This is an action of assumpsit, with spe- 
cial counts, for damages arising from bad, unskillful and 
negligent repairs of e^ steamboat shaft, while the boat was 



272 FORTY-SIXTH ALABAMA. 

Stone & Matthews v. Gazzam. 

in the service of the plaintiffs in the court below, as joint 
owners of the same. The appellants in this court were 
the plaintiffs below, and there was a verdict and judgment 
against them, from which they appeal to this court. 

The bill of exceptions shows that on the 18th day of 
May, 1866, Hessee, Otis, Cox, Brainard and Waring, all 
citizens of Mobile, Alabama, being the owners of the 
steamboat " Flirt," for and in consideration of the sum of 
$7,000 conveyed said steamboat and all its equipments to 
John P. Kennedy, J. H. Matthews & Co., J. M. Stone and 
B. W. Matthews, to be owned by them in shares as follows, 
to- wit: One-third by Kennedy, one-third by J. H. Matthews 
& Co., one-sixth by Stone, and one-sixth by B. W. Matthews. 
It further appears, that on the 26th day of May, 1866, said 
Kennedy being the owner of one-third, and said Matthews 
& Co. being the owners of one-third of said steamboat, for 
and in consideration of the sum of $4,667 paid to them by 
Mrs. Mary A. Matthews and J. M. Stone, conveyed said 
steamboat and its equipments, to the extent of the inter- 
ests owned by them, to said Mrs. Matthews and said Stone. 
At the date of this last named conveyance, Mrs. Matthews 
was the wife of said J. H. Matthews, of the firm of J. H. 
Mathews & Co. It was further shown, that, on the 6th 
day of April, 1867, J. M. Stone, of Mobile, Alabama, being 
the owner of two-thirds of the steamboat " Flirt," above- 
said, for and in consideration of the sum of $3,333.33 paid 
to him by Mrs. MoUie J. Stone, conveyed to her all his in- 
terests in said steamboat and its equipments. It was also 
shown that at the date and execution of this conveyance' 
Mrs. Stone was the wife of said J. M. Stone. All these 
transactions occurred in this State, and since the adoption 
of the Code of Alabama. 

The action is prosecuted in the names of Mrs. Stone and 
Mrs. Matthews as sole complainants, who claim to be the 
joint owners of said steamboat, under the conveyances 
above said. There was some injury to the boat and their 
business in running said boat in this State shown, which 
was occasioned by the unskillful and negligent repairs 



JUNE TERM, 1871. 273 

stone & Matthews t. Gazzam. 

made by the defendants for plaintiffs, as alleged in the 
complaint. 

On submitting the cause to the jury, on the trial below, 
the learned judge presiding, diarged the jury in the fol- 
lowing language, that is to say : " It appearing that Mol- 
lie J. Stone was the wife of J. M. Stone, and Mary A. Mat- 
thews was the wife of J. H. Matthews, (one of the firm of J. 
H. Matthews & Co.,) the deeds introduced by them and 
made by their respective husbands to them were not suf- 
ficient under the laws of Alabama to enable them to main- 
tain this suit ; that under the provisions of the Code in 
relation to the separate estate of married women, and un- 
der the common law, said plaintiffs had no title to the 
property which they could enforce in this court." To this 
charge the plaintiffs excepted, and now assign the same as 
error. Besides this, there are also two other assignments 
of error, but as they were not noticed at the bar or in the 
brief of the learned counsel, they will be treated as aban- 
doned. — Bobinson v. Tipton, 31 Ala. 595. 

All persons of sound mind and sufficient age, in this 
State, who are otherwise able to make contracts, and 
where creditors have no prior liens, may sell or give their 
property to whom they please, when the person to whom 
the sale or gift may be made is not forbidden by law to 
receive it. — Benj. on Sales, p. 4. The fact that one is a 
husband does not curtail his capacity in this respect. It 
is true that at common law, neither the husband nor any 
one else could sell or give the property to his wife, so as 
to clothe her with a title that she could exert or defend in 
a court of common law ; because under that system the 
wife's identity was merged in the husband. — 2 Kent, 162 ; 
Co. Litt. 112 ; 1 Pars, on Cont. 345. But her identity was 
not so utterly destroyed by the marriage that she could 
not receive and hold, and own property for her own use, 
notwithstanding her coverture. It is very clear that she 
could, and that she might derive title to it from her hus- 
band during her coverture ; though usually the convey- 
ance was to a trustee for her use. In either case a court 
of equity would protect her rights in the property, what- 



274 FOKTY-SIXTH ALABAMA. 

stone & Matthews v. Gazzam. 

ever they might be.— 2 Kent, 163 ; 2 Story Eq. §§ 1379, 
1380. At common law a husband could not give or sell his 
property to his wife during coverture ; because this would 
be construed as a gift or a sale to himself, and nothing 
passed to the wife that a court of common law would 
recognize as property. Yet, the effort to sell or to give in 
this way was not a nullity ; unless it was in violation of the 
statute of frauds. There was a right to the property thus 
vested in the wife, which could be enforced and protected 
in a court of chancery. So stood the common law and 
equitable rights of the wife up to the time of the enact- 
ment of our statute, which changed the whole system. 

There can be no doubt about the constitutional validity 
of this important enactment. The legislative authority of 
the State can emancipate the wife from all her disabilities 
as a feme covert at common law. Indeed, the general 
assembly may obliterate the whole system of the common 
law in the State, if the public policy require it. They may, 
therefore, change it and modify it in any way to suit the 
demands of State policy, if, in the change, they do not 
assail the obligation of contracts previously existing. In 
this view of the legislative authority, it has been the fre- 
quent and uniform practice in this State to pass laws to 
authorize married women, during coverture, to act and 
transact business as feme sole traders ; that is, in the 
language of these statutes, to make them "free dealers." 
(Pamph. Acts 1859-60, p. 621; Carleton & Co. v. Banks, 
7 Ala. 32 ; 669 et passim. In the exercise of this sovereign 
right the law of the Code, defining and regulating the 
estates of married women, was enacted. The language of 
this statute is very broad ; seemingly as broad as it can be 
made, without useless tautology. This declares that, all 
property of the wife, held by her previous to marriage, or 
which she may become entitled to after marriage, in any 
manner, is the separate estate of the wife, and is not subject 
to the payment of the debts of the husband." — (Eev. Code, 
§ 2371). The wife's rights to her estate are not impeded 
by the inviolability of the contract of marriage. The leg- 
islative authority of the State is not forbidden to deal with 



JUNE TERM, 1871. 275 

stone & Matthews v. Gazzam. 

this contract as it may think best. Such contracts have 
no constitutional protection. — (Dartmouth College v. Wood- 
ward, 4 Whea. 518 ; Marshall, C. J., arguendo ; Holmes v. 
Lansing, 3 John. Gas. 73 ; White v. White, 5 Barb. 474. 
But see Holmes v. Hdmes, 4 Barb. 295 ; Ponder v. Graham, 
4 Flor. 23). This statute overturns the old system, and 
makes the wife capable of owning property independent 
of the husband. In this respect, she is no longer the wife 
at common law. She is the wife under the law of Alabama. 
This law is thoroughly repugnant to the whole theory of 
the common law upon the subject of the wife's property ; 
and it very properly provides a code of rules for the man- 
agement of the estate held under it. It also seems that it 
is intended, that all estates which have accrued to married 
women in this State since its passage, must be affected by 
its provisions.— (Rev. Code, §§ 2382, 2388). For, evidently, 
aside from the force of these sections of the Code, every 
contract, whether of gift or sale, includes the law at the 
date of its execution, which governs its effect, as a part of 
its stipulations. Otherwise a contract might defeat the 
law.— (4 Wall. 535, 550 ; 8 Whea. 92 ; 1 How. 319 ; 1'^ 
Whea. 231 ; 9 Cr. 43 ; 9 Pet. 359). This important statute 
necessarily makes the wife capable of receiving and owning 
property, and does not limit her acquisitions to any par- 
ticular sources. Her relation to her husband, in this res- 
pect, is changed. Before the statute, he could not give or 
convey to her, because this was but a gift or conveyance to 
himself. And it was ineffective for this reason, and not 
because such a gift or conveyance was illegal. This was 
not the case, if done in a proper way. — (2 Story Eq. §§ 1379, 
13ci0, et seq., and cases there cited. Now the statute has 
removed the merger, and restored the wife to a capacity 
to receive and own estates as fully as though she were a 
feme sole. These deeds, then, conveying the steamboat 
"Flirt" by the husbands of the plaintiffs, as shown in the 
record, are not void. And were they even voidable, which 
is not admitted, they could only be avoided by the hus- 
bands themselves or by some person having rights under 
the husbands, who would be entitled to stand in their shoes. 



276 FOETY-SIXTH ALABAMA. 

stone & Matthews v. Gazzam. 

This could not be done by these defendants. They are 
strangers to the deeds. — (10 Bouv. Bac. Abr. p. 382, F.) 
If the husbands permit these deeds to stand, no one else, 
save under some circumstances their creditors, have any 
right to complain. This action is founded on the agree- 
ment to repair the plaintiffs' steamboat shaft, made with 
them by the defendants, as the owners of the boat. Hav- 
ing contracted with the plaintiffs as owners, the mouths of 
the defendants are shut to deny this; as the married women 
do not repudiate this agreement, the defendants cannot do 
it. They were bound to perform their agreement in a 
proper way or to abide the consequences of a failure. The 
possession and use of the steamboat, under even an' equit- 
able claim, was sufficient to entitle the plaintiffs to repair, 
so as to make the use as beneficial as possible ; and if the 
defendants agreed to make such repairs, they were bound 
to do so in a proper way ; or they must answer in damages 
for a failure. If the agreement to make the repairs was 
legal, then the defendants mast show that they had com- 
plied with its terms on their part. It is conceived that any 
legal possession of the boat would authorize the plaintiffs 
to make an engagement for its repairs. They might be 
entitled to the use by the mere permission of their hus- 
bands ; and to deny them the right to repair, would defeat 
the purpose of this permission. Such an unreasonable 
contradiction is not to be presumed in the face of the 
deeds, which exhibit the most emphatic permission, if noth- 
ing more. — McOratli v. Bubinson, 1 Desaus. 445. 

I therefore think that the deeds relied on by the plaintiffs 
below, show a sufficient possession and property in them 
to support this action. Consequently, the charge of the 
court above was erroneous. 

The judgment of the court below is reversed and the 
cause is remanded for a trial de novo. 

[Note by Kepoeter. — At a subsequent day of the term, 
Mr. P. Hamilton, of counsel for appellee, filed an argument 
in support of an application for a rehearing. The argu- 



m 



JUNE TEBM, 1871. 277 

Bradley et al. v. Graves. 

ment did not come into the Reporter's hands. The follow- 
ing response was made by] : 

PETEES, J. — The application for the rehearing in this 
case, is but a repetition of the case as heard upon the orig- 
inal submission. It is, then, but an application to the court 
to recede from the original determination of the cause. 
The points suggested by the learned counsel for the rehear- 
ing are of very great diflSculty, but the constructions urged 
upon the court are not such as we are content to adopt in 
this case. Their answer must be looked for in the prin- 
ciples laid down in the opinion in the chief case. The 
rehearing is denied with costs. 



BRADLEY et al. vs. GRAVES. 

[action on pkomissoby note.] 

Complaint; what words are mere deacriptio peraonce. — Where a plain- 
tiff styles himself guardian of A. B., and declares on a note payable to 
him, in that character, but the suit is not brought for the use of the 
ward, the action is his individual suit, and the superadded words, 
"guardian of A. B.," will be regarded as mere deacriptio peraonw; and 
on the death of the plaintiff the suit should be revived in the name of 
his personal representatives. 

Promissory note; what constitute payment. — In such a case, if theaction 
is revived in the name of the ward, who has become of full age, without 
objection, a payment made to the deceased plaintiff, before suit brought, 
will be an extinguishment of the debt, and a good defence to the action, 
although the note may remain in the hands of the payee, after pay- 
ment, and, subsequently, come to the possession of the ward, before 
the suit is so revived in his name ; unless the note was left in the hands 
of the payee, for an improper and fraudulent purpose. 

Appeal from Circuit Court of Butler. 
Tried before Hon. P. O. Habper. 



278 FORTY-SIXTH ALABAMA. 

Bradley et al. v. Graves. 

The complaint in this case was as follows : 
"The State of Alabama, ) Circuit Court, 

Butler county, j Fall term 1866. 

B. Graves, guardian minor heirs of S. Graves, plaintiff, vs. 
G. W. Bradley, B. B. Rue, defendants. 
The plaintiff claims of the defendants the sum of four 
hundred dollars due by promissory note made by them on 
the 16th day of February, 1864, and payable on or before 
the 25th December next, after date, with interest thereon. 

Lane & Gamble, 

Plaintiff's Attorneys." 

The summons was dated 28th August, 1866, and com- 
manded the defendants to appear, &c., to answer the com- 
plaint of "B. Graves, guardian," &c. 

When the cause came on for trial a minute entry of the 
court shows that the parties came by attorneys, "and it 
appearing to the satisfaction of the court that the guardian, 
B. Graves, is dead, and that the note on which this action 
is founded is now the property of John Graves, who was a 
minor heir of S. Graves, but is now of full age, on motion, 
said John Graves is made party plaintiff to this action." 

No objection was made to this order of the court. 

The proof tended to show that while said B. Graves held 
said note, which was payable to B. Graves "as guardian 
of the minor heirs of S. Graves, deceased," said Graves 
had in his hands money belonging to one Cain, more than 
sufficient to pay the note made by appellants ; that Brad- 
ley, one of the appellants, at Graves' request, got an order 
from Cain directing Bradley to pay over this money to the 
appellants ; that upon presentation said Graves accepted 
said order and agreed to consider appellant's note paid by 
the transfer of Cain's money in his hands, and said he 
would give up the note in a few days ; that just at the time 
the note was at home with his papers and he could not 
conveniently get it then. Both Graves and the appellants 
considered the note paid after this. There was, also, proof 
that some three months afterwards, when one of the appel- 



JUNE TERM, 1871. 279 

Bradley et al. v. Graves. 

lants asked Graves for the note he refused to give it up 
and brought suit on it. 

The note was overdue when it came into the hands of 
the said John -Graves, but it does not appear at what date 
Bradley made the payment aforesaid. 

The court charged the jury, "that although the defendant, 
Bradley, might have paid the note to B. Graves, the guard- 
ian, while he held the same as guardian ; yet if at the time 
of such payment the note was not given up to him, but was 
afterwards turned over to the ward, said ward would have • 
the right to collect it, and that the ordinary rule of law in 
relation to defenses against transferred notes did not apply 
as against wards who had bona fide come into possession 
of notes in which they were beneficiaries." 

The defendants excepted to this charge, and also to the 
refusal of the court to give the following written charge 
asked by them : "If Graves held the note as guardian, then 
as guardian he had the right to collect it. If he had a 
right to collect, Bradley had a right to pay. If Bradley 
did pay the note and did pay it to Graves while he so held 
it as guardian, then neither the ward nor any one else into 
whose hands the note might come after it had matured 
and had been paid, can in law compel Bradley to pay it 
again." 

The charge given, and the refusal to give the charge 
asked, are now assigned as error. 

Herbert & Buell, for appellant. 
Gamble •& Powell, contra. 

PECK, C. J — 1. Where a writ is to answer A, guardian 
of B, the words "guardian of B," are mere matter of de- 
scription, and the suit is the suit of A. — Doivel v. Warda- 
worth, 2 Dev. 130. 

In a note the word "guardian," annexed to the name of 
the payee, is only descriptive of the person. — Baker v. 
Ormshy, 4 Scam. 325, 

Where a plaintiflf styles himself executor or administra- 
tor, and declares on a note payable to him, in that charac- 



280 FOKTX-SIXTH ALABAMA. 

Bradley et al. v. Graves. 

ter, but does not aver that the note is assets of the estate, 
the action is his individual suit, and the superadded words 
are mere descriptio personce. — Arrington v. Hair, 19 Ala. 243 ; 
Tate V. Shackelford, adm'r., 24 Ala. 510. And, in such a 
case, on the death of the plaintiff, the suit should be revived 
in the name of his personal representatives. 

These authorities are sufficient to show, that this was the 
individual suit of the original plaintiff, B. Graves, and, on 
his death, should have been revived in the name of his 
• personal representatives, and not in the name of the ap- 
pellee, who, the minute entry of the court states, was one 
of the heirs of 8. Graves, and of full age, and that the note, 
the foundation of the action, was his property. 

By section 2446 of the Revised Code, gurdians may sue 
in their own names, ^\for the use of the ward," in all cases 
where the ward has an interest, and the judgment enures 
to his benefit. — Hutton v. Williams, 35 Ala. 603 ; Longmire 
V. Pilkinton, 37 Ala. 296 ; but this action was not brought 
for the use of the wards. 

We hold that the correct practice, in a case like the 
present, is, on the death of the plaintiff, pending the suit, 
to revive it in the name of his personal representatives, 
and, on the settlement of the guardian's accounts, by them, 
on proof that the note belonged to the ward's estate, to 
charge the deceased guardian with the sum recovered. 

We have said this, that it may not be inferred, as other- 
wise it might be, that we recognize and approve of the 
course pursued in this case ; but as the irregularity was 
not objected to, the judgment will not be disturbed on that 
account. 

2. The only real question, arising on the bill of excep- 
tions, is as to the legal effect of the evidence. If true, did 
it show the note had been paid to the original plaintiff 
before his death ? If it did, the charge of the court is erro- 
neous. If the evidence proves what the bill of exceptions 
states it tended to prove, we hold it clearly establishes the 
payment of the note. This the charge does not seem to 
deny, but it instructs the jury, "that although the defend- 
ant, Bradley, might have paid the note to B. Graves, the 



JUNE TEBM, 1871. 281 

Bradley et al. v. Graves. 

guardian, while he held the same as guardian, jet, if at the 
time of such payment the note was not given up to him, 
but was afterwards turned over to the ward, said ward 
would have the right to collect it. 

In this the court was certainly mistaken. The failure 
to deliver, the note to the defendant, at the time of the 
payment, for the reason given by the evidence, did not, in 
any manner, change the legal effect of the payment, either 
as between the original parties, or the appellee, who, as it 
is shown, obtained it after the suit was commenced. 

3. The charge in writing, asked by the defendants, was 
improperly refused ; it was a correct statement of the law, 
and fully warranted by the evidence. 

Whether the not« belonged to the plaintiff, B. Graves, 
individually, or as guardian, the payment was properly 
made to him, and the payment was an extinguishment of 
the debt, although it continued to remain in his hands. 
Payment made to an intermediate holder of a note, indorsed 
in blank, whose name does not appear on the note, such 
holder being, really, the owner at the time, is a good pay- 
ment. — Richardson v. Farnworth, 1 Stewart, 55. If the 
note had been left in the hands of the payee, after payment, 
for an improper, fraudulent purpose, the rule would be 
otherwise, as between the maker and a subsequent bona fide 
holder, for value ; but that is not pretended in this case ; 
the note was not given up, because it was not at hand 
when the payment was made. 

Let the judgment be reversed and the cause remanded, 
at the appellee's cost. 



19 



^82 FOETY-SIXTH ALABAMA. 

IngersoU v. Campbell. 



INGEItSOLL vs. CAMPBELL. 

[action fob money had and beceived by defendant fob use of plaintiff.] 

1. Blockade; contraet to violate; when void. — A government, daring a 
rebellion against its authority, may legally blockade its own ports in 
possession of the insurrectionary authorities, and a contract to violate 
such blockade is illegal and can not be enforced. 

2. Same; ivhat contract growiny out of, viay be enforced. — But money 
earned upon such a contract and paid to the party earning it, vests in 
the person so earning it a good and legal title; and if, after such pay- 
ment, he deposits or leaves such money with a person to keep for him, 
he may recover it from him, although the person with whom the money 
was so left, as agent for another, made the contract to violate such 
blockade. 

3. Bailee, when iecomes liable for interest. — If one person holds the money 
of another on deposit to keep until demanded, and on demand and 
without reasonable excuse refuses to deliver such money, he becomes 
liable for interest from the time of the demand. 

4. Charge to jury ; wlien will be presumed to have been rightfully refused. — 
Where all the evidence is not set out in the bill of exceptions, it will be 
presumed, in order to sustain the refusal to give a charge, that it was 
abstract and not supported by the evidence delivered on the trial. 

Appeal from the Circuit Court of Mobile. 
Tried before Hon. John Elliott. 

This was an action commenced by Campbell against 
IngersoU for money had and received by him to and for 
the use of the plaintiff. There was a jury trial, and verdict 
and judgment for Campbell. 

From the bill of exceptions it appears that there was 
evidence offered on the trial in the court below, which was 
received without objection, which tended to prove that 
Campbell was a pilot residing in the city of Mobile in this 
State, in the year 1864, during the late civil war, and that 
as such pilot he was employed by Hopley & Co. of Charles- 
ton in the State of South Carolina, to take charge of the 
British ship "Virgin," then in the port of Mobile, and pilot 
the same from said port of Mobile to Havana in Cuba, and 



JUNE TEBM, 1871. 283 

Ingersoll v. CampbelL 

bring another boat back again from Havana to Mobile, if 
required to do so by the agents of Hopley & Co. in Cuba, 
for which service the sum of three thousand dollars in gold 
was to be paid him, as follows : one thousand dollars in 
advance at Mobile, five hundred dollars on the arrival of 
the "Virgin" at Havana, and five hundred dollars on the 
departure of Campbell from Havana, and one thousand 
dollars on his return and arrive! at Mobile ; and, in case 
Campbell was not required to return to Mobile after reach- 
ing Havana, he was then to be paid fifteen hundred dollars 
in gold and his expenses back to a "Confederate port." 
At the time of this agreement to pilot the "Virgin" to 
Havana, the port of Mobile was blockaded by the forces 
of the United States, and the full performance of the 
agreement with Hopley & Co. thus made, required a viola- 
tion of such blockade. Ingersoll was the agent of Hopley 
& Co. in MobUe, and it was through him that Campbell 
was employed. The "Virgin" was loaded with cotton, and 
"when she was ready to depart on her voyage from Mobile, 
she being loaded and ready for sea," Campbell "was ready 
and willing to go, and before leaving went to IngersoU's 
office to arrange his business prior to his departure," when 
Ingersoll said to him, "I suppose you want your money ?" 
Campbell replied, "he did not want it then, as he had 
enough." Ingersoll then said, '"well, shall I pay it to your 
wife?" Campbell replied that his wife had enough — "put 
my money in a sterling bill and keep it till my return." In- 
gersoll then directed his book-keeper to draw a sterling 
draft for Campbell. On the same day that this occurred, 
Campbell left on the "Virgin," and went down the bay on 
her. The captain of the "Virgin" watched for some time 
for an opportunity to put to sea, but the United States fleet 
having entered the bay, the "Virgin" was finally brought 
back to Mobile and the voyage abandoned, the cargo 
landed and the crew were paid off by Ingersoll. Shortly 
after this Campbell was arrested by the United States 
military authorities and kept as a prisoner of war for about 
one year. On his return to Mobile, after his release, 
Campbell called on Ingersoll and demanded his money left 



284 FOBTY-SIXTH ALABAMA. 

Ingersoll v. Campbell. 

with Ingersoll, and its payment was refused, Ingersoll say- 
ing, at the time, that he had no money in his hands for 
him. 

The bill of exceptions further states that there was testi- 
mony that Hopley & Co. were still solvent ; that Ingersoll 
disbursed the vessel in Mobile ; that Ingersoll, before the 
demand of plaintiff, had settled all his affairs with Hopley 
& Co. and turned over to them all their property which 
had come into his hands. There was also evidence tending 
to show that, at the commencement of the suit, Ingersoll 
had no property in his hands belonging to Hopley & Co., 
and that' the money disbursed by him was furnished 
from time to time by Stewart, of the firm of Hopley & Co. 

The bill of exceptions then states : "Upon the foregoing 
evidence the court charged," <fec. 

The court charged the jury in substance, that the contract 
to run the blockade, &c., by which plaintiff was to receive 
$1,000 in advance, as set forth in the evidence, if they be- 
lieved it, was illegal and void and could not support an 
action; but, on the other hand, if such a contract was made 
and once executed, although illegal, the law would not aid 
any party in seeking to recover back any money paid 
under it. If the jury should believe from the evidence 
that the defendant actually had in his possession one 
thousand dollars in gold, placed in his hands by the owners 
of the "Virgin," to be paid to plaintiff as a pilot on the 
"Virgin," to enable her to evade the blockade then existing 
at the port of Mobile, and that defendant acknowledged he 
had it, and the plaintiff left it with the defendant, then this 
would be a payment by Hopley & Co. to the plaintiff, and 
plaintiff would have a right to recover it from the defend- 
ant, because amounting to a payment from Hopley & Co. to 
Campbell. 

The defendant excepted to the giving of this charge, and 
requested three written charges, in substance as follows ; 

1st. If the jury believe that the object of the contract, 
as an incident of which this suit is brought, was to run the 
blockade, <fec., [as set out in the evidence,] then plaintiff 
can not recover. 



JUNE TERM, 1871. 285 

Ingersoll v. Campbell, 

2d. That although the juiy believe, from the evidence, 
that defendant received the money or its equivalent, they 
can not find for the plaintiff, "if it appears that defendant 
has since settled up with the parties from whom he is 
alleged to have received it." 

3d. That plaintiff can not recover unless he has shown 
that the defendant actually received money, or money's 
worth, as the property of the plaintiff, previous to the com- 
mencement of the suit, nor could he recover any more than 
the amount which the plaintiff has shown was actually so 
received by defendant, and if any such money had been 
actually so left in his hands, but left under an illegal 
contract, then plaintiff could not recover. 

To a refusal to give these charges defendant excepted, 
and now brings the case here by appeal, and assigns as 
error — 

1st. The charge of the court. 

2d. The refusal to give the written charges asked by the 
appellant. 

P. Hamilton, for appellant. — The contract to evade the 
blockade was illegal, and the courts of this county will not 
enforce it. 

2. The plaintiff's claim does not rest on contract with 
defendant. Its merit, if it have any, is that plaintiff, eo; 
equo and bono, is entitled to the money, and the form of 
action is equitable, and merits of plaintiff's case can be 
inquired into.— 10 Ala. 836 ; 2 Barb. 136 ; 2 Denio, 91 ; 
7 Ala. 486 ; 13 Wend. 490. 

3. To assert an equity in plaintiff, in such case, is a con- 
tradiction in terms.— 13 Ala. 406 ; 16 Wend. 674. 

4. Hopley & Co. had a right to withdraw their money 
from Ingersoll.— 22 Pick. R. 181. 

5. If money in hands of an agent be withdrawn, before 
the claim be made by the third party, the right of action 
against the agent is gone. — 4 Cow. R. 454 ; 4 Burrows' R. 
1984. 

For the correctness of the principle assumed by defend- 
ant—See 24 Wend. 387 ; 16 N. Y. 9, 95. 



286 FORTY-SIXTH ALABAMA. 

IngersoU v. Campbell. 

Geobge N. Stewart, contra. 

(Appellee's brief did not come into Reporter's hands.) 

PETERS, J. — The evidence in this case tends to show 
that Campbell entered into two contracts with IngersoU : 
The one with him as the agent of Hopley & Co., to pilot 
the ship "Virgin" from the port of Mobile to Havana, in 
violation of the blockade maintained by the forces of the 
United States of the said port of Mobile. There is no 
doubt, that in case of a civil war or rebellion, a govern- 
ment may blockade its own ports. — Prize Cases, 2 Black* 
636 ; Pres't Lincoln's Proc. of Blockade, April 19, 1861 ; 
U. S. Stat, at Large, appendix, p. ii. No. 4 ; Santissima 
Trinidad, 7 Wheaton, 283. And a contract to violate a 
blockade so set on foot was void, because it was forbidden 
by the public policy of the nation. — Kennett v. Chambers, 
14 How. 38. 

The second contract was made by Campbell with Inger- 
soU, in his individual capacity. In this the evidence tends 
to show that IngersoU agreed to become the bailee of 
Campbell for the one thousand dollars in gold, which was 
advanced to Campbell by Hopley & Co., in part execution 
of the illegal agreement to violate the blockade. This 
contract of bailment the jury by their verdict have de- 
clared did exist. If it did, it was not illegal. On the pay- 
ment by Hopley & Co., through their agent, IngersoU, of 
the one thousand dollars in gold to Campbell, on the con- 
tract to violate the blockade, the money thus paid became 
the property of Campbell. The illegality of the contract 
on which this money had been earned did not taint the 
validity of Campbell's title to it. And if it was Campbell's 
money, then he could leave it or deposit it with IngersoU 
to keep for him until his return, and IngersoU might agree 
to this. Such a transaction would not be unlawful. It 
was at least a deposit which amounted to a naked baU- 
ment, if no more. — Story's Bailm. §§ 3, 4 ; 2 Pars. Cont. 
89, 96, 97 ; 2 Kent. 559, 560, 566, 567. There can be no 
reasonable question about the lawfulness of such a con- 



JUNE TEBM, 1871. 287 

IngereoU v. Campbell. 

tract. Upon this bailment, it seems, this action is founded, 
and not upon the contract to violate the blockade. A 
legal agreement may be connected with matters growing 
out of the execution of an illegal contract, but this con- 
nection does not necessarily taint the legal transaction with 
illegaUty. — Armstrong v. Toiler^ 11 Wheaton, 258. Such is 
the case in this instance. Then, it appears that the con- 
tract between Ingersoll and Campbell, whatever this might 
have been, was not forbidden by law. 

On such a contract interest is recoverable, after demand. 
Porter v. Nash^ 1 Ala. 452 ; Kirkman v. Vardeer, 7 Ala. 217; 
Cheek v. Waldirum and Wife, 25 Ala. 152 ; Maxey v. Knight, 
18 Ala. 309. 

The charge of the court below was in conformity with 
this exposition of the law applicable to the facts, and it 
was therefore free from error. The first and second 
charges, asked by the defendant below, which were refused 
by the court, being in opposition to the charge as given, 
were properly refused. The third charge asked by the de- 
fendant was correct, so far as it placed the right to recover 
on the fact that the defendant must have actually received 
money or money's worth as the property of the plaintiff, 
previous to the commencement of the suit. — Greenlf. Ev. 
§ 117 ; HiWs AdmW v. Kennedy, 32 Ala. 523 ; Hitchcock v. 
Luken's, 8 Port. 333. But the second portion of this 
charge is erroneous ; because it limits the recovery to the 
amount deposited, and assumes that the contract upon 
which it was deposited was illegal. The bill of exceptions 
does not purport to set out all the testimony delivered in 
the cause. In such a case, the presumption to be indulged 
in this court is, that there was evidence before the court 
below to support the action of that court. It will there- 
fore be presumed that this charge was not supported by 
the proofs, and, therefore, properly refused. 

Let the judgment of the court below be affirmed. 



288 FOKTY-SIXTH ALABAMA. 

Block V. McNeil. 



BLOCK vs. McNeil. 

[tboveb fob convebsiok of cotton.] 

1. Cotton sold for Confederate money ; when trover will lie against vendor 
for conversion of. — Although Confederate treasury notes can not be 
considered a sufficient consideration to support a contract for the sale 
of property ; yet where cotton was sold during the late war for which 
payment in such currency was accepted, if the vendor ceased to hold 
the cotton as owner and became the bailee of the purchaser, the latter 
may maintain trover against him, if he converts it. 

Appeal from Circuit Court of Wilcox. 
Tried before Hon, P. O. Harper. 

On the 6th of January, 1863, the appellee executed a 
writing in which she acknowledged that on the 30th of 
December, 1862, she had sold to the appellant fourteen 
bales of cotton, for which she had received full payment. 
She also agreed to keep the cotton at the disposal of the 
appellant, and to take as good care of it as if it were her 
own, and also to deliver it to him on his demand. There 
are two other writings signed by her, each dated Decem- 
ber 30, 1862, witnessing the receipt of a part of the pur- 
chase-money, and the same admission of a sale to the 
appellant, and ownership in him, and obligation on her 
part to deliver it to him when called for. It was proved 
that the consideration given for the cotton was Confederate 
treasury notes. 

The suit being by the appellant for the conversion of 
the cotton, the court charged that all of the written instru- 
ments must be construed together ; that the obligation to 
keep and deliver was supported only by the same consid- 
eration as the sale, and that if that consideration was Con- 
federate currency, it was insufficient to support the contract 
or obligation. To this charge the appellant excepted, took 
non-suit and bill of exceptions, with leave to set aside the 
non-suit in the supreme court. 



JUNE TERM, 1871. 289- 

Block V, McNeil. 

The charge of the court is now assigned as error. 

S. G. Cochran and R. H. Dawson, for appellant. — The 
charge given to the jury was erroneous and ought not to 
have been given. — See opinion of Chief Justice Chase in 
the case of Thorington v. Smith & Hartley ^ at November 
term, 1869, of the Supreme Court of the United States. — 
8 Wallace, p. 1. 

S. J. CuMMiNG, contra. — The charge excepted to should 
have been refused. The case of Thorington v. Smithy 
8 Wall. p. 1, does not touch the principle involved in this 
charge. The proof is clear that the ordy consideration of 
the contract sued on, was Confederate treasury notes. 
This question is settled by the ordinance of the convention 
of 1867, and by the decisions of this court. 

The Kentucky courts have held that in contracts founded 
on Confedrate money, they will not aid either party, but 
leave ihsminstoiu quo. — Laughlin v. Dean, 1 Duvall, p. 20. 

B. F. SAFFOLD, J.— The case of Hah v. Houston, Sims 
& Co., January term, 1870, decides that Confederate treas- 
ury notes is not a valid consideration in an unexecuted 
contract. — Herbert dt Gtssler v. Easton, 43 Ala. p. 547, and 
Thorington v. Smith, 8 Wall. p. 1, assert the proposition 
that a contract which might have been discharged by the 
payment of Confederate currency is valid, with this only 
apparent difference — that in the former it was held, constru- 
ing an ordinance of the State, that the measure of dam- 
ages for the breach of such a contract was the value of the 
property at the date of the sale, and in the latter, the value 
of the currency in lawful money, at the same date, was 
declared to be the measure of recovery. It is manifest 
that, unless the contrary is shown, the value of property at 
the date of its sale in lawful money is the value of the 
currency agreed to be taken in exchange in the same 
money, on the axiom that things which are equal to the 
same thing are equal to each other, at least so far as the 
parties to such a contract are concerned. 



290 FOBTY-SIXTH ALABAMA. 

Sliaw V. Lindsay et al. 

In Ponder v. Scott, June term, 1869, the acceptance ot 
payment in Confederate currency of a debt by the owner 
in his own right, and not in a fiduciary capacity, was held 
to extinguish the debt, on the ground of a person's privilege 
to do as he pleases with his own, and the binding effect of 
voluntary acts when completed. 

In this case, if there had been only an agreement to sell 
the cotton, or even an actual sale of it for Confederate cur- 
rency, which was paid without a delivery of the cotton, the 
principle in Hale v. Houston, Sims & Co., supra, would gov- 
ern it. But inasmuch as the jury might well infer from 
the evidence that Mrs. McNeil had parted with the owner- 
ship and possession of the property sold, and had become 
the bailee of the plaintiff, in which case the contract would 
have been completely executed, the charge of the court 
was calculated to mislead the jury, and, in that respect was 
erroneous. 

While Confederate treasury notes can not be considered 
a sufficient consideration to support a contract for the sale 
of property ; yet, if the property was delivered, and pay- 
ment in such currency accepted, and the vendor held the 
property as bailee only of the purchaser, he is liable in an 
action of trover if he converts it. 

The judgment is reversed and the cause remanded. 



SHAW vs. LINDSAY et al. 

[motion to set aside sheeiff's sale of land, &c.] 

1. Sheriff's sale, ^c; when will not he set aside. — A sale, under a writ of 
fieri facias by the storiflf, will not be set aside on the motion of a person 
not a party to the judgment or interested in it, when it appears that 
the execution has been regularly issued, and there is no mistake or 
fraud or gross inadequacy of price bid at the sale, which is prejudicial 
to the party making the motion. 



JUNE TERM, 1871. 291 

Shaw V. Lindsay et al. 

2. Confederate judgments ; force and effect of. — The judgments of the Con- 
federate government in this State, rendered daring the late rebellion, 
do not operate as liens on the lands ©f the defendant therein. They 
have only the force of the judgments of foreign courts. 

3. Same; when sale of land under will not be set aside. — A sale of the 
lands of a defendant in such a judgment will not be set aside on the 
motion of a stranger, who has no interest in the judgment, but claims 
such lands by a title derived from a defendant in such judgment, ac- 
quired in 1866, by a purchase independent of the judgment. Such a 
sale does not necessarily prejudice the rights of such a claimant 

Appeal from Circuit Court of Pickens. 
Tried before Hon. Luthee R. Smith. 

The facts are sufficiently stated in the opinion. 

M. L. Stansel, for appellant. 
Reayis & Cooke, contra. 

(No briefs came into the Reporter's hands.) 

PETERS, J. — This is a motion made in the circuit court 
of Pickens county to set aside a sale of certain lands sold 
by the sheriff of said county as the property of Elihu Cox. 
The motion was made by Shaw, who was neither a party 
to the judgment or interested therein, or in the lands sold 
at the date of the judgment. The motion was against T. 
F. Lindsey and W. L. Lipsey, late sherijff of said county 
of Pickens. The motion was refused and overruled, and 
Shaw appeals to this court. The proceedings in the court 
below, as set out in a bill of exceptions taken on the trial, 
show that said T. F. Lindsey obtained a ' judgment in the 
rebel circuit court of said county of Pickens, against 
Lang, Noland, and said Cox, on the 28th day of April, 
1863, for the sum of $2,705.62. The record of this judg- 
ment was destroyed by fire in April, 1865, and on the 4th 
day of May, 1867, this record was substituted, " under the 
act to substitute lost and destroyed records, approved 
January 18th, 1866." Execution was issued on this substi- 
tuted record on May 25th, 1867, and on the 7th day of 
October, 1867, a portion of the lands of said Cox were 
sold under this execution and purchased at said sale, which 



292 FORTY-SIXTH ALABAMA. 

Shaw V. Lindsay et al, 

was made by said sheriff of said county, by said Lindsey, 
the plaintiff in said judgment. A second execution was 
issued on said judgment, on November 16th, 1867, and 
under its authority a second portion of Cox's lands were 
sold, and again purchased by Lindsey, on January 6th, 
1868. For these lands Lindsey received the sheriff's deed, 
and went into possession of the same. On the 23d day of 
August, 1866, Cox conveyed the lands above mentioned 
by deed of trust to Shelton, and Shelton, sold the same 
under said deed of trust to Lathan, on August 24th, 1867, 
and on the 30th March, 1868, Lathan conveyed to Shaw 
by quit-claim deed. Under this title Shaw made the pres- 
ent motion. 

From this statement of facts, it appears that Shaw was 
a stranger to the judgment, and had no interest in the 
lands aforesaid at the date of said judgment, or until long 
afterwards. And he asks to have the sale set aside, be- 
cause this judgment was void, and because it had been 
rendered by a Confederate judge. But this is not the law. 
Such a judgment is not void. At the same time it does 
not operate as a lien on the lands of Cox, unless it appears 
that there was an execution issued thereon, and regularly 
kept up, without the lapse of an entire term ; which is not 
pretended. — Martin v. Hewitt, 44 Ala. 418 ; Mosehy v. Tut- 
hill et al., June term, 1871 ; Irvin v, Armistead, June term, 
1871. The sale, then, did- not prejudice Cox's title, what- 
ever it might be ; and he has no reason to complain of it. 
And it is only upon the ground that the sale was irregular 
or fraudulent, and would be injurious to him, that the 
court would be justified in setting it aside. — Mobile Cotton 
Press V. Moore dt Maghee, 9 Port. 679 ; McCoUum v. Huh- 
hert & Gople, .3 Ala, 2^9; McGaskill v. Lee, 39 Ala. 131. 
It can not be said that the f-eri facias in this case was im- 
properly executed, or that the sheriff was guilty of any 
mistake, irregularity or fraud prejudicial to Shaw. He 
does not, therefore, bring himself within any of the rea- 
sons which would authorize the court to interfere in his 
behalf. Then the motion was properly refused. 

The judgment of the court below is affirmed at appel- 
lant's costs. 



JUNE TERM, 1871. 293 

Henry et al. v. Porter pro ami . 



HENRY ET AL. 175. PORTER pro aml 

[bill' in equity to DECLABB funds placed in hands of OBATUrrOUS BAILEE 
BT HUSBAND THE SEPABATE ESTATE OF THE WIFE AND TO COMPEL PAYMENT 
TO WIFE, &C. ] 

1. Bank Mils, gratuitous bailee of; tohai acta do not make liable for depre- 
dation of, (fee. — "Where the gratuitous bailee of a naked deposit of bank 
bills deposited them with a person of due credit, who made a general 
deposit of them with a bank of good credit, and when called on to 
return them delivered the proper sum in bills of the same bank, but 
not the identical ones received by him, equity will not hold him 
responsible for the depreciation of the bills on account of the failure of 
the bank which issued them. 

2. Gratuitous bailee; degree of care required of. — Of such a bailee is 
required only that degree of care which every person of common sense, 
though very absent and inattentive, applies to his own affairs. 

Appeal from Chancery Court of Butler. 
Tried before Hon. Adam C. Feldee. 

B. F. Porter having sold a piece of land to Patterson, 
upon which Abrams claimed a lien, and Patterson refusing 
to pay the purchase-money on that account, one thousand 
dollars of it in bills of the Northern Bank of Alabama was, 
by agreement of the parties, deposited with the appellant, 
Henry, to await the issue of Abrams' claim. 

The bill was filed in 18G1 by the complainant, who was 
the wife of B. F. Porter, to have this money declared her 
separate estate, and to enjoin Henry from paying it to any 
other person ; and the proper parties were made defend- 
ants thereto. In 1863 an order was made requiring the 
depositary to pay the funds into the court, but no further 
action was taken in this particular until 1866, when another 
order to the same effect was made. In obedience to a cita- 
tion issued upon this last order, which seems to have been 
the first service of any process upon him, Henry paid into 
the court the amount required in the bills specified. The 
complainant then amended her bill by charging that the 



294 FOKTY-SIMH ALABAMA. 

^ « 

Henry et al. v. Porter pro ami. 

bills returned were not the identical ones delivered, and 
that they were then greatly depreciated in value. 

The defendant deposited the bills received by him with 
A. G. Henry, who made a general deposit of them with 
other persons. He was a gratuitous bailee, and did not 
use the funds himself, or mix them with other funds so as 
to destroy their identity, unless the act of A. G. Henry 
should be imputed to him. He testified for himself that it 
was part of his agreement with B. F. Porter that he should 
be at liberty to redeposit it with A. G. Henry. Porter 
denied this in an affidavit, but such an ex parte statement 
can not be regarded as evidence to charge Henry. Samuel 
and A. G. Henry were mercantile partners at the time. 
The chancellor found from the proofs that the special 
deposit of one thousand dollars with Samuel Henry was 
the money and part of the separate estate of complainant, 
and was of par value when deposited with Henry, and that 
the money returned into court by Henry was greatly depre- 
ciated and not the identical money deposited with him, 
and decreed accordingly that complainant recover of de- 
fendant, Henry, the sum of $1250, it being the amount 
deposited and interest from December SOtli, 1866, the date 
of the interlocutory order requiring him to pay over and 
deposit to the register, &c., and all the costs not adjudged 
against the other defendants, and upon satisfaction of the 
decree to have leave to withdraw the deposit made by him 
with the register. Henry appeals (the appeal being in the 
name of all,) and assigns the decree of the chancellor as 
error. 

Herbeet & BuELL, for appellant. 
Thos. J. Judge and J. A. Minnis, contra. 

(No briefs came into Reporter's hands.) 

B. F. SAFFOLD, J., (after stating facts as above.) 
In a naked deposit or simple bailment for the ben- 
efit of the bailor alone, but slight care is required 
of the baileej and he is responsible only for gross 



JUNE TERM, 1871. 295 

Henry et al. v. Porter pro ami. 

negligence. Slight care is that degree of care which every 
person of common sense, though very absent and inatten- 
tive, applies to his own affairs. — 1 Parsons on Contracts, 
pp. 570-71. If a mere depository mix money deposited 
with his own funds with the intention of restoring an 
equivalent, and so destroy the identity and individuality of 
the subject matter of the bailment, this would be a user of 
the money which would at once alter the nature and char- 
acter of the bailment, converting it into a loan for use and 
consumption. In a bailment by way of mutuum the chat- 
tel bailed becomes the absolute property of the bailee to 
do what he pleases with it. — Ad. on Cont., pp. 527-43. 

It is plain that to convert a simple bailment of money 
into a loan, an intention of user should concur with th^ 
act of the bailee, which, indeed, is shown when the act 
itself excludes a contrary supposition. Story says^, if a 
trustee should mix the trust funds with his own in a com- 
mon account with his banker, he would be deemed to have 
treated the whole as his own, and he would be liable for 
any loss sustained by the banker's insolvency. But if he 
should deposit the money with a banker in good credit, to 
remit it to the proper place by a bill drawn by a person in 
due credit, and the banker or drawer of the bill should 
become bankrupt, he would not be responsible. The true 
rule in cases of this sort is, that where a trustee acts by 
other hands, either from necessity or conformably to the 
common usage of mankind, he is not to be made answer- 
able for losses.— 2 Story's Eq. Jur. §§ 1269-70. 

A bailment is treated in equity as a trust, but the reason 
seems to be to enable the beneficiary to recover the fund 
which, in law, he might not be able to do on account of 
want of privity in the contract. — 2 Story's Eq. Jur. § 1041. 
It may be deduced, then, in view of the degree of care 
required of a gratuitous bailee, that if he should deposit 
the funds received with a person in due credit, and without 
any intention of restoring an equivalent, he should not be 
held responsible for their depreciation on account of the 
failure of the bank which issued them. Henry would 
have done his whole duty by returning the identical bills. 






296 FORTY-SIXTH ALABAMA. 

Henry et al. v. Porter pro ami. 

The damage sustained by the complainant is not in conse- 
quence of his action. Equity, with its expansive powers 
of justice, will not apply to such a case the rule governing 
trustees charged with grave responsibilities. 

The decree against the defendant Henry is reversed, and 
the cause remanded. In other respects it is confirmed. 

Note by Reporter. — At a subsequent day of the term 
appellee, by J. A. Minnis, Esq., applied for a rehearing, 
contending that the proof of a conversion or "user" of the 
money by Samuel Henry was fully made out. As the 
argument in support of the hearing is based solely upon 
questions of fact, it is unnecessary in the view which the 
court took of the facts to refer further to it. The petition 
was responded to as follows : 

SAFFOLD, J. — The only evidence touching the deposit 
made with Samuel Henry is that contained in the deposi- 
tions of Samuel and A. G. Henry, and the writing of B. F. 
Porter set out in Samuel Henry's testimony. The writing 
does not indicate any greater liability of the depositary 
than he admits. He was not to be responsible for its 
application. When it was settled between Porter and 
Abrams what should be done with the money, Henry was 
to surrender it to the one entitled to receive it. We per- 
ceive noncontradiction in the testimony respecting which 
of the Henrys received the money. Samuel was to keep 
it, and it mattered not whether he received it in person or 
by another. He mentions a circumstance which the com- 
plainant might have refuted or corroborated. A receipt 
was given for this money. Samuel says it was given by 
A. G. in his name, to whom the money was delivered by 
Porter. In the absence of that receipt it might have been 
difl&cult for the complainant to have established the fact of 
a deposit, but for the testimony of the defendant and A. 
G. Henry. The tenor of that testimony is certainly not 
in favor of the right of the complainant to recover as for 
a user. 

A rehearing is denied. 



JUNE TERM, 1871. 297 

Hetberington v. Hixon. 



HETHERINGTON vs. HIXON. 

[bill in BQUXTT to FOBECIiOSE MOBTOAOE.] 

1. Note already ddivered, signing of aa surety ; when imposes no obligor 
lion on surety. — The signing of her husband's note, previously made 
and delivered by him,, by a wife, as his surety, does not impose on her 
any obligation which will sustain its subsequent recognition. 

2. Same. — Where a widow gave her note, secured by mori^tage, for the 
payment of her deceased husband's debt, at the instance of the prom- 
isee, the mere fact that his notes were given up to her is not proof of a 
valid consideration. It must be shown that obtaining the notes, as 
something of value, entered into the inducement to her agreement. 

3. Same. — In such a case, loss subsequently sustained on account of a 
failure to file the notes as claims against his insolvent estate, can not 
create a consideration, although the non-claim was in consequence of 
the creditor's belief that he had otherwise secured their payment. 

Appeal from Chancery Court of Monroe. 
Heard before Hon. Charles Turner. 

The facts are stated in the opinion. 

J. W. Posey, for appellant. 
R. C. ToRREY, conira. 

(No briefs came into Reporter's hands.) 

B. F. SAFFOLD, J.— The appeal is taken from a decree 
foreclosing a mortgage given to secure the payment of a 
promissory note executed under the following circum- 
stances : Mrs. Hetherington, during her marriage, signed, 
as surety for her husband, a note which had been previ- 
ously made and delivered by him. After his death she 
executed a note for $1,000, the consideration of which was 
this note, and another for about $200, signed by her hus- 
band alone, with the accrued interest on both. After- 
wards, on being pressed to do so by the appellee, Mary 
Hixon, she substituted for this last obligation the note and 
20 



298 FOETY-SIXTH ALABAMA. 

Hetherington v. Hixon. 

mortgage, the foundation of this suit, out of which the 
small note, above mentioned, was entirely omitted. The 
said acts of Mrs. Hetherington, as a feme sole, occurred 
after the appointment of an administrator de bonis non of 
the insolvent estate of her husband under a bond of 
$20,000. The land mortgaged was her separate statutory- 
estate. 

Her execution of the note of her husband, as his surety, 
was inoperative, both because she was a feme covert, and 
it was without consideration. It, therefore, did not impose 
on her any obligation which would sustain its subsequent 
recognition. An illustration of the rule that a moral obli- 
gation does not form a valid consideration for a promise, 
unless the moral duty were once a legal one, is that the 
promise of a widow to pay for money expended at her 
request, or lent to her during her marriage, is void. — 
1 Parsons on Contracts, 361 ; Wilkinson v. Cheatham, Jan. 
term, 1871. 

The case of Vance v. Wells, 8 Ala. 390, is not an adverse 
authority, because there the consideration and the obliga- 
tion were concurrent. Besides, that decision may be 
referred to the principle of a married woman's power to 
bind her separate estate, which was destroyed by the law 
of the separate statutory estates of married women. — 
Wilkinson v. Cheatham, supra. 

Mrs. Hetherington entered into this contract about 
five years after her husband's estate had been declared 
insolvent, and at the solicitation of the complainant, on 
her supposed existing liability. The insolvency of her 
husband's estate was positive, though not conclusive, evi- 
dence that she did not mean to purchase his notes, while 
the only indication that they were of any value is given 
by the appointment of an administrator de bonis non, un- 
der a bond of $20,000. 

While a note upon an insolvent person or estate may be 
a sufficient consideration for a promise to pay money, yet, 
where it was obtained, not as an inducement to the prom- 
ise, but as a substitution of papers, and at the request of 
the promisee, the mere fact of loss subsequently sustained 



JUNE TEEM, 1871. 299 

Crawford v. Tyson, Adm'r. 

on account of a failure to file it as a claim against the 
estate can not create a consideration, although the non- 
claim was in consequence of the creditor's belief that he 
had otherwise secured its payment. — 2 Kent's Com. 465 ; 
MauU V. Vaughn, January term, 1871. 

As a note given for a pre-existing debt is not a payment 
or extinguishment of such debt, unless it was so agreed 
between the parties, and the taking of such a note does 
not even raise the presumption of payment or extinguish- 
ment ; so a note given for the debt of another is not a 
purchase of the debt, unless it was so agreed. — Marshall v. 
MarshaWs Ex'r, 4*2 Ala. 149 ; Mooring v. Mobile Marine 
Dock & Ins. Co., 27 Ala. 254. The complainants can not 
recover unless they can relieve their case from the condi- 
tion of an obligation to pay the debt of another without 
an original concurrent consideration agreed to by the par- 
ties at the time. 

The decree is reversed and the cause remanded. 



CRAWFORD vs. TYSON, Adm'r. 

[appeal from order removing executor. ] 

1. Statutes; what must he construed in pari materia. — The statute npon 
the removal of executors and administrators is pari materia, and mua 
be construed together as one law. 

2. Executor, when may be removed tvithout ivritten application. — Upon the 
removal of an executor or administrator from this State, the judge of 
probate of the county in which the letters testamentary have been 
granted, may, for this cause, proceed to remove him from his office of 
such executor or administrator, under § 2029 of the Revised Code, 
without an application in writing therefor. 

3. Executor, non-resident of the State ; how maij be notijied of proceedings 
to remove him. — In such a proceeding, such non-resident executor or 
administrator may be notified by publication, under $ 2022 of the Re- 
vised Code, of the proceedings against him, and a removal upon such 



300 FOBTY-SIXTH ALABAMA. _^ 

Crawford v. Tyson, Adm'r. 

notice by publication is not void for want of sufBcient notice. Publi- 
cation is a proper mode of service of citation against a non-resident. — 
Revised Code, § 2022. 

Appeal from Probate Court of Lowndes. 
Tried before Hon. J. V. McDuffie. 

The facts are sufficiently stated in the opinion. 

Clements, Gilchrist & Cook, for appellant. 
Stone, Clopton & Clanton, contra. 

PETEES, J. — This is an application of Charles A. 
Crawford, one of the heirs and legatees of Alfred Craw- 
ford, deceased, by petition to the judge of the probate 
of Lowndes county, to set aside a decree of said court 
removing William H. Crawford from the executorship of 
the estate of said Alfred Crawford, deceased. It does not 
appear that said decree was rendered on proceedings " in- 
stituted by any creditor, legatee, devisee, heir, distributee, or 
by any co-executor, co-administrator, or the sureties, or 
any of them." — Rev. Code, § 2019. But it was instituted 
by the judge of probate himself upon the ground that 
said William H. Crawford, said executor, had removed 
from this State after his appointment as such, and had 
failed to make settlement of his said administration of 
said estate. The order or decree of removal recites that — 
" It being shown to the court that William H. Crawford, 
the executor, named in the will of Alfred Crawford, de- 
ceased, and who qualified as such, has removed from the 
State of Alabama and become a resident of the State of 
Texas, and that the said William H. Crawford has failed 
to make settlement of his said administration of said 
estate, and notice having been given of this proceeding for 
three weeks, by weekly insertions in the * Haynesville Ex- 
aminer,' a newspaper published in Haynesville in said coun- 
ty of Lowndes, &c." On this notice the removal was made. 
There was no citation issued to said executor to appear 
and answer the application for removal, or to show cause 
why said executor should not be removed. At the hearing 



JUNE TERM, 1871. 301 

Crawford v. Tyson, Adm'r. 

it was proven to the satisfaction of the court that said ex- 
ecutor had removed from the State of Alabama and become 
a resident of the State of Texas, " in which last named 
State he still resides." He was then removed, and Tyson, 
the general administrator of the county, was appointed 
administrator de bonis non of said estate in his stead. The 
court refused to set aside said order or decree of removal, 
and the plaintiff in the motion appeals to this court. 

The statute upon the subject of the removal of execu- 
tors and administrator must be taken as a whole and con- 
strued together as one law. It is all in pxri materia. Such 
is the rule of construction for such statutes. — Bac. Abr. 
statutes 1, 3. The Revised Code declares, that "whenever 
the judge of probate has reason to believe that any just 
ground or cause of removal exists, or that an additional 
bond should be required of an executor or administrator, 
such judge may cause a citation to be served on him, 
requiring him to appear on a day therein named, five days 
after service thereof, and show cause why he should not be 
removed or give additional bond, as the case may be." — 
Revised Code, § 2029. This statute clearly gives the judge 
of probate authority to proceed without an application in 
writing when the facts are such as may justify him to pro- 
ceed. This is the rational meaning of the language used. 
It is true that it also indicates the mode of procedure. 
But if the court is confined to the mode there indicated, 
in many instances, the judge might not be able to dis- 
charge the important duty thus conferred upon him. The 
language of the section is, that the judge, upon the exist- 
ence of the proper state of^ facts, "may cause the citation 
to be served on" the delinquent executor or administrator. 
This does not seem to exclude all other modes of citation, 
particularly when it is construed in connection with sec- 
tions 2021 and 2022 of the same act. The latter section 
prescribes that, " If such executor or administrator is not 
an inhabitant of the State or is absent therefrom, upon 
such fact being shown, by proof satisfactory to the judge, 
he must direct notice of such application to be given by 
publication in some newspaper, published in the county, 



802 FOETY-SIXTH ALABAMA. 

Bryant v. The State. 

for three successive weeks." — Revised Code, § 2022. Un- 
der this section of the Code, the judge acted, in giving the 
notice in the proceedings under discussion. I think the 
purpose and language of the whole statute justified him in 
doing so. This was a legal mode of service of citation. 
Non-residence was a sufficient cause of removal. — Revised 
Code, § 2017. This existed and justified the action of the 
court. And the only means of giving the executor notice 
was by publication. The order of removal was then not a 
void decree. All was done, that could be done, to bring 
the executor into court, and his removal was clearly justi- 
fied by the facts. And had he been notified he would not 
have been retained. After his removal from the State he 
was not competent for the office of executor in this State. — 
Revised Code, § 1975. He, therefore, has no reason to 
complain. The removal is error without injury, if error 
at all, as to him. 

The action of the court below is free from error. Its 
judgment is therefore affirmed, at appellant's costs. 



BRYANT vs. THE STATE. 

[indictment fob EETAILING WITHOtFT LICENSE. ] 

1. Carrying on husiness of retailer ; what does not constitute. — An indict- 
ment under § 1 1 1 of the Eevenue Act of ] 868, for being engaged in or 
carrying on the business of a retailer in spirituous liquors, &c., without 
license, is not sustained by evidence of a single sale of three pints of 
whisky by the defendant, who was a farmer and carpenter, without 
proof also of intention. 



Appeal from Circuit Court of Henry. 
Tried before Hon. J. McCaleb Wiley. 

The facts appear in the opinion. 



JUNE TERM, 1871. 303 

Bryant v. The State. 

Seals & Wood, for appellant. — The indictment is framed 
under the revenue law of 1868. It is insufficient in not 
averring that the business was engaged in since the third 
Monday in March, 1869, § 111 of revenue law of 1868, 
(Acts 1868, p. 380.) 

2. The proof shows that the whisky was sold on only 
one occasion, and that selling whisky was not the vocation 
of the defendant. No conviction could be had upon this 
testimony. — See Moore v. The State, 16 Ala.; Garter v. The 
State, 4A Ala., and cases there cited. 

Attorney-General, contra. 

B. F. SAFFOLD, J.— The appellant was indicted 
under § 111 of the revenue act of 1868, for being engaged 
in or carrying on the business of a retailer in spirituous, 
vinous or malt liquors, without having paid for and taken 
out a license to engage in and carry on said business, and 
was convicted. 

Tha proof was that he was a farmer and carpenter, 
and that on one occasion, only, he had sold three 
half pints of whisky. He had not obtained any li- 
cense. The offense charged is altogether different from 
that described in Revised Code, § 3618. A retail dealer 
in liquors is one who sells in less quantities than a quart. 
§ 112, 4 Eevenue Act, 1868. But one act of selling would 
not constitute engaging in or carrying on the business, 
unless an intention to do so concurred with it. Such an 
intention was not shown in this case, but rather the con- 
trary. The charge of the court was therefore erroneous. 
CaHer v. The State, 44 Ala. 29. 

The judgment and sentence of the court below are re- 
versed and the cause remanded. 



304 FOBTY-SIXTH ALABAMA. 

Simmons v. Fielder & Sessions. 



SIMMONS vs. FIELDEE & SESSIONS. 

[attachment fob bent by assignee op landlobd against sub-tenant.] 

1. Lien on crop for rent, when vendee has. — The purchaser of rented land 
who takes an assignment of the contract of rent, has a lien on all the 
crops grown on the rented land for the current year, by whomsoever 
made, whether by tenant or under-tenant. 

2. Same ; how enforced. — This lien may be enforced by process of attach- 
ment against the tenant, when the covenant or agreement of lease runs 
with the land, or when the lease has been assigned to the purchaser. 

3. Same ; when can not he enforced. — But it can not be enforced against 
the under-tenant by suit against him, founded on the contract of rent 
made by the tenant with the landlord before the sale. 

4. Same; how enforced iy vendee against under-tenant. — If the under- 
tenant is sued, he must be proceeded against on his contract with the 
tenant, and the purchaser must show that the same has been trans- 
ferred or assigned to him. It does not pass by operation of law upon 
the sale of the premises to the purchaser. 

Appeal from Circuit Court of Bullock. 
Tried before Hon. J. McCaleb Wiley. 

This is is an action for rent, commenced by attachment, 
in the names of the assignees of the landlord against the 
under-tenant of the lessees. The facts may be briefly 
stated as follows : In December, 1866, Briers, the owner 
of a tract of land in this State, rented the same to Scott 
& Sanders for one year, by contract in writing. And Scott 
& Sanders sub-let a part of the same land to Simmons, the 
appellant, who was the defendant in attachment in the 
court below. After this, and before the termination of the 
year for which Scott & Sanders had rented said land, 
Briers sold said land to Fielder & Sessions, and assigned 
to them the contract of Scott & Sanders for the payment 
of the rent to him, as above said. But there was nothing 
done as to the contract of Simmons for payment of the 
rent on the land sub-let to him by Scott & Sanders. So 
far as the proofs show, this was left as it was made, Scott 



JUNE TEBM, 1871. 306 

Simmons v. Fielder & Sessions. 



& Sanders were not sued in this action, and there was no 
evidence that Simmons' contract for rent had been assigned 
or transferred to the plaintiffs below. On the trial there 
was a judgment against Simmons for $189.08, beside costs. 
From this judgment Simmons appeals to this court. 

Stone, Clofton & Clanton, for appellants. 
Wood & Seals, and Aerington, contra. 

(No briefs came into the hands of the Reporter.) 

PETERS, J. — At common law, the rights and liabilities 
of landlord and tenant are not confined to the immediate 
parties to the contract of lease ; but they attach to the 
persons to whom the estate may be transmitted or who 
may succeed to the possession of the premises, either as 
landlord or tenant. This rests upon the principle of the 
privity of estate, which is incident to the relation of land- 
lord and tenant. It is said that the land itself is the prin- 
cipal debtor, and the owner is the creditor, and the agree- 
ment to pay rent is a mere incident of this relation. The 
liability to pay rent, therefore, follows the land, upon which 
it is chargeable, into the hands of the assignee ; and he 
takes the land with all the advantages to be derived from 
the agreement of the grantor concerning it, and he assumes 
all the burdens resulting from the covenants or agreements 
of the grantee. — Van Benssalaer v. Bonested, 24 Barb. 365 ; 
Norman v. Wells, 17 Wend. 145 ; Taylor, Landlord and 
Tenant, §§ 260, 261. But this rule only applies to parties 
who are the landlord and the tenant. But it does not 
apply to an under-tenant, or the tenant of a tenant. The 
under-tenant incurs no responsibility to the landlord of the 
tenant, except that imposed by the statute of "attachment 
for rent ;" which makes all the crops grown on rented land 
liable for the rent for the current year. This liability may 
be enforced by attachment or by execution against the 
tenant. But neither the tenant nor the under-tenant is 
subject to be sued, except on his own contract. Generally, 
the tenant's contract passes by operation of law to the 



306 FORTY-SIXTH ALABAMA. 

Simmons v. Fielder & Sessions. 

assignee of the land, and suit may be instituted on it by 
the assignee of the land against the tenant for this reason. 
But this is not the case with the contract of the under- 
tenant. There is no privity of contract between the under- 
tenant and the landlord of the tenant or his assignee. 
And before the landlord can sue the under-tenant on his 
contract of rent, it must be transferred or assigned to him 
by the tenant, so as to make him the party really inter- 
ested therein.— Rev. Code, §§ 1838, 2523, 2961 ; Taylor, 
Landlord and Tenant, § 448 ; Quackenhoss v. Clark, 12 
Wend. 555 ; Webb v. Russell, 3 Tenn. R. 393 ; Demarest v. 
Willard, 8 Conn. 206 ; 1 Saunders, 140a ; Henley v. Bushy 
33 Ala. 636. 

Notwithstanding this, there can be no doubt that the 
landlord or his assignee, who stands in his shoes, has a lien 
on all the crop grown on rented land, for rent, for the cur- 
rent year, whether such crops are made by the tenant or 
the under-tenant or by a trespasser, and he is entitled to 
process of attachment for the recovery of the same. But 
the attachment must be issued against the tenant, and not 
against the under-tenant, unless the contract for rent of 
the under-tenant has been assigned or transferred to the 
plaintiff.— Rev. Code, §§ 2961, 2963, 1838 ; Givens v. Eas- 
ley, 17 Ala. 385; HadderCs ExW v. PoiveU, 17 Ala. 314; 
S. a 21 Ala. 745. 

The evidence offered to the jury, on the trial below, does 
not prove the case alleged in the complaint. The court 
therefore erred in charging the jury, if they believed the 
evidence, they must find for the plaintiffs. The charge 
should have been just the reverse. 

Let the judgment of the court below be reversed and 
the cause remanded. 



JUNE TERM, 1871. 311 



Clark V. The State. 



CLARK vs. THE STATE. 

[TBIAIi OF DEFENDANT IN CIBCXJIT COUBT, ON STATEMENT BY 80LICIT0E, AFTEE 
DEMAND FOB TBIAL BY JUBY MADE IN THE COUNTY COUBT. ] 

1. Indidmenl ; when necessary for trial of misdemeanors transferred from 
county court to circuit court, — Where a defendant, charged with a 
misdemeanor before the county court, demands a trial by jury, he is 
entitled to have the trial of the case transferred to the circuit or city 
court, and can then only be tried by indictment. 

2. Charge to jury ; what erroneous. — Where all the evidence is set out, and 
there is no proof of venue, it is error to refuse to charge the jury "that 
even if they believe the evidence they can not find the defendant guilty." 
Such a refusal ignores the necessity of proof of venue. 

Appeal from Circuit Court of Barbour. 
Tried before Hon. J. McCaleb Wiley. 

The facts appear in the opinion. 

John A. Foster, for appellant. 

John W. A. Sanford, Attorney-General, contra. 

PETERS, J. — The appellant, said Clark, was arrested on 
a charge of assault and battery, and brought before the 
county court of Barbour county for trial, at the January 
term of said court in 1871. On being arraigned the accused 
demanded a trial by jury ; and, thereupon, he entered into 
bond, as required by law, for his appearance at the next 
term of the circuit court of said county of Barbour, to 
answer said charge. — (Rev. Code, §§ 4031, 4047.) 

The accused appeared in the circuit court as required by 
his bond, when he was put upon his trial, on a charge in 
the following language — that is to say : 

"The State of Alabama, ) In the Circuit Court, 
Barbour county. I Spring term, 1871. 

Brought from the County court. 

The State of Alabama, by its solicitor, complains of 



308 FORTY-SIXTH ALABAMA. 

Clark V. The State. 

Berry Clark, that within twelve months before the com- 
mencement of this prosecution he did assault and beat 
James Sims, against the peace and dignity of the State of 
Alabama. 

A. V. Lee, 
Solicitor of Barbour county." 

To this charge, thus made, the accused pleaded not 
guilty, and was tried by a jury, and convicted and fined 
twenty-five dollars. And a judgment was thereupon ren- 
dered, as required by law. From this judgment the accused 
appeals to this court. 

On the trial in the circuit court, there was a bill of excep- 
tions taken by the defendant below. From this it appears 
that there was no indictment found by the grand jury 
against the defendant in the court below, and that he was 
tried, without objection, on the statement made by the 
solicitor as above quoted. The trial was by a jury. On 
the trial the proceedings had before tha county court were 
read by the solicitor for the State to the jury without objec- 
tion, and "the State then proved that the defendant assault- 
ed and beat James Sims as charged in the statement of the 
cause of complaint signed by the solicitor." This was all 
the evidence. And upon this the defendant moved the 
court to charge the jury, in writing, that even if they believed 
the evidence they must find the defendant not guilty." 
This charge the court refused and the defendant excepted. 

It appears from this proceeding, that the defendant was 
convicted in the court below upon a charge of assault and 
battery without indictment. This may be done when there 
is an appeal from a judgment of conviction on a trial in 
the county court.— (Rev. Code, §§ 4054, 403 1 .) But if there 
is no conviction in the county court and no appeal from 
such conviction to the circuit court, this cannot be done. 
The constitution of the State forbids that any person shall 
"be deprived of his life, liberty or property, but by due 
process of law." — Const, art. 1, § 8.) "Due process of law," 
means according to the law of the land. — (3 Story Const. 
264, 661 ; Murry's Lessee v. Hohohen Land & Insp. Co. 18 
How. 272; 2 Inst. 60, 276.) The law only authorizes the 



JUNE TERM, 1871. 309 

Clark V. The State. 

county court, in the event that the accused demands a trial 
by jury, to bind him over to answer the charge in the city 
or circuit court of the county. — (Rev. Code, § 4047.) "All 
felonies, and all misdemeanors originally prosecuted in the 
circuit or city court are indictable offenses." — (Rev. Code, 
§ 4108 ) Indictment, then, is the only legal mode of pro- 
ceeding, in such a case as this, in the circuit court. That 
court cannot proceed to apply the law in any other man- 
ner. — (Const. Ala. A A. 1, § 9.) A judgment in a criminal 
prosecution, except in trials before the county court, or on 
appeals from convictions in the county court, may be ar- 
rested, because the charge has not been made by indict- 
ment found by the grand jury. — Rev. Code, § 4146.) Here 
the charge was not made by indictment found by a grand 
jury as required by law. A conviction on such an indict- 
ment is erroneous. — (Comy. Dig. Indictment N.) 

The bill of exceptions sets out all the evidence, and 
neither in it or in the record is there any allegation or proof 
of venue in this case. The refusal to charge the jury that 
"even if they believed the evidence they could not find the 
defendant guilty," was erroneous, because it ignored the 
necessity of the proof of venue. — (Broion v. The State, 27 
Ala. 47 ; Siveeney v. The State, 28 Ala. 48 ; Spaight v. The 
State, 29 Ala. 32.) The proof does not show that the 
offense was committed in the county or district in which 
the trial was had. This is necessary.— (Const. Alabama, 
art. 1, § 8.) 

Let the judgment of the court below be reversed and the 
cause remanded. But the appellant, said Berry Clark, will 
be held in custody until discharged by due course of law. 

[Note by Reporteb. — On the authority of this case, the 
judgment in the case of 3IcGawin v. The State, was reversed 
and cause remanded, &c.] 



310 FOETJ-SIXTH ALABAMA. 



Lehman Brothers v. Skelton. 



LEHMAN BEOTHEES vs. SKELTON. 

[action to eecovek stokage of cotton.] 

1. Cotton stored imvarehouse; purchaser of, for ttihat storage liable. — A 
purchaser of cotton stored at a warehouse is personally liable for the 
storage accrued during his ownership, though such ownership be un- 
known to the warehouseman. But he is not liable for storage charges 
accrued prior to that time, unless there is an agreement to that effect. 

Appeal from Circuit Court of Montgomery, 
Tried before Hon. J. Q. Smith. 

This was an action brought by appellee against appel- 
lant, in the year 1866, to recover storage on nineteen bales 
of cotton from Ist of February, 1862, to 5th of April, 1665. 
The appellee was lessee of a warehouse in Tuskaloosa, Ala- 
bama, from Ist February, 1862, to 1st April, 1865, and in 
February, 1862, persons other than the defendants (appel- 
lants) stored the cotton with him, and he kept it stored 
from that time until the 5th of April, 1865, when both the 
warehouse and cotton were burned by the United States 
troops. At the time of receiving the cotton, appellee gave 
the persons who stored it, receipts therefor. The terms of 
these receipts were, in substance, that the cotton was on 
storage with the appellee, subject to the order of the per- 
son to whom the receipt was first delivered by the appellee, 
or subject to the order of the bearer of the receipt, on 
payment of the customary warehouse charges and all ad- 
vances. 

The appellants were owners of the cotton, and held the 
receipts therefor at the time the warehouse and cotton were 
destroyed, but at what time or in what manner they be- 
came the owners is not shown ; their ownership was not 
known to appellee until some time after the destruction of 
the cotton, when appellants seat an agent to look after it, 
who showed the receipts for the cotton and asked its de- 
livery. 



JUNE TEEM, nil. 311 

Lehman Brothers v. Skelton. 

When the account was presented to appellants they de- 
clined to pay, " as they were warehousemen themselves, 
and being largely interested, wished to test the question, 
whether the cotton itself was alone bouDd for storage, or 
whether the owner was bound." It was proved that the 
charge for storage was reasonable, &c. 

The court charged the jury, in substance, that if they 
believed that the cotton was stored [ as hereinbefore set 
out] and that the charge for storage was reasonable, &c,, 
they must find for the plaintiff, and that the destruction of 
the cotton by fire after the account accrued could not affect 
the plaintiff's right to recover. 

To the giving of this charge, the defendant excepted, as 
also to the refusal of the court to give the following 
charges, asked in writing : 

" If the jury beheve, from the evidence, that all the cot- 
ton stored, for the storage of which the plaintiff seeks a 
recovery in this action, belonged to other persons than 
the defendants at the time it was stored with the plaintiff, 
and that none of said cotton belonged to defendants when 
it was stored with the plaintiff, and that none of said cot- 
ton was received on storage by the plaintiff from defend- 
ant, and that all of said cotton was received on storage 
from persons other than the defendants, and these persons 
were, at the time of the storage with plaintiff, owners of 
the cotton, and if defendants have never made any promise 
to pay plaintiff for the storage of any of said cotton, — then 
the jury should find for the defendants." 2d. " The plain- 
tiff can not recover of defendant any storage which accrued 
before they became the owners of the cotton on which the 
storage did accrue, unless defendants either stored the cot- 
ton with the plaintiff, or promised to pay storage to the 
plaintiff." 3d. " If the jury believe the evidence, they 
should find for the defendants." 

The jury found a verdict in favor of the appellee (plain- 
tiff) for the amount of the account and interest, and judg- 
ment was rendered accordingly. 

Rice, Semple & Goldthwaite, for appellants. 
A. B. CLiTHEiiAiiL, and M. D. Graham, contra. 



312 FORTY-SIXTH ALABAMA. 

Ex parte Bottoms. 

B. F. SAFFOLD, J. — Is the purchaser of cotton stored 
in a warehouse by the vendor, which he suffers to remain 
there after his purchase, personally liable for the storage 
due thereon, there being no express promise on his part to 
pay, and the warehouseman not even knowing that he was 
the owner until he demanded the cotton ? 

There is undoubtedly an impHed promise on the part of 
the owner of property, which is on storage with his know- 
ledge and consent, to pay a reasonable storage. He knows 
that the service is not gratuitous, and he expects to enforce 
against the warehouseman any liability he may incur for 
damages. He accepts the service when rendered, and re- 
tains the benefit. — 1 Parsons on Contracts, 405. 

The defendants are not liable for the storage accrued 
prior to their purchase, unless there was an agreement to 
that effect. There is no virtue in a mere sale of property, 
though there be a lien upon it, capable of transferring the 
personal indebtedness of the vendor to the purchaser. 

There is nothing in the transcript tending to show 
whether the recovery was for a longer time than the owner- 
ship of the defendants. 

The judgment is aflOirmed. 



EX PARTE BOTTOMS. 

[APPIilCATION FOB MANDAMUS.] 

1. Mandamus; when will not be granted. — After the circuit court has heard 
a motion to quash an attachment, and to strike the same from the 
docket, because the affidavit does not disclose any cause of action, or 
a cause of action, for which an attachment is authorized to be issued, 
and also because the action is discontinued, and after argument, <fec . , 
overrules the motion and enters judgment accordingly, a mandamus 
will not be issued to compel said court to grant said motion — the reme- 
dy, for any error of the court in overruling the motion, is by appeal, 
after final judgment, and not by mandamus. 



JUNE TERM, 1871. 313 

Ex parte Bottoms. 

This was an application to this court by the petitioner, 
Burrell Bottoms, for a mandamus or other appropriate writ 
to compel the circuit court of Barbour, Hon. J. McCaleb 
Wiley, judge presiding, to grant a motion made in that 
court and overruled, to quash the attachment issued in the 
cause of Rutsell v. Bottoms, and to strike the cause from 
the docket, on the ground that the action had been discon- 
tinued, and because the affidavit for attachment did not 
disclose any cause of action for which an attachment could 
lawfully issue. 

From the bill of exceptions it appears that Russell made 
two affidavits for the issuance of the attachment, both on 
the same day, to- wit : the 18th day of JSiovemb'er, 1865, 
and the second being referred to in the first as a special affi- 
davit, and before the attachment issued. This last affidavit 
states in substance, that Burrell Bottom is justly indebted 
to him, &c., in the sum of $600, as damages for breach of 
two contracts, as follows : that on 21st day of January, I86a, 
said Russell purchased of Bottoms 5,000 lbs. of seed cotton 
and paid Bottoms therefor $650, and in consideration of 
said payment Bottoms executed a written agreement ac- 
knowledging the sale and payment and his obligation to 
deliver said cotton to Russell at any time between 21st Jan- 
uary, i865, and the 25th of December, 1865, and has refused 
to deliver any of said cotton or any part thereof, but has 
fraudulently disposed of the same. Then follows the same 
allegation as to a similar contract, purchase and payment 
for 5,250 lbs. of seed cotton to be delivered on the 25th of 
December, 1864, of which 5,196 lbs. have been delivered, 
and that said Bottoms refused, after demand, to deliver the 
balance of the cotton, 54 lbs., but sold it to these persons, 
and has fraudulently disposed of the same. Then the affi- 
davit goes on to state — "and the said Wm. M. Russell avers 
that by the breach of the two agreements before stated and 
the fraudulent disposition of said cotton, he is damaged to 
said sum of $600." The affidavit contained the usual re- 
quirements of the statutes, that the attachment was not sued 
out for the purpose of harrassing or vexing the defendant, &c. 
21 



314 FOKTY-SIXTH ALABAMA. 

Ex parte Bottoms. 

This attachment was levied od certain personal property of 
Bottoms, on the 20th of November, 1865, at which date 
the cause was entered on the appearance docket of the 
spring term 1866, when John Bottoms interposed a claim, 
&c., which was duly returned and entered on the appear- 
ance docket of the spring term 1866. And neither were 
entered on any other docket until the spring term 1866, 
and the only entry then upon any of the dockets was upon 
the trial docket, as follows : 

"William M. Russell 
10624. vs. 

Burrell Bottoms, deft. 

John Bottoms, claimant." 
This entry was continued in the same number and car- 
ried forward on the trial docket for every term thereafter 
until the January term 1868, when there was a trial of the 
right of property and a verdict for claimant, which was set 
aside and a new trial granted. These proceedings were 
entered in short form by the judge opposite the entry on 
the docket. Up to that time no coTuplaint had been filed 
and no other entry made on the minutes or on any docket 
of the court, except as above stated, and no judgment had 
been obtained against either said Burrell or said John Bot- 
toms. At the fall term 1870, the motion of the defendant 
theretofore regularly made and continued to quash said 
attachment and repudiate the cause and to strike the same 
from the docket for the reasons already mentioned , came 
on to be heard and was overruled, and defendant excepted. 
The defendant, Burrell Bottoms, then moved the court to 
dismiss the cause, because no complaint had been filed in 
the case either before or after the return of said attach- 
ment. On motion of plaintiff, leave was then given him to 
file a complaint, and thereupon the court overruled the 
motion to dismiss the cause, and Bottoms excepted. 

Samuel F. Eice and Jere. N. Williams, pro motion. — 
Whenever there is a wrongful refusal of a circuit court to 
dismiss a suit, mandamus is the remedy, unless and until 
final judgment has been rendered therein. After final 



JUNE TERM, 1871. 315 

Ex parte Bottoms. 

judgment, appeal or writ of error is the remedy ; and man- 
damus is not, because "the final judgment in the suit can 
not be reversed by mandamus, nor on an application for 
mandamus." This is fully settled by this court and by 
the supreme court of the United States. — Steamboat Em- 
pire V. Alabama Coal Mining Company, 29 Ala. Rep. 698 ; 
Gordon v. Langest, 16 Peters, 97. 

If, before final judgment, mandamus will lie for the refu- 
sal of the circuit court to dismiss a suit for want of security 
for costs, a fortiori, mandamus will lie for the refusal of 
such court to dismiss a suit for want of jurisdiction, or for 
any other legal cause of dismissal. If the law were other- 
wise, there would be great oppression to private suitors as 
well as great detriment to the public in the accumulation 
of costs aad expenses, and in the consumption of the time 
of the courts and jurors and people. 

By section 6 of article 6 of our State constitution, the 
circuit court has jurisdiction "in civil cases only, when the 
matter or sum in controversy exceeds fifty dollars." An 
original attachment is unknown to the common law, and 
the mere creature of our statute. The statute (Revised 
Code, § 2927) does not authorize or permit such attach- 
ment before the maturity of the demand, but "iu one class 
of cases" ; and that is when it is sued out "to enforce the 
collection of a debt. In all other cases, a right of action 
must have accrued, by the terms of the contract) or the 
nature of the transaction itself, before the right to an attach- 
ment to enforce any demand arising therefrom, can exist." 
Bozeman v. Rose, 40 Ala. R. 217, 218. 

In defiance and contempt of this provision of the consti- 
tution and of this clear law, the attachment here com- 
plained of was issued to enforce a demand, not for "a debt," 
but for damages claimed to result from the breach of two 
contracts to deliver cotton ; it was issued before there was 
any breach of one of the contracts, and at a time when only 
about five dollars worth of the cotton embraced by the 
other contract remained undelivered or due. These facts 
are shown in plaintiffs own affidavits, which refer to each 
other and must be construed together and as one. And 



316 FOBTY-SIXTH ALABAMA. 

Ex parte Bottoms. 

as these facts thus are admitted by plaiutiffs, uo plea was 
necessary to re-assert them ; but the motion to quash and 
dismiss was proper. — McLeod v. lieid & Co:, 20 Ala. K. 576. 

Shoeter, Seals & Cochran, contra. 

PECK, C. J.— In the case of Ex Parte Robins, 29th Ala. 
71, it is decided that a suit commenced by attachment, by 
a non-resident, is within the statute, Revised Code. § 2802, 
which requires security for the costs to "be endorsed on the 
complaint, or lodged with the clerk, previous to the issue 
of the summons," — and the same case decides that, "if the 
circuit court refuses, on motion, to dismiss a suit brought 
by a non-resident, without first giving security for the costs, 
mandamus lies to compel its dismissal." 

We apprehend that decision would not have been made 
if the statute had not declared, that a suit commenced by 
a non-resident,, without giving security for the costs, must 
he dismissed on motion." 

The statute provides how the suit is to be dismissed, to- 
wit: hy motion. The defendant, therefore, is entitled to 
have it disposed of in that way. The defendant need not 
plead the matter in abatement, or if his motion to dismiss 
is overruled, wait to have the error corrected, after final 
judgment, as we think he would have to do if the statute 
did not expressly require the suit to be dismissed on mo- 
tion. The statute providing not only what judgment shall 
be rendered, but also how it shall be rendered, to-wit : on 
motion, the defendant is entitled to the benefit of the stat- 
ute in the way provided, and if it is denied in that way we 
know of no adequate remedy but mandamus. If he should 
be compelled to wait till final judgment, and then seek a 
remedy by appeal, he would not only be delayed in his 
remedy, but would altogether be denied the remedy given 
by the statute. 

Ordinarily, a judicial error cannot be corrected by writ 
of mandamus. That writ is the appropriate writ to compel 
subordinate courts to proceed and determine causes before 
them, but it does lie to compel a judicial tribunal to render 



JUNE TERM, 1871. m 

Ex parte Bottoms. 

any particular judgment or to set aside a decision already 
made. — Ex parte Koon et cd., 1 Denio, 644 ; Moses on Man- 
damus, 36. 

The original proceedings upon which this application is 
based, were commenced by an attachment in favor of W. 
M. Russell against Burrell Bottoms, issued by a circuit 
judge on the first day of November, 1865, returnable to his 
court, and J;wo days afterwards was levied on the property 
of the defendant, Burrell Bottoms, the petitioner in this 
behalf. Five years afterwards, at the fall term of the circuit 
court, 1870, the bill of exceptions taken in that case, states 
that the motion of the defendant, theretofore regularly 
made and continued, to quash said attachment and repu- 
diate the cause, and to strike the same from the docket for 
want of jurisdiction in the court of the cause, apparent on 
the face of the affidavits and attachment, and because said 
cause :was discontinued, even if the court had jurisdiction 
of it, came on to be heard, and after argument by the parties 
the court overruled said motion and the defendant except- 
ed, &c. After said motion was thus overruled, said burrell 
Bottoms, on his petition, applied to this court at the last 
term for a mandamus to compel said circuit court to grant 
said motion to quash said attachment and to repudiate said 
cause and to strike the same from the docket, &c. 

If it be conceded that said judgment overruling said 
motion is erroneous, the error cannot be corrected by the 
writ of mandamus ; the remedy is by appeal, after final 
judgment in the cause. In denying a mandamus it is not 
necessary to decide whether the motion should or should 
not have been granted, or whether the facta stated in the 
affidavits disclose any cause of action, or if they do, that it 
is such a cause of action as authorized the process of attach- 
ment ; but, it seems to us, the affidavits, although very in- 
artificially drawn, if true, show not only a good cause of 
action, but a good cause for the attachment. They state 
that the plaintiff in the attachment, had bought certain 
cotton of the defendant, the petitioner, and at the time of 
the purchase paid him the price in money, and by the 
agreement of the parties the vendor was to deliver the 



318 FOKTT-SIXTH ALABAMA. 

Marshall v. Howell et al. 

cotton by a certain future day, and that before that day he 
sold the cotton to a third person. This conduct of the 
vendor authorized the vendee to rescind the contract and 
treat the same as at an end, and to sue presently to recover 
back the money. He was not obliged to wait until the day 
the cotton was by the agreement to be delivered. — 2 Par- 
sons on Contracts, 666-67 and note c. Said affidavits also 
state that said Burrell Bottoms had fraudulently disposed 
of his property, and that an attachment was not sued out 
for the purpose of vexing or harrassing said Burrell Bot- 
toms, &c. These statements we think clearly entitled the 
vendee to the aid of an attachment. If the said affidavits 
are defective in form, § 2990 of the Revised Code permits 
their amendment. For these reasons the application for 
a mandamus must be denied, at petitioner's cost. 



MARSHALL vs. HOWELL et al. 

[bill in equity to F0BECL08E MOBTOAGE.] 

1. Anstcer required and made under oath; what not overcome ?»y.— Tho 
answer of a defendant to a bill in chancery when required on oath, and 
responsive, is not overcome by the testimony of the complainant as a 
witness. 

2. Decree in chancery on facts of cage; when only will he reversed- — A decree 
of the chancery court on the facts of a case, will not be reversed unless 
decidedly contrary to the weight of evidence. 

Appeal from Chancery Court of Perry. 
Heard before Hon. A. W. Dillard. 

The facts are sufficiently stated in the opinion. 

Brooks & Haralson, for appellant. 
Joshua Morse, contra. 



JUNE TERM, 1871. 319 

Marshall v. Howell et al. 

{No briefs came into the Reporter's hands.) 

B= F. SAFFOLD, J.— The appellant filed his bill to fore- 
close a mortgage on a certain tract of land which the 
appellee, Howell, had given him to secure the payment of a 
note for about $1,026. He averred that no more than $300 
had ever been paid on the debt, and that a large sum of 
money was still due, and that C. C. Johnson, whom he 
made a defendant, was in possession of the land, claiming 
some interest therein. The defendants were required to 
answer on oath touching each averment. 

Johnson answered in substance that he had bought the 
land from Howell, with the complainant's consent, for a 
larger sum than was due on the mortgage ; that he gave 
a written obligation, with personal security, to pay the 
mortgage debt to the complainant and the remainder to 
HoweU, and that this obligation was given to and received 
by the complainant as an extinguishment of the mortgage ; 
that he had paid $800 to the complainant and $200 more 
to Howell, with the said complainant's consent, all of which 
was intended by the parties as a credit on the amount due 
the plaintiff. 

The complainant, as a witness in his own behalf, testified 
to the payments stated by the respondent, but denied that 
more than $300 was paid on his account. He insisted that 
the other sums were paid to Howell ou his own account. 
A decree pro confesso was taken against Howell, and a 
decree in favor of the defendant Johnston was rendered on 
the merits of the cause. 

The right of the parties depends on the weight of the 
evidence. The answer is responsive to the bill. The res- 
pondent was required to answer an averment of how much 
had been paid on the mortgage debt and what amount was 
still due. He says there is nothing due, and tells why. 
The written obligation given by Johnston and his surety 
was peculiarly drawn. It recited that on the first day of 
January next they were to pay to Howell the balance of 
money due after paying the amount of Howell's indebted- 
ness to Marshall, for a certain tract of land, (fee. This 



320 FOKTY-SIXTH ALABAMA. 

Dugger V. Tayloe. 

writing was received and held by Marshall, though he does 
not seem to have given up his note on Howell. There was 
no positive inconsistency in this, because he may have 
retained that note to show the amount due to him. He 
was cognizant of the payments he says were made to 
Howell, but his debt had precedence, and he had manifested 
no great inclination to wait, as he had attempted to sell the 
land and failed for want of bidders. His testimony does 
not overcome the defendant's answer as evidence. The 
obligation of Johnston and his surety, and the disposition 
made of it, show an agreement with the complainant, of 
which Johnston's account is reasonable. Its meaning is 
not very lucidly expressed, but the most obvious interpreta- ■ 
tion is that Johnston and Bates bound themselves to pay 
Marshall's debt, and as much more to Howell as would 
amount to ten dollars an acre for the tract of land. 

We are obliged to agree with the chancellor, that the 
balance of evidence is on the side of the defendant. 

The decree is affirmed. 



DUGGER vs. TAYLOE. 

[ACTIOM 01 EJECTMENT UNDEE THE CODE.] 

1. Sale of land hy decree of probate court; for tohat purpose parol evidence 
inadmissible. — In an action for the recovery of land brought by the 
heirs of a decedent against a purchaser at a sale under an order of the 
probate court, parol evidence is inadmissible to prove the non-payment 
of the purchase-money, after a conveyance has been made by order of 
the court on the application of the purchaser under § 2096, Revised 
Code. 

2. Evidence ; charge on effect of by court tx mero motu ; token not reversible 
error. — A charge on the effect of the evidence should not be given, un- 
less at the request of one of the parties ; but when it is clear that no 
injury has resulted, the judgment will not be reversed. 



JUNE TERM, 1871. 32' 



Dagger v. Tayloe. 



Appeal from Circuit Court of Mare^o. 
Tried before Hon. Luther R. Smith. 

The facts are sufficiently stated in the opinion. 

Brooks, Haralson <fe Roy, for appellant. 
Lyon & Jones, contra. 

(No briefs came into Reporter's hands.) 

B. F. SAFFOLD, J.— The suit was in the nature of 
ejectment by the appellants against the appellee to recover 
land. The plaintiffs claimed title through Henry Dugger,. 
who died seized and possessed of the property. They 
were his heirs-at-law, except Alice G Dugger, who was a 
purchaser of the interest of one of the heirs. The de- 
fendant resisted on the ground that he was a purchaser at 
a sale made by the administratrix of Henry Dugger, under 
a decree of the probate court, and that the sale had been 
confirmed, and the purchase-money paid. 

The evidence ^^'as that the administratrix of Henry Dug- 
ger applied by petition, duly verified, for a decree, ordering 
a sale of the land for distribution, on tha ground that it 
could not be equitably divided without a sale. The decree 
was rendered on the 22d October, 1860, and the sale was 
made on the 19th of November, 1860, to Bocock. It was 
confirmed in April, 1861. In 1868, after the commence- 
mencement of this suit, a conveyance was made to Bocock 
by a person other than the administratrix, on his applica- 
tion, under § 2096, Revised Code. It was admitted that 
prior to this conveyance the purchase-money was paid, and 
distributed amongst the heirs and distributees. 

The plaintiffs offered the testimony of Alice G. Dugger, 
who had been the administratrix, to prove that in 1863 
when the purchase-money was said to have been paid, 
three of the plaintiffs were under twenty-one years of age, 
and that the last note, due in 1863, was paid to her in Con- 
federate currency, which she was induced to take by 
threats, misrepresentation and duress. This the court 
excluded. 



322 FORTY-SIXTH ALABAMA. 

Dugger V. Tayloe. 

The foregoing b^g in substance all the testimony, the 
court charged that it the jury believed the evidence, they 
must find for the defendant. The errors assigned are the 
exclusion of the testimony of Alice G. Dugger, and the 
charge of the court. 

The land was sold under a decree founded on a proper 
petition, and the sale was confirmed. The court, on the 
application of the purchaser, ordered a conveyance to be 
made to him, and, in so doing, necessarily determined that 
the purchase-money had been paid. It is true, no notice 
of this application was given to any person interested. 
The statute makes no provision for notice. It seems 
merely to confer on the purchaser a right to apply for 
what he is entitled to, if the administrator should be tardy 
in his duty. No notice is required when the administrator 
reports the purchase-money paid, and asks for leave to 
make title. It is the duty of the court in either case to be 
satisfied that the money has been paid, before it author- 
izes a conveyance to be made. — Rev. Code, § 2228. 

It is manifest that the title of these plaintiffs has been 
divested by a court of competent jurisdiction, after cog- 
nizance obtained. It can only be restored in equity on the 
grounds for which judgments may be impeached. To 
admit parol evidence to negative the adjudication other- 
wise would lead to inextricable confusion. — Deslonde v. 
Darrington, 29 Ala. 92. There was no error in excluding 
Mrs. Dugger's: testimony. 

The charge given by the court, on the effect of the evi- 
dence, does not appear to have been asked by either of the 
parties. Such a charge is forbidden to be given. — Revised 
Code, § 2678. There is no necessity for it, because the jury 
will be apt to perceive the right when the evidence is so 
entirely on one side as to justify the charge. In this case 
the evidence was of such a character that its proper inter- 
pretation to the jury necessarily involved a declaration of 
its effect. There was, at most, only error without injury. 
Hill V. The State, 43 Ala. 335. 

The judgment is affirmed. 



JUNE TERM, 1871. 323 

Ryan, Trustee, v. Bibb et al. 



RYAN, Trustee, vs. BIBB et al. 

[teoatbb fob contebsion or mxtles, &c.] 

1. Hiisband, oonveyante of to trustee for wife ; what Utle confers on trtistee. 
A bona fide conveyance by the husband to a trustee for the use of his 
wife of property purchased by him chiefly with funds of his wife, re- 
ceived from her guardian, the title to which he took in his own name, 
made in consideration of such funds so received and appropriated by 
him, confers on the trustee such an interest in the property as will en- 
able him to maintain trover for its conversion. 

Appeal from City Court of Montgomery. 
Tried before Hon. John D. Cunningham. 

On the 20th day of November, 1867, Vernon Henry 
Vaughan, made a conveyance, which recites that on the 15th 
day of October, 1862, said Vaughan had received $8,000 
in Confederate money, which was a part of the separate 
statutory estate of his wife, Cornelia, which he had em- 
ployed in various investments, treating them as his own, 
and then held in his own name ; that most of said invest- 
ments, and the property conveyed, were derived from the 
use of money which was of right the separate statutory 
estate of his wife ; that, therefore, at his wife's request he 
thereby conveyed certain mules, &c., and some real prop- 
erty, particularly described in the deed, "unto R. B. Ryan, 
to have and to hold unto said R. B. Ryan in trust for said 
Cornelia D. Vaughan, her heirs, administrators, and as- 
signs forever, to be held and enjoyed by her in all respects 
as her separate estate under the laws of Alabama." This 
deed was duly attested, acknowledged and recorded on the 
day it bears date, and on the same day Ryan accepted the 
trust, and assumed the management and control of the 
property mentioned in the deed. At the time of the mak- 
ing of the deed, the mules mentioned were in use on a 
plantation cultivated by Vaughan, near the city of Mont- 
gomery, and in charge of his overseer. Vaughan, who 



324 FOKTY-SIXTH ALABAMA. 

Ryan, Trustee, v. Bibb et al. • 

lived in the city of Montgomery, had several times pointed 
out the mules to Ryan, and spoke of them as his wife's 
mules and acknowledged them as hers, and frequently con- 
ferred with Ryan about their management and the best 
use to put them to, and had the use of them by the con- 
sent of Ryan. Shortly after this, about the 1st of January, 
1868, the sheriff of Montgomery county, at the instance of 
defendants, who had given him an indemnifyiog bond, 
levied upon the mules mentioned in the conveyance while 
they were on Vaughan's plantation, and sold them after a 
demand by Ryan, and notice of his title, under an execu- 
tion issued against W. 0. Bibb, J, F. Jackson and Benajah 
S. Bibb. It was proved that the recitals in the deed were 
substantially true. 

Ryan, as trustee, having brought an action of trover for 
the conversion of the mules, offered to read in support of 
his title the deed above recited, in connection with 
proof that the mules converted by the sheriff were the 
same as those mentioned in the deed ; but the court 
refused to allow it to be read, on the ground that it was 
void on its face and did not convey title to the plaintiff. 
The evidence in the case being in substance as above set 
out, the court charged the jury that if they believed the 
evidence they must find for the defendants, and. plaintiff 
excepted, and hence this appeal. 

Watts & Troy, for appellant. — The court supposed the 
effect of the deed made it one executed by a husband to 
his wife, and that, as husband and wife could not contract 
with each other, the deed was void at law. But this is not 
so. This deed evidenced a contract between plaintiff and 
Vaughan, the maker of the deed, and was not a contract 
between Vaughan and his wife. That the court erred in 
excluding such a deed is made more than manifest by the 
following authorities. — Elliott et al. v. Horn, 10 Ala.; Wil- 
son V. Shepperd, 28 Ala. 623; Goree v. Walthall, 44 Ala. 161; 
Tucker v. Bloreland, 10 Peters, 67. 

A husband has a right, when he pleases, to make a gift 
to his wife of land or personal property; If he make a 
deed directly to the wife, the deed at law would be void, 



JUNE TERM, 1871. 325 

Ryan, Trustee, v. Bibb et al. 

because he and his wife being one person, in law, can not 
make a contract ; because it requires two persons to make 
a contract. But such deeds have always been upheld in 
equity. But a deed by a husband to a trustee, for the 
benefit of his wife, has never been held void, unless it be 
made ta hinder, delay or defraud his creditors. 

But, in this case, there is no creditor of Vaughan com- 
plaining. What right had the sheriff with such an execu- 
tion to levy on the property of Vaughan. He was a mere 
trespasser. Being a mere trespasser, he and his co-tres- 
passers had no right to make objection, even to Vaughan 
conveying his property to Ryan for the use of Vaughan's 
wife. 

2. The proof offered, and that which was introduced, 
showed that Ryan was in the actual possession of the 
mules sued for at the time they were seized by the sheriff, 
under an execution against Bibb and others. 

There was no proof tending to show that Bibb or either 
of the defendants in execution had ever owned any of the 
mules sued for. The whole proof in the record shows 
that the plaintiff was entitled to recover the value of the 
mules. 

3. The whole evidence authorized the court to give the 
charge asked by the plaintiff, and required the court to re- 
fuse that asked by the defendants. 

FiTZPATRiCK & Williamson, and Arrington & Graham, 
contra. — The deed from V. H. Vaughan to Ryan recites the 
rc^ceipt by Vaughan of the money for his wife ; that the 
property described in the deed was "mainly the result of 
the investment of said sum of money," and that "the said 
property of right is the separate estate of my wife." These 
recitals were an admission of the title of Mrs. Vaughan, 
made by Vaughan, while the property was in his posses- 
sion, which was good against Ryan. — Gillespie's AdirCr v. 
Barleson, 2S Ala. R. 551; Breioer v. Logan, 19 Ala. R. 481 ; 
Fontaine v. Beers & Smith, 19 Ala. R. 722 ; Barnes v. Mob- 
ley, 21 Ala. R. 232. 

In the absence of any other proof, this admission was 



326 FORTY-SIXTH ALABAMA. 

Ryan, Trustee, v. Bibb et al. 

conclusive that the property belonged of right to Mrs. 
Vaughan. If this was so, the legal title to the mules was 
already in her (no deed or other instrument in writing be- 
ing necessary to vest the legal title to personalty,) and 
could not be conveyed to any one, except in the manner 
and for the purposes provided by the Code. 

The deed to Ryan was only executed by the husband ; 
was not a sale for re-investment, and was against the pol- 
icy of the law, as it divested the husband of the character 
of trustee of his wife without a decree of the court of 
chancery. — Wilkiiison v. Cheatham, January term, 1871. 

The deed, therefore, conveyed no title to Ryan, and 
when offered to show title was properly excluded. • 

Ryan could only recover by virtue of constructive pos- 
session, under title in himself, or by proof of actual pos- 
session. There was no proof of title, except the deed ex- 
cluded, and no proof of actual possession. The charge 
asked by plaintiff was, therefore, properly refused, and 
that asked by defendants was properly given. 

On the case made by plaintiff, Mrs. Vaughan was the 
proper party plaintiff. A recovery by Ryan could not have 
been pleaded in bar of a suit by her. 

B. F. SAFFOLD, J. — The appellant sued the appellees 
for the conversion of property, the legal title and posses- 
sion of which he claimed as a trustee. In support of this 
claim he offered in evidence a deed from Vernon H. 
Vaughan to him, reciting that in consideration of eight 
thousand dollars of Confederate currency, the separate 
estate of his wife, Cornelia, received by him, the said 
Vaughan conveyed to the plaintiff in trust for his said 
wife certain real and personal property therein described, 
the title to which was in his own name, though it had been 
procured chiefly by his investment of the funds above 
mentioned. The property alleged to have been converted 
is a part of that described in the deed. This evidence was 
excluded, on the ground that so far from showing the right 
of the plaintiff to maintain the suit, it made apparent his 
want of title to the property. The plaintiff having, as a 



JUNE TERM, 1871. 327 

Ryan, Trustee, v. Bibb et al, 

witness in his own behalf, testified to the facts recited in 
the deed, the court charged, at the request of the defend- 
ants, that the jury must find for them, which was accord- 
ingly done. 

The correctness of the action of the court is maintained 
for the appellees on the ground that the statute (Revised 
Code, § 2b72,) vests in the husband, as her trustee, the 
property of his wife, and he can not by such a conveyance 
divest himself of that character, and confer it upon an- 
other. And further, that as husband and wife can not 
"contract with each other for the sale of any property,' 
(Rev. Code, § 2374,) he can not do so even with the con- 
sent of his wife. 

In many instances the only evidence of title to property 
is its possession, identity and the source whence it was de- 
rived. These will do unless another holds title deeds and 
papers which obscure, even if they do not repel, the right- 
ful ownership. When this is the case the real owner has 
his right of action to establish his ownership. If the pos- 
sessor of these muniments does voluntarily what the law 
would compel him to do, his action will bo maintained. 
Wilson V. Sliejyperd, 28 Ala. 623. 

Where the husband converts the corpus of his wife's 
property, using it in the purchase of property, the title to 
which he takes in his own name, he is her debtor. — Jenkins 
V. McConnice, 26 Ala. 213. The prohibition against con- 
tracts between husband and wife, in § 2374, Revised Code, 
introduced no new feature into the law governing the mari- 
tal relation. Nor did the quasi trusteeship of the husband, 
created by § 2.372, Rev. Code, limit her sources of receiv- 
ing property. In Jjady Arundel v. Phipps, 10 Vesey, lb9, 
a purchase by a married woman from her husband, through 
the medium of trustees for her separate use and appoint- 
ment was declared to be sustainable against creditors, if 
honajlde, though the husband be indebted at the time, and 
the purpose being to preserve from his creditors for the 
family the subject of the purchase. Lord Eldon declaring 
that the doctrine was not so either inequity or at law, that 
husband and wife could not after marriage contract for a 



328 FORTy-SIXTH ALABAMA. 

Crumbley v. Searcey. 

bona fide and valuable consideration for a transfer of prop- 
erty from him to her, or trustees for her. 

Shall we deny the power of a husband to pay a debt 
due to his wife by a conveyance of his property to a trus- 
tee for her use, in order to preserve his trusteeship of her 
property ? Section 2372, Eev. Code, refers only to such 
property as the husband may be trustee of, and does 
not forbid the acquisition by the wife of property of 
which he can not be her trustee. So, § 2872, Rev. Code, 
refers to contracts directly between them other than such 
as the law would compel him to make. The rulings of 
the court above mentioned were erroneous. 

The judgment is reversed and the cause remanded. 



CRUMBLEY vs. SEARCEY. 

[action on pbomissoby note.] 

1. Plea; what demurrable. — In a suit against one of the makers of a 
promissory note, a plea by the defendant that his co-maker was, at the 
time of making the note, a married woman and principal in said note, 
and that he signed it as her surety, is subject to demurrer. So, also, is 
a plea that the consideration of the note was the hire of a slave. 

Appeal from Circuit Court of Henry. 
Tried before Hon. J. McCaleb Wiley. 

The appellant brought suit against appellee, on a prom- 
issory note made by him, and Mary McGee and Rebecca 
Searcey, who were not sued in the action. The appellee 
pleaded in short by consent — 1st, " that he was only surety 
for Mary McGee, who was the principal in said note, and 
who, at the time of making said note, was a feme covert ;'' 
and, 2d, " That the sole consideration of said note was the 
hire of a negro slave." 



JUNE TERM, 1871. 329 

Boyd & Jackson v. The State. 

The court overruled a demurrer to each of these pleas, 
and rendered judgment for costs against plaintiflf, and this 
action is now assigned as error. 

Shorter & McKleroy, for appellant. 
W. C. Oates, contra. 

B. F. SAFFOLD, J. — In a suit upon a promissory note 
against one of the makers, a plea by the defendant that 
his co-maker was a married woman at the time, and that 
he signed it merely as her surety, is subject to demurrer. 
The obligation is several, as well as joint, and the plea of 
coverture is a personal defense. — Gibson v. 31<irquis, 29 Ala. 
6G8 ; Hcdl v. Canute, 22 Ala. 650 ; 1 Parsons on Notes and 
Bills, 244 ; 30 Vermont, 122. 

A plea, that the consideration of the note was the 
Lire of a slave, is also bad. — MiuJd v. McElvain^ January 
term, 1870. 

The judgment is reversed, and the cause remanded. 



BOYD & JACKSON vh. THE STATE. 

[indictment for SETTIWa UP AND CABBYING ON A LOTTEBY, AC. ] 

. "^ The Mutual Aid Association,'^ act creating ; what it authorizes. — The 
act of the general assembly of this State, approved December 10, 1868, 
creating the Mutual Aid Association, authorizes said association to set 
up and carry on a lottery such as is sanctioned by said act, and for the 
purposes therein named. — Pamph. Acts 1868, p. 263. 

. Privilege granted by act of legislature, when not taken aUmy by repeal. — 
Said act confers upon the partners in said association, after the payment 
of the sum of S2,000 into the State treasury, as required by the fourth 
«ection thereof, the privilege of setting up and carrying on a lottery, 
such as is authorized by said act, for one year, and a repeal of the act 
granting this privilege can not take it away during the time for which 
the payment has been made. — Pamph. Acts 1870-71, p. 217. 

22 



330 FORTY-SIXTH ALABAMA. 

Boyd & Jackson v. The State. 

3. "No one is 2^ermitted to take advantage of his otvn wrong ;" to whom ap~ 
plies. — The first head-note in Brent v. The State, (43 Ala, 227,) repeated 
and affirmed ; that "the State as well as an individual is bound by the 
maxim, that no one is permitted to take advantage of his own wrong." J 

Appeal from the City Court of Montgomery. 
Tried before Hon. J. D. Cunningham. 



The facts appear in the opinion. 

Elmoee & GuNTER, S. i\ EicE, and Judge & Holtzclaw, 
for appellant. — 1. If it be conceded that the Mutual Aid 
Association is a corporation, it is plainly a corporation "for 
municipal purposes," within the meaning of section 1 of 
article 13 of our State constitution ; and therefore the act 
creating it is valid. — Norton v. Mobile School Gommissionei^s, 
43 Ala. 607 ; Gelpecke v. City of Dubuque, 1 Wallace, 175, 
and cases therein cited. 

2. But evidently the Mutual Aid Association is not a 
corporation ; it is a partnership, and has the personality or 
" sort of personality" which belongs to every partnership. 
Par. on Partn. 171, 269. It is not " an artificial person," 
but simply a body of natural persons associated as " part- 
ners," to whom the power of " succession," (an essential of 
a corporation) is not given. The act creating the privileges 
of that partnership treats it only as a partnership. This 
fact, coupled with the well settled distinction between a 
corporation and a partnership, (so well stated in Parsons 
on Partn.) disables the courts from converting it into a cor- 
poration, in order to destroy it. For there is no plainer 
duty on courts than that of always adopting that construc- 
tion of a statute (admitting of two or more constructions) 
which will make the statute valid and consistent with the 
constitution ; " ut res valeat magis quani per^eat." — Wam- 
mack V. Holloway, 2 Ala. 

The act of 1868, in relation to this partnership, belongs to 
that class of statutes which are " considered as propositions 
extended to private citizens." And when, as here, the prop- 
ositions, as so made, admit of acceptance by payment of 
specified instalments, and are in fact accepted by the actual 



JUNE TERM, 1871. 331 

Boyd & Jackson v. The State. 

payment of these several instalments, in plain compliance 
with the terms of the propositions, all the authorities agree, 
that a contract is thus made and consummated, which falls 
within the protection of paragraph 1, of section 10, of ar- 
ticle 1 of the constitution of the United States, and can 
not be impaired by any subsequent legislative enactment. 
Oliver v. Lee d Co.'s Bank, 21 N. Y. 14 ; The State v. Hey- 
ward, 3 Rich. (S. C.) Law Rep. 389 ; Rouse v. Home of the 
Friendless, 8 Wallace. 

The authority and right conferred by the atjt of 1868 
upon the partners and their associates, upon their proved 
compliance with the provisions of that act, can not possibly 
be inferior to those which are acquired by obtaining a li- 
cense in accordance with existing law. And the right of 
such license can not be impaired by subsequent legislation. 
Phil. Ass'n, dtc, v. Wood, 89 Penn. State Rep. 73. 

The repealing act of the last session is in plain conflict 
with the provision of the constitution of the United States 
above cited ; it is also in conflict with our State constitu- 
tion ; it purports to destroy vested rights and privileges, 
paid for in advance of their exercise, without even offering 
to return any part of the money obtained therefor; its 
morality is as debateable as that of lotteries ; it boldly de- 
prives citizens of their " property" without due process of 
law, and by the mere arbitrary judment of the legislature. 

The doctrine laid down in Bi^nt v. The State, (43 Ala. 
227,) concludes and estops the State from indicting these 
defendants ; and in order to sustain the judgment of the 
court below that well considered decision must be over- 
ruled. 

John W. A. Sanford, Attorney- General, contra, — 1. It is 
conceded that the general assembly can not enact a law 
that impairs the obligation of contracts ; and that this rule 
applies as well to contracts to which the State is a party, 
as to contracts between its citizens. — Fletcher v, Peckj 
6 Cranch, 87, et seq. 

2. But this provision of the constitution does not pre- 
vent such changes in the internal policy of the State as 



332 FORTY-SIXTH ALABAMA. 

Boyd & Jackson v. The State. 

may be deemed expedient by its legislature. — Barhio v. 
Gregory, 31 Conn. 261. 

3. The license granted by the State to the defendants 
and their partners to establish and carry on a lottery, is 
not a contract, but a mere police regulation, and may be 
revoked by the State. — Acts 1868, pp. 263-4 ; Freshyterian 
Church V. Mayor of Neiv York, 5 Cow. 538 ; Him v. The 
State, Ohio St. Eep. 15-21 ; Freleigh v. State, 8 Mo. 606 ; 
State V. Haicthorn, 9 La. 389 ; Bransom v. The City of Phil- 
adelphia, 47 Penn. St. Eep. 329. 

4. The defendants were, in effect, the mere agents of the 
State in carrying on the lottery for the benefit of the school 
fund. They accepted the agency on the conditions men- 
tioned in the act, and surely the State can discontinue or 
change her policy in regard to this matter without being 
obnoxious to the charge of infringing the Federal consti- 
tution. If the law had have authorized the sale of the lot- 
tery, and the privilege had been sold, the legislature could 
not have repealed the statute. But as long as it was in the 
possession of the original managers the act was repealable. 
The State v. Phelan, 3 Harrison, (Del.) 441 ; Rector of Christ 
Church V. City of Philadelphia, 24 Howard, 300. 

PETERS, J. — The appellants, who were defendants in 
the court below, were indicted at the February term, 1871, 
of the city court of Montgomery, for setting up and carry- 
ing on a lottery without the legislative authority of the 
State. The indictment was returned into court on the 17th 
day of March, 1871. On the trial below, the defendants 
were found guilty and fined one hundred dollars. For this 
sum, and costs, judgment was properly rendered. And 
from this judgment the defendants appeal to this court. 

There was a bill of exceptions taken by the defendants 
on the trial in the court below. From this, it appears that 
the defendants set up in their defense a certain act of the 
general assembly of this State, entitled " An act to estab- 
lish a mutual aid association, and to raise funds for the 
common school system of Alabama," approved the 10th 
day of October, 1868.— Pamph. Acts 1868, pp. 263, 264, 



JUNE TEEM, 1871. 333 

Boyd &, Jackson v. The State. 

No. 43. Under authority of this act, the defendants had 
the right to set up and carry on a lottery, such as the de- 
fendants were engaged in. But it was contended, on the 
part of the State, that this act had been repealed before 
the finding of said indictment ; that is, by an act entitled 
" An act to repeal an act entitled an act to establish a mu- 
tual aid association, and to raise funds for the common 
school system of Alabama," approved March 8, 1871. — 
Pamph. Acts 1870-71, p. 217, No. 197. On the other hand, 
it was contended by the defendants, that the State could 
not repeal said first mentioned act, so as to deprive them 
of the privileges under it, and for which they had paid 
into the treasury of the State the sum of two thousand 
dollars, for the year ending in November, 1871. The 4th 
section of said act first above named, is in these words : 
" Sec. 4. Be it further' enacted, That before commencing 
business under the provisions of this act, the said parties 
shall deposit in the treasury of the State, to the credit of 
the school fund and for educational purposes, and annually 
thereafter, the sum of two thousand (2,000) dollars, for the 
term of twenty years, or so long as they may do business 
under the provisions of this act within said period, during 
which time the business aforesaid shall be exempt from 
taxation, except for State purposes." — Pamph. Acts 1868, 
p. 264, sec. 4. The proof showed, that this annual sum of 
two thousand dollars had been regularly paid into the treas- 
ury, as required by said act last above said, in the month 
of November in each year, since the approval of said act, 
and that the last payment was made in November, 1870. 
These facts are admitted in the argument here. 

From this statement of the case, it is very evident that 
the defendants, when they were indicted, were acting under 
a license granted by legislative authority. The repeal of 
the act of December 10, 1868, could not impair this right. 
It was the fruit of a contract, a vested right, which the 
State could not take away. It was fenced about and pro- 
tected by the highest principles of justice and by the su,- 
preme law. The State had sold the privilege to set up and 
carry on a lottery for a year at least, and had received the 



334 FORTY-SIXTH ALABAMA. 

Boyd & Jackson v. The State. 

price of the privilege in advance. This was clearly a con- 
tract, which the State is forbidden to impair. In such a 
case the State is the grantor, and it is estopped by its own 
act. — Fletcher v. Peck, 6 Cr. R. 137 ; Dartmouth College v. 
Woodioard, 4 Wheat. 657 ; New Jersey v. Wilson, 7 Cr. R. 
1 64 ; Terrel v. Taylor, 9 Cr. R. 43 ; Von Hoffmun v. City of 
Qidncy, 4 Wall. 55l) ; Jefferson Br. Bk. v. Skelley, 1 Black. 
446. Besides, the same principle operates in this case that 
was allowed to control the decision in the case of Bre^it v. 
The State, (43 Ala. 297.) There this court very properly 
say : " We can see no good reason why a State, as well as 
an individual, is not held bound by this salutary and 
just maxim, that ' no man shall take advantage of his own 
wrong.' — Broom's Legal Maxims, top page '205. We think 
it clear that the appellant did not intend to violate any 
penal or other law of the State ; in other words, that he 
acted in good faith, and verily believed he was doing what 
the State, by its statute, clearly authorized him to do." — 
43 Ala. 301, 302. This reasoning precisely meets the exi- 
gencies of this case, and it was a construction of the same 
statute in controversy here. The only difference between 
the two cases is, that the indictment in Brent's case oc- 
curred before the attempted repeal of the law, under which 
the defendants in both cases acted, and in this case the in- 
dictment was found after the attempted repeal. But the 
foregoing discussion shows that, in this case, this difference 
can not be permitted to alter the result. 

The judgment of the court below is reversed, and the 
cause remanded, with instructions to the court below to 
discharge the defendants in that court, said Boyd & Jack- 
son, from further prosecution on the indictment in this case. 



JUNE TEEM, 1871. 33 

Rivers v. Thompson. 



RIVERS vs, THOMPSON. 

[action fob BECOVEBT of LANS.] 

1. Adverse po98e8»iou of wild lands ; ichat constitutes. — The mere catling 
of timber on wild lands is not such actual possessio.n as the law requires 
to constitute adverse possession, if the lands be suitable for other pur- 
poses. 

2. Special charge ; when, not error to refuse. — It is not error for the court 
to refuse to give a special charge, the substance of which has been 
plainly given in other special charges, or in the main charge. 

Appeal from Circuit Court of Barbour. 

Tried before Hon. J. McCaleb Wiley. 

\ ■ 
This was a suit instituted by appellee against appellant, 

on 24th September, 1858, for the recovery of certain lands 
in Barbour county, of which Shorter & Scott were the 
original government patentees. Shorter died in 1836, and 
Scott prior to 1853, in which year Scott's administrator 
obtained from the probate court of Russell an order to 
sell at Clayton, Barbour county, the undivided half interest 
of his intestate in said lands. The sale was made 25th 
of June, 1853, to one Robertson, who paid purchase-money 
same year. The confirmation of the sale was not had 
until 9th May, 1859, and deed to Robertson by Scott's 
administrator made on 2d June, 1859. On the 11th April, 
1857, Robertson conveyed to the heirs of Shorter. The 
heirs of Shorter conveyed on 3d June, 1857, to appellee, 
the entire interest in the land in dispute. On 11th Jan- 
uary, 1859, Robertson gave to heirs of Shorter a quit 
claim. In the summer of 1858 appellee deadened trees on 
part of the land, and was stopped from further possession 
of same by appellant. 

Appellant set up in defense — 1st, tax title; 2d, adverse 
possession, and proved the assessment of said lands for 
taxes in 1853 to an unknown owner, advertisement of sale, 
and their sale on 3d April, 1854, to Wellburn, who received 



336 FOETY-SIXTH ALABAMA. 

Rivers v. Thompson. 

a deed from probate court on 16th April, 1856. Wellburn 
convejed ODe-half interest to appellant 11th December, 
1856. In January, 1857, a tenant of appellant cut some 
trees on a part of said land, but soon after abandoned it. 
Appellant cut timber on said land in 1858, before the ap- 
pellee undertook to clear it. After the suit appellant culti- 
Tated the land, which was productive for corn and cotton. 
It was admitted that in 1857, the said lands were wild, 
unimproved and" uncultivated. There was proof tending 
to show proper legal notices given in each precinct by the 
tax assessor, before the said assessment in 1853. 

Upon the foregoing evidence the court charged the jury 
as follows : "'That upon the several deeds and patents, as 
read in evidence by the plaintiff, (there being no dispute as 
to their execution and fairness) he was entitled to recover 
all the lands described in the complaint, unless the right 
of recovery shown by them was defeated by evidence ad- 
duced by the defendant. 

That defendant placed his defense on two grounds. 
First, the deed of the tax collector to Wellburn, and Well- 
burn's deed to him of an undivided one-half of the land. 
Second, that the defendant had adverse possession of the 
land at the time it was conveyed to the plaintiff by the 
deed of the Shorter heirs. 

First, the jury should inquire whether the tax assessor 
of Barbour county, in 1853, posted bills or notices at three 
public places in each election precinct in this county at 
least fifteen days before he attended each precinct to assess 
taxes, (it being adnaitted that the assessor gave no such 
notice in any newspaper). That if the jury should find 
from the evidence that the tax assessor had not given the 
notice required by § 428 of the Old Code of Alabama, as 
read in their hearing, then they must stop their inquiries 
on the first ground of defense, and find for the plaintiff the 
lands described in the complaint ; that if, however, they 
found that the tax assessor had given the notices required 
by § 428 of the Old Code, then they must go further with 
their inquiries, and see whether the tax collector had done 
what the law required of him in selling the land. That it 



JUNE TERM, 1871. 337 



Rivers v. Thompson. 



was necessary to the validity of the tax title that both the 
tax assessor and the tax collector should comply with all 
the requirements of the law in relation to assessments and 
sales to pay taxes, and that if either of them failed to com- 
ply with any of these requirements the tax sale would not 
be valid ; that if, however, these requirements were com- 
plied with the tax sale and conveyance thereunder would 
be good, and the jury must find for the defendant. 

On the second ground of defense the jury should inquire 
whether at the time the several deeds under which the 
plaintiff seeks recovery were executed, the defendant was 
holding said lands adversely. 

That adverse possession was a question of fact for the 
jury to decide upon all the evidence. That to constitute 
adverse possession the defendant must take possession 
under color of title, and hold the same in good faith 
openly, notoriously and continually ; that it was not neces- 
sary that the defendant be on the land all the time, ho 
need not live on it, but he must have actual possession of 
some part of the land, and that possession must be open, 
visible, distinct and- continuous, by such acts of ownership 
as the land was capable of. 

That cutting of timber on land, fit for no other purpose, 
might be adverse possession, but if the land was suited to 
other purposes, then cutting of timber alone would not be 
sufficient to constitute adverse possession ; that the deed 
of the tax collector was color of title enough, if the pos- 
session of the defendant was taken and held under it ad- 
versely. 

That the defendant must have had adverse possession 
when the deed from Shorter's heirs was executed to plain- 
tiff in June, 1857, and that the taking of possession in 
January, 1857, would not make the Shorter deetl void, if 
that possession was abandoned before the deed to plaintiff' 
was executed. 

The appellant and appellee both asked several written 
charges, which were given, and appellant asked three writ- 
ten charges which were refused. It is unnecessary to set 
out the two first charges thus asked and refused, or even 



338 FORTY-SIXTH ALABAMA. 

liivers v. Thompson. 

their substance, as in the opinion of the court they were 
identical in principle and almost the same in words as the 
charges given at the request of the parties. 

The third charge, thus asked by appellant and refused, 
is as follows : 

" The jury have nothing to do with the question whether 
any other tax collector's deed, than the one read in evi- 
dence on the trial, ever conveyed a good title. If the jury 
believe from the evidence that every requisition of the 
statute law was complied with by the tax assessor and the 
tax collector in relation to the land here in controversy, 
and if the jury believe all the evidence in the cause, they 
must find a verdict for the defendant." 

To the charges given appellant excepted, as well as to 
the refusal of the court to give the charges asked for. 
There was a verdict and judgment for appellee. 

GoLDTHWAiTE, RiCE & Semple, for appellants. 
J. L. PuGH, contra. 

(No briefs came into the hands of the Reporter.) 

B. F. SAFFOLD, J.— The charge in chief, to which 
the appellant excepted entirely, asserted the following 
propositions : 1st. The evidence of the plaintiff entitled 
him to recover, unless his right to do so was defeated by 
something adduced by the defendant. 2d. The defendant's 
tax title would be good if all the requirements of the law 
had been complied with. There was no question about 
what these requirements were. 3d. Actual, notorious, visi- 
ble and continuous possession under color of title was 
necessary to constitute adverse possession. A tax title 
was sufficient color of title if the possession was other- 
wise adverse. 4th. The deed from Shorter's heirs would 
not be vitiated by a prior adverse possession, which was 
abandoned at the date of the deed. 5th. Cutting timber 
on land fit for no other purpose might be adverse posses- 
sion, but if the land was suitable for other purposes such 
mere acts of occupation would not be sufficient. 



JUNE TERM, 1871. 339 

Bivers v. Thompson. 

We see no objection to this charge ; each proposition 
contained in it has been distinctly asserted by this court in 
other cases. It is not claimed that the plaintift had actual 
notice of the defendant's occupation at the time of, or be- 
fore the conveyance to him. —Farley v. Smith, 39 Ala. 38 ; 
Brotun v. Cocker^, 33 Ala. 38 ; Marston v. Rotoe, 43 Ala. 
271 ; Rivers v. Thompson, 43 Ala. 533. 

The first and second charges of the defendant, refused 
by the court, are correct in principle, but are contained in 
the charge in chief, even to the declaration that the pos- 
session of a part of the land under color of title to the 
whole was possession of the whole. The court may have 
refused them, on the ground that they had already been 
given. 

The third charge of the defendant, refused, invaded the 
province of the jury. 

The judgment is affirmed. 

Apphcation for re-hearing by appellant. 

SAFJb'OLD, J. — We are asked to re-hear this case on 
two points. 1st. That the plaintiff did not have, at the 
commencement of his suit, the legal title to that portion of 
the land formerly owned by Scott. 2d. That the charges 
of the defendant refused by the court ought to have been 
given. 

The sale of Scott's interest was made by his administra- 
tor, and the purchase-money was paid in 1 853. Robert- 
son, the purchaser, conveyed to the plaintiff, or those under 
whom he claims, in 1857. The sale to Robertson was con- 
firmed and title ordered in 1859- The suit was commenced 
in 1858. 

The doctrine of relation is applicable when necessary 
to promote the ends of justice, as to avoid the effect of an 
adverse possession, intermediate the conclusion of the 
contract and the giving of the deed, or to render an inter- 
mediate sale by the grantee valid. — Jackson v. Bull, 1 Johns. 
Ch. Gas. 81 ; Jackson v Raymond, ib. 85 ; Johnson v. Sku/g, 



340 FORTY-SIXTH ALABAMA. 

Falconer v. Robinson. 

2 Johns. Rep. 500 ; Jackson v. Dickenson, 15 Johns. 309; 
8 N. Car. (Iredell) 505. Where there are divers acts con- 
current to make a conveyance, estate or other thing, the 
originail act shall be preferred, and to this the other act 
shall have relation. — Jackson v. McCoIl, 3 Cow. 75. 

We think the deed made to Robertson b}' the adminis- 
trator of Scott should relate back at least to his payment 
of the purchase-money, in order to support his convey- 
ance to Shorter's heirs. 

The other point was considered in the first opinion. 

A r.e-heariug is denied. 



FALCONER vs. ROBINSON. 

[bill in equity for injunction.] 

1. Act to authorize gorewor to Jill vacaneUis in certain county offices ; not 
unconstitutional. — The act of the general assembly of Alabama, entitled 
"An act to authorize the governor to fill vacancies in certain county 
offices," approved November 25,1868, is not unconstitutional and void, 
but a valid constitutional act of the general assembly of this State, and 
authorizes the governor to fill all vacancies in the offices provided for 
by said act. 

2. Same; liersons appointed under, hold for what term. — Persons ap- 
pointed by the governor, and duly commissioned by him, by virtue of 
said act, hold their office until the next general election to be held after 
such appointment. 

3. Same ; not necessary to set out all laws repealed hy. — It was not neces- 
sary that the laws in conflict with said act, and repealed by the third 
section thereof, should be set out and contained in said act ; said act 
is not a revisory or an amendatory act, within the purview and mean- 
ing of Art. 4, § 2, of the constitution of this State. 

Appeal from Chancery Court of Montgomery. 
Heard before Hon. Adam C. Feldek. 

The facts of this case are briefly these : On the 21st day 
of March, 1871, Patrick Robinson, the appellee, was ap- 



JUNE TEEM, 1871. 341 

Falconer v. Robinson. 

pointed by the court of county commissioners tax collector 
of Montgomery county, and duly qualified as such, to fill 
the vacancy occasioned by the failure of the former tax col- 
lector, Falconer, to give an additional bond, <fec. Shortly 
after this, Eobinson made a demand upon Falconer for the 
books, papers, &c., of the office, but Falconer refused, and 
the probate Judge, to whom Robinson had applied for an 
order, under the statute to compel the delivery of books, 
papers, &c., refused to grant the same, and sustained a 
demurrer to Robinson's complaint ; and after this, both 
parties claimed to be, and acted as tax collector, and col- 
lected taxes, and gave notices, &c. 

Robinson then filed his bill, alleging, in addition to the 
above facts, that Falconer is utterly insolvent, and has col- 
lected some taxes and the fees therefor, which by right 
should be collected by complainant, who, as he alleges, is 
the only legal tax collector ; that by means of holding 
himself out as tax collector, <fec., said Falconer has already 
interfered greatly with complainant in the discharge of 
his duties, and will do him irreparable injury if he is per- 
mitted to continue, <fec., and collect the fees belonging to 
the office of tax collector. The bill prays that an injunc- 
tion issue restraining Falconer from collecting taxes or 
fees, or in any manner exercising the rights or privileges 
of tax collector, and that upon the hearing said Falconer 
be compelled to produce and deliver the books and papers, 
&c. Upon bond being given, an injunction issued as 
prayed for. 

Falconer's answer shows, that on the i 7th of March, 
1871, he was duly appointed by the governor of Alabama 
to fill the vacancy in the office of tax collector, and has 
since duly qualified, &c.; admits his insolvency, and denies 
Robinson's right in any manner to the fees of said office. 
Falconer also demurred to the bill for want of equity. 

The chancellor overruled a motion to dissolve the in- 
junction, &c., and hence this appeal. 

FiTzPATRiCK, Williamson & Goldthwaite, for appellant. 
1. The first question arising in the cause is, can an injunc- 



84^ FOETY-SIXTH ALA BAMA. 

Falconer v. llobinson. 

tion issue out of the chancery court, in such a case, re- 
straining Falconer from exercising the duties of said office? 
The identical question came up before the chancellor of 
the State of New York in Tappan v. Gray, 9 Paige, 507. 
The injunction was prayed in that cause to restrain the 
defendant from exercising the duties and receiving the fees 
pertaining to the office of flour inspector, until the ques- 
tion involving the right to the office could be settled by 
legal proceedings which had been instituted for that pur- 
pose, and on the ground that the defendant was insolvent. 
The chancellor, although satisfied that the complainant 
was legally entitled to the office, decided that the " court 
of chancery had no jurisdiction or power to afford him any 
relief," and dissolved the injunction granted by the vice 
chancellor. The case was appealed to the court of errors, 
and affirmed by a unanimous court.— 7 Hill, 259. 

The same question came up again in the supreme court 
of New York, (24 Barlow, 265, People v. Drapier,) in which 
the court, having both common law and chancery powers, 
an action of quo warranto was pending, and the injunction 
was prayed pending the law-suit and in aid thereof, and 
the court decided that in no case could the plaintiff be en- 
titled to the aid of an injunction. 

One insuperable objection to the exercise of this power 
by the chancery court is, that it would prevent the exer- 
cise of official duties in which the public have a high in- 
terest, merely to subserve the private interests of an indi- 
vidual. Is it not more important that the taxes should be 
collected for the benefit of the public, than that the com- 
plainant should be secured in fees to which he asserts a 
doubtful claim ?—Feople v. Draper, 24 Bar. 265 ; People v. 
Matlin, 2 Ab. Pr. Kep. U. S. 289 ; Hart v. Harvey, 10 Ab. 
Pr. Rep U. S. 

2. But on the facts set out in the bill of complainant, is 
not Falconer the rightful, (le jure tax collector of Mont- 
gomery county ? 

A solution of this question depends upon the validity of 
the act of the legislature of the 25th of November, 1868, 
(Acts, p. 351.) If this act is valid, there can be no two 



JUNE TERM, 1871. 343 

Falconer v. Bobinson- 

opioions upon the right conferred thereby upon the gov- 
ernor to fill the vacancy in this office. This right has been 
exercised by the two governors in this State since the pas- 
sage of said act, without question, and an inspection of 
the registry of officers appointed, in the secretary of 
State's office, (being commissioned by the governor, the 
court will take judicial notice of their appointments,) will 
show over one hundred and fifty appointments by the gov- 
ernor under said act. It is not unusual for the courts to 
advise with and consult the heads of departments as to 
their construction of acts regulating the practice of the 
departments. 

But is not the act valid ? The only objection to it is, 
that it purports to amend, alter or change an existing law, 
and is thus obnoxious to section '2 of Art. IV of the con- 
stitution of Alabama, The true tests as to whether a law 
comes within the constitutional prohibition are, does the 
new law purport to amend or alter or amend any law ? Is 
the new law unintelligible with reference to an existing 
law ? If the new act is complete in itself, does not pur- 
port to amend or alter an existing law, and is intelligible 
as embracing a rule of law without resorting to any other 
law to ascertain the meaning of the new law, then it is 
valid. That provision of the constitution does not prevent 
a repeal of an existing law, or portion of law, by implica- 
tion. The constitutional provision of Maryland is more 
comprehensive than ours, and the above rule is adopted in 
that State.— Ex parte Pollard, (Walker, C. J.) 40 Ala. 100 ; 
Crou' V. Dreicry, 15 Grattan, i ; Davis v. State, 7 Md 151 ; 
Pinkinson v. State, 14 Md. lo-21 ; Sedg. on Stat, and Con. 
Law, p. 27. 

3. This appeal is allowed by act of the legislature of 
1870-71, and is to be determined at the first term. — Acts 
1870-71, p. 20. 

Rice & Chilton, contra. — The controlling question in 
this case is, whether section 493 of the Revised Code con- 
tinues of force, or has been entirely repealed ? For it is 
manifest, that if that section remains of force at all, the 



344 FORTY-SIXTH ALABAMA. 

Falconer v. Robinson. 

complainant's right to an injunction is clear, upon the facts 
stated in the bill and not denied in the answer. 

That section is not an " election law," nor part of any 
" election law." It merely confers upon the commissioners 
court, in case of a vacancy in the office of tax collector, 
the power to appoint a person to fill such vacancy. It 
does not fix, or purport to fix, the term for which such ap- 
pointee may hold the oflice. Its plain meaning is, that 
such appointee should hold only until a tax collector 
should be duly elected and qualified. Its object was to 
guard the public, the State and the county, against the 
obvious grievance of being without any tax collector at all. 
It is perfectly reconcilable with the act " to regulate elec- 
tions in this State," approved October 8, 1868, (Pamph.' 
Acts 1868, pp. 269-289) ; and, not being an " election law,' 
is not repealed by section 99 of that act. The settled rule 
is, that " when two affirmative statutes exist, one is not to 
be construed to repeal the other by implication, unless 
they can be reconciled by no mode of interpretation." 
Miles V. The State, 40 Ala. 42. 

Section 493 of the Revised Code can be obviously and 
easily reconciled with the act to regulate elections, until 
the actual occurrence of a certain event. Beyond doubt, 
the actual occurrence of that event supersedes the opera- 
tion of the former in so far as that particular case is con- 
cerned ; or to speak more accurately, the occurrence of 
that event stops all further operation of section 493 of the 
Code in that particular case, and brings that case within 
the exclusive operation of the act to regulate elections. 
The event referred to, is the election and qualification of a 
tax collector under the act to regulate elections. Until 
such election and qualification, " the contrariety or repug- 
nance " between section 493 of the Revised Code and the 
act to regulate elections, does not begin or exist. This is 
demonstrated by the reasoning and authorities found in 
3Iiles V. The State, 40 Ala.. 39. 

An " election law " is one which relates to or regulates 
elections, and is plainly different and distinguishable from 
a law which merely confers upon a court of record power 



JUNE TERM. 1871. 345 

Falconer v. Robinson. 

to appoint a person to hold an office (a mere hcum tenem) 
until an election as to that office is held. 

The constitntionality of the act to regulate elections in 
this State is conceded, because it seems to be " a law in 
itself complete, and original in form," and can be readily 
understood, and can operate independently, without ref- 
erence to any former statute or law ; " the full effect " can 
be determined without reference to any former act. — Tiis- 
kaloosa Bridge Co. v. Olmstead, 41 Ala. 9 ; Weaver v. Laps- 
ley, 43 Ala. 

This view renders the unconstitutionality of the act " to 
authorize the governor to fill vacancies in certain county 
offices," approved November 25, 1868, more glaring than 
it would be if the act to regulate elections were excluded 
from consideration. This act of November 25, 1868, is 
unconstitutional for three distinct and fatal causes : 1st, it 
can not have operation or effect except as an amendment of 
one or more of the provisions of the Revised Code, and it 
fails to " set forth " any provision of that Code ; 2d, it can 
not have operation or effect except as a,n amendment of 
one or more of the provisions of the act to regulate elec- 
tions in this State, and it fails to " set forth " any provision 
of that act ; 3d, its second section provides that the ap- 
pointee of the governor to fill the vacancy " shall hold 
office until the day of the next general election thereafter," 
whereas no appointee to fill a vacancy in a county office 
created by statute can, under the act to regulate elections, 
hold the office beyond the time when there is a person 
elected to that office and qualified, at a special election 
therefor, held under sections 10 to 16, inclusive, of the act 
to regulate elections. 

On motion to dissolve an injunction, in vacation^ all 
amendable defects in the bill will be considered as 
amended.— ^ia. (& Fhr. B. R. Co. v. Kenney, 39 Ala. 307. 

PECK, C. J. — An act passed by the general assembly of 
this State, and approved November 25, 1868, will be found 
in the book of Acts of that year, page 361. This act is in 
23 



346 FORTY-SIXTH ALABAMA. 

Falconer v. Robinson. 

the words following, to-wit : "An act to authorize the gov- 
ernor to fill vacancies in certain county offices. Sec. 1. Be 
it enacted by the General Assembly of Alabama, That the 
governor be, and he is hereby authorized and empowered, 
to fill any and all vacancies now existing, or which may 
hereafter exist, in the offices of county commissioners, 
treasurers, tax collectors and assessors, justices of the 
peace, constables, sheriffs, and all other county officers, 
except such officers whose appointments are otherwise pro- 
vided for by law, by the appointment of some person to 
fill said vacancy. 

" Sec. 2. Be it furtJier enacted, That the person so ap- 
pointed shall be duly commissioned, and shall hold office 
until the day of the next general election thereafter. 

" Sec. 3. Be it further enacted, That all laws and parts of 
laws in conflict with this act, be, and the same are hereby 
repealed. 

" Sec. 4. Be it further enacted. That this act shall take 
effect from and after its passage. 

"Approved, November 25, 1868." 

It is conceded, that if this is a valid act of legislation, 
then the bill of complaint of appellee, plaintiff in the 
chancery court, is without equity, but it is contended by 
appellee that said act is unconstitutional, and therefore 
null and void. 

In considering the question of the constitutionality of 
an act of the legislature, the presumption is in favor of 
the validity of the act, and it is not to be declared void 
upon a mere conflict of interpretation between the legisla- 
tive and the judicial power. Before proceeding to annul, 
by judicial sentence, what has been enacted by the law- 
making power, it should clearly appear that the act can 
not be supported by any reasonable intendment or allow- 
able presumption. — Cooley's Con. Lim. 105 ; The People v. 
The Supervisors of Orange, 17 N. Y. 241. The rule is, that 
in the exposition of a statute, it is the duty of the court to 
seek to ascertain and carry out the intention of the legis- 
lature in its enactment, and to give full effect to such in- 
tention, and they are bound so to construe the statute, if 



JUNE TERM, 1871. 347 

Falconer v. Robinson. • 

practicable, as to give it force and validity, rather than 
to avoid it and render it nugatory. — Clark v. Rochester, 
24 Barb. 471 ; Cooley, 186. 

If, after a careful examination, there is a reasonable 
doubt in the mind of the court, it is its duty to hold the 
statute to be constitutional, — Cooley, 182, and notes 2 
and 3. Keeping these rules of construction in mind, we 
proceed to examine the constitutional objections made to 
this act. 

First. It is objected that the subject of said act is not 
clearly expi'essed in its title, and, therefore, does not comply 
with article 4, § 2, of the constitution. So much of this 
section as is applicable to this question is in the following 
words : " Each law shall contain but one subject, which 
shall be clearly expressed in its title." The subject of this 
law is, by whom vacancies in certain county offices shall 
be filled. The title clearly expresses this : They are to be 
filled by jihe governor. But, it is said, you can not tell by 
this title what particular county offices are to be filled by 
him. This is true, but the title is not the place for that to 
be expressed ; that is a part of the matter and substance 
of the law, and the body of the law, and not the title, is 
the appropriate place to express it. To require it to be 
expressed in the title, would be to require the title to ex- 
press, not only the subject, but also the matter and sub- 
stance of the law. This objection, therefore, is not well 
taken. 

Second. Another objection is, that this law is revisory 
and amendatory in its character, and does not contain the 
act or acts revised, or the section or sections amended, and 
so, does not comply with the latter part of said section 2, 
article 4, of the constitution. This latter part of said sec- 
tion 2 is as follows : " And no law shall be revised or 
amended, unless the new act contain the entire act revised, 
or the section or sections amended ; and the section or sec- 
tions so amended shall be repealed." There is nothing in 
this law to warrant this objection. It does not claim to- 
revise any law, or to amend any section or sections of any 
law or laws whatever. 



348 FOKTY-SIXTH ALABAMA. 

Falconer v. Eobinson. 

It is a law original, independent, perfect and complete in 
itself, and does not pretend to revise or amend any law, 
but repeals all laws and parts of laws in conflict with it. 
A law can not be said to be either revised or amended,, 
when it is abrogated altogether. A law is revised or 
amended, not when it is repealed, but when it is, in whole 
or in part, permitted to remain, and something is added to 
or taken from it, or it is in some way changed or altered to 
make it more complete or perfect, or to fit it the better to 
accomplish the object or purpose for which it was made, or 
some other object or purpose. 

This act not only does not revise or amend any other law 
or laws ; it does not even refer to any by name, but only 
generally, and for the purpose of repealing them. It is, in 
every sense, an original act, conferring new powers upon 
the governor, authorizing him to fill any and all vacancies 
in the county offices expressly named in it, and " all other 
county offices, except such officers whose appointments are 
otherwise provided for bylaw, by the appointment of some 
person to fill said vacancy." Probate judges, solicitors, 
and the clerks of the several courts are county officers, 
whose appointment, in case of vacancy, is provided for in 
the constitution, and therefore not embraced in this act. 
But it is urgQd by appellee's counsel, that if this act is held 
to be valid, it wiU clearly have the effect to amend several 
sections of the Revised Code, and sections of acts passed 
since, not one of which is contained or set out in said act ; 
and, as an example, reference is made to section 922 of the 
Revised Code. Let it be admitted, for the sake of the ar- 
gument, that it does have the efiect to amend that section, 
it will not better the appellee's case, nor affect the validity 
of this act. The amendment is an amendment by implica- 
tion merely, and, therefore, is not embraced within the pur- 
view and meaning of said section 2, article 4, of the con- 
stitution. A law, or a section of a law so amended, need 
not be contained in the act, by which an amendment by 
implication is effected. — Cooley, 152, note 3. After a care- 
ful examination, we are unable to discover any constitu- 
tional objection to said act. It must, therefore, be held to 



JUNE TERM, 1871. 349 

Falconer v. Bobinson. 

be valid, and, being valid, the appellee's bill of complaint 
is without equity, and consequently the appellant's demur- 
rer for that cause should have been sustained by the chan- 
cellor, and the bill dismissed. 

As no benefit will result to appellee by remanding the 
cause, and as the public service may, and probably will be 
prejudiced by delay, the decree of the chancellor is re- 
versed, and this court proceeds to render here the decree 
that should have been rendered in the chancery court : 

It is, therefore, hereby ordered, adjudged and decreed, 
that the injunction heretofore granted in this cause be dis- 
solved. It is further ordered, adjudged and decreed, that 
the appellee pay the costs of this court, and of said chan- 
cery court. 

[Note by Reporter. — At a subsequent day of the term 
•Appellee applied for a re-hearing, and filed in support 
thereof the following argument :] 

The constitution of Alabama, article iv, § 2, provides 
that "each law shall contain but one subject, which shall 
be clearly expressed in its title ; and no law shall be revised 
or amended unless the new law contain the entire act 
revised, or, the section or sections amended ; and the sec- 
tion or sections so amended, shall be repealed." 

Applying the above constitutional tests to the act of 25th 
November, 1868, entitled, "an act to authorize the gov- 
ernor to fill vacancies in certain county oflSces," we insist 
that said act is unconstitutional and void for the following 
reasons : 

1st. The act is an amendment of a former law on. the 
same subject, which it fails to set out or contain. 

What was the object of this constitutional provision as 
to amendatory statutes? Cooley on Const. Lim. p. 151, 
says : "The mischief designed to be remedied was the 
enactment of amendatory statutes in terms so blind that 
legislators themselves were sometimes deceived in regard 
to their effects, and the public, from the difficulty in mak- 



350 FOBTY-SIXTH ALABAMA. 

Falconer v. Robinson. 

ing the necessary examination and comparison, failed to 
become apprised of the changes made in the laws." 

The supreme court of Alabama say, its object was, "to 
have the law amended, and the amending law presented in 
juxta-position to facilitate the comprehension and consult 
the convenience of all who examine the law after its enact- 
ment, as well as of the legislature which examines on its 
passage." — Tuskaloosa Bridge Company v. Olmstead, 41 
Ala. 21. 

If the act of 25th November, 18G8, is an amendment of 
former law on the same subject, which it fails to contain, 
the fact that it is original in form and so fails to set out 
such former law or does not purport to amend such former 
law, would only make it more obnoxious to the constitu- 
tional provision. 

But can any court say that because of this "originality 
of form" it is any less an amendjnent ? That because it 
totally ignores former laws on the same subject it is any 
less obnoxious to the constitutional provision than the act 
mentioned, which simply referred to the section it pur- 
ported to amend ? Why should it be any less so ? Can 
it give us a clearer idea than the first act, as to the 
existing law on the subject of which it treats? Does 
it, more than .the other act, "consult the convenience or 
facilitate the comprehension of those who examine the 
law?" 

So far from it, it imposes on the legislature, the courts 
and the people the necessity, and task of hunting out the 
laws in connection with which it shall operate and be con- 
strued, and that, too, without so much as intimating where 
they are to be found or that they are even in existence ! 

If the legislature may disregard and violate the consti- 
tution simply by putting the same law in one form instead 
of another, then the vitality of the constitution may be 
sapped ; and the only difficulty connected with such an 
operation, is the question as to the form in which it may 
be done. The same thing done in one form, is a violation 
of the constitution ; if done in another form, it is not a 
violation of the constitution. This is the substance of the 



JUNE TERM, 1871. 351 

Falconer v. KoVnnson. 

rule : that if a statute is original in form, complete and in- 
telligible in itself, it may by implication revise and amend 
another law, without complying with the constitution ; but 
if that statute is not original in form, complete and intel- 
ligible, then it must comply with the constitutional re- 
quirement, aqd set out the law amended and revised. 
With all respect, we insist that such a distinction has no 
foundation in reason ; that the constitution knows no such 
distinction or rule ; and that on account of any incon- 
venience arising from this provision of the constitution, 
no court can properly make any such distinction or rule. 
Saddle)' v. Langham, 34 Ala. 335 ; Cooley's Con. Lim. 177. 

Does the act, then, of the 25th of November, 1868, 
amend any former law on the same subject ? 

Section 922 of the Code provides that " a county treas- 
urer is appointed for three years, and until his successor is 
qualified, by the court of county commissioners in each 
county in the State, removable by such court whenever, in 
its opinion, the public good requires, and with power to 
declare and supply any vacancy." 

Now, suppose the act of the 25th of November, 1868. 
had only applied to county treasurers, and had provided 
that section 922 of the Code be amended by striking out 
the words " and supply," in the last line of said section, 
and by adding to said section the words; " and the gov- 
ernor shall supply any such vacancy in said oflSce." There 
can be no doubt that such an act would be an amendment. 
Does not the first section of the act of the 25th of No- 
vember, 1868, if it is valid, as efi'ectually make such an 
amendment as if it had declared so in terms ? It does, in 
efifect, strike out the very words we have suggested, and 
add the very provision. There is no diflference in effect. 
The only difference is one of form, in that the supposed 
act would purport to amend, while the act as it stands 
would amend without purporting. 

If the first section of the act of the 25th of November 
is unconstitutional, standing alone, the only remaining 
question is, how far the defect is or can be cured by the 
repealing clause, (3d section,) which purports to repeal all 



352 FOETY-SIXTH ALABAMA. 

Falconer v. Robinson. 

laws and parts of laws in conflict with the act. Giving 
the widest scope to this clause, what would be its effect on 
section 922 of the Code ? It would only strike out the 
provision giving the court of county commissioners the 
right to fill a vacancy in the office of treasurer. It would 
simply take way the appointing power, without conferring 
it on any one. If that power, therefore, is conferred by 
any part of the act, it must be by the first section. But 
the third section of the act can have no force or effect as 
a repealing clause. We admit that any given section of 
the Code may be repealed by mere reference to its num- 
ber, but we insist that a clause designed only to strike out 
a word, or clause, or sentence in a given section, would not 
be a repealing, but an amending act. 

But it may be asked, if we insist that the act of 25th 
November, 1868, should contain all the numerous sections 
of the Code relating to the filling of vacancies in all the 
offices named ? We reply, that the framers of the consti- 
tution never designed that an act of this kind should be 
passed. If the legislature had complied with the constitu- 
tional provision that "no law shall contain but one sub- 
ject" — if this act had applied to county treasurer only, it 
would not have been difficult to set out the law amended. 
Containing the number of subjects it does, we admit the 
difficulty is great. 

In conclusion, the title of the act does not clearly ex- 
press its subject. The title is, "an act to authorize the 
governor to fill vacancies in certain county offices." If it 
be said that its subject is the conferring new power on 
the governor, we ask, what power ? Does it confer on him 
the power to fill a vacancy in the office of sheriff, or of tax 
collector ? The powers conferred by the act, cannot be 
discovered from the title. We submit this point without 
further argument, as being too plain to dwell upon. For 
the causes shown, the act is clearly unconstitutional. 

The constitution requires that the subject should be 
"clearly expressed." Is it so in the title of this act? The 
words of the constitution are words of command. 

If it be conceded that our constitution does not destroy 



JUNE TERM, 1871. 353 

Falconer v. Bobinson. 

the doctrine of repeal by implication, still it is certain that 
when, as here, there is a clanse of express repeal, that of 
itself excludes any repeal by implication. The same stat- 
ute cannot repeal expressly and impliedly. The law will 
not imply a promise, when there is an express promise. 
Nor will it imply a repeal when there is a provision of ex- 
press repeal. The simple expression of one only of the 
implications, which the law would have made but for that 
expression, is suflBcient to exclude every implication but 
the one expressed. — Hedy v. Falconer, 32 Ala. R. 640 ; 
Webb V. Plummer, 2 Barn. & Aid. 746. 

The opinion of the supreme court delivered in this case, 
evidently treats repeal by implication as of importance. 
But it is suggested for the consideration of the court, that 
whenever it is established that the legislature may, by 
means of repeal by implication, destroy the force of part 
of any former laW, without setting forth that former law, 
then and from thenceforth that provision of the constitution 
herein above cited, is practically nullified. 

The act of the legislature here in question, is in no just 
sense a repealing act. The power of repeal, is not the 
principal power exercised in its passage. In its very nature 
it makes provisions upon subjects covered by former laws, 
and does not destroy, or purport to destroy, by repeal or 
otherwise, the whole of these former laws. It merely 
substitutes in the new act provisions different, in part, from 
the provisions of the former laws. According to every 
English and law dictionary, this new act is, in its very 
nature, amendatory or revisory. It is not a repealing act ; 
it expressly repeals only what conflicts with it ; and thus 
makes it wholly uncertain what part of the former law it 
does aim to change. It brings in the very evils which the 
constitutional provision above quoted was designed to 
prohibit. 

With the highest deference to the court, it is confidently 
asserted that the opinion in this case is incapable of being 
reconciled with the opinions and principles of Olrmtead v. 
Tuskaloosa Bridge Company, 41 Ala. R., and Lapaley v. 
Weaver, 43 Ala. Rep. 



354 FORTY-SIXTH ALABAMA. 

Meadows et al. v. Edwards & Brassell. 

The following response was made by — 

PECK, C. J. — We have very carefully re-examined the 
opinion in this case and feel persuaded of its correctness. 
The application for a re-hearing is denied. 



MEADOWS ET AL. vs. EDWARDS & BRASSELL. 

[bill in chanceet to coebect eeeoes, &c., in final settlement of an 

ADMINISTEATOE.l 

1. Decree pro confesso; tvhen properly set aside. — A decree pro confesso 
against a defendant, rendered by one whom the register appointed to 
represent him during his absence, is properly set aside by the chan- 
cellor. 

2. Section 2274, Revised Code ; when authorizes a review by chancery court. 
Section 2274, Revised Code, seems to authorize a re\dew in the 
chancery court of the final settlement of a decedent's estate in the 
probate court, upon specified errors positively charged, little short of 
the privilege and right of appeal. 

3. Bill by minors to correct errors in final settlement; when not without 
equity.— When, in such settlement, a decree has been rendered in favor 
of the administrator, a bill filed by minor distributees alleging that they 
were represented only by a guardian ad litem, and specifying errors 
equal in amount to the decree, is not without equity. 

4. Final settlement of administrator in chief, sufficient to support bill to 
correct errors. — The final settlement of the administrator in chief, is 
sufficient to support the bill, although an administration de bonis non 
is pending. The distributees are parties in interest, unless the estate 
is declared insolvent, and may be so afterwards. 

Appeal from the Chancery Court of Montgomery. 
Heard before Hon. N. W. Cocke. 

The facts are stated in the opinion. 

J. Falkneb, for Appellants. — 1. The statute expressly 



JUNE TERM, 1871. 355 

Meadows et al. t. Edwards & Brassell. 

provides that where any error of law or fact has occurred 
in the settlement of any estate of a decedent, to the injury 
of any party without any fault or neglect on his part, such 
party may correct such error by bill in chancery within 
two years after the final settlement thereof, &c. — See Re- 
vised Code, § 2274 ; Mock's Heirs v. Steele, 84 Ala, 178 ; 
Anshy's AdmW v. King's Heirs, 35 Ala. 278 ; Marran v. Al- 
lison, 39 Ala. 70. 

2. The chancellor gives no reason for dismissing this bill 
except for want of equity. The bill charges that there were 
errors, both as to law and fact intervening, and that com- 
plainants, who were distributees, were all minors, and there- 
fore not capable of guarding their own interests or protect- 
ing themselves, and that their brother, the administrator 
de bonis non, neglected to do so. I do not see what more 
is necessary to bring them within the provisions of the 
above statute, and the decree was on a final settlement of 
Edwards, administrator, and the bill shows that execution 
had been issued on the decree and levied on the property 
of the estate in the hands of the administrator de bonis non, 
and would have been sold but for the injunction. 

3. In the opinion delivered at the present term of the 
court, in the case of Powell, guardian, &c. v. Boon & Booth, 
adm'rs, it is decided that Confederate treasury notes were 
issued in aid of the rebel government, were illegal, and that 
it was against public pohcy, &c. This being the law, it 
was error to allow the administrator for that kind of funds, 
and to render a decree in his favor for the amounts so 
advanced by him, and to allow him to have a decree for 
the amount of this worthless and illegal currency, and to 
collect the amount with interest out of these orphans, 
surely cannot be law. 

4. The bill shows on its face that complainants were all 
minors at the time and had no one to protect their interests 
or rights, and if they have not this remedy they have none 
at all. 

Mabtin & Sayre, contra.— \. The remedy in chancery exists 
by virtue of sections 2274, 2275, of the Code. 



356 FORTY-SIXTH ALABAMA. 

Meadows et al. v. Edwards & Brassell. 

Chancery, without the existence of those sections, would 
have no jurisdiction, and the settlements, as made, would 
stand, unless reversed by the supreme court. 

2. Until a final settlement, the annual settlements are 
only prima facie correct, and may be re-examined. — § 2159. 

The administrator de bonis non is a mere continuance of 
the original administration, and until there is a final set- 
tlement the whole proceeding is in esse, and may be exam- 
ined into by the probate court. The Code uses both words, 
settlement and final setthtrvent ; and makes the jurisdiction 
of the court to depend in part on that fact. 

3. There can not be but one final settlement of an estate. 
Until there is a final settlement, it cannot be ascertained 
who are the parties interested, or who injured. The estate 
may be declared insolvent ; it may, beyond all peradven- 
ture, be exhausted in the payment of debts ; so that a legal 
heir will and can by no possibility, in any event, get any- 
thing. In such cases, the legal heirs cannot be said to 
have suffered any injury. 

The person filing the bill must be a party to the settle- 
ment — a party entitled to something under the settlement. 

4. Until a final settlement, the administrator is the only 
party entitled to any portion of the estate, except the cred- 
itors, and no decree can be made by any court for a dis- 
tribution until after a settlement as to them is made. 

5. There can be no party legally injured, until after there 
is a decree. These parties, filing this bill, may never have 
any interest ; or if they had, two or three bills might be 
filed in regard to the administration of the same estate. 

6. The bill ought to show upon its face, certainly, that 
errors in fact or in law have taken place. 

It is not shown that the matters stated in the bill are 
facts. 

And it is not shown that any error was committed by 
the court. — Dantworth v. Dantivorth, adrn'r, 35 Ala. 74. 

7. The record of the court of probate ought to show, 
affirmatively, that errors in fact or in law were committed 
by the court in its action upon the accounts filed for a set- 
tlement. 



JUNE TERM, 1871. 357 



Meadows et al. v. Edwards &, BrasseU. 

And those errors ought to be so alleged in the bill, that 
the chancery court could make its decree upon the allega- 
tions as made. 

And the reUef must be confined to the allegations a& 
made. 

The bill cannot be entertained for general relief. 

8. The bill does not show, fully, these objections were 
not made in the probate court. The bill does not show 
that they did not have full notice of the settlement made ; 
neither does it show that these parties were not represented 
in said settlement. Neither is any reason assigned why 
they did not insist in the probate court on these objections. 
Moore v. Lesseur and Wife, 33 Ala. 243 ; Stein v. Burden^ 
30 Ala. 273 ; GiUam v. Bloodgood et al., 15 Ala. 41. 

The reasons why the objections were not made in the 
probate court must be alleged, so that the court may be 
informed whether such causes are good or not. 

The facts stated must show that there was no negligence. 
WHsonv. Randall and Wife, 37 Ala. 76 ; Mock's Heirs v. Stede^ 
34 Ala. 200. 

B. F. SAFFOLD, J. — The decree pro confesso against 
Edwards was set aside because it was not rendered by the 
register, but by anotlter acting for him in his absence. 
There was no error in this. 

The bill was filed by the appellants to correct errors 
alleged to have occurred in the final settlement of the 
accounts of the appellee, Edwards, as administrator of the 
estate of George W. Brassell. It was dismissed for want 
of equity. 

The errors charged are, 1st. The administrator failed to 
account for the value of some firewood which he cut and 
hauled in 1864, with the slaves and wagon and teams of 
his intestate's estate, and sold for about $600. 2d. He 
paid out $611.45 in Confederate currency, for which he was 
allowed credit at its nominal value, though it resulted in 
bringing the estate in debt to him to that amount in lawful 
money. 

The averments in denial of fault or negligence are, that 



358 FQBTY-SIXTH ALABAMA. 

Meadows et al. v. Edwards & Brassell. 

the complainants were minors without any guardian, having 
been represented by a guardian ad litem only ; and that 
their brother, John E. Brassell, who was the administrator 
de bonis non, failed or neglected to guard their interests. 

The difficulty in this ease is that similar allegations of 
error, on belief merely, and of inefficient representation, 
may be made in every -case where minors are represented 
by guardians ad litem. On the other hand, grave injury 
may be done them, if they are to be concluded by the 
action of an indifferent guardian ad litem, who does not 
care to make himself acquainted with the true situation of 
their affairs. 

Section 2274, Eevised Code, which authorizes this pro- 
ceeding, requires but two conditions, error of law or fact, 
and the absence of fault or neglect of the party injured. 
Section 2275 allows to infants two years after the termina- 
tion of their disability. The statute seems to contemplate 
a review of the settlement made in the probate court, upon 
specified errors positively charged, little short of the priv- 
ilege and right of appeal. 

If the error be admitted, can a minor in any case be said 
to be at fault, in view of his probable tender years, and 
because he is not allowed to represent himself. 

The second error above stated ya too vaguely alleged in 
the bill. The facts stated may be true, and yet consistent 
with a just decree allowing the credit. If the administra- 
tor settled debts, for which lawful money might have been 
demanded, with Contederate currency obtained by the sale 
of property at a time when it was the only circulating 
medium ; or if, having excusably obtained it, he used it in 
the payment of debts contracted to be paid in such curren- 
cy, he ought to have been allowed the credit. There are 
other instances which would justify the allowance. It was 
not charged that the balance decreed in his favor was on 
account of Confederate currency estimated at its nominal 
value in lawful money. 

The want of equity in the first allegation is not so mani- 
fest. An answer of the defendant Edwards, which was 
correctly adjudged by the court to be insufficient, discloses 



JUNE TEBM, 1871. 359 

Hall & Curry v. Brazelton. 

that he did not report to the probate court his liability for 
the use of some of the property of the estate in the matter 
of the wood, though he avers that the receipts were in- 
considerable, and were applied to the use of the complain- 
ants. In Morrow v. AUison, 39 Ala. 70, errors not consid- 
erably greater than the one alleged in this case were deemed 
sufficient to sustain the bill. The administrator is about 
to take the property of the complainants in payment of a 
decree for no greater amount than the error complained of. 
We think on this point the court erred. 

The objection made by the appellee that the estate is 
not yet finally settled, is not well taken. So far as he is 
concerned, it is settled, and he is about to enforce his 
decree. The administrator de bonis non cannot be charged 
with errors of the court, or with those of his predecessor, in 
the absence of proof of such culpable neglect of his duty, 
or collusion, as would render any administrator liable for 
waste or failure to collect assets. The distributees of an 
estate are interested parties until it is declared insolvent, 
and may be to some extent afterwards. 

The decree is reversed and the cause remanded. 



HALL & CURRY vs. BRAZELTON. 

[attachment— PLEADING. ] « 

1. Attachvunt j for what cause may be abated. — An attachment sued out on 
an affidavit defective in matter of substance, may be abated on the plea 
of the defendant. 

2. Jttachment; omission of what in affidavit, is matter of substance. — An 
affidavit that omits to state that the attachment is not sued out for the 
purpose of vexing or harassing the defendant, is defective in substance, 
and is not amendable. 

3. Pleading ; what sufficient under the system provided by the Bevised Code. 
The common law strictness reqiiired in pleas in abatement, is abol- 
ished with us, and pleas in bar and abatement, stand on the same 



360 FORTY-SIXTH ALABAMA. 

Hall & Curry v. Brazelton. 

footing, and all that is necessary in either is to state, succinctly, thn 
facts relied on, in such manner as to present a material issue. 
4. Pleas ; what defects of, not good ground of demurrer to. — Defects in 
stating the commencement or conclusion, or in the prayer, of a plea in 
abatement, are not defects of substance, and, therefore, no good cause 
of demurrer — nor is duplicity, in such a plea, a good ground of de- 
murrer. 

Appeal from Circuit Court of Perry. 
Tried before Hon. M. J. Safpold. 

On the first day of December, 1865, the appellants sued 
out an original attachment against the appellee, returnable 
to the May term, 1866, of the circuit court of Perry county. 

At that term of said court the appellee pleaded in abate- 
ment of said attachment, that the affidavit did not state 
that the attachment "was not sued out for the purpose of 
vexing or harassing said defendant." The plea prayed 
judgment of said attachment, affidavit and complaint, and 
that they might be quashed. 

The cause was continued from time to time until the fall 
term of said court, 1869, when, as the bill of exceptions 
states, the plaintiffs filed a demurrer to said plea, and 
assigned the following causes of demurrer, to-wit : 

1 . Said plea does not commence and conclude with the 
proper prayer. 

2. The plea is double, as it sets up different matters of 
abatement. 

3. The plea does not conclude with a prayer of judgment 
of the attachment, and that the same may be quashed. 

4. The plea prays judgment of the affidavit, attachment 
and complaint for a supposed defect, confined to the affida- 
vit, and not existing in the attachment and complaint. 

6. The plea prays judgment of the affidavit, attachment 
and complaint, without setting out the complaint or show- 
ing any defect in the complaint. 

6. The plea is not signed by the defendant or his attor- 
ney. 

The demurrer was overruled, and the plaintiffs asked 
leave to amend the affidavit, &c., which being denied, they 
declined to plead further, and "it appearing to the satisfac- 



JUNE TEEM, 1871. 361 



Hall <fe Curry v. Brazelton. 



tion of the court that the matters of abatement set forth in 
the plea are true," judgment was rendered, quashing and 
abating the attachment and declaration, and taxing the 
plaintiff with costs, and hence this appeal. 

The errors assigned are — 

1st. Overruling the demurrer to the plea in abatement. 

2d. Refusing leave to amend. 

Alex. White, and John T. Heflin, for appellant. 
, contra. 

PECK, C. J.— The affidavit is clearly defective. The 
omission to state that the attachment was not sued out for 
the purpose of vexing or harassing the defendant, is an 
omission of matter of substance, and not of form merely, 
and therefore cannot be cured by amendment. Defects of 
form, only, in such an affidavit, are amendable. — Revised 
Code, § 2990 ; Hall & Curry v. Brazelton, 40 Ala. 406. 

Under our present system of pleading, no objection can 
be made to the form of a plea, whether it be in bar or 
abatement of the action. Section 2638, Revised Code, says 
a plea must consist of a succinct statement of the facts 
relied on in bar or abatement of the suit, and no objection 
can be taken thereto, if the facts are so stated that a mate- 
rial issue can be taken thereon. 

It is very clear, this plea contains facts so stated, that a 
material issue can be taken on them. This is all the statute 
requires. The manner of their statement is no good cause 
of demurrer. Section 2629 of said Code, says no objection 
can be taken for defect of form in a plea ; and section 2656 
declares that no demurrer in pleading can be allowed, but 
to matter of substance. 

By the common law, great strictness was required in 
pleas in abatement, and defects of form were treated as 
matters of substance, and might be taken advantage of by 
a general demurrer. This strictness is not now necessary. 
Fleas in bar and in abatement, with us, stand upon the 
same footing, and all that is required in either, is to state 
24 



362 FOETY-SIXTH ALABAMA. 

, Hall & Curry v. Brazelton. 

the facts succinctly, so as to present a material issue in 
law or fact. 

Section 2989 of said Code enacts, that attachments issued 
without affidavit and bond, as therein provided, may be 
abated on plea of the defendant, filed within the first three 
days of the return term. The manifest meaning of this 
section is, that an attachment may be abated if issued 
without a sufficient affidavit or bond ; it does not require it 
to be issued without either, to justify a plea in abatement. 

An affidavit or bond, defective in matter of substance, is 
in legal contemplation equivalent to no affidavit or bond 
whatever. 

If the defect be of form, only, it may be amended, whether 
it be in the affidavit or bond, or both ; but an attachment 
must not be dismissed for any defect in, or want of, a bond, 
if the plaintijff, his agent or attorney, is willing to give or 
substitute a sufficient bond. The affidavit, however, if 
defective in substance, is not amendable, and the attach- 
ment must be abated, on the plea of the defendant. — § 2990, 
Bevised Code. 

The causes of demurrer, assigned to the plea in abate- 
ment in this case, do, none of them, disclose any defect of 
substance. They all relate to the form and manner of the 
plea, and not to any matter of substance, and for that 
reason constitute no good cause of demurrer to said plea j 
therefore, the court below committed no error in overruling 
said demurrer. 

The 6th cause of demurrer is not sustained by the record ; 
the plea is not only signed, but sworn to, by the defend- 
ant. 

The judgment is affirmed, at appellant's cost. 



JUNE TERM, 1871. 363 

Irvine, Adm'r, t. Armistead. 



IRVINE, Adm'b, vs. armistead. 

^BILIj in equity by widow, PBAYINO TO HAVE DOWEB ASSIGNED IN LANDS OF 
WHICH THE HUSBAND WAS SEIZED IN FEE DURING COVEETUBE, BUT WHICH 
WEBE SOLD UNDEB EXECUTION ON JUDGMENT OBTAINED PBIOB TO THE MAB- 
BIAOE. ] 

1. Judgment; whatnot such a lien as defeats widow's right of dower. — A 
judgment of a circuit court, rendered on the 16th day of September, 
1861, on which an execution was issued within the year after its rendi- 
tion and returned unsatisfied, and upon which judgment no other 
execution was issued until September, 1865, is not a lien on the 
lands of a defendant in said judgment, which will defeat his widow's 
right of doWor in his dowable lands, when the marriage with such 
defendant took place on the 29th day of November, 1862, and after the 
rendition of such judgment. 

2. Same ; what no bar to right of doioer. — A sale of such defendant's dow- 
able lands under execution on such judgment, and the conveyance of 
the same to the execution purchaser by the sheriff in 1,866, is no bar to 
the widow's dower. 

3. Same; purchaser at execution sale under such judgment ; for what is 
liable. — The purchaser under such sale, or his administrator, is liable, 
if he resists the widow's application for dower in such lands, to account 
to her for the mean profits of such dower lands from the death of the 
husband, by way of damages, during the tenancy of the same. 

4. Chancery, courts of, ■ of what have original jurisdiction. — The chancery 
courts of this State have original jurisdiction to entertain suits for 
dower concurrent with the courts of law, especially where there is a 
purchaser under execution title in possession of the lands at the death 
of the husband, and there is necessity for an account for mean profits, 
by way of damages, between the t«nant of the lauds and the claimant of 
the dower interest. 

Appeal from Chancery Court of Lauderdale. 
Heard before Hon. William Skinner. 

The case made by the bill and answers may be briefly 
stated as follows : 

On the 16th day of September, 1801 , Brickell obtained 
a judgment in the circuit court of Lauderdale, against 
George G. Armistead and others for $1164 and costs. Ex- 
ecution was issued on this judgment on the 27th day of 



364 FOETY-SIXTH ALABAMA. 

Irvine, Adm'r, v. Armistead, 

September, 1861, and returned unsatisfied. On the 29th 
dlay of November, 1862, George G. Armistead intermar- 
ried with the complainant in the court below. In 1865, 
an alias execution, and the only one issued after the 27th 
day of September, 1861, was placed in the hands of the 
sheriff, who levied it upon the lands of said Armistead and 
sold the same early in October, 1866, to James B. Irvine. 
Irvine paid the purchase-money, received the sheriffs deed, 
and on the 6th of October, 1866, entered into the posses- 
sion of the land. On the 11th day of October, 1866, said 
George G. Armistead departed this life in Lauderdale 
county, leaving him surviving a widow (the appellee) and 
several children. Irvine, the purchaser, died soon after 
the sale, and his administrator continued in possession of 
the land after his death. George G. Armistead was seized 
in fee of the land sold by the sheriff, at the date of the 
rendition of the judgment as well as the time of his mar- 
riage and at the date of the sale of the land. 

On the 2d of February, 1869, appellee, the widow, filed 
her bill in the chancery court of Lauderdale, praying that 
dower be allotted her in the lands of her husband, bought 
by Irvine, and then in the possession of his administrator, 
and that an account be stated, &c.; that the administrator 
be decreed to pay her one-third of the mean profits of said 
lands from the date of her husband's death. The admin- 
istrator and proper parties were made defendants to the 
bill, and they answered and demurred to the bill for want 
of equity. 

On the hearing the chancellor overruled the demurrer, 
granted the relief prayed, &c., and referred it to the regis- 
ter to take and state an account of the rents and profits of 
the lands, from the date of the death of complainant's hus- 
band, &c., allowing the administrator credits for improve- 
ments, &c. The register reported that complainant was 
entitled to the sum of $604.93, as her third of the mean 
profits, and this report, no objections having been filed, 
was duly confirmed by the chancellor. 

The defendants appeal and assign as error — 

1st. Overruling demurrer for want of equity. 



JUNE TERM, 1871. 365 

Irvine, Adm'r, v. Armistead. 

2d. The final decree rendered. 
3d. Allowing rents to eomplainant. 

Pickett & Patterson, for appellant. — Appellee is not 
entitled to dower in the lands. 

Ist. Because the lien on said lands, created by the ren- 
dition of said judgment on the 16th September, 1861, was 
paramount and superior to the claim of dower, which did 
not attach until the marriage in November, 1862. 

2d. Because the general doctrine on the subject is, that 
the wife's dower is liable to be defeated by every subsist- 
ing claim or incumbrance in law or equity which existed 
before the inception of her right to dower, and which 
would have defeated the husband's seizin. 

To sustain this position the following authorities are 
relied on : — Peck on Dower, 106 ; 4 Kent's Com. 50 ; Roper 
on Husband and Wife, 358 ; 1 Scribner on Dower, 564, 
572, 674, and cases cited. 

Dower is defeated by a mortgage, or judgment lien, sub- 
sisting before dower attaches, and which would destroy the 
husband's seizin ; and a judicial sale for the payment of 
debts will defeat the right of dower, when the lien created 
by the judgment existed before the marriage. — 2 Bouvier, 
247 ; 12 S. and R. 21 ; 1 Yates, 300 ; 1 Wash, on Real Es- 
tate, 193, 240, top page, 3 p. 117 ; 2 Carter, 58 ; 10 Mary- 
land, 5 ; 8 Blackf. 274 ; 31 Maine, 403, 11 § and m. 164 ; 
2 Robeson, (Va.) 398 ; 1 Scribner on Dower, 572 ; 7 Humph. 
72 ; 1 Ohio, 99 ; Hilliard on Mort. 631 ; 3 Bacon's Ab. 236 ; 
14 Ala. 370 ; 23 Ala. 268 ; 36 Ala. 533 ; 40 Ala. 540 ; 
21 Ala. 528; 35 Ala. 497. 

Another view of the case is this : that the judgment un- 
der which the land was sold is a contract between the par- 
ties, and composes the highest obligation known to the law, 
and entitled to the protection of the constitution. How, 
then, could Armistead, by any act of his own, impair or 
destroy its force, or take away, reduce or impair, any of 
the securities given by law for its satisfaction. — Chitty on 
Cont. 2, 23 ; 1 Par. on Cont. 7 ; Weaver v. Lapsley, 43 Ala. 
By the act of the legislature, December 10th, 1861, a lien 



366 FOETT-SIXTH ALABAMA. 



Irvine, Adm'r, v. Armistead. 



was created in favor of judgment creditors on all the prop- 
erty of the defendants in the State, and all subsequent 
acts carefully preserved this lien. — Acts, 8th December, 
1863 ; Acts, 23d February, 1866, p. 81 ; Acts, 19th Febru- 
ary, 1859, p. 609 ; Acts, 1868, p. 266 ; Eev. Code of Ala. 
§§ 287, 2891. 

But appellee contends all the acts of the legislature are 
void, because enacted by a legislature of a State at that 
time at war with the United States, and that during the 
war of rebellion the State government was an illegal one, 
and its laws and courts mere nullities, and can not be made 
valid by the subsequent legislation of the present rightful 
State government, after restoration. This proposition 
ought not to be sustained, because it would unsettle the 
entire social fabric, and open upon the country a pandora's 
box to flood it with unmitigated evils, and, besides, is con- 
trary to the decisions of the supreme court of the United 
States, and the several State courts where the question has 
come before them. — Texas v. White. 

An ordinance was passed by the convention of 1861, 
relieving the officers in Alabama from the necessity of tak- 
ing an oath to support the government of the Confederate 
States, or the insurrectionary government of Alabama, 
and it is a matter of judicial history, that none of the in- 
cumbents in office were required to vacate by the constitu- 
tion of 1861. It will be seen by reference to the exhibits 
on file in this cause, and copied in this cause, and copied 
in the record, that the Hon. John E. Moore, as judge, 
Shaler Ives, as sheriff, and V. M. Benham, as clerk, held 
the term of the Lauderdale county circuit court, at which 
this judgment was rendered. This court will take judicial 
notice, that on the 11th day of January, 1861, the Hon. 
John E. Moore was the judge of the 4th judicial circuit of 
Alabama ; that Shaler Ives was the sheriff of Lauderdale 
county ; that V. M. Benham was the clerk of said court, 
and that said judgment was rendered at a time prescribed 
by law, in force prior to the passage of the ordinance of 
secession, for holding of fall term of said circuit court. 
This court will take judicial notice of the fact, that each 



JUNE TERM, 1871. 367 

Irvine, Adm'r, v. Armistead. 

of the officers of said court held their respective offices by 
virtue of commissions derived from the rightful and legiti- 
mate government of Alabama, and that the term of neither 
of said officers had, on the 16th day of September, 1861, 
expired by operation of law. There is not the slightest 
evidence in the record, that either of said officers, prior to 
the rendition of said judgment, had ever engaged or in 
any manner participated in the rebellion. Suppose the 
judgment in question had been rendered under the same 
circumstances, on the 16th day of September, 1860, instead 
of 16th of September, 1861, it would, beyond all contro- 
versy, have been a valid judgment in every particular. 
This being the case, how can this judgment become a nul- 
lity, or even a foreign judgment by virtue of the ordinance 
of secession ? How could a void ordinance give validity 
to what would otherwise have been a valid judgment ? In 
the case of ChisJiolm v. Coleman, 43 Ala., this court recog- 
nized, it is submitted, the principle here contended for. 
Coleman was judge by virtue of an election held in 1858. 
On the 16th day of May, 1862, he became a colonel in the 
Confederate army. He had drawn his salary up to, and 
including the 31st of March, 1862, This court decided 
that he was entitled to his salary as judge, from the 31st 
day of March, 1862, to the 16th day of May, 1862, the day 
that he embarked in rebellion against the government of 
the United States. Now, suppose that judge Coleman had 
rendered a judgment, otherwise regular and proper, at a 
time intervening between the 31st day of March, 1862, 
and the 16th day of May, 1862. Would such judgment 
have been valid ? Would it have been a domestic judg- 
ment or a foreign one, or in the nature of a foreign judg- 
ment? To hold such a judgment void, would be an 
anomaly in the history of judicial decisions. We would 
then have the unparalleled precedent of the supreme 
court of a loyal State holding a judgment void, as between 
citizens, for no other reason than that it was contaminated 
by the rebellion, and yet ruling that the judge who ren- 
dered the judgment was justly and fairly entitled to be paid 
out of the treasury of the State for his services. To hold 



368 FORTY-SIXTH ALABAMA. 

Irvine, Adm'r, v. Armistead. 

that such a judgment was foreign, or in the nature of a 
foreign judgment, would be equally obnoxious to law and 
sound reasoning. If the judgment was foreign the judge 
who rendered it was foreign, and we would then have the 
precedent established that foreign judges were entitled, 
upon proper application, to payment of their salaries out 
of the treasury of Alabama. Such a doctrine is utterly 
untenable, and directly at variance with the ruling of this 
court in the case just cited. That decision, it is contended^ 
is grounded in correct reasoning, and happily it has met 
with the concurrence of the supreme court of the United 
States in the case of White v. Cannon. In that case, the 
court says "that a judgment rendered by the supreme court 
of Louisana after the passage of the ordinance of secession 
in that State, was not affected thereby, for the same reason 
that the ordinance was void." — See White v. Cannon, 7th 
Wallace, p. 4i2 ; Ordinance Convention, 21st Sept. 1865 ; 
Ordinance Convention, 6th Dec. 1867 ; Randolph v. Bald- 
tvin, 41 Ala. 309 ; Winter v. Dicker son, 42 Ala. 92 ; Ho f man 
V. Boon & Booth, 43 Ala. 1869 ; Ordinance No. 15, Con- 
vention 1867; Auditor v. Taylor, 43 Ala. 1869; Hall v. 
Hall, June term, 1869 ; Armstead v. State, 43 Ala. 

Under our statutes the widow's quarantine does not ex- 
tend beyond the right to occupy the dwelling house in 
which her husband dwelt next before his death, and the 
lands thereunto adjoining. • 

In this case, the record shows that the lands in which 
dower is claimed, are situated some ten miles from the 
mansion and lands adjoining, where the husband dwelt 
next before his death. And until dower is assigned, the 
widow has no estate whatever in said lands, but the mere 
right to have dower allotted to her, and not being entitled 
to the possession of such lands has no claims for back rents. 
6 Ala. 873 ; 13 Ala. 329 ; 35 Ala. 497, 644 and 528 ; 36 
Ala. 203 ; 37 Ala. 484 ; 38 Ala. 608 ; Clay v. Richardson, 
43 Ala. 

O'Neal, Lewis & Cooper, cmtra. 



JUNE TEEM, 1871. 369 

Irvine, Adm'r, v. Armistead. 

(Appellee's brief did not come into Eeporter's hands.) 

PETEKS, J.— It is insisted by the appellant that the 
judgment of the circuit court in favor of Brickell against 
said George G. Armistead operated as a lien on the lands 
mentioned in the complainant's bill ; and that this lien, hav- 
ing accrued before the marriage, defeated the right to dower 
upon the sale under said execution issued on said judgment 
to satisfy the same. This defense sets up two assumptions : 
First, that said judgment was a lien on said lands ; second, 
that the right of dower attached, subject to be defeated by 
this lien on a sale of said lands to satisfy said judgment. 
At least, I so understand the argument of the learned coun- 
sel for the appellant, Irvine. The first assumption is the 
first to be considered. If that proves untenable, then the 
second must fail also ; because the second stands upon the 
first. 

Dower is greatly favored by the law. It is classed with 
those rights we are accustomed to denominate as sacred. 
It is ranked with the right to life and to liberty. — 4 Bacon, 
345 ; 1 Story's Eq. § 629. This may well be so in a free 
country ; because it is for the comfort, the support and the 
protection of the mothers and the children of the State. 
In truth, the law upon the subject of dower is a pledge 
by the commonwealth to them that, upon the father's death, 
they shall not be expelled from the home which he had 
provided for them. 

When the judgment here relied on was rendered, there 
was no law of this State, which this court can enforce, that 
made such a judgment a lien on the lands of the defend- 
ants therein. The execution in the hands of the sheriff 
was made by law a lien on the lands and other property of 
the defendants subject to levy and sale, but this lien did 
not belong to the judgment. And this lien was only con- 
tinued as long as the writ of execution was regularly issued 
and delivered to the sheriff without the lapse of an entire 
term.— Code of Ala. § 2456 ; Eev. Code, § 2872 ; DaUy v. 
Burke, 28 Ala. 328 ; Curry v. Landers, 35 Ala. 280. The 
enactment of the insurgent government in this State, of 



370 FORTY-SIXTH ALABAMA. 

Irvine, Adm'r, v. Armistead. 

December 10, 186 1 , was of no force, so far as this case is 
concerned. It did not change the law as it existed before 
its date.— Texas v. White, 7 Wall. 700; Martin v. Heiviit, 
June term, 1870 ; Bay v. Thompson, 43 Ala. 434 ] S. C. on 
second application for re-hearing, June term, 1870. This act 
out of the way, there was no subsisting lien on the lands 
in controversy at the date of said marriage. The execu- 
tion had not been regularly issued and continued from term 
to term. This was necessary to keep the lien in force. — 
Code, § 2456 ; King v. Kenon, 38 Ala. 63 ; see, also, KirTc- 
sey V. Hardaioay, 41 Ala. 338 ; Sanford v. Ogden, Furguson 
& Co., 34 Ala. 118 ; Troy v. Smith & Shields, 33 Ala. 469. 
The enactments of December 8, 1863, February 20, 1866, 
and February 19, 1867, have all been passed since the mar- 
riage of Mrs. Armistead with her said husband, now de- 
ceased, and they can not be allowed to affect her rights, 
unless it can be clearly shown that it was the legislative 
purpose to have done so. Her right to dower had then at- 
tached to all the lands of her husband which fell within the 
description of those mentioned in the statute. These acts 
were not intended to displace or impair this right ; and on 
the death of the husband it became complete. — 4 Kent, 50 ; 
Rev. Code, § 1624. Then, without intending to repeat the 
discussion on the validity of the judgment now interposed 
as a bar to the right of dower in this case, as a judgment 
of a court of the insurgent government in this State, dur- 
ing the supremacy of the late rebellion, it may be allowed 
that, if it were valid, it possessed no lien at the date of the 
marriage in this case. — 33 Ala. 469, supra. The husband's 
seizin, then, at the marriage, was in fee and unembarrassed 
by any lien. When this is the case the right of dower ac- 
crues, and it continues until it is relinquished by the wife, 
in the manner prescribed by the Code. And as this is the 
only mode of barring the wife prescribed by the statute, it 
may be very seriously doubted whether any other was in- 
tended to be allowed, if the marital relation continued up 
to the death of the husband. — Revised Code, §§ 1624, 1626 
and 1629. 

But did the legislature intend, in granting the right of 



JUNE TERM, 1871. 371 

Irvine, Adm'r, v. Armistead. 

dower to the widow in the husband's lands, to make it, un- 
der any circumstances, subservient to the lien of a judg- 
ment at law against the husband, whether before or after 
marriage ? Certainly, from what has been said in the fore- 
going discussion, the right to dower is superior to all liens 
in which the wife does not join, which accrue after marriage. 
Owen V. Slatter et al, 26 Ala. .547 ; Nance v. Hooper, 11 
Ala. 552. Neither the lien of a judgment nor the right to 
dower depend upon contract or grow out of contract, as 
that word is used in a commercial sense. They are the 
creatures of the statute, and may both subsist at the same 
time. When this is the case, was it the purpose of the 
legislature that the right of dower should be displaced by 
the lien of the judgment ? As the will of the legislature is 
the basis of both rights, it could, within the strict limit of 
its powers, declare that the right of dower should always 
displace the lien of the judgment. This is the reasoning 
of this court in the analogous case of exemptions in favor 
of the family. — Watson et al. v. Simpson, 5 Ala. 233. The 
Code defines dower in this language : " Dower is an estate 
for life of the widow in a certain portion of the following 
real estate of her husband, to which she has not relinquished 
her right during the marriage: 1. 0/ all lands of which the 
husband was seized in fee during the marriage. 2. Of all 
lands of which another was seized for his use. 3. Of all 
lands to which at the time of his death he had a perfect 
equity, having paid all the purchase-money therefor." — Kev. 
Code, § 1624. This is the pledge of the commonwealth to 
the woman who marries. It is a statutory privilege. It 
is expressed in language perfectly plain, absolute and un- 
limited. Were it a stipulation in a deed, there could be no 
rational contest about its meaning and intent. If there is 
a marriage, seizin during the coverture, and death of the 
husband, then the right to dower is absolute, unless the 
widow has relinquished it. This is the sole condition that 
may defeat it. 

The same law, it is true, makes the husband's lands 
subject, by judgment and execution, to the payment of his 
debts- But it does not say that this privilege shall override 



372 FORTY-SIXTH ALABAMA. 

Irvine, Adm'r, v. Armistead. 

and displace the superior privilege of dower on behalf of the 
widow. To say that the lien is to be preferred because it 
is prior in time, is to qualify and limit the stipulation giv- 
ing dower. This can not well be done, where it is legiti- 
mate to make the construction most favorable to the right 
of dower. As soon as the facts exist that give birth to the 
right of dower, then the enjoyment of the fruits of the 
lien is postponed till possession under the dower is ex- 
hausted. The execution purchaser, by the sale, steps into 
the shoes of the debtor, it is true ; but he takes the estate 
subject to the dower, as the husband held it from the mo- 
ment of the marriage. When the dower right is exhausted, 
the execution purchaser takes all. These are questions 
not to be settled by the common law. They spring out of 
our statutes, and are to be solved according to their lan- 
guage and intent. And it seems to me most conformable 
to the spirit of our law to apply to the construction of the 
statute defining and regulating dower, the same liberality 
that has been granted to the like statute of exemptions. 
5 Ala. 233, snpra. In doing so, it simply places the right 
to dower, which attaches after the judgment against the 
husband, on the same footing that it holds when it attaches 
before the judgment, (11 Ala. 552, supra,) and upon the 
footing of exemptions in favor of the family. — 5 Ala. 233, 
supra. But it is not really necessary to settle this ques- 
tion in this case. It is determined without it. 

The judgment in favor of Brickell against George G. 
Armistead, upon which the appellant relies to defeat the 
complainant's claim of dower in this case, can not now re- 
ceive in this court such force as would give it that effect. 
It was wholly devoid of any right of lien. It could not, 
th^n, stand in the way of the right of dower claimed by 
Mrs. Armistead. It will hardly now be seriously pretended 
that there was no change wrought in the government of 
this State by the passage of the ordinance of secession, 
and that the government was the same after the eleventh 
day of January, 1861, that it was before that day. Nor 
will it be contended that the government existing up to the 
passage of this ordinance was overthrown, and a " new 



JUNE TERM, 1871. 373 

Irvine, Adm'r, v. Armistead. 

government was erected in its stead" by piece-meal. 
6 Wall. 13. If this did not so take place, then the judicial 
department of the legal government of the State passed 
away with the executive and legislative departments of the 
same. What was found here afterwards exercising juris- 
diction in any of these departments of government, be- 
longed to the new organization under the insurgent power. 
This insurrectionary organization was established in hos- 
tility to the constitution of the United States, and for this 
reason the whole structure was illegal and void. — Texas v. 
White, 7 Wall. 700, 732, 733. Let it be admitted that the 
merits of the case of Texas v. White, above cited, turned 
upon a judgment of a rebel court in that State, instead of 
a laiv of the unlawful government, would the judgment 
have escaped the fate of the law ? It seems to me that it 
could not, if the reason given for the invalidity of the law 
was correct. And in this the whole court concurred. 
Then, if the law was void, as it was pronounced, the judg- 
ment must have been void also. A void judgment is noth- 
ing. It is not a mere irregularity, which the legislature 
might amend. To make such a judgment good, would be 
to make a new judgment. This the legislative authority 
can not do, nor any other authority in the State acting 
under constitutional limitations. The legislative power 
may make such proceedings the basis for a new trial, or a 
ground for review and correction of error, or it may refuse 
the parties relief who have acted under them. — Ordn. No- 
39, 40 ; Pamph. Acts 1868, pp. 186, 187, 269. It seems to 
me, that to go beyond this, under our system, would be an 
unjustifiable usurpation. That the learned and able coun- 
sel for the appellant have wholly failed to furnish any do- 
mestic authority supporting the validity of the judgment, 
without ratification or cure of some kind by the legal gov- 
ernment, is the amplest and most satisfactory evidence that 
none such exists. That such judgments should be cured 
in some way, is the opinion and practice of jurists of the 
highest standing.— Ordn. No. 26, Rev. Code, pp. 58, 59 ; 
3 Ala. 

The facts, then, show that the complainant in the court 



374 FORTY -SIXTH ALABAMA. 

Irvine, Adm'r, v. Armistead, 

below was entitled to dower in the lands set forth and de- 
scribed in her bill. In such case, the court of chancery 
has original and concurrent jurisdiction with courts of law 
to ascertain and adjust her rights.— 4 Kent, 71, and cases 
there cited ; 1 Story Eq. § 624, et seq.; Rev. Code, § 1631 ; 
Brooks V. Woods, 40 Ala. 538 ; Waters v. Williarns, 38 Ala. 
680 ; Otven v. Slatter, 26 Ala. 547. 

The widow's title to the dower lands is a legal title, and 
it springs up into perfection immediately on the death of 
her husband. If it can be defined by metes and bounds, 
it is as perfect as though it were created by deed dated on 
the day of the husband's death. And if the allotment by 
metes and bounds can be made, she is entitled to the im- 
mediate possession as fully as she would be undei; a deed. 
The rights being the same, whether by dower or by deed, 
like consequences should follow both. Eadem ratio, idem 
lex. — Broom's Max. p. 64, marg. Reasonable satisfaction 
may be recovered for the use and occupation of land in 
this State. — Rev. Code, § 2707; see, also, Slatter v. Meek, 
639, 528. And in such case, where there is no special rule 
in equity, the rule at law will be followed. Equitas sequi- 
tur legum. — 1 Story Eq. § 64, et seq. The possession of the 
complainant having been obstructed by the appellant, 
Irvine, she was entitled to some damages. — Sedg. on Dam. 
133, et seq. There was no error, then, in the reference to 
the master to make inquiry of this damage, and report the 
same to the court. As this report was made, and not ob- 
jected to before its confirmation in the court below, it is 
too late to raise the objection here for the first time. 
Gerald v. Miller^ s Distributees, 21 Ala. 433 ; Lang v. Broion, 
21 Ala. 179 ; Rev. Code, §§ 3387, 3389. Unless the decree 
of reference Upon its face showed error, there can be no 
doubt of the propriety of the reference. — Springles Heirs 
V. Shields dt Paulding, 17 Ala. 295. In Beavers & Jamison 
V. Smith, {il Ala. 20,32,) it is said that "damages are 
properly the mean profits arising after the death of the 
husband and h^ore the suit for dower. * ^ * But 
whatever may be the rule at law, in equity the established 
doctrine is to allow the widow the mean profits as damages, 



JUNE TERM, 1871. 375 

Irvine, Adm'r, v. Armistead. 

and this not by analogy to the allowance of damages 
under the statute of Merton, but on the grounds of title." 
Ih. p. 32. This intimation also comports with the lan- 
guage of our statute, which gives the owner of lands in 
this State " reasonable satisfaction for its use and occupa- 
tion." — Rev. Code, § 2607. The alienee who obstructs the 
widow's right to her dower lands, under our statute, can 
not claim to stand on a better footing than the heir. Her 
title is the same against both of these, and either, as ho 
may have the seizin and occupancy of the dower lands, 
may put her in possession immediately upon the death of 
the husband, if he chooses. — Johnson, adm'r, v. Neil and 
Wife, 4 Ala. 166. In this case, the appellant's possession 
from the death of the husbond was continuous up to the 
filing of the bill, and afterwards until the allotment of the 
dower. He had enjoyed the use and occupation for the 
whole of this period. The same law which gives compen- 
sation after the filing of the bill for the use and occupa- 
tion, also gives it before the bill is filed. The alienee 
could only be charged with damages for the use and occu- 
pation of the widow's dower during the period of his ten- 
ancy, This is what the chancellor decreed, and it is what 
the master ascertained and reported. The judgment is 
therefore right, and it will not be disturbed. 

The decree of the court below is affirmed ; and the ap- 
pellants will pay the costs in this court and the court be- 
low.— Rev. Code, §§ 2779, 3471. 



376 FORTY-SIXTH ALABAMA. 

McCuUough V. Talladega Insurance Co. 

McCULLOUGH vs. TALLADEGA INS. CO. 

[assumpsit on weitten oblioation to pat money.] 

1. Corporation ; when may plead nul tiel corporation. — A corporation, when 
sued on a contract made by it, cannot plead ntU tteZ corporation, unless 
in case of misnomer or dissolution. 

2. Private corporations; hooks of, competency as evidence. — The compe- 
tency as evidence of the books of a private corporation is not destroyed 
because they had been for some time in the possession of the attorneys 
of the corporation, who brought them into court and delivered them to 
the attorneys of the opposite party, for use as evidence in the pending 
trial, there being no suspicion or claim of fraud on their part. 

3. Same ; when may he sued on ohligation for harrowed money. — A private 
corporation, authorized to "borrow money, and issue their bonds 

• therefor,'' maybe sued on the obligation they give for the re-payment 
of money borrowed, whether it be under seal or not. 

Appeal from Circuit Court of Talladega. 
Tried before Hon. Ohakles Pelham. 

The facts appear in the opinion. 

Taul Bradford, for appellant. — 1. The books of the 
Talladega Insurance Company were competent evidence, 
under the plea of " nul tid corporation." By these the 
plaintiff expected to prove, in part, acceptance of the char- 
ter, as they showed acts of " user " by the corporators. 
The manner in which the books were brought into court 
did not affect the case, for it was only incumbent on the 
plaintiff to identify the books. 

2. The case of Sanders v. Talladega Insurance Company, 
43 Ala. p. 115, is decisive of this case. 

The right to borrow money, and to give a written prom- 
ise to repay it, is clearly conferred upon the company, as 
may be seen by the actual grant of powers, and the restric- 
tion upon the exercise of certain banking powers, not con- 
ferred by the charter. 



^ JUNE TERM, 1871. 377 

McCuUough V, Talladega Insurance Co. 

John T. Hefun, contra. 

(No brief for appellee came to Reporter's hands.) 

B. F. SAFFOLD, J. — This suit was assumpsit on a writ- 
ten contract or obligation to pay money, brought by the 
appellant against the appellee. The defendant pleaded the 
general issue and nuUid coripov&tion. The court erred in not 
sustaining the demurrer to the last plea. I have not been 
able to find any authority for such a use of the last plea by 
the corporation. It has to appear in some way to make 
it ; and being present, it pleads that it does not exist. 
Our statute law assimilates a private corporation, as nearly 
as possible, to a person ; and the substance of such a plea 
seems necessary or permissible only in cases of misnomer 
or dissolution, and in the form and manner required in the 
case of a person. 

Besides, as a person who has dealt with a corporation as 
such is estopped from denying its existence in that matter* 
so should a corporation who has so dealt with an indi- 
vidual. 

The books of the company were competent evidence for 
the plaintiff, and the court erred in its refusal to permit them 
to be introduced. Formerly the rule was that a party could 
not be compelled to produce his private books and papers in 
obedience to a svhpcena dmces tecum, on the ground that it 
was requiring him to give evidence against himself, or in 
his own case. As the parties to a suit are now competent 
witnesses, and the production of papers may be coerced 
by subpoena from such, the rule no longer exists. The fact 
that the books had been for some time in the keepipg of 
the attorneys of the company, who had used them as evi- 
dence in behalf of the company in another cause, and that 
they had brought them into the court-house, during the 
pendency of this trial, and delivered them to the plaintiff's 
counsel, did not destroy their competency, there being no 
suspicious circumstances attendant. Independently of 
these books, the evidence of the acceptance of the charter 
25 



378 EOBTY-SIXTH ALABAMA. 

McOuUough V. Talladega Insurance Co. 

and user under it, was amply sufficient. — Talladega Insur- 
ance Company v. Landers, 43 Ala. 115. 

One of the powers expressly conferred upon this company 
by its charter, was that to borrow money and issue their 
bonds therefor. It is claimed for these bonds that they 
must be sealed instruments. If so, section 9, Eevised Code, 
provides that when by law a bond is required, an under- 
taking without seal is sufficient, and must be taken in all 
respects as if the same was a sealed instrument. But I 
imagine the bonds intended are such writings as are cus- 
tomary and sufficient for the purpose aniong business men. 
Unless the act of incorporation expressly prescribes the 
contrary, the duly authorized agents of the corporations, 
as of natural persons, may, within the scope of their author- 
ity, bind them by simple as well as by sealed contracts. 
In The Bank of Columbia v. Patterson, 7 Cranch, 299, the 
United States supreme court went the whole length of giv- 
ing the same remedies against incorporated companies, in 
matters of contract, as against individuals. — Angell & 
Ames on Corp. §§ 292, 379 ; Talladega Ins. Co. v. Landers^ 
supra. 

The judgment is reversed and the cause remanded. 

[Note by Reporter. — At a subsequent day of the term, 
appellee applied for a re-hearing, but the application did 
not come into the Reporter's hands. The following re- 
sponse was made :J 

SAFjFOLD, J. — We do not think section 9, Revised Code, 
is confined to the restricted meaning contended for by the 
appellee. But the decision was not based on that issue. 

The authorities cited in favor of the right to plead md 
tiel corporation, were examined before preparing the opin- 
ion. The right to plead that a certain act was beyond the 
scope of the powers of the corporation is different from a 
plea that the corporation does not exist. 

A re-hearing is denied. 



JUNE TEEM, 1871. 379 



Thorn tx)n v. Kylo. 



THOENTON vs. l^TLE. 

[appeal FBOM OBDEU of CHANCELLOE sustaining a DEMUBBEE to CBOSB'Bttilj 
FOB WANT OF EQUltY, 4C.] 

1. Appeal; when does not lie. — An appeal cannot be taken from an otder 
of the chancery court sustaining a demurrer to a cross-bill, filed by way 
of an answer to the original bill, and dismissing such cross-bill, before 
the final determination of the cause. 

8. Same ; wliat case doea not faU within influence of section 3486 of the 
Bevised Code. — Such a case does not fall within the relief of the section 
of the Revised Code allowing appeals from certain interlocutory judg- 
ments and decrees, before the final determination of the cause. 

Appeal from Chancery Court of Cherokee. • 
Heard before Hon. B. B. McCraw. 

The facts are stated in the opinion. 

Foster & Forney, for motion. 
W. J. TuRNJiEY, contra. 

PETEE8, J. — This is an appeal from the judgment of 
the learned chancellor in the court below, on a demurrer 
to the cross-bill. 

The cross-bill was assailed by demurrer for want of equity. 
The demurrer was sustained and the cross-bill dismissed. 
From this order dismissing the cross-bill, the complainant 
therein appeals to this court, and assigns the order of dis- 
missal as error. The appellees refuse to join in error in 
this court, and move to dismiss the appeal, as prematurely 
taken before the final determination of the cause. 

This identical question was settled by this court in the 
case of Parish, administrator, v. OaUoivay, 24 Ala. 163. It 
is, however, now contended by the appellant that this case 
has been overruled by the later case of Brooks v. Woods, 
40 Ala. 538. This soeras to be a misapprehension of the 



380 FOBTY- SIXTH ALABAMA. 

Thornton v. Kyle. 

latter determination. The court there say : " The appellee 
joins in the assignments of error, and this case is not like 
Parish, admW, v. Galloivay, 24 Ala. 163."— 40 Ala. K 540. 
This is not a disapproval of the former case, but rather a 
reaffirmance of it. We think the case in 24 Ala. 163, was 
rightly decided. Here there was no joinder in error before 
the motion to dismiss. The cases are, therefore, identical. 
The statute allowing interlocutory decrees to be appealed 
from does not comprehend this case. That statute is in 
these words : " An appeal to the supreme court may be 
taken before the final determination of the cause, from any 
judgment or decree overruling a motion to dismiss a bill 
for want of equity, or overruling a motion to dismiss or 
quash an attachment or sustaining a demurrer to a plea in 
abatement to an attachment, or sustaining an attachment 
against matters set up in abatement of it, either in the way 
of an agreed case, or by plea or otherwise ; but such ap- 
peal shall be taken only after the consent of the opposite 
party or his attorney is obtained to its being taken ; and 
on the trial of such appeal, there shall not be a reversal, if 
the supreme court discovers that the defect or error alleged 
or insisted on can be removed or remedied by amendment 
under existing laws." — Revised Code, § 3486.^ In this case 
there was no consent to the appeal, and it could not be 
taken under this statute. Besides, it was not such a judg- 
ment as comes within the statutory description. 

An appeal is not a matter of practice in which this court 
can prescribe the rule to allow it ; but it is a matter of right 
given by the statute. If there is no statute allowing the 
right, it does not exist.— Eev. Code, §§ 3485, 3486. In this 
case there is no such statute. We therefore feel reluc- 
tantly compelled to grant the motion dismissing the appeal* 
And the appellant will pay the costs of this motion, and 
the costs of the appeal in this court and in the court below. 



JUNE TERM, 1871. 381 

. Grady t. Wolsner. 



GKADY V8. WOLSNEE. 

[action ok the case fob damages. ] 

J. Nuisance; what i«, — A cooking range or stove erected so near to the 
partition wall of two houses as to injure , by its ordinary use, the goods 
of the adjacent proprietor, and render his house uncomfortable and 
disagreeable, is a nuisance. 

2. Same; action on the case for, lies against whom. — An action on the case 
lies against him who erects a nuisance, and also for its continuance, 
thoughhe has leased it to another. 

Appeal from the Circuit Court of Mobile. 
Tried before Hon. John Elliott. 

This was an action on the case for damages, by the 
appellee against the appellant. The appellant erected in 
his house, adjoining the appellees, a cooking range or stove 
so near to the partition wall that the ordinary use of the 
range or stove injured the appellee's goods, as well as his 
building, and his business, by making his room uncomfort- 
able and disagreeable to stay in, and thereby drive away 
customers from appellee, who kept a bar, &c. After erect- 
ing the range or stove, appellant let the premises to a ten- 
ant who built fires in the range or stove, whereby the 
appellee sustained the injury complained of to his goods 
and house. At the time the range was erected appellee 
objected, and informed Grady that the use of the range 
would destroy appellee's business and drive off his cus- 
tomers. 

The appellant excepted to the refusal of the court to 
charge the jury, that if they believed appellant had leased 
his house and had no control of it or the tenants, and did 
not build the fires, then they must find for the plaintiff. 

BoYLES & Overall, for appellant. — The range in itself 
is no nuisance. 

Suppose a man erect a building for a slaughter-house or 
a livery stable in immediate proximity to a private dwell- 
ing, and never use it as such, could he be proceeded 



382 FOKTY-SIXTH ALABAMA. 

Grady v. Wolsner. 

against for a nuisance? And if he should rent it out, 
without specifying any particular purpose for which it 
should be used, could the owner be proceeded against in 
case the tenant should use it in such a manner as to 
become a nuisance ? 

The mere suggestion is counter to the first dictates of 
common justice. 

In the case of Vason v. City of Augusta, 38 vol. Ga. R., 
the court says : The landlord is not liable for a nuisance 
maintained by his tenant during the period of the lease. 
He is liable for a nuisance which exists upon the premises 
at the time he makes the lease. But if the tenant con- 
tinues the nuisance he, alone, is liable." 

Posey & Tompkins, contra. 

(Appellee's brief did not come into Reporter's hands.) 

B. F. SATFOLD, J.— That the action will lie is plain. 
Every one must use his own so as not to hurt another. 
One who negligently keeps his fire so that his neighbor's 
house is burned is liable to him for damages, because he 
had it not in his power to make him covenant to be care- 
ful. It matters not whether the fire be in his house, his 
curtilage, or his close. 

The action lies against him who erects a nuisance, and not- 
withstanding a recovery for the erection, it may afterwards 
be maintained against him for the continuance, though he 
has made a lease of it to another. He transferred it with 
the original wrong, and his demise affirms the continuance 
of it. He also has rent as a consideration for the contin- 
uance, and, therefore, ought to answer the damage it occa- 
sions. — 2 Salkeld's R., Bosewellv.Pryor, 460; 1 Salk. 13, 
TuberviUe v. Stamp ; 1 Salk. 19. Anything constructed on 
a person's premises which, of itself, or by its intended use, 
directly injures a neighbor in the proper use and enjoy- 
ment of his property, is a nuisance. 

The judgment is affirmed. 



JUNE TERM, 1871. 383 



Dempsey, Harrel & Co. v. Stapleton, Adm'r. 

DEMPSEY, HARREL & CO. vs. STAPLETON, Adm'b. 

[action on PBOBnssonT note.] 

1. AdminUtratw of an administrator ; wAaf can no/ recover.— The admin- 
istrator of an administrator is not entitled to recover money due on a 
promissory note which was made payable to his intestate, but was 
really assets of the first estate, without proof that his intestate had 
accounted for it, or been charged with it on settlement- 

2. Separate statutory estate ; what constitutes part of corpus of. — The rents 
and profits of land subject to the quarantine of a widow, belong to the 
corpus of her separate estate. 

Appeal from Circuit Court of Henry. 
Tried before Hon. J. McCaleb Wiley. 

Stapleton, as the administrator of Odom, sued the ap- 
pellants on a promissory note made by them in favor of 
his intestate. Under the pleas of the general issue and 
payment, it was shown that the note was given for a bal- 
ance due on a purchase of cotton made by the defendants 
from Odom. The cotton was produced on the lands of 
the estate of Gunn, of which Odom was the administrator, 
and at a time when Mrs. Gunn, who had intermarried with 
Odom, was entitled to her quarantine in the lands. Under 
these circumstances, and before the appointment of an ad- 
ministrator of Odom's estate, the defendants paid the 
money to Mrs. Odom. The cotton was regarded by Odom 
as the property of the estate of Gunn. 

The court charged the jury, that if they believed the 
evidence, they must find for the plaintiff, and the defend- 
ants excepted. 

W. 0. Oates, for appellant. 

J. A. CoRBiTT, and Seals, Wood & Roquemore, contra. 

B. F. SAFFOLD, J.— The proof does not tend to estab- 
lish any right in the plaintiff to recover the money. His 
intestate does not appear to have accounted for it. It 



384 FOKTY-SIXTH ALABAMA. 

Ei parte Thornton 

either belonged to the estate of Gunn, in which case an 
administrator de bonis non of his estate is the proper per- 
son to sue, or to his widow. If her quarantine was not 
otherwise settled, she might have recovered its value from 
the representatives of her husband's estate by a suit at 
law, as the corpus of her separate estate. — Boynton v. Saw- 
yer and Wife, 35 Ala. 497. If the money now sued for was 
a part of it, it was properly paid to her. 

The charge that the jury must find for the plaintiff, was 
erroneous. 

The judgment is reversed, and the cause remanded. 



EX PARTE THORNTON. 



[application foe mandamus to compel EEINSTATEMENT OF A CEOSS-BILL, 
WHICH WAS DISMISSED BEFOEE THE FINAL DETEBMINATION OP THE CAUSE.] 

1. Revised Code, §§ 3367-8 ; what requires as to cross-till allowed hy. — The 
statute of this State, which allows an answer to a bill in chancery to be 
turned into a cross-bill, requires that such cross-bill shall be heard at 
the same time as the original bill, whether the same be heard upon 
demurrer or upon the merits.— Revised Code, §§ 3367-68. 

2. Mandamus; proper remedy to compel reinstatement of cross-hill dis- 
missed before final determination of cause. — And as no appeal lies from 
an order of the chancellor dismissing such cross-bill, before the final 
determination of the cause, mandamus is a proper remedy to compel 
the setting aside of such an order of dismissal and the restoration of 
such cross-bill upon the docket, to abide the final determination of the 
whole cause. 

This was an application for mandamus, based upon a 
state of facts which are fully set forth in the opinion. 

M. J. TuRNLEY, pro motion. 
Foster & Forney, contra. 



JUNE TERM, 1871. 385 

Ex parte Thornton. 

PETERS, J.— This is an application by Robert S. Thorn- 
ton for a rule to be directed to the honorable chancellor 
of the eastern chancery division of this State, sitting for 
the county of Cherokee, to show cause why a peremptory 
mandamus shall not be issued against him in order to com- 
pel him to reinstate on the docket of the chancery court of 
said county of Cherokee a certain cross-bill filed by said 
Robert S. Thornton on the 23d day of November, 1870, to 
the original bill of complaint of Mary A. Kyle, by her next 
friend Robert B. Kyle, complainant, against said Robert S. 
Thornton and Nat. M. Thornton, as the administrators of 
the estate of Ann C. E. Thornton, deceased, defendants, 
filed on the 14th day of September, 1870, in said chancery 
court of said county of Cherokee, which said cross-bill was 
dismissed out of said court on the third day of February 
in the year 1871, on demurrer, by order of the learned 
chancellor of said court. 

The allegations of the petition for mandamus show that 
Mary A. Kyle, by her next friend Robert B. Kyle, filed her 
bill of complaint in the chancery court of Cherokee county 
in this State, on the 14th day of September, 1870, against 
Robert S. Thornton and Nat. Macon Thornton, as the ad- 
ministrators of the estate of Ann C. E. Thornton, deceased, 
and on the 23d day of November, 1870, said Robert S. 
Thornton filed his answer to said bill of complaint, and 
therein, by way of cross-bill, prayed relief against said 
complainant for certain causes connected with or growing 
out of the subject matter of said original bill, as in said 
cross-bill is shown and set forth, as allowed by law. To 
which said cross-bill, by way of answer thereto, the said 
complainant in said original bill demurred for want of 
equity. This demurrer was heard on the 8d day of Feb- 
ruary, 1871, before the final determination of said cause, 
and the same was sustained, and said cross-bill was dis- 
missed out of said court, and the said Robert S. Thornton 
was taxed with the costs of said cross-bill. 

The Revised Code declares that, "the defendant may 
obtain relief against the complainant for any cause con- 
nected with or growing out of the subject-matter of the 



386 FORTY-SIXTH ALABAMA. _____ 

Ex parte Thoruton. 

bill, by alleging in his answer, and as a part thereof, the 
facts upon which such relief is prayed, and require the 
complainant to answer the same upon oath." — Rev. Code, 
§ 3367. And that, "the matter thus put in issue must be 
considered in the nature of a cross-bill and be heard at the 
same time as the original bill." — Rev. Code, § 3368. The 
language of this statute is general and peremptory, and it 
does not permit that the cross-bill shall be heard, whether 
upon demurrer or upon the merits, earlier than the hearing 
of the original bill. This statute creates a new rule as to 
the hearing of demurrers to cross-bills, else the hearing of 
the cross-bill may be improperly defeated. The 69th rule 
of chancery practice does not apply to such a case. — Rev. 
Code, p. 833, rule 69. The purpose of the statute is to 
keep the cross-bill in court until the original bill is heard. 
The learned chancellor, therefore, mistook the proper 
practice in dismissing the cross-bill before the hearing of 
the original bill. There is no appeal in such a case. 
Thornton v. Kyle, at the present term, 24 Ala. 163. 
It is the right of the party filing a cross-bill by way of 
answer, to have the cross-bill heard at the same time as 
the original bill. This right cannot be enforced except by 
writ of mandamiis. Therefore, let the rule issue according 
to the prayer of the petitioner's application, requiring the 
honorable chancellor of the eastern chancery division of 
the State of Alabama to set aside Said order of dismissal 
of said cross-bill, and to reinstate and restore said cross-bill 
to the docket in said court, or appear at first day of the 
next term of this court and show cause why he has not 
done the same, and why a peremptory mandamus shall 
not issue, &c. 



JUNE TERM, 1871. 387 

Hightower v. Moore. 



HIGHTOWER vs. MOORE. 

[APPUCATION to BEQUIRB ABMINISTBATOB to OrVE ADDITIONAL BOND.] 

1. surety on administration iond; what liability of, not discharged by. — The 
liability of a surety on an administrator's bond is not discharged by his 
death, although the default occurred afterwards. 

2. Decree; when will not be reversed. — A decree of the probate court on 
the facts of a case, will not be reversed when the evidence on either 
side is pretty evenly balanced. 

Appeal from Probate Court of Russell county. 
Tried before Hon. T. L. Appleby. 

The appeal is taken from the refusal of the probate court 
to require the appellee, as administrator, to give a new 
bond. The proof is, that the administrator himself and 
one of his sureties are virtually insolvent. Another one is 
apt to pay his debts, but his means are extremely limited. 
The third is dead and his estate has been distributed, but 
it was worth between fifteen and twenty thousand dollars. 
The estate of the intestate has been administered, except 
some land proposed to be sold for distribution, and val- 
ued at about $23,000, which it was proposed to sell on a 
credit. 

G. D. & G. W. Hooper, for appellant — Contended that 
the word "may" in the Revised Code, in relation to the re- 
moval of administrators, was mandatory, and must control 
the court ; that the facts of the case forbid the exercise of 
any discretion by the probate, judge against the removal 
of the appellee. — 17 Ala. 527 ; 43 Ala., Ex parte Chase. 

No appearance for appellee. 

B. F. SAFFOLD, J.— As the land will probably be sold 
on terms of credit, payable in installments, th.> security 
may be sufl&cient. The estate is so nearly administered 
and distributed that the risk is much abated. In Moore 
V. Wdlis, 18 Ala. 458, it was held that the liability incurred 



388 FOETY-SIXTH ALABAMA. 

Benton v. Taylor. 

by the surety on a guardian's bond is not discharged by 
his death, although the default occurred afterwards. 
There is therefore the security of this estate, and it is not 
probable that the administrator will receive more of the 
purchase-money of the land, before he can be made to 
account for it, than there is protection for. On the pre- 
sumption in favor of the judgment of the probate court in 
matters of fact, we sustain this decree. 
The decree is affirmed . 



BENTON vs. TAYLOR. 

[CEETIOBABI.] 



1. Certiorari, when will not he granted. — A certiorari will not be granted 
at the instance of an individual tax-payer, and in his name, to revise 
the proceedings of the court of coimty commissioners appointing an 
agent ' ' for the issuing of the rations to the indigent persons of the 
county," and ordering his paysient out of the county treasury. 

Appeal from the Circuit Court of Randolph. 
Tried before Hon. Charles Pelham. 

In January, 1866, the commissioners court of Randolph 
county made an order appointing appellee agent for the 
distribution of rations to the poor and indigent of the 
county. In April, 1867, an order was made to pay appel- 
lee eighty dollars a month, out of the county treasury, for 
his services for ten months, and the appellant, a citizen 
and tax-payer of Randolph, filed his petition in his own 
name alone, in the circuit court, alleging that the sum al- 
lowed appellee for his services would have to be raised by 
taxation, some of which would be assessed and collected 
out of his property, and prayed that appellee be made a de- 
fendant to the petition, and that the commissioners court 



JUNE TERM, 1871. 389 

Benton v. Taylor. 

be required to certify its proceedings in the matter to the 
circuit court, and that upon the hearing said orders be 
quashed, <fec. The circuit judge ordered the certiorari to 
issue, and on the hearing the appellant moved the court to 
quash the orders, &c., of said court of county commission- 
ers, which motion the court overruled, and rendered judg- 
ment against appellant for costs. To the action of the 
court in overruling his motion to quash, and to the judg- 
ment of the court, appellant excepted, appeals to this 
court, and here assigns same as error. 

Jos. Aiken, for appellant. 
C. D. Hudson, contra. 

(No briefs came into the Reporter's hands.) 

PECK, C. J. — A certiorari is a revisory writ, and may 
be issued by a superior, to correct the erroneous action of 
an inferior court, where the law has provided no remedy 
by appeal ; but a party who seeks the aid of this writ 
must show that he has some direct interest in the proceed- 
ings sought to be revised, and has been injured by them. 
Lamar v. Commissioners Court of Marshall, 21 Ala. 772; 
CommWs Roads and Revenue Talladega Co. v. Thompson, 
15 Ala. 134 ; Ex parte Keenan, 21 Ala. 558 ; Ctcshing v. 
Gray, 10 Shepley's Rep. 9 ; In re Mount Morris Square, 
2 Hill's Rep. 14 ; Petty v. Jmes, 1 Iredell, 408 ; Cottm v. 
Clark, ib. 353. 

The appellant shows no interest in the proceedings of 
the commissioners court in this case ; neither does he show 
that he has sustained any injury thereby that is not com- 
mon alike to every tax-payer in the county. This is not 
sufficient to authorize him to interpose, in his own name, 
to revise the proceedings of that court, even if they be ad- 
mitted to be erroneous. But, so far as we can see, there 
is no error in the proceedings that the appellant seeks to 
set aside. They consist of two orders, the one appointing 
the appellee an agent of Randolph county " for the issuing 
of the rations to the indigent persons of said county," 



390 FORTY-SIXTH ALABAMA. 

Benton v. Taylor. 

made in January, 1866 ; and the other, directing his pay- 
ment out of the county treasury, made in April, 1867. 

We know as a historical fact, that at the close of the 
late rebellion, and for a long time afterwards, in many 
parts of the country a large portion of the people, white 
and black, were suffering from destitution, and many in 
great danger of perishing by starvation. So great and 
general was this evil, that the public authorities of the 
State found it necessary to provide supplies for their relief. 
Thereby it became necessary to have agents to take care 
of and distribute the supplies so provided. 

The commissioners courts, being charged with the care 
of the poor, very properly appointed agents for that pur- 
pose, in their respective counties, and ordered them to be 
paid out of the county treasury. At the time the appellee 
was appointed the agent for Randolph county, we are not 
aware of any statute that expressly authorized the com- 
missioners court to make the order, but we hold that the 
urgency of the case warranted the action of said court in 
the premises ; but before the order was made directing his 
payment, an act was passed, entitled "An act to provide 
for the distribution of supplies to the destitute, and to pro- 
vide for the punishment of officers and others for their 
misapplication," approved February 19, 1867. By this act 
it was made the duty of the court of county commission- 
ers to appoint an agent for their respective counties, and 
made it the duty of agents so appointed to receive all sup- 
plies furnished by the State for the destitute, and to dis- 
tribute the same as provided by said act ; and said courts 
were also required to make reasonable allowances out of 
the county treasuaea for the payment of said agents. 
Acts 1867, p. 704, §§ 1-7. This act, although passed after 
appellee's appointment, fairly interpreted, shows the pro- 
priety of the course pursued by the commissioners court, 
and justifies the order for the payment of appellee as 
agent, &c., out of the county treasury. We think, there- 
fore, the certiorari in this case was unadvisedly issued, and 
consequently the court below committed no error in over- 



JUNE TERM, 1871. 391 

Mobile & Ohio Bailroad Company v. Malone. 

ruling appellant's motion to quash said orders of the com- 
missioners court. 
Let the judgment be affirmed, at appellant's cost. 



MOBILE & OHIO RAILROAD COMP'Y vs. MALONE. 

[tbespass foe kxllino cattle, &c.] 

1. Railroads ; sections of Revised Code in relation to ; how construed. — The 
sections of the Kevised Code upon railroads are to be constraed as one 
law, and taken together as a whole. 

2. Railroad companies ; when liable for stock killed, &c. — Railroad com- 
panies, in this State, are liable for damages for killing or injuring stock 
by their locomotives and cars, if they fail to comply with the require- 
ments of caution prescribed in the Revised Code, when such compli- 
ance is within the power of their engineers or agents . 

3. Same; what diligence mtist be shown to relieve from liability. — But i 
these requirements can not be complied with, the company is bound 
to show that their agents or servants used all the means in their power, 
under the circumstances, known to skillful engineers, to prevent the 
injury complained of. When this is shown the company is not liable. 

4. Claim, presentation of; what sufficient. — Proof that the auditor of the 
company had frequently acted as depot agent and received and paid 
claims for stock killed, there being no proof that there was any depot 
agent at the place whore the claim was presented, shows a sufiBcieu 
compliance with the Revised Code, requiring claims for stock killed to 
be presented in writing in sixty days to the president, treasurer, super 
intondent or some depot agent of the corporation. 

Appeal from Circuit Court of Mobile. 
Tried before Hon. John Elliott. 

The facts are fully stated in the opinion. 

George N. Stewart & P. Hamilton, for appellant. 
Wm. Boyles, contra. 

(No briefs came into Reporter's hands.) 



392 FORTY-SIXTH ALABAMA. 

Mobile & Ohio Railroad Company v. Malone. 

PETERS, J. — This is an appeal from a judgment of the 
circuit court of Mobile county, which was rendered at the 
spring term thereof, in 1869. The railroad corporation 
brings the appeal to this court. The appellee, Malone, 
obtained a judgment below for one hundred dollars and 
costs. The action was trespass for killing four cows, the 
property of said Malone, by the cars and locomotive on 
said railroad, in this State, while said cars and locomotive 
were proceeding on the roadway of said corporation in 
the ordinary business of said company. This cause, on 
the trial below, turned upon the charge of the court. That 
portion of the charge necessary to be noticed, was to the 
effect that, "this case was governed by § 1406 of the 
Revised Code ; and under that section it was necessary, to 
entitle the plaintiff to recover, that it should be proved that 
the cattle were killed by the cars of the company while 
running, that the plaintiff owned them, and the value of 
the cattle killed, and nothing more." This charge was 
excepted to, and made a part of the record as required 
by law. 

The sections of the statute of this State, which govern 
this action and control the liability of the appellant, said 
railroad company, are in the following words, that is to say : 
"§ 1399. The engineers or other persons having control of 
the running of a locomotive on any railroad in this State 
must blow the whistle or ring the bell at least one-fourth 
of a mile before reaching any public road-crossing, or any 
regular depot or stopping-place on such road, and con- 
tinue to blow such whistle and ring such bell, at intervals, 
until he passes such road-crossing, and until he reaches 
such depot or stopping-place. He must, also, blow the 
whistle or ring the bell immediately before and at the time 
of leaving such depot or stopping-place. He must, also, 
blow the whistle or ring the bell before entering any curve 
crossed by a public road on a cut where he can not see at 
least one-fourth of a mile ahead, and approach and pass 
such crossing, in such cut, at such moderate speed as to 
prevent accident in the event of an obstruction at the 
crossing ; he shall, also, be required to blow the whistle or 



JUNE TERM, 1871. 393 

Mobile & Ohio Eailroad Company v. Malone. 

ring the bell on entering into the corporate limits of any 
town or city, and continue to do so until he has reached 
his destination or passed through such town or city ; he 
must, also, do the same on leaving such town or city. He 
must, also, on perceiving any obstruction on the track of 
the road, use all means in his power known to skillful en- 
gineers, (such as the application of his brakes and the 
reversal of his engine,) in order to stop the train." * * 

"§ 1401. A railroad company is liable for all damage 
done to persons, stock or other property, resulting from a 
failure to comply with the requirements of § 1399, (1204a) 
or (from) any negligence on the part of such company or 
its agents ; and when any stock is killed or injured, or 
other .property damaged or destroyed by the locomotive 
or cars of any railroad, the burden of proof in any suit 
brought therefor is on the railroad company to show that 
the requirements of § 1399, (1204a) were complied with at 
the time and place when and where the injury was done." 

"§ 1406. Wherever any live stock or cattle of any 
description shall be killed or injured by the cars or loco- 
motives of any railroad in this State, the corporation own- 
ing such railroad shaU be liable to the owner for the value 
thereof, if killed, or the damage thereto if injured." — Rev. 
Code, §§ 1399, 1401, 1406. 

There is another section of the Revised Code which bars 
such claims, if not presented in writing to the president, 
treasurer, superintendent, or some depot agent of the cor- 
poration sought to be charged, or unless suit is brought 
within sixty days after the claim accrues. — Revised Code, 
§ 1402. 

From the foregoing statement and an examination of the 
statutes digested into the Revised Code, it will be seen 
that the law, as there found, contains parts of several acts, 
passed before 1860, which bear on this case. The act of 
1852, which is found in § 1406 of the Revised Code, made 
the liability of the railroad company for the killing and in- 
jury of stock by their cars and locomotives absolute, what- 
ever diligence might be used to avoid it. — Nashv. d Chat. 
26 



394 FORTY-SIXTH ALABAMA. 

Mobile & Ohio Railroad Company v. Malone. 

Bailroad Company v. Peacock, 25 Ala. 229. But the act of 
1858, which is contained in §§ 1399, 1400, 1401 of the Rev. 
Code, makes the company liable only when their agents 
fail to take the precautions prescribed by that statute, or 
when they have been guilty of negligence. These sections, 
construed together, necessarily modify each other, — Nash- 
ville <& Decatur Railroad Co. v. Comans,A5 Alabama, 
p. 437. The act of 1852 made the corporation liable 
for damages on account of the acts of its agents and ser- 
vants, and the act of 1858 greatly modified the circum- 
stances under which such liability could be enforced. 

All railroad companies, as common carriers, are liable 
for negligence. They are also liable under the law above 
quoted when they act in that capacity. — Redf. on Common 
Car. p. 27, § 37, e^ seq.; Selma & Meridian Railroad Co. v. 
Butts & Foster, 43 Ala. 385. But this is quite a different 
liability from that insisted on in this action. Here the 
railroad company did not act as the carrier of the stock 
killed. It is contended that the company acted as a wrong- 
doer and a trespasser. 

The corporate powers give the company no authority to 
kill stock or to injure it, because it is found on the track of 
the road-way. If it did, this would be a license. And a 
party justifying under a license must show it. This would 
be so, even without the statute. — 1 Greenl. Ev. §§ 74, 81 ; 
Rev. Code, § 1301, supra. To kill one's stock, even a dog, 
is a trespass, and it renders the party who does the act of 
killing a trespasser, if he has no legal excuse. The legis- 
lature has extended this liability to railroad corporations, 
when the act complained of has been done by their ser- 
vants and agents. And if the killing is not accidental, the 
question is not one of diligence or negligence, but of right 
to kill or injure the stock that may be on the road. To 
give such a right there must be law for it, or the trespass 
can not be excused. — 9 Bac. Abr. (Bouv.) Trespass, p. 438 ; 
Parker v. Wise, 27 Ala. 481 ; RJiodes v. Roberts, 1 Stewart, 
145 ; Undsay v. Griffin, 22 Ala. 629 ; 3 Bac. Com. 208. 

It may, however, be said, that a railroad company is an 
artificial person, and is entitled to the same defenses that 



JUNE TERM, 1871. 395 

Mobile & Ohio Railroad Company v. Malone. 

a citizen could make. They l^ave duties to perform which 
are not only important to the corporation, but also to the 
public. And in the necessary performance of the duties 
imposed upon them by law, the legislative authority of the 
State intends to grant them immunity for such accidental 
injuries as may accrue, in the prosecution of their business, 
without fault on their part. And at the same time this au- 
thority has prescribed the requirements of the precaution 
necessary to be used, in order to free the company from 
fault. The corporation, then, must show that its agents or 
servants did use all the means in tkeir power, known to skill- 
ful engineers, to prevent the disaster ; that is, that the 
brakes were properly used ; the engines were reversed, to 
slacken the speed of the train ; and the whistle blown or 
the bell rung, to scare the stock from the track, and to give 
it every possible moment to escape, without endangering 
the safety of the train ; or that all this was impossible and 
unavailing, or could not have been done more completely 
than it was done under existing circumstances. The train 
need not be " stopped." But it should be "slowed," (if pos- 
sible, and safe to the train,) and its velocity should be 
abated, in order to give the stock time to move ofi from 
the railway track. When this is not done, when it is pos- 
sible and safe for the train to do it, then there is a failure 
to comply with the requirements of the statute, and the 
corporation becomes liable for the damages. But this point 
does not necessarily arise in this case, as there is no proof 
of any attempt to arrest the speed of the train, or to scare 
the stock from the road-way, by the whistle or the bell. 
The proof is, that it was impossible to " stop" the train, 
after the cattle were discovered on the track of the road, 
before the collision took place which destroyed them. The 
passenger trains on our railroads move at a velocity of 
about twenty miles in an hour, or at the rate of a mile in 
three minutes. The bUl of exceptions shows that the cat- 
tle were first discovered on the road about seventy-five 
yards ahead of the locomotive, and that it required about 
three hundred yards running " to stop the train." Then 
the engine might have been " slowed " about one-fourth 



396 FOKTT-SIXTH ALABAMA. 

Mobile & Ohio Railroad Company v. Malone. 

of its speed in seventy-five yards. This might have allowed 
the cattle time to have escaped, and to have been saved to 
the owner. This, it seems, the law requires shall be done, 
or attempted.— 6^r. W. R. R. Go. v. Geddis, 33 111. 304. 

All the sections of the Revised Code on railroads are 
upon the same subject-matter, and were enacted as a whole 
on the adoption of the Code. Therefore, they constitute 
one law. Thus construed, section 1406 is subject to the 
same limitations with section 1401, and both these are con- 
trolled by section 1399. — NashviUe & Decatur R. B. Go. v. 
Gomans, 45 Ala. 437. 

The evidence of the presentation of the claim to Beers, 
as shown in the bill of exceptions, was sufficient. It ought 
not to have been rejected. The testimony of the witness 
was, that Beers " had acted as an agent of the company at 
their depot in Mobile, and that he (witness) had before fre- 
quently presented such claims to said Beers, who received 
them, and that such claims had been paid." It was shown 
that Beers was the auditor of the company, but it was not 
shown that the company had any other depot agent in Mo- 
bile. This testimony, so far as it went, was certainly com- 
petent to show whether Beers was acting as depot agent 
or not, at the time the claim was presented. If he was, 
then the presentation was sufficient. These were facts that 
the jury were authorized to find, and this evidence tended 
to establish them. It is not known to the court that the 
offices of depot agent and auditor of the railroad company 
are incompatible, so that the same person may not dis- 
charge the functions of both at the same time. But when 
there is a known person filling the offices designated by the 
Code, as the individuals to whom such claims as that sued 
on in this case should be presented, in order to save it from 
the effect of the bar, then the claim, in writing, should be 
presented to some one of these officers within the time lim- 
ited by law. When, however, there is no such person known 
to be such officer of the company, then any one acting as 
such, with the sanction of the company, would be sufficient. 
The company may have the duties of any of its offices 
temporarily discharged by any competent person, and such 



JUNE TERM, 1871. 397 

Bandolph County v. Hatchins. 

temporary officer can bind the company, while acting 
within the scope of his powers. — Levi v. Lynn & Boston 
Railway, 11 Allen, 300, 

This view of the law in this case leads me to the conclu- 
sion that the learned judge in the court below mistook the 
proper construction of the statute above recited. The judg- 
ment of the court below is therefore reversed, and the cause 
is remanded for a new trial. 



RANDOLPH COUNTY vs. HUTCHINS. 

[judgment by default against county in action op assumpsit.] 

1. County; may he sued in same manner as natural person. — A county is a 
body corporate in this State, and it may be sued in the same manner 
that a natural person may be sued, by one who has claims against it, if 
no other proAdsion is made for their payment. — Kev. Code, § 2558. 

8. Same. — In such a suit, judgment by default may be taken against the 
county, if the suit is not defended. 

3, Same. — A judgment, thus taken, will not be set aside on appeal to the 
supreme court, if it is founded on county warrants, issued for claims 
presented and allowed, for services rendered the county, and a stated 
account, when the only objection to the judgment, assigned as error, 
is that the complaint fails to show a sufficient cause of action, and the 
complaint, though inartificially drawn, shows a substantial cause of 
action. 

4. Judgment by default against county ; what service sufficient to authorize- — 
A judgment by default against a county, founded upon service of pro- 
cess, which shows that the summons was " executed " by the sheriff, 
without also showing upon whom the service was made, is not erro- 
neous, for this reason. 

Appeal from Circuit Court of Randolph. 
Tried before Hon. Charles Pelham. 

The facts are fully stated in the opinion, 

Bentow & Aiken, for appellant. 
C. D. Hudson, contra^ 



398 rOKTY-SIXTH ALABAMA. 

Kandolph County v. Hiitchins. 

PETERS, J. — I have not been able to discover any suf- 
ficient ground for the allowance of the motion made by 
appellee, to dismiss the appeal in this case. The proceed- 
ings in taking the appeal seem to have been quite regular, 
and as required by the State. The motion is, therefore, 
denied, with costs.— Rev. Code, §§ 3485, 3509, 3606, 3507 ; 
Campbell v, Boacli, MS. June term, 1870. 

This is an action of debt, founded on several claims 
against the county of Randolph. The complaint and sum- 
mons are in the usual statutory forms. The summons was 
signed and issued by the clerk on the 10th day of Febru- 
ary, 1868. The sheriff's service of this process is endorsed 
thereon in the following words, viz : " Received in office, 
February 13, 1868. Executed, February 14, 1868. S. E. 
Jordan, sheriff." This writ, with the complaint, was regu- 
larly returned into the proper court, and judgment was 
taken by default, in favor of the plaintiff and against the 
county of Randolph as the defendant, at the proper term 
of said court. In this judgment it is recited that the 
plaintiff recovered " of and from the defendant six hun- 
dred and sixty-nine 24 100, the damages in the complaint 
mentioned, together with costs in this behalf expended." 
It will be seen that the word " dollars " is left out in this 
judgment, but this word is inserted in the complaint to 
which reference is made. This complaint is copied below : 

" The State of Alabama, ) Circuit Court, 

Randolph county. f Spring Term, 1868. 

*' Zachariah M. Hutchins, plaintiff, vs. Randolph County, 

defendant. 
" The plaintiff claims of the defendant the sum of one 
thousand dollars, due from said county by account, on, to- 
wit, the first day of January, 1867; also, one thousand 
dollars on an account stated between the plaintiff and de- 
fendant, on, to-wit, the first day of January ; also, one 
thousand dollars for work and labor done for the defend- 
ant by the plaintiff, on, to-wit, the first day of January, 
1867, at the request of sajd county ; also, three hundred 
and ten dollars on a claira audited and allowed by said 



JUNE TERM, 1871. 399 

Randolph County v. Hutchins. 

county on the 24th of September, 1866, for hauling sup- 
plies to Roanoke, for the destitute of said county, and for 
which the said plaintijff holds the certificate of said county, 
dated 24th of September, 1866, for three hundred and ten 
dollars ; also, three ihundred dollars on a claim audited 
and allowed by said county, on the 30th November, 1866, 
to Joseph H. Davis, for receiving and issuing government 
rations for the destitute of said county, at Roanoke, Ala- 
bama, to-wit, on the 30th of November, 1866, which war- 
rants are the property of the plaintiff, and are due and 
unpaid ; which several sums, with interest thereon, are now 
due." 

This complaint is signed by the attorney for the plaintiff, 
and accompanied the summons, as required by law. At 
the trial term of said suit, judgment was taken by default, 
in favor of said plaintiff against said defendant, as above 
shown. From this judgment the county appeals to this 
court, and here assigns the following errors, that is to say : 

" 1. The court erred in rendering judgment by default 
against appellant. 

" 2. The court erred in rendering judgment by default 
against appellant, because the appellee's complaint shows 
no cause of action. 

" 3. The court erred in rendering judgment by default 
against appellant, because the record shows that service of 
summons was not legally made on appellant." 

The county is a corporation created by law. It is capa- 
ble of contracting accounts for the business of the corpo- 
rate body, and may be sued to enforce the payment of the 
same.— Rev. Code, §§ 896, 907, 908, 909 ; Barbour County 
V. jETorw, MS. June term, 1871 ; Covington County v.'Kenney, 
45 Ala. 45. When any claims against the county are 
audited and allowed, the county, through its commis- 
sioners court, is authorized and required to levy a tax 
to raise the money necessary to pay such claims. — Rev. 
Code, § 9l9,e« seq. ; ih. §§ 922, 926, 9.30. It is true, that 
there is a mode prescribed to register claims against the 
county, and have them paid by the county treasurer ; but 
if they are not allowed and paid in this way, this does not 



400 FOBTY-SIXTH ALABAMA. 

Randolph County v. Hutchins. 

release the county.— Eev. Code, §§ 922, 926, 930. For if 
the county were thus released from suit, any claim against 
the county might be defeated, for want of allowance and 
registration, if the commissioners should choose to reject 
it, however just and proper it might be to have it paid. 
This does not seem to be the purpose of the statute mak- 
ing the county a body corporate, and subjecting it to be 
sued. In such transactions, either the county is bound or 
the commissioners are bound. — Whiteside v. Jennings, 19 
Ala. 784. The commissioners are but the agents of the 
corporation. If the agent transcends his authority, he is 
personally liable. — Crawford v. Barkley, 18 Ala. 270. All 
claims must, also, be presented for allowance, within twelve 
months, or they will be barred by this limitation after the 
claim accrues, unless they are held " by minors or lunatics." 
Eev. Code, §§ 907, 909. If the claim is allowed and regis- 
tered as required by law, then the treasurer of the 
county becomes liable to pay it, if he has funds, and may 
be sued on it if he fails to pay it on demand. — Eev. Code, 
§§ 926, 930. 

But the statute does not declare that even this shall re- 
lease the county from suit. It only provides one mode for 
the payment of the claim. And the same statute that pro- 
vides this, also provides that the county may be sued. 
Suit, then, is a second mode to enforce the payment. Both 
these may exist at the same time ; they are merely cumu- 
lative remedies. 

Then, as the county may be sued, and there is no par- 
ticular mode pointed out for this purpose, the suit may be 
brought in the usual form, prescribed in other cases for 
like demands.— Eev. Code, §§ 2523, 2558. This action has 
bejBn brought in conformity with the general law upon the 
subject of instituting suits under our Code. The complaint, 
in this suit, though somewhat irregular in some trifling and 
amendable particulars, is in sufficient form. — Eev. Code, 
§ 2629; ih. p. 674. The judgment against the county, 
upon a sufficient complaint, is good, if similar to a judg- 
ment against a natural person, in a like action. If the 
defendant fails to plead, he adnjiits the complaint, and 



JUNE TERM, 1871. 401 

Eandolph Couuty v. Hatchins. 

judgment by default may be taken ; and if the claim is 
founded on an instrument in writing, as in this case, the 
clerk, under the direction of the court, may enter the judg- 
ment for the sum shown to be due, and interest. — Revised 
Code, § 2770. No more than this has been done in this 
instance. But, at all events, the judgment by default was 
proper. 

The return of the sheriff does not show upon what par- 
ticular person the summons was served, but it shows that 
the process was executed. This is equivalent to saying that 
it was legally executed. This could only be done by service 
upon the judge of the probate court, in the manner required 
by the statute. — Revised Code, § 25v3. The judge of the 
probate court is a person known to the court. There is no 
need of proof to show that he was the person proper to be 
served with the summons and complaint, as there would be 
in the case of a private corporation, where the person to be 
served is not known to the court. The sheriff is a sworn 
officer of the State. He knows the law. And he knows 
the proper person upon whom he should serve process in 
his hands. In such case, it is to be presumed that he has 
discharged the duties of his office correctly, unless it other- 
wise appear. — Broom's Max. p. 428, (marg.) ; Bank United 
States V. Dandridge, 12 Wheat. 64, 69, 70. The complaint 
shows a substantial cause of action. There Avas no objec- 
tion to it, or to the service of the summons in the court 
below. When this is the case, the judgment of the court 
below will not be disturbed or reversed. — Revised Code, 
§§ 2636, 2637, 2629, 2811. 

The errors assigned are not sustained by the record and 
the law. No others will be noticed. — Shep. Dig. pp. 565, 
538. 

The judgment of the court below is affirmed. 



402 FORTY-SIXTH ALABAMA. 

Barwick v. Kackley et al. 



BAEWICK vs. RACKLEY et al. 

[tkoveb agaikst administeatoh fob sale of peopeety exempted foe use 
of the family.] 

1. Property exempted from administration; when may he sold by adminis- 
trator.— The property of a decedent exempted from administration by 
section 2061, Revised Code, may be sold by the administi-ator for the 
benefit of the family, if not needed for their use. But if he sell it with- 
out the consent of the family, he is liable for its conversion. 

2. Same; ichen widow estopped from suing for. — The consent of the widow 
to the sale of such property, in consideration of an invalid agreement 
with the administrator, is no consent. But a sale at her request estops 
her from suing for the conversion. 

3. Same ; poiver of widow to sell. — The widow, when she is the head of 
the family, may sell such property, and if the family is to be dispersed 
she may sell her interest in it without regard to whether it has been 
set apart or not. 

4. Same; ivhen guardian liahle for conversion of. — The guardian of an 
infant member of the family is liable for a conversion, if he sells the 
child's interest in the property. Secus, if the child be withdrawn from 
the family. 

5. Inventory, (^c., of administrator ; ivhen not inadmissiile as evidence. — The 
inventory and sale bills of an administrator are not inadmissible as 
evidence, because they were made during the late civil war. 

Appeal from Circuit Court of Henry. 
Tried before Hon. J. McCaleb Wiley. 

The appellees, Margaret Rackley, formerly widow of 
James G. Barwick, deceased, in her own right, and G. W. 
Rackley, as next friend of James R. Barwick, minor child 
of said deceased, brought this action against Reddin Bar- 
wick, the appellant, to recover damages for the conversion 
by him of certain personal property of said deceased, 
which they claimed was exempt from administration and 
sale, for the use of the family. 

On the trial it was proved that appellant was adminis- 
trator of James G. Barwick, who died about 1862, in Henry 
county, leaving a widow, one of the appellees, since mar- 
ried, and a son (still an infant) by a former wife ; that ap- 



JUNE TERM, 1871. 403 



Barwick v. Kackley et al. 



pellant, as such administrator, sold all the exempt personal 
property of his intestate, as well as that not exempt. 
Appellees, on the trial, offered to introduce as evidence the 
inventory and bill of sale of said personal property, re- 
turned by said administrator, in 1863, to the probate court 
of Henry county, to which appellant objected, on the ground 
that the "probate court of Henry county was an illegal 
court, and its records, orders, &c., void." The objection 
was overruled and the inventory, <fec., introduced, to which 
appellant excepted. There was also evidence on the part 
of appellees tending to show the value of the exempted 
property sold, and that Mrs. Rackley consented to the sale 
thereof, under an agreement with the appellant that "all 
the property, personal and real, of decedent should be sold 
by him, and one-half the proceeds paid by him to her, 
should the court allow it." 

On the part of appellant, it was proved that he paid 
"Mrs. Barwick one-half of the net proceeds of sale of the 
personal property belonging to the estate of his intestate, 
and took her receipt therefor ; that the settlement was 
made in the probate court ;" that appellant, as guardian of 
the infant appellee, bought the dower interest of the widow 
in the lands of decedent ; that she was present at the sale 
of the personal property, made no objections to it, and 
bought several articles, and was of age. There was evi- 
dence on the part of appellant tending to show that the 
widow refused to remain on the place, and take charge of 
and use the exempted personal property of the decedent's 
estate, but urged and solicited appellant to sell the same 
and give her in money her portion ; that appellant never 
agreed'to give the widow one-half of the proceeds of the 
sale of the land belonging to the estate of said decedent, 
but only "such part thereof as the law would allow her." 
Appellant offered to read in evidence to the jury the depo- 
sitions of two witnesses about conversations had between 
the widow and administrator, to which the appellees ob- 
jected, on the ground that "neither of the witnesses testi- 
fied that he remembered all of the conversations had at 
any time between the plaintiff and the defendant. These 



404 FOETY-SIXTH ALABAMA. 

Barwick v. Rackley et al. 

witnesses, in their depositions, state in substance that they 
did hear all the particular conversation about which they 
testified, but did not hear all the different conversations 
between Mrs. Eackley and the administrator. The court 
sustained the objection and ruled out the depositions, to 
which the appellant excepted. 

The court charged the jury, "that if there was a child of 
deceased, then the widow had no right to sell, until the 
property exempt by law has been set apart to the widow, 
and if so sold by her direction or consent, said sale was 
void, and she can recover in this suit," to which appellant 
excepted. 

Appellant asked the court to charge the jury, "that if 
they believe, from the evidence, that Mrs. Eackley, the 
plaintiff, was a joint owner of the property mentioned in 
complaint with her co-plaintiff, and consented that defend- 
ant should sell the said property, then so far as her interest 
therein is concerned they must find for the defendant." 

2. "That if they believe, from the evidence, that Mrs. Eack- 
ley was a joint owner with the other plaintiff in the property 
sued for, then her right and interest therein was absolute, 
and she had a right to sell or dispose of her interest therein, 
that if they believed, from the evidence, she sold or con- 
sented to the sale of said property, and the same was sold 
and she received her portion of the proceeds of said sale 
from the defendant, she can not recover of the defendant 
her interest originally owned therein. • 

3. "That if they believe, from the evidence, that the pro- 
perty sued for was sold by the defendant as administrator 
of James G. Barwick, deceased, and the plaintiff, Mrs. 
Eackley, being present and consenting to the sale, and that 
afterwards the said defendant, as said administrator, re- 
ported and charged himself with the proceeds of said sale, 
and that said Mrs. Eackley was a party to said settlement, 
and received her part or portion of proceeds of sale of said 
property from the defendant, the said Mrs. Eackley is es- 
topped from recovering for the said interest in this suit. 

4. That if they believe, from the evidence, that defendant 
was and is the guardian of James E. Barwick, the minor 



JUNE TEEM, 1871. 405 

Barwick v. Rackiey et al. 

plain tijBf, and has accounted as said guardian in his settle- 
ment for the proceeds of said sale, to the extent of the 
interest of said James B. Barwick therein, then the said 
minor plaintiff can not recover for said interest in this 
suit." 

Each of which charges the court refused, and to each 
refusal appellant excepted. There was a verdict and judg- 
ment against the defendant, and hence this appeal. 

The errors assigned are — 

1st. Overruling the objection by appellant to the intro- 
duction of the records of the probate court of Henry 
county. 

2d. Sustaining objection by appellees to the depositions 
offered to be read to the jury by appellant. 

3d. The charge given by the court. 

4th. Befusal to give the four charges asked by appel- 
lant. 

J. A. Clendennin, for appellant. — The court erred in 
suppressing the depositions. The witnesses testify to what 
they heard, and heard substantially all the conversations 
about which they testified. Even if they did not, it could 
only affect the weight of testimony, not the competency of 
the witnesses. 

The charge given for the appellee was certainly erro- 
neous. The widow had the right to make the selection 
both for herself and the child, as the head of the family. 
It became absolutely the property of the widow and child 
upon the selection being made, and authorized her to take 
charge of it, and the law imposes no restriction upon her 
right to sell or dispose of it, or any part thereof. Her di- 
rection and request to the administrator to make the sale 
of the exempt property, was equal to a selection. The se- 
lection is purely a matter with her and the administrator ; 
no form of law for it is " prescribed. Under the law the 
minor was entitled to half of the exempt property when 
leaving the family. The horse, wagon, and many other 
articles, could not be divided without a sale thereof. The 
statute prescribes no particular form or proceeding for the 



406 FOETT-SIXTH ALABAMA. 

Barwick v. Rackley et al. 

sale for division. It was not void. The widow and minor 
were each entitled to one-half of the property which was 
not exempt to them. The sale was a public sale, the adult 
plaintiff present and purchasing such articles as she 
wanted. It does not place her in an enviable attitude to 
undertake a recovery of the appellant, when her own evi- 
dence shows that she received her part of the proceeds of 
sale. Her mouth is forever closed. — Morris v. Hall, 41 Ala. 
536, 4th section of opinion. 

The appellant was also guardian of the minor plaintiff, 
and his grandfather. The sale of the minor's interest in 
the property was not necessarily void. It is a general 
principle, that when personal property comes into the 
hands of his ward, other than money at interest, the 
guardian should sell it and put the money at interest. 
Tyler on Infancy, 262. 

The guardian (or appellant) is responsible to the ward 
on settlement with him, if he has converted his property, 
or any part, illegally, and the probate court is the forum 
in which he is liable and should account. 

W. C. Oates, contra. — The objection to the admission of 
the probate court records was overruled, and appellant ex- 
cepted. A specific objection having been made to this 
testimony, none other can be considered by this court, for 
he thereby waived all other objections. — Brotvn v. Johnson, 
42 Ala. 

The probate court of Henry county, in the years 1862 
and 1863, although presided over by a rebel judge, was a 
lawful court for the purpose of granting administration 
and ordering appraisement of property, receiving and re- 
cording inventories, &g. — Texas v. Wldte et al., 7 Wall. 700. 

2. The court below did not err in excluding the deposi- 
tions of the witnesses, Margaret Barwick and Susan E. 
Lisenby, on the objection of the appellees. The deposi- 
tions were offered generally as evidence in the cause. One 
of the appellees (plaintiffs in the court below) was a mi- 
nor, incapable of consenting to the sale, or of making any 
admission which was binding upon him. The depositions 



JUNE TEEM, 1871. 407 

Barwick v. Rackley et al. 

of these witnesses only proved the declarations or admis- 
sions of the adult plaintiff, and did not show that her co- 
plaintiff, had he been sin juris, was present, or heard, or 
otherwise knew of her declarations. The depositions were 
offered, as shown by the bill of exceptions, against both 
plaintiffs. Such evidence was certainly illegal and inad- 
missible against James R. Barwick. Where testimony is 
offered as a whole, a part of which is illegal as offered, it 
is not error in the coiirt to exclude it. — West & West v, 
Kelly's ExWs, 19 Ala. 353 ; Smith v. Wooding, 20 Ala. 324 ; 
Pritchett v. Munroe, 22 Ala. 501 ; Gibson v. Hatchett, 24 Ala. 
201 ; 27 Ala. 216 ; 28 Ala. 704. 

The rule in regard to proving the declarations or admis- 
sions of a party against him is, that " the whole of what 
he said at the same time, and relating to the same subject, 
must be given in evidence," because " the whole admission 
is to be taken together ;" hence, to receive a part only 
would be to destroy the reason of the rule and violate the 
law.— 1 Greenl. Ev. § 201, p. 282 ; Wilson v. Calvert, 8 Ala. 
757. 

3. The court below charged the jury that the sale by 
appellant, as administrator, of the articles exempt for the 
use of the family of his intestate, was void, and that such 
sale did not estop the widow from recovering in this ac- 
tion. We have already shown that a void sale or order of 
sale can not estop Mrs. Rackley, and that there is no es- 
toppel of her by matters in pais. Then why is not the 
charge of the court free from error ? The articles of prop- 
erty exempt from sale by an executor or administrator 
vests in each member of the family of the decedent, widow 
and children, absolutely. — Rev. Code, § 2061 ; subd. 6 of 
§ 2062. The widow could not consent to a sale of the en- 
tire property, for the child was invested by law with an 
equal interest. The evidence of the witness Truett shows 
that the widow's distressed condition of mind was such 
that she was incapable of making a judicious or prudent 
contract, and perhaps incapable of making even a valid 
contract for any purpose, at the time he saw her. Her 
consent to the sale could not change the public policy of 



408 FORTY-SIXTH ALABAMA. 

Barwick v. Rackley et al. 

the State as declared by the statutes above cited. The 
probate court, by her consent to the sale, acquired no au- 
thority whatever to order the sale of the exempt property 
which it did, as shown by appellant, who swears that he 
sold under the order of the court. Consent can not con- 
fer jurisdiction, and hence the order of the court to sell, 
and the sale made under it of the exempt property, are, as 
the court instructed the jury to regard them, utterly void. 
Carter v. Hinlde, 13 Ala. 529. 

The theory of the defense in the court below, and in 
this court, was, and is, that the sale of the exempt prop- 
erty was made by the appellant by virtue of an agreement 
previously entered into with the widow of his intestate. 
Was the sale in fact made under this authority and power, 
or not? It is clearly demonstrated that it was not. It 
was made under the order of the probate court. Obtain- 
ing the order of sale from the court, the report of the sale 
by appellant under oath to the court, and his own testi- 
mony on the trial, show that he sold under an order of the 
court. He says in his testimony, that " at the request and 
solicitation of adult plaintiff he sold at public outcry, 
under an order of the probate court, all the personal prop- 
erty of the deceased, except a few things which the widow 
had taken for her use." If the sale was made under the 
order of the court, then it can derive no support and no 
validity from any other power or authority, for " the law is 
unvarying and unbending, that no support is given to a 
sale by a power, when it is plain that the sale was made 
without reference to the power. — Ala. Conf. M. E. Church 
South V. Price, ex'r, 42 Ala., and authorities therein cited 
on page 50. 

4. The fourth charge which appellant asked the court 
below to give to the jury was properly refused, for the rea- 
son that the same was abstract. There was evidence be- 
fore the jury that appellant was the legal guardian of 
James E. Barwick, the minor plaintiff, but there was not 
one cintilla of evidence that appellant, as such guardian, 
had ever charged himself with anything whatever belong- 
ing to his ward. 



JUNE TERM, 1871. 409 

Barwick v. Eaokley et al. 

A charge is abstract when partly based on facts of which 
there is no evidence. — Garrett v. HoUoivay & Malone, 
24 Ala. 376. 

B. F. SAFFOLD, J.— The appellees sued the appellant 
for the conversion of certain property belonging to the es- 
tate of which he was the administrator, claiming that it 
was exempt from administration for their use as the family 
of the intestate. He defended on the ground that the sale 
of the articles was made at the request of the widow, and 
that he had accounted to her and the infant distributee for 
the proceeds. The judgment was for the plaintiffs. 

The articles of personal property enumerated in section 
2061 of Revised Code, are not subject to administration 
when the deceased leaves a widow, or a child or children 
under the age of twenty-one years, as was the case in this 
instance, but they belong to the family in common for their 
use and consumption. They are subject to division, how- 
ever, if any member should leave the family. — Rev. Code, 
§ 2062. 

If the family should not need them, it would be highly 
proper for the administrator to take charge of them, and 
sell them for the use of those entitled to them. In such 
case he would be chargeable with their value as adminis- 
trator, because as far as he is, or may be, concerned about 
them, they are the property of the estate. His accounta- 
bility would be to those for whose use they were intended. 
If he made a disposition of them unauthorized by the par- 
ties, or by the circumstances, he would be liable for a con- 
version. 

If Mrs. Rackley consented to the sale of the property 
in consideration of an agreement with the administrator 
that she should have one-half of the proceeds of the sale 
of tbe real and personal property of the estate, or of any 
greater interest than she was by law entitled to have, such 
an agreement was void, because beyond the power of the 
parties to make. There was no consent. But if the sale 
was made at her request, or by her permission, not based 
27 



410 FOKTY- SIXTH ALABAMA. 

Barwick v. Eackley et al. 

on any invalid consideration, she is estopped by her con- 
sent. 

There is no law prohibiting the widow, when she is the 
head of the family, fro©i selling the exempted property. 
But if she is not the mother of the minor child or chil- 
dren, as in this case, and does not propose to keep the 
family together, she can only sell her own interest. In 
either case her right to sell may be exercised, whether the 
property has been set apart or not. 

The guardian of a minor child would have no right to 
sell his proportion of the excepted property unless the 
child was withdrawn from the family, and if he did so, he 
would be liable as for a conversion. 

That portion of the charge of the court which was ex- 
cepted to was erroneous. The first three charges asked 
by the defendant ought to have been given, but the fourth 
was properly refused. 

The objection to the introduction of the inventory and 
sale return of the defendant as administrator, was correctly 
overruled. They gave evidence touching many things nec- 
essary to be proved by the plaintiffs, such as the existence 
of the articles, the ownership of them, some indication of 
their value, the disposition made of them, and by whom, 
&c. — admissions of the defendant, no matter under what 
circumstances made. 

The depositions of Martha Barwick and Susan Lisenby 
ought not to have been excluded. They did say they 
heard all the conversation at a particular time, though not 
all of the many conversations on the subject. It would be 
difficult for a witness to remember all that he had heard in 
any conversation. It was not an objection to its compe- 
tency that this testimony tended to defeat the right of one 
of the plaintiffs to recover. 

The judgment is reversed, and the cause remanded. 



JUNE TERM, 1871. 411 

City of Selma v, Mullen. 



CITY OF SELMA vs. MULLEN. 

[assumpsit aqaimbt municifaxj cobpobation fob sebvices bemdebed, &c., 
undeb pabol contract.] 

1. Corporation; when may contract by parol. — A corporation may make a 
legal contract by parol, unless the statute of incorporation or some by- 
law of the corporate body forbids it. 

2. Same ; when assumpsit lies against. — The corporation of a town or city 
is not exempt from this rule. And when this is the case, an action of 
assumpsit lies against such corporation upon an express or an implied 
promise. 

3. Same; what is competent evidence to shoio employment hy. — M., the 
city physician of an incorporated town, duly elected to his office by the 
corporate authorities, wishing to be paid extra compensation for atten- 
tion to small-pox cases, went before the town council and requested to 
know what extra compensation would be allowed him, and was told in 
reply to his request, by one of the councilmen in hearing of all the oth- 
ers of the council then present in the council-room and engaged in 
their regular business, and without any objection from any councilman 
present, "Doctor, go on tvith your small-pox cases, and we will do tchat is 
just and right ; can't you take our faces for thut?" Held, — that this is 
competent evidence for M. in a suit against the corporation for extra 
compensation for services in such small-pox cases, in connection with 
other proof, that such services were performed and accepted by the cor- 
poration, when the action is "on account or verbal contract." 

4. Same; what such declaration estops city from doing. — After such a 
declaration, the corporation is bound to pay what is just and right for 
the extra services thus rendered. And the corporation can not, by 
resolution of the council or by-law, fix the amount of extra compensa^ 
tion without the assent and concurrence of M. , the physician. 

5. Same ; receipts may be explained. — If the council of the town or city fix 
this extra compensation at a certain sum, and this sum is paid to M., 
the receipts given for the sums thus paid do not estop him from show- 
ing, in a suit on his account for extra services, that he did not consent 
to receive the sums thus paid in full satisfaction of his claim. 

6. Municipal corporations ; effect of civil war on franchises and poroers of. 
The late- revolution, in this State, did not suspend the right to the ex- 
ercise of the franchises of an incorporated town in this State, within 
the lines of the insurrectionary forces. Such incorporated town or city 
might still make legal contracts, upon which it would be bound, not- 
withstanding it was under the control of the insurgent power. 

7. Same ; tohat cotitract approved by law of land and public policy. — A con- 
tract by a city corporation with a physician, entered into during the 
late rebellion, to attend to indigent persons sick with the small-pox, 



412 FOKTY-SIXTH ALABAMA. 

City of Selma v. Mullen. 

whether belligerents or non-combatants, is not such a contract as is 
forbidden by the law of the land or the public policy, Attention to the 
sick is a duty of humanity, that no law of this State condemns. 
[Saffold, J., not sitting. "l 

t 

Appeal from Circuit Court of Shelby. 
Tried before Hon. Charles PelhaM. 

The facts are sufficiently stated in the opinion. 

Fellows &, John, for appellant, 

Morgan & Lapslet, and Heflin & McCraw, contra. 

PETERS, J. — This is an action "on account or verbal 
contract," for services rendered by appellee for the sick in 
said city of Selma, during the years 1865 and 1866. The 
suit was originally brought in the city court of Selma, but 
afterwards, by consent of parties, the trial of the case was 
changed to the circuit court of Shelby. The complaint 
contains two counts. They are as follows : 

1. "The plaintiff claims of the defendant the sum of 
forty-six hundred dollars for work and labor done by the 
plaintiff for the defendant, at the request of said defend- 
ant, in the years 1864, 1865, and 1866." 

2. "And plaintiff claims of the defendant the further 
sum of ten thousand dollars for this, that on, to-wit, the 
9th day of May, 1865, at the special instance and request 
of the mayor and council of the city of Selma, for and on 
behalf of the said defendant, the plaintiff, who was then 
and there the city physician of Selma, was employed by 
said mayor and council to bestow his professional service 
as a physician and surgeon upon the poor of the city, who 
were afflicted with a loathsome and contagious disease 
known as the small-pox, and the said mayor and city coun- 
cil promised and agreed with the said plaintiff to pay him 
what his services were worth, and plaintiff says that he did 
perform service in accordance with said employment, and 
bestowed his professional labors as a physician and sur- 
geon upon a large number of the poor citizens of said city, 
all at the request of the defendant, to-wit, eight hundred 



JUNE TERM, 1871. 413 

City of Selma v, Mullen. 

of said citizens, who were sick with small-pox, and plain- 
tiff says his services were worth ten thousand dollars, 
which sum is now due, with interest thereon." 

The record does not disclose upon what plea the parties 
went to trial in the court below, but there was a verdict for 
the plaintiff, Mullen, appellee in this court, for nineteen 
hundred and fifty-eight dollars and ninety-nine cents, 
(1,958.99,) and judgment was given accordingly. From 
this judgment the city of Selma appeals to this court. 

There were numerous exceptions taken by the defendant 
in the court below, the appellant here, to the proceedings 
in that court, but they all, more or less, turn upon the same 
point ; that is, the character of the contract between the 
plaintiff and the defendant upon which the action is 
founded. 

The testimony shows that Selma is an incorporated 
city in this State, with power to make by-laws and conduct 
the affairs of an incorporated city, and that Dr.' Mullen, the 
appellee in this court, was duly elected by the city author- 
ities city physician for the municipal year, beginning on 
the first of May, 1865, and the year 1866. There was 
also proof tending to show that he was employed by the 
corporate authorities, at "extra compensation," to attend 
to certain "small-pox cases," during his terms of office, in 
the years above named, but it did not appear that there was 
any written or verbal order or resolution of the corporate 
authorities making this employment ; but one of the coun- 
cilmen, in the presence of the city council, convened for 
official business in the council chamber, told Dr. Mullen, 
in reply to his request to have his extra compensation 
fixed for services in "small-pox cases," "Go on, doctor, and 
attend to your small-pox cases, and we will do what is just 
and right ; can't you take our faces for that ?" This was 
said in the presence of the council, and there was no 
objection. Dr. Mullen then left, and "the council went on 
with its regular business." There was proof that the 
services were performed under this direction thus given, 
and what such services were worth ; and, also, that the 
services so rendered were accepted by the corporation, and 



414 FOKTT-SIXTH ALABAMA. 

City of Selma v. Mullen. 

a resolution passed to pay a certain sum per month for the 
same by the city. Under this resolution some payments 
were made and received, and receipts given for the same 
by Dr. Mullen. But the evidence was conflicting, whether 
the payments thus made were received by Dr. Mullen in 
full compensation for his services or not. There were 
numerous objections by the defendant to the evidence of 
the plaintiff, offered on the trial below. But they mostly 
turn upon the assumption that the evidence of em|)]oy- 
ment, above detailed, was incompetent to show a liability 
on the part of the corporation, under the counts of the 
complaint above quoted. There were, also, several charges 
given by the court at the request of the plaintiff, which 
were objected to, upon the same grounds, by the defend- 
ant, and some asked in opposition, by the defendant, which 
were refused ; also, some charges upon the illegality of 
the city government during the late rebellion. 

A corporation is an artificial person — a creature of the 
sovereign legislative power. And there is no doubt such 
body corporate, within the compass of its powers, may en- 
ter into contracts, just as a natural person may make like 
contracts.— 1 Black. Com. p. 467 ; 2 Kent's Com. 267, 270 ; 
Ang. & A. Corp. p. 1, §§ 1, 2, 6 ; Dartmouth College v. Wood- 
ward, 4 Wheat. 636, 518 ; Bk. of Augusta v. Earle, 13 Pet. 
519 ; Providence Bank v. Billings, 4 Pet. 514 ; Planters Bk. 
V. Andrews, 8 Porter, 404 ; 1 Kyd, Corg. 13, et seq.; 2 Bac. 
Abr. Bouv. p. 437. It is quite clear that a corporation must 
act within the limits of its powers. The charter of its cre- 
ation is the measure and warrant of its authority, though 
it is not confined alone to the express grant ; but it may 
also extend to such as are incidental to these. — Head & 
Amory v. The Providence Ins. Co., 2 Cr. 127 ; Gosde'*^ v. 
Corporation of Georgetoivn, 6 Wheat. 593, 597, 598 ; Charles 
Biver Bridge v. Warrior Bridge, 1 1 Pet. 420, 546 ; People 
ex rel. Attorney- General v. Utica Ins. Co., 15 John. 358 ; 
2 Bac. Abr. p. 445, D. et seq. Assumpsit lies against a cor- 
poration upon an express or implied promise. — Bank of 
Columbus V. Patterson, 7 Cr. 299 ; Bank U. S. v. Dandiidge, 
12 Wheat. 64 ; Danforth v. Schorarie dt Duaneshurgh Turn- 



JUNE TERM, 1871. 415 

City of Selma v. Mnllen. 

pihe Road, 12 John. 227 ; Montgomery County v. Barber, 
45 Ala. Rep. 237. There is no general law in this State 
which confines a town or city corporation to any particular 
mode of making contracts, or directs by whom such con- 
tracts shall be made. And unless the statute of incorpora- 
tion prescribes the mode, and the persons by whom the 
contract is to be made, any legal mode is sufficient. A 
town incorporated under the Code must act through its 
intendant and councilmen, but in what manner this action 
is to be conducted is to be directed by its by-laws. — Rev. 
Code, §§ 1489, 1602. And a town incorporated by act of 
the general assembly, is a-municipal and public corporation 
of which the court will take notice, and also of the law 
creating its franchises, (1 Greenl. Ev. ch. 2, § 6,) but not of 
its by-laws or ordinances. The learned counsel for the ap- 
pellant has not called the attention of the court to any sec- 
tion of the statute incorporating the town of Selma which 
directs how the corporation should employ its city physi- 
cian, nor has the court been able to discover that there is 
any special direction upon this subject. Nor has it been 
shown that there is any by-law of the city on the manner 
of employing the city physician. But it seems the usage 
was to elect him by the council, or by the mayor and in- 
tendant and council. Nor is it shown what duties were 
required of him. But it seems, that whilst the appellee 
acted as such city physician for the city of Selma, it was 
the custom of the corporation to pay for extra services for 
attending on " small-pox cases." 

Dr. Mullen, the appellee, had been so paid for attention 
to " small-pox cases " on the request of the mayor. Dr. 
Morgan had also been liberally paid on like request. This 
seems to have been done in both these instances without 
any written order or resolution of the 6ity council. But it 
also seems that Dr. Mullen felt himself entitled to some 
extra compensation for services for attention to " small-, 
pox cases " during his term of office, and went before the 
council, when they had met for the transaction of the 
business of the corporation, and urged his title to such 
compensation. One of the members of the council said, 



416 FOBTY-SIXTH ALABAMA. 

City of Selma v. Mullen, 

in presence of the others, who were then present engaged 
in their corporate capacity, in reply to the request of Dr. 
Mullen to have his extra compensation fixed, " Go on, Dr., 
with your small-pox cases, and we will do what is just and 
right ; can't you take our faces for that ?" No other 
councilman said anything. The council took no action, 
other than this declaration, on the matter at the time. Dr. 
Mullen left the council chamber, '* and the council went on 
with their regular business." (The mayor's testimony.) 
Under this direction so given. Dr. Mullen attended to some 
eight hundred small-pox cases. And the proof showed 
that such, cases were not too high at twenty-five dollars 
each. I think this was clearly an employment, a contract 
to pay what the services were worth. It was doubtless 
loosely made ; but this is not a proper ground of com- 
plaint by the city authorities, because it was in their power 
to have made it differently. If the council sat silent and 
permitted one of .their number to speak for them, and ac- 
quiesced in what was said, and allowed the services to be 
performed upon it, it must be taken as their mode of mak- 
ing the contract of employment, unless it is shown that 
there was some statute or by-law of the corporation, 
known to the party employed, which forbade it. The usage 
of the corporation may become the law of the corporation 
in such a matter, if there is no other law that forbids it. 
4 Co. R. 78. After the contract of employment to attend 
t® small-pox cases for extra compensation was entered 
into, no subsequent by-law could alter it or impair it, with- 
out the consent of both the parties to it. Such a by-law 
would be void for unconstitutionality. The power to make 
by-laws is derived from ** the State," and the State could 
not confer a power it did not itself possess. — Const. U. S. 
Art. I, § 10, cl. 1 ; Pasch. Const, p. 153, 154. 

What the services performed were worth, or whether 
they had been performed, or whether they had been paid 
for or otherwise adjusted, were questions left to the jury, 
and their verdict is final, and not subject to review in this 
court upon appeal. 

In this view of the law, the charges given by the court, 



JUNE TERM, 1871. 417 

City of Selma v. Mnllen. 



and the refusal to charge as requested by the defendant, 
were correct. 

The charges given at plaintiff's request express in sub- 
stance the view of the law as set forth in the charge given 
by the court. It is unnecessary to notice these numerous 
charges refused. They were all based substantially upon 
the views of the law as set fortJi below, in the charge 
asked and refused by the court. 

The court charged the jury, in substance, that " if they 
believed the city authorities employed the plaintiff to at- 
tend to their small-pox cases, and that he did attend to the 
small-pox cases, then the city of Selma is in law bound to 
pay him whatever the testimony satisfies the jury that 
such services were reasonably worth, unless there was an 
express contract, in which latter event that must control 
plaintiff's compensation." Defendant excepted to this 
charge. 

Among other charges asked by defendant, and refused, 
was the- following : 

" If the jury beheve from the testimony that Dr. Mullen 
was the city physician of the city of Selma in the years 
1865 and 1866, he was bound by the duties of his office to 
attend to small-pox cases, and that by reason of his accept- 
ing said office he was bound to attend such small-pox cases 
at such extra compensation as the city authorities deemed 
proper ; and if the jury believe from the testimony that 
after he had so accepted the position of city physician, he 
applied to the city council or authorities to fix the amount 
of extra compensation, and the council, or some member 
thereof in the hearing of the others, requested the plain- 
tiff to go on and attend to the small-pox cases, and the 
city authorities would compensate him Uberally, that this 
did not constitute a contract between the city and Dr. Mul- 
len, and would not authorize Mullen to repudiate his con- 
tract with the city made by his election and acceptance of 
the office of city physician." 

The receipts given by Dr. Mullen for the amounts paid 
him as city physician for the city of Selma, and the reso- 
lution of the council, were not estoppels, unless it appeared 



418 FOETY-SIXTH ALABAMA. 

Bivers v. Durr. 

that Dr. Mullen so received and considered them. Re- 
ceipts may be explained, and the resolution amounted to 
nothing without the concurrence of Dr. Mullen. These 
were questions for the jury, and not for the court. 

The charter of the city of Selma was not suspended, re- 
pealed or revoked by the rebellion, and if its corporate 
officers were elected or appointed as required by the 
statute of incorporation, they could go on and discharge 
their duties under the laws of the State as before the in- 
surrection. There is no pretence that they were not so 
elected. There was no proof of treason, on this trial, 
against the corporation, and it will not be presumed that 
because the city was within the jurisdiction of the insur- 
rectionary authorities, the corporation was engaged in 
committing treason. And attention to the " sick," even of 
the enemy, is not a belligerent act. It is a duty of hu- 
manity, which is excepted from the catalogue of crimes 
arising out of acts in aid and comfort of the hostile power. 
Shortridge v. Macpn, (North Carolina,) June, 1867, Chief 
Justice Chase, arguendo. 

The objections made to the testimony of the plaintiff 
are the same as those afterwards raised in the charges 
and excepted to, and the charges asked and refused, or 
they were such as occasioned no injury to the defendant. 

The judgment of the court below is affirmed. 

Saffold, J., not sitting. 



EIVEES vs. DURR. 

[ejectment foe eecoveky of land.] 

, Chancery ; jurisdiction of over infants. — If a bill be filed relative to an 
infant's estate or person, the chancery court acquires jurisdiction, and 
the infant, whether plaintiff or defendant, immediately becomes a ward 
of the court. 



JUNE TEBM. 1871. 419 

Rivers v. Durr. 

2. Same; when decrees of are binditig on infants. — Decrees made in saits 
by infants' plaintiffs, are as binding upon them as upon adults. 

3. /Same; power of to change property of infanta. — Whether the chancery 
court has or has not jurisdiction to sell the real estate of tenants in 
common for division, lands so sold at the suit of an infant, when that 
is the only objection to the sale, may be referred to the power of the 
court to change the property for the benefit of the infant, when the 
infant seeks to recover the land from the purchaser by action of eject- 
ment. 

Appeal from the Circuit Court of Montgomery. 
Tried before Hon. John Elliott. 

The appellant sued to recover from the appellee a lot of 
land in the city of Montgomery. 

In 1868, she being then a minor, filed her bill by her 
next friend in the chancery court, alleging the following 
facts. Her father and mother, after their marriage, in 
pursuance of an ante-nuptial agreement between them, 
conveyed this property to a trustee for the sole, separate, 
and exclusive use and benefit of her mother, it being her's 
before the marriage. Her mother had died, leaving three 
children, including the complainant, her only heirs at law. 
The property could not be partitioned between them, and 
therefore a sale for the purpose of division was prayed. 
The trustee, and proper parties, were made parties defend- 
ant, and they admitted the allegations. The land was sold 
under the decree in the cause, and was bought by Edna 
Watkins, one of the children. From her the defendant 
derived title by purchase. Under the charge of the court 
the jury found a verdict for the defendant. 

Elmore & Gunter, for appellant. — I. At the common law 
no court had the power to award a writ of partition between 
tenants in common and joint tenants against the will of any 
of the parties. This was remedied by statutes 31 Hen. 8, 
ch. 1, and 32 Hen. 8, ch. — ; and the court of chancery 
having assumed jurisdiction of partition after that period, 
the first reported case being in 48 Eliz., took it as extended. 
But no statute ever gave the power to sell for partition, and 
it has never been assumed. Not a single word can be 



420 FOKTY-SIXTH ALABAMA. 

Rivers v. Durr. 

found in the works upon equity jurisprudence showing that 
a sale can be made for partition, and all writers who have 
considered the subject admit that the inherent powers of 
the court do not extend to decreeing a sale. This is also 
evidenced by the fact, that perhaps in every State statutes 
have been passed conferring the power upon their courts 
to sell in particular cases to effectuate a partition. — 8 Cow. 
361 ; 1 Story's Eq. § 446, et seq.; Deloney v. Walker, 9 Port. 
501; 2 Lead Cases in Eq. 640-48, and authorities there 
cited ; 10 Paige, 470. 

II. This deficiency in the powers of the chancery court 
has been remedied in this State by conferring upon the 
probate court authority to sell for partition, and the chan- 
cery court is yet without power in the premises. — Revised 
Code, § 3120 ; 2 Lead. Cases in Eq. 640-48 ; Deloney et aL 
V. Walker, 9 Port. 50i ; Williamson v. Berry, 8 How. 495, 
581. 

III. The chancery court has no inherent jurisdiction to 
sell legal real estate of infants for any purpose. — 3 L. C. in 
Equity, 269 ; JSgee v. Countess of Shafteshury ; Williamson v. 
J5err?/, 8 How. 555-56; Tyler on Infancy, 296, § 193, 298, 
194 and 304, § 200 ; Rogers v. Dill, 6 Hill, 415 ; Russel v. 
Russet, 1 MoUoy, 525 ; Gaunstone v. Gaunt, 1 Collyer, 577 ; 
Wood V. Mather, 38 Bart. 473; Ambler Rep, 419 ; Tif. on 
Trusts and Trustees, 641-2 ; 1 Spence's Eq. Ju. 613, note i ; 
Calvert v. Godfrey, 6 Beavan, 97 ; Pets v. Gardner, 2 Y. & 
Coll. N. S. 312;' MacPherson on Infants, 297, 301, 307, 
311, 312. 

IV. But the question in this case is whether or not the 
chancery court can order a sale of an infant's land for par- 
tition. It will be seen that the bill asking the sale is based 
wholly on the ground of the necessity of it for partition. 
There is no allegation that a sale would be beneficial to 
the infant. The decree for the sale shows that the whole 
object was to effect a partition. 

If the court could not sell an adult's land for partition, 
how could it sell an infant's, as in the latter case there is 
no possibility of consent ? The fact of infancy, is itself an 



JUNE TEEM, 1871. 421 



Rivers v. Durr. 



insuperable difficulty in the way of sustaining the decree 
of sale. 

The appellee is able to cite a few cases in which courts 
have exercised the power or asserted the right to sell for 
partition ; but, upon examination, it will be seen that the 
question of the jurisdiction was not raised, that the cases 
are ill considered and are not supported by any authority, 
and in some instances are not the decisions of the highest 
courts of the State. 

But, on the other hand, it is conceded by all writers and 
adjudicated in all the highest courts of the country, that 
the court is without inherent power to sell for partition 
the lands even of adults, and cannot sell that of infants tor 
any purpose. — See authorities, supra, 

V. If the court had no jurisdiction to make the sale of 
the infant's land, the decree and sale under it are void, 
notwithstanding this is a collateral attack of the decree of 
a court of general jurisdiction. — Lamar v. CommWs Court 
of 3Iarshall County, 21 Ala. 772 ; Gunn v. Hoioell, 27 Ala. 
663 ; Miller v. Jones, 26 Ala. 247 ; 25 Ala. 408 ; WyatCs 
Adrn'r v. Bambo, 29 Ala. 510 ; 3 Lead. Cases in Equity, 269, 
270 ; Grignon's Lessee v. Astor, 2 How. 319 ; Rogers v. DiU^ 
6 Hill, 415 ; 1 Smith's Lead. Cases, 847, (5 Am. edition,) ; 
Hunt's Heirs v. Ellison's Heirs, 32 Ala. pp. 200 and 209. 

GoLDTHWAiTE, EiCE & Semple, contra. 

(No brief for appellee came to Reporter's hands.) 

B. F. SAFFOLD, J.— The jurisdiction of the chancery 
court to sell land for division is not so much involved in 
this case as the question, whether the court, in the exercise 
of its guardianship over the person and property of minors, 
has authority to sell the real estate of the minor. Of this 
latter there can be no doubt. 

In Lx parte Philips, 19 Vesey, 117, Lord Eldon said, 
"In the case of the infant it is settled, that as a trustee out 
of court cannot change the nature of the property, so the 
court, which is only a trustee, must act as the trustee out 



422 FORTY-SIXTH ALABAMA. 

Rivers v. Durr. 

of court ; and finding that a change will be for the benefit 
of the infant, must so deal with it as not to affect the 
powers of the infant over the property, even during his 
infancy, when he has power over one species of property 
and not over the other." That is, if the money of an infant 
be laid out in land, and by law he may dispose of personal 
property before he becomes adult, his power of disposition 
during infancy is not to be prejudiced. He is bound by 
the exchange, but he may treat the land as personal pro- 
perty if he chooses. 

n a bill be filed relative to an infant's estate or person, 
the court acquires jurisdiction, and the infant, whether 
plaintiff or defendant, and even during the life of its father, 
or of a testamentary guardian, immediately becomes a 
ward of the court. — Eyre v. Gourdess of Shaftesbury, Lead. 
Ca. in Eq. vol 2, part 2, p. 139. Decrees made in suits by 
infant plaintiffs are as binding upon them as upon adults. 
Lord Hardwicke observed that he knew of but one excep- 
tion. In that case the infant was a defendant to a cross- 
bill, and both cases being heard at the same time, he had 
leave to show cause, when he came of age, against his own 
decree. — Gregory v. .Molestoorth, 3 Atkins, 626 ; 1 Dan. Chan. 
Prac. 96. 

In this case, the sale from which the defendant derived 
his title, was made at the suit of the plaintiff. She 
claimed a right to what she asked, and those who alone 
could contest with her assented to it. The jurisdiction of 
the court attached, and we must presume that the change 
of property was ascertained to be for the interest of the 
minor. 

The judgment is affirmed. 



JUNE TEEM, 1871. 423 



Ex parte Selma & Gulf Bailroad Company. 



EX PAETE SELMA & GULF EAILEOAD CO. 

[application POiB MANDAMUS.] 

1. Act t» loan three per cent, fund, 4'c-; is still of force. — The act of the 
general assembly of this State, entitled, "An act to loan and appropriate 
the three per cent, fund and its interest," approved, February 18, 1860, 
is a constitutional law. — Pamph. Acts, 1859, 1860, p. 54, Act No. ()8. 

2. Three per cent, fund; is a trust fund. — The "three per cent, fund" 
does not belong to the State. It is given by the congress of the union 
to the State, in trust for the purposes named in the gift ; that is, for the 
purpose of making "public roads, canals, and improving the navigation 
of rivers," in this State, — Act of Congress, March 2, 1819; Clay's Digest, 
pp. xxii, xliv. 

3. Same. — The act of February 18, 1860, above referred to, grants a loan 
and appropriation of the sum of forty thousand dollars to the Selma & 
Gulf Railroad Company, and to which said company is entitled upon 
complying with the requirements of said act. 

4. Same ; what does not forfeit tight of company to apply for loan of. — When 
it appears that any of the railroad companies , to which loans and ap- 
propriations of said "three per cent, fund" are granted by the second 
section of said act, applied for the same within six months after the 
passage of said act, and in the manner prescribed therein, and that 
such loan and appropriation was postponed by the governor, a subse- 
quent application may be made in "renewal and continuation of the first 
application, which was so postponed. Such postponement does not 
forfeit the right to the loan and appropriation granted under the act. 

5. Same ; application for, to whom may he made. — And an application so 
made in renewal and continuation of such first application, made within 
the six months after the passage of said act, and postponed, does not 
come too late, if made to the governor of this State, elected and in- 
ducted into office under the present constitution of this State. 

6. Same; action of governor in respect to; tchentvill not be controlled by 
court. — The duties devolved upon the governor by said act are to be 
performed by him, under the law, iu his own way. The performance 
of his duties is not to be controlled by this court or any other, when he 
acts under authority of law. Of such things, he is the sole judge, in the 
executive branch of the State government. 

7. Same; ivarrant given in payment of loan of ; when only treasurer can 
refuse payment of. — Upon the issuance or drawing of the "warrants," as 
authorized by said act, to the ]>arty entitled to the same, unless there 
is fraud, the warrants, so issued or drawn, give a right to the company 
in whose favor they are drawn, to the amounts therein named, upon 
the treasury of the State, which, upon proper application, the treasurer 



424 FOBTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

can not refuse to pay, unless there is a deficiency of funds in the treas- 
ury for that purpose. Such right will be enforced by mandamus. 

At its February term, 1871, the city court of Montgom- 
ery overruled and refused the prayer of the Selma & Gulf 
Railroad Company for a mandamus to compel the treasurer 
of the State of Alabama to pay to petitioner a warrant, 
drawn in its favor by the auditor, for the sum of $40,000, 
under an act entitled "An act to loan and appropriate the 
three per cent, fund and its interest," approved, February 
18th, 1860, and the said petitioner excepted to the decis- 
ion, took a bill of exceptions, &c., and now renews the 
application in this court. 

The petition alleges the corporate existence of the peti- 
tioner, &c.; recites the act of February 18th, 1860, entitled 
"An act to loan and appropriate the three per cent, fund 
and its interest," and various other acts of the legislature 
in relation thereto. By section two of said act, which 
loans out the three per cent, fund, it is enacted, that "the 
sum of $40,000 of the same fund (the three per cent, fund) 
be loaned to the Selma & Gulf Railroad Company." The 
third section provides that loans shall be for the term of 
five years, and the amount of interest, &c., on the loan, six 
per cent. The 9th section, after referring to the terms and 
conditions of the act of February 17th, 1854, provides that 
the companies to whom any of the three per cent, fund has 
been loaned, upon complying with the conditions, &c. 
prescribed by the act of February 17th, ±854, shall receive 
from the Governor a warrant for the proper amount on the 
comptroller, (now auditor,) who shall draw his warrant 
therefor on the treasurer, who shall pay the same "out of 
the monies in the treasury not otherwise appropriated," 
&c. The 18th section of the act provides, in effect, that 
on the failure of any of the companies to whom the three 
per cent, has been loaned, to apply for the same within six 
months, and comply with the requirements prescribed by 
the act, it shall not be entitled to the loan, but the same 
shall be divided pro rata among the other companies men- 
tioned in the second section of the act, &c. 

The 14th section of the act provides, in substance, that 



JUNE TEEM, 1871. ^ 

Ex parte Selma & Gulf Railroad Company. 

"whenever there are not sufficient fands in the treasury, not 
otherwise appropriated, &c., to satisfy the loans and appro- 
priations made by the act, the governor shall have power 
to postpone such loan and appropriations until the amount 
in the treasury, not required to meet other appropriations, 
shall be sufficient to pay the same. 

The petition further states facts, which show that within 
six months after the passage of the act the petitioner ap- 
plied for the loan, being prepared and offering to com- 
ply with all the requirements of the act and conditions 
precedent to receiving the loan, but A. B. Moore, the then 
governor, under the power vested in him by the act, post- 
poned the payment of the loan. 

In November, 1871, the petitioner made another applica- 
tion for the loan to Wm. H. Smith, then governor of Ala- 
bama, and "gave bond and mortgage, and security satis- 
factory to the governor," and obtained from him his war- 
rant on the treasurer in favor of petitioner for said sum of 
$40,000 The treasurer, on presentation of the warrant, 
declined to recognize its validity, and refused to pay the 
same, and informed petitioner that he would not pay said 
warrant, although he might have funds in the treasury, not 
otherwise appropriated, sufficient to pay the same. 

The answer of the treasurer alleges, in substance, that 
the time during which any portion of the money loaned by 
this act could be paid, had long since expired, to-wit, on 
the 18th day of August, 1865, and that there was now no 
authority for p^iying the loan ; that the pos^tponement 
by Gov. Moore was not made in accordance with law, and 
did not give petitioner any right to apply for said loan now. 

» 

Alexander White, and E. W. Pettus, pro motion. 

Attorney-General Sanford, contra. 
t 

PETERS, J. — By an act of the congress of the United 
States, passed on March 2d, 819, entitled "An act to enable 
the people of Alabama territory to form a constitution and 
State government, and admission of such State into the 
union on an equal footing with the original States," four 
28 



426 FOKTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

propositions were submitted to the convention to be called 
to form said constitution and State government, for their 
" free acceptance or rejection," and if accepted by the con- 
vention, to be obligatory on the United States. Each of 
these propositions were accepted. The third was in these 
words : 

" That five 'per cent, of the net proceeds of lands lying 
within the said territory, and which shall be sold by con- 
gress, from and after the first day of September, in the 
year one thousand eight hundred and nineteen, after 
deducting all expenses incident to the same, shall be 
reserved for making public roads, canals, and improving 
the navigation of rivers, of which three fifths shall be 
applied to those objects within said State, under the direc- 
tion of the legislature thereof, and two-fifths to the making 
of a road or roads leading to said State, under the direc- 
tion of oongress." — Clay's Dig. pp. xxii, xxiii, xxiv ; ih. p 
xlii, ordinance ; Code of Ala. pp. 51, 52, § 3 ; ib. p. 47, 
ordinance. The funds raised and paid to the State under 
this "proposition" have been called in our statute laws, 
" the three per cent, fund," and "the two per cent, fund." 
By further act of congress, approved September 4th, 
1841, the two per cent, fund was relinquished by congress 
to the State, and accepted by the State, upon the terms 
proposed by the national government. — Pamphlet Acts,. 

1841, 1842, p. . And up to January 1st, 1860, the 

State had received of the three per cent, fund the sum of 
eight hundred and fifty-eight thousand four hundred and 
ninety-eight dollars, ($858,498.00,) principal and interest. 
And of this fund, so received, there then remained unap- 
propriated the sum of one hundred and ninety-five thou- 
sand three hundred and sixty-two dollars and ninety- one 
cents, ($195,362.91.)— Pamphlet Acts, 185J, 1860, Act No. 
68, § 1, p. 54 ; Report of joint select committee to general 
assembly of Alabama, January 17th, 1860, passim. On 
the 18th day of I'ebruary, 1860, after acting on the report 
above cited, a law was passed by the general assembly of 
this State, entitled "An act to loan and appropriate the 
three per cent, fund and its interest." — Pamph. Acts, 1859, 



JUNE TERM, 1871. 427 



Ex parte Selma & Gulf Railroad Company. 



1860, p. 54, No. 66. By this act this fund was loaned and 
appropriated as therein designated and prescribed. Omit- 
ting the enacting clause, I quote below the first and second 
sections of this law, of February 18th, 1860, as follows : 

" Sec. 1. That the sum of eight hundred and fifty-eight 
thousand, four hundred and ninety-eight dollars is hereby 
declared to be the amount due as principal and interest from 
the State to the three per cent, fund, of which sum one 
hundred and ninety-five thousand, three hundred and sixty- 
three dollars is the balance due as a loan to the Tennessee 
and Coosa Eailroad Company, under an act approved 17th 
February, 1854. Said loan is ratified as prescribed in said 
act, and the balance of said three per cent, fund, amount- 
ing to six hundred and sixty-three thousand, one hundred 
and thirty-five dollars, is loaned and appropriated as here- 
inafter enacted." 

" Sec. 2. That the sum of two hundred and eighteen 
thousand dollars of said fund be loaned to the North-east 
and South-west Alabama Railroad Company; that the sum 
of seventy-five thousand dollars of the same fund be loaned 
to the Wills Valley Railroad Company ; that the sum of 
two hundred and twenty-five thousand dollars of the same 
fund be loaned to the Alabama and Tennessee Rivers Rail- 
road Company ; that the sum of forty thousand dollars of the 
same fund be loaned to the Selma and Gulf Railroad Com- 
pany ; that the sum of twenty-five thousand dollars of the 
same fund be loaned to the Cahaba, Warrior, and Greens- 
boro Railroad Company ; that the sum of fifty thousand 
dollars of the same fund be loaned to the Opelika and Ox- 
ford Railroad Company ; and the sum of thirty thousand 
dollars of the same fund be loaned to the Montgomery and 
Eufaula Railroad Company, all on the same terms and with 
the stipulation and conditions hereinafter prescribed." — 
Pamph. Acts 1859-60, No 68, p. 54. 

The language of this statute is too plain for doubt or 
misconstruction. The intent is strongly and emphatically 
expressed, and the law actually '^ loans and appropriates" 
the fund therein named to the parties mentioned. This is 
a trust fund, and the State is the trustee, and it is bound 



428 FORTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

in good faith to pay the interest on it, or to loan it out, or 
invest it, as the terms of the gift require. The liabihty to 
pay interest is acknowledged in the words which describe 
the debt, as is shown in the first section of the act above 
quoted. It is also acknowledged by the general assembly 
in the act approved on 2d February, 1839, in making an 
appropriation out of the " interest of the three per cent, 
fund " for the improvement of Elk river, in this State. — 
Pamph. Acts 1839, p. — . The loans thus granted were to 
continue for five years, bearing interest at the rate of six 
per cent, per annum, payable semi-annually at the treasury 
of the State. The parties accepting the same, before the 
money could be paid over to them, were required to exe- 
cute a bond to the State in double the amount of the sum 
to be received, in each case, conditioned as required by the 
act, and to be secured, to the satisfaction of the governor, 
by mortgage or deed of trust, and such other security as 
the governor in his discretion shall require, if in any case 
he fehall deem other security necessary and proper. — Pamph. 
Acts 1859-60, No. 68, §§ 3, 4, p. 54. 

The ninth section of said last named statute also enacts, 
" that when any of the railroad companies named in this 
act shall comply with the terms and conditions of this act, 
or the act of February 17th, 1854, relating to said compa- 
nies respectively, and made conditions precedent to the 
loan or payment of money, as the case may be, the gov- 
ernor of the State shall draw his warrant in favor of the 
proper party for the amount, on the comptroller, who shall 
draw his warrant for the same upon the treasurer of the 
State, which warrant shall be paid by the treasurer out of 
the moneys in the treasury not otherwise appropriated, and 
charge to account of the three per cent, fund." — Pamph. 
Acts 1859-60, No. 68, § 9, p. 54. There are two other sec- 
tions of this law proper to be noticed in this discussion. 
The first of these is section fourteen, and I cite so much of 
it as applies to this case : 

" In case it shall appear that the funds in the treasury, 
not otherwise appropriated and required to meet other ap- 
propriations, shall be insujBicient to satisfy the loans and 



JUNE TERM, 1871. 429 

Ex parte Selma «fe Gulf Railroad Company. 

appropriations authorized by this act, at the time the same 
shall be applied for, the governor shall have power to di- 
rect the amount in the treasury not required to meet other 
appropriations, to be distributed pro rata among such of 
said companies as shall apply for the loans and appropria- 
tions authorized by this act, and the balance of such loans 
and appropriations shall be postponed until the amount in 
the treasury not required to meet other appropriations 
shall be sujficient to satisfy the same." 
And the other section referred to is in these words : 
" That if any of the companies mentioned in the second 
section of this act shall fail for six months from the pas- 
sage of this act, to apply for the loan therein prescribed, 
and to comply with the requirements prescribed in this 
act, the amount so proposed to be loaned such company 
shall be loaned -pro rata to the other companies mentioned 
in the second section of this act, or to such of them as 
may apply therefor, upon the same terms and conditions 
as are prescribed in the third and fourth sections of this 
act ; Provided, said companies shall apply for the same 
within eight months from the passage of this act." — 
Pamph. Acts 1859-60, p. 54, No. 68, §§ 14, 18. 

From these sections it very clearly appears that the gov- 
ernor was clothed with power to postpone these loans, or 
any one of them, if there were not funds unappropriated 
to pay them when applied for, and that the applications 
for these loans were required to be made within six months 
after the 18th day of February, 1860, the date of the pas- 
sage of the act. This seems to me the most rational con- 
struction of the language of the statute. The legislature 
doubtless intended to close the operations under this law 
in five years and six months with the companies which did 
not fail to avail themselves of the benefits of the loans, or 
within five years and eight months after the date of the 
act, as to those loans that were permitted to lapse and 
were not taken by the companies named in the first in- 
stance. Two months longer were allowed to dispose of 
such loans as failed to be appropriated under the first 
offer. But the governor was permitted to prolong this pe- 



430 FORTY-SIXTH ALABAMA. 

Ex parte Selma & Gulf Railroad Company. 

riod by postponing such loans as there might happen to 
be no funds unappropriated in the treasury to meet, when 
applied for. In this way the operation of the law might 
be extended until funds to meet the loan proposed accu- 
mulated in the treasury. This statute has never been re- 
pealed, suspended or modified. Its purpose has not been 
accomplished. It can not be repealed by non-user. It 
must therefore still be in force. — White v. Boot, 2 T. B. 
375. Very evidently, its purpose, so far as the applicant in 
this case is concerned, is not accomplished. That it has 
been postponed, is not the applicant's fault. This is the 
view, doubtless, that his excellency, the late governor of 
this State, took of the enactment. I think it the correct 
one. If the law was in force when the governor acted, 
clearly he was authorized to perform the duty it devolved 
upon him. The petitioner had not forfeited its rights or 
failed to comply with the requisitions of the law within the 
period prescribed and in the manner prescribed. The 
postponement of the loan in the first instance, the inter- 
vention of the rebellion and overthrow of the lawful gov- 
ernment of the State, and want of funds in the treasury, 
necessarily extended the period in which it was possible to 
complete the arrangements for the loan granted by the 
act. This was the question left to the governor, whether 
the time for the loan had expired or not. He has decided 
that it had not, and that there were sufficient funds in the 
treasury subject to the loan. It is not for this court, or 
any other, to review his acts. In such a case, his jurisdic- 
tion is paramount to that of this tribunal. He was 
charged by law with a duty, and he has performed it. 
This court, it seems to me, can only interfere when the 
chief executive acts without sanction of law. In this case 
there can be no question as to the constitutional validity 
of the law. It is merely an act regulating a trust fund, 
6ver which the general assembly had undoubted control. 
Act of Congress, March 2, 1819, supra. The law had not 
failed either by non-user, express limitation, or by limita- 
tion reasonably to be inferred from its purpose or its lan- 
guage. The funds " loaned and appropriated " are not the 



JUNE TERM, 1871. 431 

Ex parte Selma & Gnlf Kailroad Company. 

property of the State, or such as the State may legally 
confiscate or divert to its own use. They are wholly trust 
funds, and should be dealt with as such, loaned out and in- 
creased as much as possible, until applied to the very 
important uses for which they were given by the govern- 
ment of the Union to the State ; that is, to the aid of such 
works of internal improvement as are named in the gift. 
Act of Congress, March 2, 1819, supra. 

Here the application for mandamtis shows that the peti- 
tioner is the railroad company to which the grant of the 
loan was made, out of certain trust funds called the "three 
per cent, fund," to the amount of forty thousand dollars ; 
that this loan was accepted and applied for by the com- 
pany, iu the proper way, and within the proper time ; that 
the same was postponed by the governor, under authority 
given him by the act. In such a case, this court will take 
notice of the* intervention of the late war and the over- 
throw of the lawful government of the State during the 
late rebellion, and that the loan was necessarily postponed 
during this period ; and that the application in renewal of 
the former application made at first, was made in reason- 
able time after the restoration of the rightful government 
of the State. The petitioner also shows, that upon the re- 
newal of the application for the benefit of the loan granted 
the petitioner, the governor drew his warrant on the 
proper officer for the amount of money loaned of the three 
per cent, fund ; that this officer was the auditor of the 

State, and that the auditor drew his warrant, in conform- 

% ... 

ity with the warrant of the governor and the requisitions 

of the law, upon the treasurer of the State for the amount 
loaned, and this warrant of the auditor the treasurer re- 
fused to pay. From what has already been shown, I think 
in this the treasurer misapprehends the law, though at the 
same time his vigilance and caution are to be most highly 
commended. 

Let a rule nisi issue as asked by petitioner, returnable 
instanter into this court, during the present term, requir- 
ing, &o. 



432 FOKTY-SIXTH ALABAMA. 

Moody V. Robertson. 



MOODY vs. EOBERTSON. 

[action to EECOVEE money paid by mistake — SET-OFF. ] 

1. 8ei off. — Where a person conveyed land to another in consideration 
of the payment by the latter of his indebtednes to a third person, and 
it was afterwards ascertained that the debt had been previously paid, 
in a suit by the party making the payment to recover it as money paid 
by mistake, the defendant may make available a set-off against the party 
for whose benefit it was paid, though not a party to the record. 

2. Money paid by mistake, suit to recover ; iy whom may ie maintained. — A 
suit to recover money paid by mistake may be instituted in the name 
of the party really interested. 

Appeal from Circuit Court of Tuskaloosa. 
Tried before Hon. W. S. Mudd. 

This cause of action arose in the following manner : 
John Robertson conveyed to his son, John T. Robertson, 
a tract of land in consideration of the payment by the 
latter of several judgments against him. Among these was 
one owned by Mrs. Eliza Cunningham. It had been pre- 
viously paid by a co-obligor, but this was forgotten. 
Moody, the attorney for Mrs. Cunningham, received both 
payments, and when he discovered the mistake he reclaimed 
the last payment, but held it as a partial satisfaction of a 
larger judgment recovered by himself against John Robert- 
son. In this state of the case, John T. Robertson sued 
Moody for the amount so retained. The latter pleaded 
the general issue, payment, set-off, and a special plea 
stating the facts as above. This last plea was verified. 

The court charged, in substance, that the plaintiff was 
entitled to recover, unless the conveyance made by John 
Robertson had the effect of transferring to him the de- 
mand ; and that it did not have such an effect if the money 
was paid by mistake. 

There wag a verdict and judgment for plaintiff. 



JUNE TERM, 1871. 433 

Moody V. Bobertson. 

Defendant appeals, and here assigns as error the charge 
of the court. 

Washington Moody, per ae. 

SoMERViLLE <fe McEachin, cmtra. — The only point that is 
presented in the bill of exceptions is, whether this set-off 
is good in a court of law ? 

The statute authorizes only such debts and demands to 
be set-off as are "mutual." — Eev. Code, § 2642. It is obvi- 
ous to the legal mind, that there is no such mutuality here 
as is contemplated by the statute. The defendant owes 
the plaintiff, and John Eobertson, a third party, owes the 
defendant. The latter debt is res inter alios acta ; and 
though there is a remote equitable connection between the 
two transactions, the debts are in different rights and not 
mutual. 

The money sued for is the plaintiffs ; the claim sought 
to be set-off is the debt of plaintiff's father. The party 
suing is not, as to the latter claim, defendant's debtor. 
Waterman on Set-off, p. 45, § 40 ; p. 26, § 22. 

"The subject of a set-off," says the same authority, "is a 
cross debt or claim on which a separate action might be 
sustained, due to the party defendant from the party plain- 
tiff." — lb. p. 3. And "it must be a legal, not an equitable 
demand,"— i&. p. 29 (note), p. 26, § 22, (supra.) 

The reasoning of the learned judge of the lower court, 
as stated in the bill of exceptions, is both logical and incon- 
trovertibly correct — that the action against defendant in 
plaintiff's favor, would lie "unless the deed from John 
Bobertson and wife to the plaintiff had the effect of trans- 
ferring the claim sued on to said John Robertson, and the 
deed did not in law have that effect, if the money was paid 
to and received by defendant by mistake, and the deed 
was executed by John Robertson under the mistaken belief 
that the money was due on Mrs. Harts' (the Cunningham) 
judgment at the time it was paid." 

The following principle, enunciated in Waterman on 
Set-off, p. 88, § 72, should put the point involved here at 



434 EOBTY-SIXTH ALABAMA. 

Moody V. Kobertson. 

rest. "It seems," he says, "almost unnecessary to state 
that a debt of the plaintiff to a third person, though con- 
nected with the subject of the action, cannot be set-off." 
The most that can be alleged, with any show of plausibili- 
ty, by defendant, is that the collection of this money sued 
for, would in equity create a debt from the plaintiff to the 
father, John Bobertson, and he anticipates this peculiar 
state of the case in seeking to establish his right of re- 
tainer. 

It seems plain, that if the defendant has any remedy, it 
is not in this forum, but in another which possesses a 
broader power to correct the inequalities and insufficiencies 
of the law. 

B. F. SAFFOLD, J.— The plaintiff is not entitled to 
recover if the defendant's judgment against John Bobert- 
son may be used as a set-off. It may be so used if the 
suit could have been instituted in the name of the said 
Bobertson. The common law permits, and section 2523 of 
the Bevised Code requires, a suit founded upon an implied 
contract for the payment of money to be prosecuted in the 
name of the party to be benefited. — 1 Chit. Plead. 4, 100. 
A suit for the recovery of money paid by mistake, is based 
upon such an implied undertaking. As John Bobertson 
was the party really interested, the defendant's judgment 
against him was available as a set-off, though he was not 
a party to the record. — Bowen v. Snell, 9 Ala. 481. 

The charge was erroneous because the right of action 
accrued only on account of the payment by mistake. 

The judgment is reversed and the cause remanded. 



JUNE TERM, 1871. 435 

First National Bauk of Selma v. Colby. 



FIRST NATIONAL BANK OF SELMA vs. COLBY. 

[AOnON AQAINST NATIONAI. BANK OM CEBTTFTCATE OF DEPOSIT, COMM21TCED 
BY ATTACHMENT.] 

1. JfaUonalharikseatdblished hy "currency act," how subject to be sued. 
The national banks established under the act of the congress of the 
United States called the "currency act," approved June 3, 1864, may 
be sued by a creditor of such bank in a State court by attachment. 
Stat, at Large, U. S., 1863, 1864, p. 99. 

2. Same ; how »uch suits must be conducted. — When such suits are so insti- 
tuted in the courts of this State they are to be conducted and governed 
by the laws of this State, applicable to attachment suits against natural 
persons. 

3. National bank, attachment against ; for what cause will not be dissolved, 
&c. — Such attachment will not be dissolved, dismissed or abated, or the 
levy quashed, because the bank had committed an act of insolvency 
before the institution of the suit, and its charter had afterwards been 
dissolved and its franchises forfeited, by decree of the United States 
district court, and a receiver had been properly appointed to take 
charge of the assets of said bauk, under said act of congress. 

4. Charge to jury ; what not erroneous as to recovery against national bank. 
If the proof on the trial of such a cause shows that the plaintiff had a 
proper claim against the bank for a certain sum of money deposited with 
the bank by the plaintiff, and the bank on the trial interposes no plea 
in defense of the action, it is not error in the court to instruct the 
jury, that if they believe the proof, they must find for the plaintiff to the 
amount of the claim he has proved, and interest. 

Appeal from the Circuit Court of Dallas. 
Tried before Hon. B. L. Whelan. 

The facts are stated in the opinion. 

J. C. CoMPTON, and Chilton & THORmGTON,lor appellant. 
Does the process of attachment lie against this bank under 
the circumstances of this case ? That is the question to 
be first settled. 

We say it does not lie for three reasons : 1st. The pro- 
ceeding by attachment is statutory, is in derogation of the 
common law, and there is no law of Congress or of the 



436 FORTY-SIXTH ALABAMA. 

First National Bank of Selma v. Colby. 

State giving such a remedy against a national bank. 
Drake on Attach. § 4, p. 7. 

It is neither, strictly speaking, a foreign or domestic cor- 
poration as contemplated by our statutes, but sui generis, 
and subject to such liabilities and remedies as are provided 
by the law of its organization. 

2. In the second place, no attachment could properly 
have issued on the 17th day of April, 1867, because the 
bank, to speak metaphorically, died the day before. Its 
doors were closed, its business forever suspended, its presi- 
dent had absconded, and its assets taken possession of by 
the government of the United States, all before the attach- 
ment issued. There could have been no more unequivocal 
acts of a surrender of its corporate franchise than was 
furnished by this bank before the suing out of this attach- 
ment. In such case it can not be sued at law. The rem- 
edy, ordinarily, is in chancery to husband its assets, that 
they may be administered as a common fund for the pay- 
ment of its debts, or as in this case to be summarily ad- 
ministered by the treasury department of the United 
States in accordance with the law of its creation. — See, as 
to the right of plaintiff below to sue a dead corporation, 
Paschall v. Witsett, 11 Ala. R. ; Mmnma v. The Potomac 
Company, 8 Peters, 281. 

3. In the third place, no attachment could properly have 
issued after these acts of utter insolvency on the part of 
the bank, and the seizure of it by Gen^ Swayne, by reason 
of the 52d section of the act of congress, under which the 
bank was organized. — 13 Statute at Large, 115. That sec- 
tion, taken in connection with section 50, shows conclu- 
sively the object and spirit of the law, and that to allow 
any creditor of the bank, after it was put in liquidation, or 
after it had ''committed an act of insolvency," to acquire 
a lien by legal proceedings so as to collect his debt in full, 
leaving even the biU holders and the government, it may 
be, unprovided for, would be to strike down the act which 
prescribes specific appropriations of the assets, which 
establishes equality in the distribution of the entire pro- 
ceeds, after paying the bill holders in full, and which for- 



JUNE TEBM, 1871. 437 

First National Baak of Selma v. Colby. 

bids all assignments or transfers of its effects, or payment 
of monies after such act of insolvency. — See § 52. Surely 
the law will not do, (give a preference to one of a class 
whom it declares shall share rateably,) and sanction or 
create a transfer or assignment to that end, whish it ex- 
pressly declares shall not be made. — See an able opinion, 
directly in point, in Venango National Bank v. Taylor, 
56 Penn. 14, 17. 

4. Another reason may be stated : There was nothing 
to levy upon — nothing that could be levied on. The assets 
were in the hands of Gen. Swayne. His acts were valid. 
See Ordinance No. 15 of Convention, 1867; Acts of 18i 8, 
p. 167. The funds were as if in chancery, and not subject 
to be seized by the sheriff. — McLemore v. Benboiv, 19 Ala. 
p. 76 ; Bead v. Spragtte, 31 Ala. 101-5-6. 

Suppose the sheriff had attempted to levy on the safe 
in the vault containing all the assets of the bank. This 
being in the possession of the secretary of the treasury, 
through his constituted agent, would have been resisted — 
must the sheriff summon his posse and make war upon the 
United States forces ? Would the law compel, nay, would it 
for a moment tolerate such a, proceeding ? Surely not. And 
why ? Simply because the legally constituted authorities 
had possession of the assets, and the State courts, then 
doing business by the sufferance of the power which held 
the assets, had no right or jurisdiction to interfere. If, 
then, the personal property of the bank could not have 
been levied on, how could the sheriff levy on the land ? 
The one, as much as the other, was in the custody of Gen. 
Swayne for the government. 

Alexander White, contra — Argued at length, that under 
the act of congress, neither the contingency had happened 
which authorized the appointment of a receiver, nor had 
the facts been brought to the notice of the appointirfg 
power in such a manner, as, under the laws incorporating 
the national bank, would give the power to appoint a 
receiver ; and further, that admitting the happening of the 
contingency, and its being properly brought to the notice 



438 Jj'OBTY-SIXTH ALABAMA. 

First National Bank of Selma v. Colby, 

of the appointing power, still the power to appoint a 
receiver had not been followed as prescribed by law, and 
the appointment was illegal, and that the judgment of the 
United States district court was void on its face, &c. As 
this view was not considered in the opinion, i^ is unneces- 
sary to give the argument more fully. 

Mr. White further argued as follows : 

By section 57, the bank was liable to be sued in the 
State courts. Jurisdiction of a corporatioa, in Alabama, 
which owed to her laws the exercise of all its corporate 
functions, without which it could not have made a contract 
or enforced a right or redressed a wrong, was necessarily 
implied in the local life of the corporation, but it was not 
left to intendment or implication, but by the express terms 
of the organic law of its creation it is liable to "suits, 
actions and proceedings, &c., in any State, county or muni- 
cipal court where such bank is located." 

There is no restriction as to the kind of suits or the 
manner of suing, and every remedy and process known to 
to the courts in which suits may be brought is given as 
completely, more so, than if each had been enumerated in 
the acts of congress. For by its unqualified and general 
terms it embraces suits and remedies which thereafter 
should be originated in the State where located, as well as 
those then in being. And it is further implied that such 
suits, when brought in a local court, shall have the same 
force and effect they would have against any other person 
in those courts. The jurisdiction is given without qualifi- 
cation in the enacting grant, and must carry with it all the 
incidents of that jurisdiction, and the court itself upon 
which the jurisdiction is conferred, must of necessity regu- 
late and control and adjudicate upon, the rights and reme- 
dies of parties litigant in that court. The fact of jurisdic- 
tion once properly in exercise, subordinates both subject 
matter and parties to the orders and judgments and decrees 
of the court. 

It cannot be conceived that a court could discriminate 
between parties who stood "in equali juri" before it. 



_^ JUNE TERM, 1871. 439 

First National Bank of Selma v. Colby. 

The attachment must have the same effect in this case 
as in others like it against any citizen of Alabama. 

By express statutory provision, corporations are liable 
to attachments "in the same manner as if they were nat- 
ural persons." — Revised Code, § 2942. 

This was the law of Alabama at the time of the organi- 
zation of the First National Bank of Selma, and it was 
accepted by it as one of the terms of the compact between 
it and the State in which it was domiciled. 

The interpretation, within the jurisdiction of a State, of a 
local law (or statute) becomes a part of that law as much 
as if incorporated in it by an act of the legislature, — Chris- 
ty V. Pridgeon, 4 Wallace, 196, 203 ; Shelby v. Guy, 11 
Wheat. 362 ; Teague v. Eying, 24 How. 266. 

The lien of an attachment is inchoate, dependent upon 
the party getting a judgment, and when he has obtained 
his judgment it is then consummated, and he has then a 
right to satisfaction out of the particular thing levied upon 
under the attachment. — Hall v. Gummings, 3 A. Ri 398. 

From the time of the levy of the attachment the property 
was in the custody of the law, and was not subject to levy 
under any other process. — Bunsdotvn v. WUburne, 6 A. R. 46 ; 
Hagan v. Louis, 10 Peters, 400 ; Pond v. Griffin, 1 A. R. 
b78; Taylor and others v. Carryl, 20 How. 598;.Ca«e (/ 
Oliver Jordan, 2 Cur. 414. 

These were cases of personal property in which replevy 
bonds had been executed and the property returned to the 
defendant, but it is obvious that the principle applies with 
stronger force to lands, which are incapable of replevy and 
are therefore constructively in the custody of the sheriff 
till discharged by due course of law. 

Where a court has jurisdiction, it has a right to decide 
any question which occurs in the cause, and when the 
jurisdiction of the court and the right of the plaintiff to 
prosecute his suit has once attached, that right cannot be 
arrested or taken away by proceedings in another suit. 
Taylor and others v. Carryl, 20 How. 5li6-7 ; Peck v. Jen- 
niss, 7 ib. 612. 

When concurrent jurisdiction may be exercised by the 



440 FORTY-SIXTH ALABAMA. 

First National Bank of Selma v. Colby. 

federal and State authorities, the court which first takes 
jurisdiction can be interfered with by no other court, State 
or federal. It is a subversion of judicial power to take a 
case from a court having jurisdiction before its final decis- 
ion is given. — Ex parte Bobinson,^6 McLean, 355 ; Ex parte 
Dorr, 3 How. 103 ; Taylor v. Carryl, 20 How. 583 ; Shelby 
V. Bacon, 10 How. 56 ; Smith v. Mclver, 9 Wheaton, 532 ; 
Holmes v. Remsen, 20 John. 229 ; Merrell v. Lake, 16 Ohio, 
373 ; Payne v. Dowd, 4 East. 523 ; PuUiam v. Otborne, 
17 How. 471. 

Every country has the right of regulating the transfer of 
all personal property within its territory. 

A State has perfect jurisdiction over all property, per- 
sonal as well as real, within its territorial limits. — Green v. 
Van Bushirk, 5 Wallace, 312, 313 ; Story on Conflict of 
Laws, § 390. 

The bank is a corporation chartered under an act of 
congress. It is the law of its organization, and bestows 
upon it certain qualities of being ; it goes no further. With 
no more than the attributes conferred by the act of con- 
gress, it has no faculty, no capacity of an acting, living 
thing. 

It is an organism capable of life, a body without spirit, a 
machine without motion, and it is only when it is vitalized 
by the laws of the State where it locates, as with a coal 
from the altar, that it has within it the spirit of life. 

Without these it cannot buy and hold as owner the house 
in which it does business, the land whereon it stands, the 
books in which its records are tept, the paper on which it 
writes its bills, the counter on which it receives and pays. 
It can not engage an officer, it can not discount a bill, it 
can not loan a dollar. It can not acquire a right, it can 
neither impose or incur an obligation. It can do nothing. 
It can not claim and assert its right to its franchise but 
by virtue of the laws of the State of which it is an inhabit- 
ant. It is an inert, lifeless thing until the laws of the State 
breathe into it life. 

What is true of natural persons under the law, is also 
true of artificial persons, so far as their capacities extend. 



JUNE TERM, 1871. 441 

First National Bank of Selma v, Colby. 

When the bank became a person it Alabama, in being 
cherished and sustained by her laws, it became subject to 
those laws, and the condition of being sued, involved any 
form of suit and the incidents to those forms which were 
recognized by the courts of the State. It was not necessary 
that the act of congress should make this liability by express 
enactment. It would have existed without it. • But when 
it is given, and given in general and unqualified terms, it 
implies all that the law confers in any suit brought. 

This is the irresistible sequence of the liability imposed 
on the corporation, and the correlative right conferred on 
the creditor by the general and unconditional language of 
the act of congress, and when the right to sue is given, the 
right to prosecute to judgment in the ordinary modes must 
continue, unless there is some express prohibitory provision 
in the law itself. 

Any privileges which exempts a corporation from the 
burthens common to individuals, do not flow necessarily 
from the charter, but must be expressed in it, or they do 
not exist. — Frov. Bank v. Billings & Pittman, 4 Pet. 514. 

Even the bankrupt law, which, by express purpose and 
enactment, (when it may be said that the chief object of the 
law is to marshal all the property of the bankrupt for the 
benefit of all the creditors,) has the effect to stay proceed- 
ings or suits against the bankrupt in other courts only by 
force of positive provision, and that after it has been judi- 
cially ascertained that the party is a bankrupt. 

By section 14, it is provided that all property of the 
bankrupt shall pass to the assignee, and attachments taken 
out within four months before the commencement of the 
proceedings in bankruptcy shall be dissolved. — Ih. 484. 

This is positive enactment, and sustains the proposition 
that it requires positive prohibition by law to arrest pro- 
ceedings rightfully instituted in a court having jurisdiction 
of the subject matter and the parties. 

When a suit is begun and the defendant is in court, he 
must plead, answer or demur. 

Then the test is, whether the matter set up in bar to the 
29 



442 FORTY-SIXTH ALABAMA. 

First National Bank of Selma v. Colby. 

prosecution of this suit is good as a demurrer, or plea. Is 
it in law or in fact, an answer to the complaint which will 
preclude the plaintiff from the further prosecution of his 
suit? What is it? It is that the defendant had commit- 
ted "an act of insolvency." If this is a good plea, then 
every act of insolvency by a bank would be a good plea to 
any and every suit brought by its creditors against it. A 
refusal to redeem its circulation would be an act of insol- 
vency. To-day, for the purpose of defeating suits against 
it by its creditors, it refuses to redeem its circulation ; and 
to-morrow it resumes and goes on with its business as 
usual. 

It will not do to say that it could not do this under the 
act, because the prohibition of the act extends only to a 
refusal ascertained, and evidenced in a certain way, and 
there are many other acts of insolvency to which it might 
resort as a mere subterfuge to delay or avoid suits by its 
creditors, which it would be an intolerable perversion to 
construe into a defence which should defeat its creditors 
or arrest the action of competent courts having jurisdic- 
tion. 

There is only one other mode by which the action of a 
court of competent jurisdiction can be arrested before final 
judgment in due course of law, and that is where it is ex- 
pressly enacted by law that in certain contingencies the 
proceedings in that court may be stayed and another court 
shall take jurisdiction of the subject matter of the contro- 
versy ; butthis must be done by judicial action, by the 
solemn judgment of a court, passing upon and adjudicating 
the state of facts which authorizes its action, and also 
decreeing that action. 

PETEES, J.— On the 17th day of April, in the year 
1867, the appellee, Colby, commenced an action at law by 
attachment against the First National Bank of Selma, for 
the sum of forty-eight hundred dollars. This attachment 
was regularly issued from the circuit court of Dallas county, 
in this State, and regularly executed by a levy on lands 
belonging to said bank, on the day of its issuance. The 



JUNE TEEM, 1871. 443 

First National Bank of Selma v. Colby. 

bill of exceptions taken at the trial shows, that said bank 
ceased to do business on the 16th day of April, 1867, and 
had, on the 15th day of the same mouth, refused and failed 
to pay a draft of the United States for seventy-jfive thou- 
sand dollars. It further appears, that the president of said 
bank had absconded on the 17th day of April, 1867, and 
on that day said corporation's house of business and its 
assets were taken possession of by General Swayne, then 
commanding the Federal forces in this State, under instruc- 
tions of the secretary of the treasury of the United States, 
and upon examination the cash account of said bank was 
found deficient in the sum of about two hundred thousand 
dollars. It was also shown that said bank was chartered 
on the 24th day of August, 1865, under authority of an act 
of the congress of the United States, entitled " An act to 
provide a national currency, secured by a pledge of United 
States bonds, and to provide for the circulation and re- 
demption thereof." This act was approved June 3, 1864. 
After the levy of said attachment, viz : on the 1st day of 
June, in the year 1867, by decree of the district court of 
the United States for the middle district of Alabama, " all 
the rights, privileges and franchises of said association de- 
rived from the act of congress" were "forfeited," and said 
association, called the First National bank at Selma, was 
adjudged to be " dissolved." The record of the proceed- 
ings in said district court declaring the forfeiture and dis- 
solution of said charter thereof were given in evidence to 
the jury on said trial. It was likewise shown that Corne- 
lius Cadle, jr., had been regularly appointed receiver for 
said association as required by law, on the 3d day of June, 
1867. The plaintiff also proved by his certificate of deposit 
the amount of his deposit in said bank to be the sum for 
which the attachment had been sued out ; that is, forty- 
eight hundred dollars. This was the substance of all the 
evidence offered on the trial. 

On this evidence, said Cadle, as said receiver, moved the 
court to dissolve said attachment, and also to quash and 
discharge the levy of the same on the property of said 
bank. These motions the court refused ; and said Cadle, 



444 FORTY-SIXTH ALABAMA. 

First National Bank of Selma v. Colby. 

as such receiver as aforesaid, excepted to the ruling of the 
court thereon. And thereupon the court charged the jury, 
that if they believed the evidence, they must find for the 
plaintiff " the amount of the certificate and interest." This 
charge was excepted to by said receiver. Cadle, as receiver 
as aforesaid, then asked the court to charge the converse 
of this proposition ; that is, " if the jury believed all the 
evidence offered in this cause, they must find for the de- 
fendant. This charge the court refused, and the receiver, 
Cadle, excepted as before. There was a verdict and judg- 
ment for the plaintiff for $5,632 33 and costs, and a vendi- 
tioni exponas was ordered to issue to the sheriff to sell the 
property levied on. 

I have looked into the act of congress under which the 
" First National Bank at Selma " was incorporated, and I 
have not been able to find any express authority there given 
which would justify a court of law, in which there was a 
litigation regularly instituted and pending, to dissolve or 
dismiss an attachment regularly and properly issued and 
levied on the property of that association, or to discharge 
the levy so made. Under the laws of this State, such mo- 
tions do not affect the merits of the suit. They are, then, 
not matters of right, but only of discretion in the court. 
Such discretion is not a matter of error on appeal to this 
court. — OiE V. Downs, 26 Ala. Eep. 670 ; Ex 'parte Putnam, 
20 Ala. 592. Under the provisions of the act of congress, 
the bank has power to " make contracts, sue and be sued, 
complain and defend in any court of law and equity, as 
fully as natural persons." — U. S. Stat, at Large 1863-64, 
p. 99 ; 101, § 8. Then it occupies, so far as these rights 
are concerned, simply the condition of a citizen. And it is 
entitled to the same indulgences and rights that a citizen 
may claim, and no more. If the suit is instituted in a State 
court, as it clearly may be, (8 Wall. 198,) then the law ap- 
plicable to the conduct of such suits is applicable to the 
bank, subject, however, to such modifications as the law of 
congress may impose. 

But the " national currency act," under which the bank 
at Selma was brought into existence, does not interfere, so 



JUNE TERM, 1871. 445 

First National Bank of Selma v. Colby. 

far as I am able to see, in any way with the suit in the 
State court. Of course, an act of congress made in pur- 
suance of the constitution of the United States, is a part 
of the supreme law of the land, and a State law must yield 
to it.— Con. U. S. Art. YI, § 2 ; Abkman v. Booth, 21 How. 
617, 520. But as the bank may sue and be sued as a nat- 
ural person, in this State, it may be sued by attachment ; 
because it stands in no better condition than a natural 
person, and a natural person, in this State, may be sued 
by attachment.— Rev. Code, §§ 2928-30, 29 i2. The in- 
solvency of the bank does not dissolve the liability to be 
sued by attachment. The act does not say so. And it is 
not to be presumed that congress would interfere with a 
right so important to the citizen of the State without an 
express declaration to that effect. It is not a right to be 
postponed or defeated by a questionable deduction. If it 
may be interfered with to any extent, in the end it might 
be paralyzed and destroyed. — Field v. Close, 15 Mich. 
Then the conduct of the suit against the bank is to be 
judged and determined by our own law in reference to at- 
tachments. This does not interfere with or settle the 
effect or right of the lien under the levy of the attach- 
ment. That is not a question that can be raised in this 
suit in its present shape. No doubt that question is under 
the control of a jurisdiction where it will be properly de- 
termined. Under the law of this State, when an attach- 
ment is once properly issued against a corporation, it will . 
not be abated or dismissed because the corporation had, 
before the issuance of the process, committed an act of 
insolvency, or because its assets had been placed in the 
custody of a receiver. The statute of this State govern- 
ing such suits is as follows : " If the defendant appear and 
plead, the cause proceeds as in suits commenced in the or- 
dinary mode. If he make no defense, the plaintiff may at 
the trial term take judgment final by nil dicit, or default, 
or execute a writ of inquiry of damages, as may be neces- 
sary.— Rev. Code, §§ 3000, 2942. The act of insolvency 
does not dissolve the liability to be sued, nor the liability 
to be sued by attachment. The act of congress does not 



446 FOETY-SIXTH ALABAMA. 



First National Bank of Selma v. Colby. 



SO declare, nor is it necessary for the purposes of that 
statute so to infer it. By the practice of our courts, at- 
tachments are only abatable when they have been issued 
without affidavit or without bond, as required by law. 
Eev. Code, § 2989 ; 19 Ala. 32. These being the only 
causes enumerated, others are excluded by their omission. 
And the plea in abatement, as all others, must be made by 
" the defendant," and not by a stranger. This is the lan- 
guage of the statute above quoted. — Rev. Code, § 3000 ; 
Kirkman & Bosser vs. Patton, 19 Ala. 32. And matter of 
abatement can not be given in evidence on an issue upon 
the merits, a default, or a failure to plead. 

No doubt the government could send one of its military 
officers to seize upon its own funds deposited in a bank or 
elsewhere, when they can be legally reached. But the 
officer thus sent could not go farther and seize the prop- 
erty of the bank also. His possession as such officer in 
the latter case is not the custody of the law which courts 
of merely legal jurisdiction will respect, but the custody of 
the sword, which courts are not constituted to resist. This 
latter custody does not forbid the levy of a proper attach- 
ment legally issued. The funds of the United States de- 
posited in the bank were not entitled to any lien on the 
assets of the bank, until, at least, the assets had passed 
into the custody of a receiver, if even then. The govern- 
ment had power to secure itself against such loss of its 
deposits by the security required to be taken in another 
way. The lien on the assets seems to be intended for the 
security of the note-holders of the bank, and not for the 
deposits. — Act of Congress, sicjora, § 45. It is possible 
that the lien of the attachment must give way to the equi- 
ties arising under certain sections of the above recited act 
of congress, and to the necessities of an administration 
and distribution of the assets of the association by the 
receiver ; but this question does not arise in this case, and 
it is not necessary to be decided.— Act Cong, supra, §§ 47, 
50, 52. Claims against the bank may be such as the re- 
ceiver may be unwilling to allow. In such case, they may 
be proven to the satisfaction of the receiver, or adjudica- 



JUNE TEBM, 1871. 447 

First National Bank of Selma v. Colby. 

ted in a court of competent jurisdiction. This could not 
be, unless the suit could be instituted against the corpora- 
tion. And for this purpose a State court is competent to 
adjudicate such claims. — Act of Cong, swpra, §§ 47, 50, 52, 
67 ; Kennedy v. Gibson et al., 8 Wall. 498. For this reason, 
the doctrine of the case of PaschaU v. Whiisett does not 
apply. — 11 Ala. 472. In this latter case, the corporation 
was extinct before the suit was brought. — See Bev. Code, 
§ 1775. 

The record does not show that the defendant, said bank, 
pleaded any plea in defense of said action ; and it appears 
that the claim of the plaintiff was fully proven. The 
plaintiff was therefore entitled to his judgment. — Rev. 
Code, § 3000. There was, then, no error in the action of 
the court below. 

The judgment is affirmed. 

[Note by Reporter. — The foregoing opinion was deliv- 
ered at the January term, 1870, when Mr. Compton ap- 
plied for a re-hearing, and filed in support thereof an 
elaborate argument, the substance of which was as fol- 
lows :] 

1. There is no statute providing for the continuance of 
actions against corporations created by an act of the con- 
gress of the United States after dissolution ; the dissolu- 
tion of such corporations therefore abates all suits pend- 
ing at the time of its dissolution. — Mumma v. Potomac Co., 
8 Peters, 281 ; Greely v. Smith, 3 Story's R. 657. 

Since the decision in the case of PaschaU v. Whitsett, 
(11 Ala. 472,) tlie laws of Alabama (Rev. Code, § 1775,) 
have provided for the continuance of domestic corporations 
for the purpose of winding up the business of such corpo- 
rations. National banking associations can not be kept 
alive by State laws for aoy purpose whatever ; if so. State 
laws would control federal legislation, and could continue 
federal laws after they had ceased to exist. An act of 
congress made in pursuance of the constitution of the 
United States, is a part of the supreme law of the land, 



448 FORTY-SIXTH ALABAMA. 

First National Bank of Selma v. Colby. 

and State laws whicli conflict with its provisions must 
yield. — Const. U. S. Art. VI, § 2 ; Ableman v. Booth, 
21 How. 517. 

These national banking associations exist alone by vir- 
tue of a law of congress ; they are a part of the financial 
system of the nation ; they are not dependent upon the 
comity of any State for the privilege of transacting busi- 
ness within its borders. The general government has a 
right to establish them in any State. — McCullough v. State 
of Maryland, 4 Wheat. 316. 

The laws of Alabama in reference to such associations 
are precisely the same now as they were when the decision 
in Pascliall v. Whitsett, supra, was made. The judgment 
of the dissolution of the association by the United States 
district court was rendered before the judgment' in the 
attachment suit. The attachment was therefore dissolved 
by the extinction of the defendant's corporate existence ; 
if the attachment was at an end, its hold or Uen on the 
property was gone, and the judgment in the attachment 
suit, and the order directing the issuance of the venditioni 
exponas was erroneous. The fact of the dissolution of the 
association was established by proof to the court, before 
the judgment in the attachment suit was rendered. 

If, then, there is any authority in law for the prosecu- 
tion of suits against dissolved national bank associations, 
it must be found in the act creating them. Section 50 of 
the Currency Act provides, that claims against such asso- 
ciations in the hands of receivers and in process of settle- 
ment, such as ', the controller of the currency may not 
consider proved to his satisfaction, may be "adjudicated 
in a court of competent jurisdiction." If this section is 
invoked as giving such authority, the party must be bound 
by all its terms, provisions and purposes. 

2. If the plaintiff had the right to proceed with his suit 
after it was shown to the court that the association had 
been dissolved by the decree of the United States district 
court, it is admitted that he had the right to have his claim 
against the association ascertained or determined by the 
"adjudication qi a court of competent jurisdiction" by any 



JUNE TERM, 1871. 449 

First National Bank of Selma v. Colby. 

process available for that purpose in such a court, if he 
had not proved it to the satisfaction of the comptroller of 
the currency. He had the right to have the validity of his 
claim and the amount of it determined ; when this was 
done, the claim was in the condition of those which had 
been proved to the satisfaction of the comptroller, and 
was entitled to receive a ratable dividend with other 
claims proved or adjudicated, from the assets of the asso- 
ciation, after they had been converted into money and paid 
over to the treasurer of the United States. " The claims 
of creditors may be proved before the comptroller, or 
established by suit against the association. Creditors 
must seek their remedy through the controller in the 
mode prescribed by the statute ; they can not proceed 
directly in their own names against the stockholders or 
debtors of the bank." — Kennedy v. Gibson et al.^ 8 Wall. 506. 
Can they proceed against the property of such associ- 
ations ? Beyond the ascertainment of the validity of his 
claim, and the amount of it, he is not permitted to go, 
except in violation of section 50 of the currency act. 

It is clear that under the general law, aside from the 
provisions of the currency act, the assets of this insolvent 
corporation constitute a trust fund or pledge in the hands 
of its receiver for the equal benefit and security of all note 
holders, and other creditors of such corporation, and no 
diligence on the part of a creditor of such corporation 
could defeat the right of other creditors to a ratable divi- 
dend of the funds arising from the assets of such cor- 
poration. — Marr v. Bank of West Tenn., 4 Caldwell, p. 471, 
and cases therein cited ; 2 Story's Eq. Jur. § 1252 ; Wood 
V. Dumm&ry 3 Mason's R. 308 ; Gue v. Tide Water Canal 
Company, 24 How. p. 257 ; Hightoioer v. Tliomton, 8 Geo. 
R. 493. 

. But section 50 of the currency act has provided a tri- 
bunal for the express purpose of giving to creditors of such 
associations when they become insolvent, a speedy adjust- 
• ment of its affairs, and a ratable dividend of its assets 
among all its creditors, excepting the government, which 
section 47 provides shall have a lien upon all the assets to 



450 FOBTY-SIXTH ALABAMA. 

First National Bank of Selma v. Colby. 

re-imburse the government the amount expended by it in 
redeeming the notes of such associations. After this lien 
is satisfied, all creditors who have proven their claims as 
required in the act, or have had them proved by adjudica- 
tion, are to be paid ratably. The effect of the exercise of 
the authority given to the controller was, to give him 
exclusive jurisdiction of the affairs of this association. 
The terms of section 50 preclude any other hypothesis ; 
any interference with this authority, except in the manner 
provided in this act, would be illegal ; there would be no 
end to the embarrassment and conflict which would ensue 
from such interference. This tribunal has exclusive juris- 
diction, and to it all parties must resort. As soon as it was 
made manifest that the United States, by the controller 
of its currency, had assumed the administration of the 
assets of this association, the State court should have dis- 
charged the levy of the attachment and given judgment 
on the proof of the plaintiff's claim in the manner indica- 
ted in the act, and analogous to the law respecting judg- 
ments against insolvent estates in this State. — Kev. Code, 
§ 2209. 

This attempted transfer of the property of the associa- 
tion by its sale under venditioni exponas for the purpose of 
the payment of the claim of plaintiff, to the exclusion of 
other creditors, is void. "The 50fch and 52d sections of 
the act of Congress of June 3d, 1864, ('banking act,') 
apply to legal as well as to voluntary transfers by the 
bank." " The law will not compel a payment or transfer 
which it prohibits a debtor from making." 

From the above quoted decision, it will be seen that the 
effect of the currency act is to wind up such associations 
in the same manner as insolvent estates. It seems to be 
the uniform policy of national and State laws, upon bank- 
ruptcy, or the death and insolvency of persons, or corpo- 
rations, to divide the estate or assets of either, ratably 
among the creditors, and for this purpose to dissolve 
attachment liens. — U. S. Bankrupt Act, Insolvent Estates, 
Bevised Code of Alabama. The Code of Alabama no- 
where says, that the insolvency of an estate shall dissolve 



JUNE TERM, 1871. 451 

First National Bank of Selma v. Colby. 

attachment liens.— See §§ 2062, 2177, 2205, 2206. Yet 
such insolvency has been uniformly held to have that effect. 
Lamar v. Gunter, 39 Ala. p. 326 ; McEachim v. Reid, 40 
Ala. 410. 

The strongest term used in the Code in reference to the 
distribution of such estates is, ratable payment, (§ 2206) ; 
the language of the Currency Act is, ratoMe dividend. 

3. Section 47 of the currency act provides, that the 
United States shall have a first and paramount lien upon 
all the assets of such associations, to re-imburse the United 
States the amount expended in redeeming the circulating 
notes of such associations. The controller is required 
by section 50, to make full provision for the payment of 
the amount so expended before he makes a ratable divi- 
dend of the proceeds of the assets ; this provision for such 
payment can only be made by him. If, then, these assets 
can be taken under attachments before they are converted 
into money, the controller will be deprived of the means 
to secure the government the benefit of this paramount 
lien, and this one tribunal created by the law for the 
^orcement of the provisions of this act, will have taken 
from it by the process of a court, one of its most essential 
powers, and the means to perform one of its plainest duties. 
This is the effect of the venditioni exponas ordered by the 
circuit court, and it is insisted that such interference is 
against the spirit and policy, if not letter, of the cur- 
rency act. 

If property, when attached, is subject to a lien bonajidei 
placed upon it by the defendant, that a. lien must be 
respected and the attachment postponed to it. — Section 
223, Drake on Attachment, and cases cited. 

And this rule extends to those created by law. — Taylor 
V. The Royal Saxon, 1 Wallace, jr. 311. In the case of 
Peale v. Phipps, 14 Howard's Hep. p. 376, Taney, C. J., 
says : 

** In the case of WisivaU v. Simpson's Lessee, 14 Howard, 
52, the court held that where certain lands were in the 
hands of a receiver, appointed by the chancery court ot 
Alabama, in a case pending before it, they could not be 
sold by the marshal upon process of execution issuing out 



452 FOETY-SIXTH ALABAMA. 

First National Bank of Selma v. Colby. 

of the circuit court of the United States for that district, 
although the judgment upon which the process issued, was 
a lien upon the land, and the execution was laid before the 
receiver obtained actual possession of the property." 

If a receiver had been wrongfully appointed by reason 
of an alleged refusal of the association to pay its circu- 
lating notes, the association could have applied to the 
nearest United States court, within ten days after receiving 
notice of the appointment of such special agent, and 
enjoined further proceedings in the premises. — § 50, Cur- 
rency Act. 

A modification of the opinion rendered at this term in this 
cause, is asked to the extent of setting aside the judgment of 
the circuit court, so far as it authorizes the issuance of a 
venditioni exponas. In this event, the appellee will receive 
the whole of his debt, if there be assets, and his satisfac- 
tion by a rateable dividend, if there be a deficit. 

The application was responded to as follows by — 

PETERS, J. — The application for rehearing in this case 
is overruled, with costs. The plaintiff in the court below, 
who is appellee in this court, was entitled to his judgment 
in the circuit court. The opinion delivered in this case is 
not intended to go beyond this, and settle the rights of the 
parties under the levy of the attachment. If the judg- 
ment below was correct, then the plaintiff's rights under 
the judgment to have it enforced necessarily followed, 
unless they were defeated by some superior right in favor 
of the defendant, or some third person. — Revised Code, 
§§ 2837, 2838, 2868, 2955 ; Autrey v. Walters, June term, 
1871. In this case the defendant had no right against the 
plaintiff which was not settled by the verdict. And in 
such a suit no third person will be permitted to intervene 
to defeat the right of the plaintiff to his judgment. This 
question is sufficiently apparent from the authorities cited 
in the opinion in the principal case, without further dis- 
cussion. 



JUNE TERM, 1871. 453 



Hart V. Shorter & Baker, Ex'rs. 



HART vs. SHORTER & BAKER, Ex'bs. 

[action on bill of exchange.] 

1. Bill of exchange ; how may be drawn. — A bill of exchange may be drawn 
payable to the order of the maker and indorsed by him to a third per- 
son ; the indorsee may sue the acceptor as if he were the payee. 

2. Same; to whom may he transferred. — Such a bill of exchange may be 
transferred by indorsement to an administrator or executor in this 
State. 

3. Same ; indorsee may sue in his own name. — And under o^ r statutes such 
indorsee may sue thereon in his own name as the owner. — £eT. Code, 
§§ 1838. 2525. 

Appeal from Circuit Court of Barbour. 
Tried before Hon. J. McCaleb Wiley. 

The facts are sufficiently stated in the opinion. 

J. L. PuGH, for appellant. 
Shorter & McKleroy, contra. 

(No briefs came into the hands of the Reporter.) 

PETERS, J. — This is an action of debt founded on a 
bill of exchange. The complaint is in the following words : 

** John Gill Shorter and Alpheus Baker, Ex'rs, plaintiffs, 
vs. Henry C. Hart, defendant, 

" The plaintiffs, as the executors of the last will and tes- 
tament of Milton A. Browder, deceased, claim of the de- 
fendant two thousand, seven hundred and forty-four 25-100 

dollars, besides due on a 

bill of exchange, which was drawn by one Thomas H B. 
Rivers, on the fifth day of September, A. D. 1862, for the 
said sum upon Clark & Hart, a firm composed of one John 
W. Clark and the defendant, and of which firm the defend- 
ant is surviving partner. The said bill was accepted by 
the said Clark & Hart, and was payable to drawer's own 
order on the first day of January, A. D. 1863, which said 



454 FOKTY-SIXTH ALABAMA. 

Hart V. Shorter & Baker, Ex'rs. 

bill, before maturity, was indorsed to the plaintiffs, and, 
with interest, is still due and unpaid." 

On this complaint the following judgment was rendered 
on the 27th day of May, 1868, in favor of the plaintiffs, 
that is to say : 

" Came the parties by their attorneys, and issue being 
joined on the plea of general issue, then came a jury of 
good and lawful men, to-wit, John C. McEachen, foreman, 
and eleven others, who, on their oaths, say they find the 
issue for the plaintiffs, and assess their damage at three 
thousand, nine hundred and thirty-four 15-100 dollars ; it 
is thereupon considered by the court, that the plaintiffs re- 
cover of the defendant the damages so assessed, and also 
the costs in this behalf expended, for which let execution 
issue." 

From this judgment the defendant in the court below 
brings the case to this court by appeal. And he now as- 
signs as error — 1st. " That the complaint is by executors 
upon a bill of exchange payable to the drawer's own order, 
and indorsed by the drawer and payee to the complainants 
as executors, and that by such indorsement no legal title 
or other right of action was vested in complainants as ex- 
ecutors." 2d. " Also, that the complaint shows no right of 
action in complainants against the defendant." 

The complaint above quoted is in the form prescribed in 
the schedule of forms given in the appendix of the Revised 
Code. Such forms are sufficient. — Revised Code, p. 673. 
Here the complaint shows a sufficient cause of action. 
There was a trial and verdict for the plaintiffs in the court 
below, and there was no objection to the complaint or to 
the right of the plaintiffs to sue upon the contract alleged. 
In such case, the judgment will not be arrested, annulled 
or set aside for matters that might have been previously 
objected to. — Eev. Code, § 2811. A bill of exchange may 
be drawn payable to the order of the drawer, and when in- 
dorsed the indorsee becomes the payee, and he may sue 
the acceptor. — Story on Bills of Exchange, § 35. Such a 
bill of exchange is not illegal, and it may be transferred to 
an executor or administrator by indorsement, and the in- 



JUNE TERM, 1871. 455 



Curtis et aL v, Graines, Ad'mr. 



dorsee may sue thereon in his own name. Story on Bills, 
§§ 56, 198 ; Rev. Code, §§ 1838, 2523. I therefore think 
that this action was properly brought, and that the errors 
assigned can not be sustained. 
Let the judgment of the court below be affirmed. 



CURTIS ET AL. V8, GAINES, Adm'r. 

[action on PBOmSSOBT NOTE.] 

1. Discontinuance; what operates as in a joint action on a promissory note. 
In a joint action on a promissory note against three parties, if the sum- 
mons is executed on two of the defendants, and returned not found as 
to the third; and, in that posture of the case, the plaintiff continues 
the cause as to the defendant not found, and takes a judgment againsi 
the other two, the entire case is thereby discontinued. 

2. Same; how and rvhen maybe corrected. — Such a mistake may be cor- 
rected before the adjournment of the court ; but after the end of the 
term, and the final adjournment of the court, the court ceases to have 
any power to correct the error, and a motion by the plaintiff, at a sub- 
sequent term, to set aside the judgment and re-instate the case on the 
docket, should be denied. 

3. Discontinuance ; effect of. — A discontinuance puts an end to a case . 
The parties are thereby out of court, and the plaintiff must begin de 
novo. 

4. Erroneous order setting aside final judgment; effect of appearance and 
defense of sicit afterwards. — Mere irregularities may be waived by a sub- 
sequent step taken in a cause, but substantial errors will not be. If 
a plaintiff, against the objection of the defendants, improperly obtains 
an order of the court setting aside a final judgment obtained by him at 
a previous term, and re-instating the cause on the docket, the appear- 
ance of the defendants, on a trial afterwards had, will not be a waiver 
of the error. 

Appeal from Circuit Court of Choctaw. 
Tried before Hon. Luther R. Smith. 

The facts are sufficiently stated in the opinion. 



456 FORTY-SIXTH ALABAMA. 

Curtis et al. v. Gaines, Adm'r. 

Joshua Morse, for appellant. 
Watts & Teoy, contra. 

(No briefs came into Reporter's hands.) 

PECK, C. J.— On the 6th of January, in 1867, the ap- 
pellee, as the administratrix of A. L. Gaines, deceased, 
commenced her suit in the circuit court of Choctaw county, 
against the appellants, E. S. Curtis, R. A. Burnett and 
Joshua Morse, founded on a promissory note, made by 
defendants to the plaintiff, on the 4th day of January, 1866, 
and payable twelve months after date, with interest, <fec. 

The summons was returned on the 4th of January, exe- 
cuted on defendants Curtis and Burnett, and not found as 
to defendant Morse. 

At the March term of said court, 1867, the plaintiff con- 
tinued her suit as to the defendant Morse, upon whom the 
summons was not executed, and took a judgment by de- 
fault against the other two. 

At the September term, 1870, the plaintiff moved the 
court to vacate said judgment against said defendants 
Curtis and Burnett, and to re-instate the cause on the 
docket against said Curtis, and Burnett, as well as against 
said Morse, on the ground that said judgment was void, 
the same having been rendered by a judge who was, at 
the time, the plaintiff's uncle. The minute entry shows 
that the defendants Curtis and Burnett appeared by attor- 
ney, and the defendant Morse in his own person, and re- 
sisted said motion. The relationship of the judge, by 
whom the said judgment was rendered, to the plaintiff, 
was admitted. 

The court sustained the motion, vacated and set aside 
the said judgment, and re-instated the cause on the docket 
as to all three of the defendants. To this ruling of the 
court, the defendants excepted. A trial at the same term 
was then had. The bill of exceptions states, that the 
cause being re-instated, the parties proceeded to trial, on 
its merits ; that the defendants Curtis and Burnett pleaded 
a former recovery, to which the plaintiff replied. No plea 



JUNE TERM, 1871. 457 



Curtis et al. v. Gaines, Adm'r. 



appears to have been filed by the defendant Morse. The 
minute entry, however, shows that he appeared in person. 
In this condition, the case was submittted to a jury, and 
there was a verdict and judgment for the plaintiff, against 
all the defendants. 

The defendants have appealed to this court, and assign 
for errors — 1st, The judgment of the court at the March 
term, lb67 ; 2d, The order and judgment of the circuit 
-court, vacating the judgment by default and re-instating 
the cause on the docket, as to all the defendants ; and 3d, 
The final judgment against all the defendants. 

1. It is very clear, that the judgment by default against 
the defendants Curtis and Burnett, at the March term , 
1867, in the then state of the case, without a discontin- 
uance as to the defendant Morse, was erroneous. 

In an action on a joint and several promissory note, 
against two or more parties, the plaintiff must recover 
against ail or none of the defendants. 

This IS the rule at the common law. — 1 Ch. PI. 14 Am. 
from 6 London ed. p. 45. And this is so, even where a de- 
fense personal to one defendant is pleaded, as infancy or 
coverture. The common law rule, however, has been mod- 
ified in this State, so that when a defense, personal to one 
defendant, is pleaded, the plaintiff may enter a nolle pros- 
equi as to such defendant, and proceed to judgment against 
the others. — Ivy v. Gamble, 7 Porter, 545 ; KeeUe v. Ford 
<md Vining, 5 Ala. 153 ; Whitaker v. Van Horn, 43 Ala. 255. 
The same practice prevails in New York. — Hartness v. 
Thompson, 5 I. R. p. 160 ; and, also, in Massachusetts, 
Woodioard v. NewliaU, 1 Pick. 500 ; and in many other 
States. — See note 3, p. 45, 1 Ch, PL, supra. 

In such a case, where the summons is served on some 
of the defendants, and returned not found as to the others, 
§ 2545 of the Revised Code permits the plaintiff to discon- 
tinue his suit as to the party or parties upon whom the 
summons is not served, and proceed to judgment against 
those upon whom it has been executed. In the present 
case, the summons was executed upon defendants Curtis 
30 



458 FORTY-SIXTH ALABAMA. 

Curtis et al. v. Gaines, Adm'r, 

and Burnett, and returned not found as to the defendant 
Morse. In this posture of the case, the plaintiff moved 
the court to continue the cause as to the defendant Morse, 
"which was done, and took a judgment by default against 
defendants Curtis and Burnett, thus destroying altogether 
the continuity of the action. 

What effect did this liave on the plaintiff's suit ? Did it 
not operate a discontinuance of the igsue^ as to all of the 
defendants ? We think it did. We have no statute author- 
izing a joint action to be severed, and its unity destroyed 
in this manner. 

Where a suit is against several defendants, on a joint, 
or joint and several cause of action, if the summons is 
served on some, and returned not found as to others, the 
above section of the Revised Code permits the plaintiff, at 
his election, to sue out an alias, or discontinuance, as to 
those on whom the summons is not served, and proceed 
against the others ; but we know of no rule of practice, 
either at the common law, or any authorized by statute, 
that will justify the course pursued by the plaintiff in this 
case. The case of Givins v. Rohins and Painter, 5 Ala. 676, 
is, in principle, very like the present. In that case, it is 
decided that when an action is commenced against three, 
jointly, continued as to two, and judgment rendered 
against the third, the entire action is discontinued. The 
only difference between that case and this is, in that case 
the summons was executed on all the defendants, and it 
being suggested to the court that two of the defendants 
had applied for the benefit of the bankrupt law, there- 
upon the cause, as to them, was continued, and a 
judgment was rendered against the other defendant. This 
was assigned for error, and the judgment, for this cause, 
was reversed, the court holding, that the entire action was 
discontinued. This difference does not affect the principle, 
but it is applicable, alike, to both cases. 

2. The motion of the plaintiff, at the September term 
of the court, 1870, to vacate the said judgment by default 
against the defendants Curtis and Burnett, at the March 
term, 1867, and to re-instate the cause on the docket, as to 



JUNE TERM, 1871. 459 

Curtis et al. v. Gaines, Adm'r. 

all the defendants — the defendant Morse, as well as the 
other two — should have been denied. A discontinuance 
puts an end to a cause. The parties are, thereby, out of 
court, and the plaintiff must begin de novo. — 1 Dunlap's 
Pr. 486 ; 3 Black. Com. 296. Before the close of the term, 
such an error may be corrected, but after the end of the 
term, and the final adjournment of the court, the court 
ceases to have any power over its records, except to correct 
clerical errors, where the record aflfords matter upon which 
to base such correction. — Van Dyke v. Tlve State, 22 Ala. 
67. Therefore, whether the judgment of the court at the 
March term, 1867, be considered void or voidoUe, will not 
better the plaintiff's condition, in either case. The court 
had no power to correct the error, or to relieve the plain- 
tiff from the effects of it, when this application was made. 

Furthermore, the plaintiff suffered the matter to sleep for 
more than two years and a half, after the judgment by de- 
fault was rendered, before she sought to set the same aside; 
and without any continuance or step in the case, or any 
notice taken of it, whatever, until the period limited for 
suing out an appeal had elapsed. This, if there was no 
other reason, should have defeated the plaintiff's motion ; 
consequently, the exception of the defendants to the ruling 
of the court was well taken. The appearance of the de- 
fendants, on the final trial, was no waiver of the errors of 
the court. Mere irregularities may be waived, by taking a 
step in a case, after they are committed, but substantial 
errors are not. 

The judgment of the court below must be reversed ; and, 
as the action in that court has been discontinued, and the 
plaintiff must begin de n/)vo, the cause is not remanded. 
The appellee will pay the costs in this court and in the 
said circuit court. 



460 FORTY-SIXTH ALABAMA. 

Hall V. Creswell. 



HALL vs. CRESWELL. 

[action by mabeied woman in heb own name to eecovee money loaned 

BY HER, &C.] 

1. Husband, authority of, as trustee of xvife's separate statutory estate; what 
action of wife can not divest — A wife cannot divest her husband of his 
authority as her trustee over her separate statutory estate, by contract- 
ing with one to whom she lends money, that the borrower is to pay it 
to her and not to her husband, he not being a party to the agreement. 

Appeal from Circuit Court of Wilcox. 
Tried before Hon. P. O. Harper. 

The complaint in this case was as follows : 

"Lydia Creswell \ The plaintiff, a married woman, and 
vs. > wife of William H. Cresswell, claims 

R. C. Hall. ; of defendant $91.80, due by account 
for money loaned to him by plaintiff in the year 1860, with 
interest thereon. Plaintiff avers that she is a married 
woman, the wife of William H. Creswell ; that she has a 
separate estate secured to her by the statute of Alabama, 
commonly called the married woman's law, and that the 
money sued for constitutes part of said separate estate." 

The defendant demurred to the complaint — 

1st. Because the suit is not brought by next friend. 

2d. Because the complaint does not state that the money 
sued for is part of the corpus of plaintiff 's statutory separ- 
ate estate. 

The court overruled the demurrer, and thereupon defend- 
ant pleaded payment, coverture of plaintiff, and set-off, &c., 
and upon these pleas plaintiff took issue. 

The money was borrowed of plaintiff as alleged in the 
complaint, but the defendant proved that before the suit 
was commenced, he had paid the same to the husband of 
plaintiff. 

It was proved that at the time of the loan, defendant 



JUNE TERM, 1871. 461 

Hall V. CreswelL 

promised to pay the money back to plaintiff herself, and 
that she then informed him that her husband had nothing 
whatever to do with the transaction. 

It was also proved that at the time of the loan, as well as 
at the date of the payment, plaintiff was a married woman 
and the wife of William H. Cresswell and was living with 
him. 

This being the substance of the proof, the court charged 
the jury, "that the husband had no right to receive the 
money due the wife, belonging to her statutory separate 
estate, under the evidence in the case, and that section 2375 
of the Revised Code of Alabama, applied only to property 
to which she might be entitled , but that after the property 
was received, the husband's right or power to receive mon- 
eys loaned by the wife, was not covered by the statute." 
The court refused to give a charge asked by defendant, 
asserting the converse of the propositions of law enuncia- 
ted in the charge given, and the defendant duly excepted to 
the charge given and the refusal to give the charge asked. 

There was a verdict and judgment for the plaintiff, and 
hence this appeal. 

The errors assigned are — 

1st. Overruling the demurrer. 

2d. The charge of the court. 

Cochran & Dawson, for appellant. 
McCaskill, contra. 

(No briefs came into the Reporter's hands.) 

B. F. 8AFF0LD, J.— Section 2375 of the Revised Code 
authorizes a husband to receive property coming to his 
wife, or to which she is entitled, and makes his receipt 
therefor a full discharge in law and equity. Section 2372 
vests in him as her trustee her separate statutory estate, 
with the right to manage and control the same without 
accountability to her for the rents, income and profits 
thereof. The wife can not, therefore, divest her husband 
of his authority as her trustee over her property by a con- 



462 FOETY-SIXTH ALABAMA. 

Latham et al. v. Staples. 

tract with one to whom she lends money, that he is to pay 
it back to her and not to her husband, he not being a party 
to the agreement. 
The judgment is reversed and the cause remanded. 



LATHAM ET AL. vs. STAPLES. 

[bill in equity to enfoece vendoe's lien.] 

1. Vendor^a lien, when exists ; how may ie enforced. — L,, the vendee, being 
indebted to H.,' the vendor, for the purchase-money of land, the in- 
debtedness constituting a vendor's lien thereon, L., at the request of 
H., gave his promissory note to S., a creditor of H. , for the amount 
due by H., and received a corresponding credit from H. for the amount 
of the note given S. , all the parties agreeing at the time that the note 
thus given to S. should carry with it a vendor's lien to the amount of 
the note, — Held, that S. might enforce a vendor's lien on the land by 
bill in equity against L. , and that H. was a proper party defendant to 
the bill. 

2. Unsworn answer, denials in; when prevail. — When a cause is heard 
upon the bill and exhibit to the bill, the answer and exhibits to the an- 
swer of one of the defendants, and a decree pro confesso against the 
other defendant, and the complainant has waived the oath of the de- 
fendants to the answers, and there is no testimony taken by any of the 
parties, and the answer submitted on the hearing is a responsive de- 
nial of all the grounds of equity alleged in the bill, such an answer 
must prevail against the bill. 

3. Unsworn answer, effect of ; what required to overturn. — An unsworn an- 
swer does not lose all force as evidence in a cause where it is responsive 
to the bill. It only changes the rule that requires the testimony of 
two witnesses, or one witness and strong corroborating circumstances, 
to overturn it. A mere preponderance of evidence is 8ufla.cient for 
that purpose. — Eev. Code, $ 3352. 

4. Final decree on reversal, when will not be rendered by supreme court. — A 
decree will not be rendered here, when it is possible that a different result 
more favorable to justice, might be obtained by remanding the cause. 

Appeal from Chancery Court of Calhoun. 
Heard before Hon. B. B. McCeaw. 



JUNE TERM, 1871. 463 

Latham et al. v. Staples. 

On the 24th of September, 1864, Staples filed his bill 
against Latham and Hollingsworth, alleging that Latham 
bought a tract of land, lying in this State, from Hollings- 
worth, in the year 1865, for the sum of about seventeen 
hundred dollars, and that, to secure the payment of this 
sum, he executed his written obligation for that amount, 
payable to Hollingsworth ; that after this sale, Hollings- 
worth became indebted to Staples by promissory note in 
the sum of $300. On this last named note there was a 
payment of forty dollars, which left a balance of $260 due 
from Hollingsworth to Staples ; that afterwards, Staples, 
Hollingsworth and Latham met together, and entered into 
an agreement that Latham should give his note to Staples 
for the amount that was due from Hollingsworth to Sta- 
ples, and have a credit for the same on the note to Hol- 
lingsworth for the purchase-money of the land ; that in 
conformity with this agreement, Latham executed and de- 
livered his note to Staples for $260, and received a credit 
for the same on the note to Hollingsworth for the pur- 
chase-money of the land, and Hollingsworth was dis- 
charged from his liability to Staples ; that the note for 
$260, thus given by Latham to Staples, was a transfer of 
so mach of the claim for the purchase-money of said 
lands as the amount of said $260, and that this transfer 
carried with it, by agreement of the parties, the vendor's 
lien on the land sold by Hollingsworth to Latham to 
the amount of the note to Staples. The bill is filed to en- 
force this lien in favor of the complainant. Staples. There 
was a demurrer by Latham to the bill for want of equity 
and misjoinder of parties. This was overruled. Latham 
then answered without oath, his answer on oath having 
been waived, and flatly denied, from personal knowledge, 
all grounds for the equitable lien set out in the complain- 
ant's bill. Hollingsworth failed to answer, and a decree 
pro confesso, on publication, was taken as to him. The 
cause was heard upon the bill and exhibit, the answer of 
Latham and exhibits, and the decree pro confesso against 
Hollingsworth. There was no testimony taken by any of 
the parties. The chancellor decreed that the complainant 



464 l^OETT-SIXTH ALABAMA. 

Latham et al. v. Staples. 

Staples was entitled to a vendor's lien on the lands sold 
by Hollingsworth to Latham, and mentioned in the bill, to 
the extent of the note for $260, and decreed that the lien 
to this extent be enforced by sale. 

From this decree Latham brings the case by appeal to 
this court, and here assigns the proceedings in the court 
below for error. 

Walker & Murphet, for appellant. — The equity of the 
bill (if it contains any,) obviously depends upon the alle- 
gation that Latham gave his note to Staples, accepting a 
credit po^o tanto upon his debt for the purchase- money of 
land to Hollingsworth, and that there was thus transferred 
to Staples, the complainant, a part of the debt of Hol- 
lingsworth for the purchase of the land, with an agreement 
for the continuance of the lien. 

Now, all the allegations of the bill on this subject are 
positively denied. There was no proof sustaining the bill, 
and of course the complainant was not entitled to a de- 
cree. 

The vendor's lien would have been lost by the discharge 
of Latham pro tanto from liability to Hollingsworth, and 
the giving of a new note to Staples. —Bradfm'd v. Harper, 
25 Ala. 337 ; Hall v. Click, 6 Ala. 363. 

The averment that there was an agreement for the con- 
tinuance of the lien in favor of Staples is denied, but if 
proved it would have been of no avail, unless in writing. 

Taul Bradford, contra. 

PETEKS, J.— There can be no doubt now, that in this 
State, a promissory note given for the purchase-money of 
land is secured by a vendor's equitable lien upon the land 
sold, unless, in the contract of sale, this lien has been re- 
leased. This lien attaches to the debt, and is transferable 
with the note for the purchase-money ; though, at the 
same time, it may be released when the note is assigned 
without recourse, or when the debt itself is changed with- 
out intention to preserve the lien.— Comer V- -Banks, 



JUNE TEBM, 1871. 465 

Latham et aL t. Staples. 

18 Ala. 4a; KeUy v. Payne, 18 Ala. 371 ; Brooks v. Woods, 
40 Ala. 538 ; White v. Stover et cd., 10 Ala. 441 ; Haley v. 
Bennett, 5 Port. 452 ; HaWs ExWs v. aide et al, 5 Ala. 363 ; 
Day V. Freskett, 40 Ala. 624 ; Griggsby v. Hair, 25 Ala. 
327 ; Bradford v. Harper, 25 Ala. 337 ; Newsome et al. v. 
Collins, 43 Ala. 656 ; 4 Kent, 150, et aeq. The transfer of 
the note thus made for such purchase-money on a sale of 
land may be by parol. It is not a transaction that is af- 
fected by the statute of frauds. It is the debt that is 
parted with, and not the land ; and the debt carries along 
with it all its incidents, if there be no stipulation to the 
contrary. — 40 Ala. 6ii4, 628, swpra. But here the bill al- 
leges that a portion of the debt for the purchase-money 
was transferred, and that the lien allowed by law for its 
security was likewise expressly transferred with it, by 
agreement of all the parties interested in it. In such case, 
all the owners of the debt entitled to participate in the 
fruits of the lien should be made parties to the suit to en- 
force the lien. — 25 Ala. 327, supra. The demurrer was 
therefore properly overruled. 

The cause in the court below was heard on bill and an- 
swer, without testimony, but the complainant waived the 
oath of the defendant to the answer. In such case, the 
answer, when it contradicts the allegations of the bill, is 
a mere pleading, and it is still required that the allegations 
of the bill shall be sustained by some proof sufficient to 
overturn the contradictions of the answer ; but the force 
of this proof may be- simply that of a preponderance of 
the evidence in favor of the complainant, without demand- 
ing, as in case of a sworn answer, two witnesses, or one 
witness with strong corroborating circumstances, to out- 
weigh the denials of the answer. The Code changes the 
former rule. — Kev. Code, § 3352 ; State B'k v. Edwards et 
al, 20 Ala. 512 ; Mosser v. Mosser, 29 Ala. 313 ; Patddiny v. 
Watson & Bidson, 21 Ala. 279 ; Greenl. Ev. pp. 8, 9. The 
allegations of the bill which support the equity of the 
complainant's case, are directly and fully contradicted by 
the denials of the answer, made upon the personal knowl- 
edge of the defendant, and there is no evidence sufficient 



466 FOKTY-SIXTH ALABAMA. 

Hightower et ux. v. Moore. 

to support the bill. In such case, the denials of the an- 
swer must prevail. 

For the foregoing reasons the decree of the court below 
must be reversed. And although this court is clothed with 
the power to render such judgment here as the court below 
should have rendered, yet, as the cause might thus be dis- 
posed of on a mere suggestion in the pleadings, for which 
no one but the pleader who drew up the unsworn answer 
would be responsible, and the complainant is entitled to 
support his bill by his own testimony, which may not be 
contradicted by the defendant, the cause will be remanded 
for final disposition in the court below, where the ends of 
justice may be more certainly and more fully attained. — Ke- 
vised Code, §§ 3502, 2704. 

Let the decree of the court below be reversed, and the 
cause remanded. The appellee. Staples, will pay the costs 
of this appeal in this court and in the court below. 



HIGHTOWER et ux. vs. MOORE. 

[application fob eemoval of administeatob. ] 

. Failure to make settlement ; when not good ground for removal of admin- 
istrator. — An administrator ought not to be removed for merely failing 
to make regular settlements, when no damage to the estate is shown, 
and he has not been required to do so, by either the court or those in- 
terested. 

. Meceipt of Confederate currency by administrator ; when no ground of 
removal. — It is no ground for removing an administrator now, that in 
1864 he received Confederate currency in payment for property of the 
estate sold by him. 

Appeal from Probate Court of Russell. 
Tried before Hon. T. L. Appleby. 

This was an appeal by Hightower and wife from the or- 



JUNE TEEM, 1871. 467 

Hightower et ux. v. Moore. 

der of the probate court dismissing their petition filed on 
the 10th day of July, 1869, for the removal of appellee as 
administrator of the estate of Matthew Matthews, deceased, 
Hightower's wife being an heir of said decedent. 

The grounds alleged are — 

1st. That the administrator has not made any settlement 
since December, 1865. 

2d. That he has failed to make settlements. 

3d. That he had sold property of the estate and taken 
Confederate money in payment therefor. 

On the hearing of the application, the appellee introduced 
in evidence all the records of the probate court in relation 
to his administration of said estate. From these records 
it appears that appellee was appointed administrator in 
April, 1864. The slaves belonging to the estate were dis- 
tributed among the distributees in September, 1864. In 
the same year an order was made, on the application of 
the administrator, for the sale of certain personal property 
of the estate, and also certain real estate, for the purpose 
of a division, &c. On the 9th of December, 1864, he re- 
ported the sale, &c., to the probate court, and on the 15th 
of the same month the court set aside the sale, so far as 
part of the real estate was concerned, and directed another 
sale. Both the land and personal property were sold for 
Confederate currency. On the 9th of January, 1865, the 
administrator made another sale, and reported the same to 
the court. This sale, with the exception of small portions 
of the real estate, was confirmed, &c., and as to said land, 
a re-sale was ordered. 

Appellee's having filed his accounts and vouchers for an 
annual settlement, the same were passed and allowed, at 
the February term, 1865, and decrees rendered against him 
in favor of the respective distributees. These decrees the 
administrator satisfied. 

In December, 1865, appellee filed his accounts and vouch- 
ers for a final settlement and a day was set to hear the 
same, but the record is silent as to what was done in the 
matter. At the May term, 1866, it appears that the court 
passed and allowed the accounts and vouchers filed by the 



468 EOBTY-SIXTH ALABAMA. 

Hightower et ux. v. Moore. 

administrator for an annual settlement, and it appeared that 
the estate was indebted to the administrator in a small 
amount. 

It also appears that on the 30th day of January, 1865, 
the administrator re-sold certain lands of the estate under 
the order heretofore referred to, and filed his report of the 
sale. This sale seems to have been confirmed in February, 
1865, although the record does not set forth the order ; for 
in March, 1866, certain distributees petitioned the court 
for " a new trial of the order heretofore granted confirming 
the sale," &c., at the February term, 1865. At the August 
term, 1866, the court being " fully satisfied that the admin- 
istrator acted in good faith, and that the land did nftt sell 
for an amount disproportionate to its value," dismissed the 
petition, &c. 

No citation was ever issued to the administrator requir- 
ing him to file his accounts, &c., for settlement. 

It was admitted that the administrator had made no set- 
tlement of the estate in three years and a half. It was 
also admitted that the administrator would swear, if pres- 
ent, that he had regularly complied with the requirements 
of the law and the court, and that he would have made 
annual settlement each year, if he had not been excused by 
the court in consequence of an application to compel him to 
give a new bond, &c. The records, however, did not show 
any order excusing him, and the probate judge's statement 
being taken as evidence, by consent, he stated that he had 
never excused the administrator from making settlement. 

This was substantially all the evidence on the hearing. 
Upon it the court dismissed the petition. 

G. D. & G. W. Hooper, for appellant. 
Wilson Williams, contra. 

(No briefs came into Reporter's hands.) 

B. F. SAFFOLD, J.— The appellants petitioned the 
probate court for the removal of the appellee from the ad- 
ministration of the estate of Matthew Matthews, deceased. 



JUNE TERM, 1871. 469 

Hightower et ux. v, Moore. 

They alleged, as grounds of removal — 1st. That he had 
not made any settlement since December, 1 865. 2d. That 
he had failed to make settlements. 3d. That he had sold 
property of the estate and taken Confederate currency in 
payment. On the hiring, the court dismissed the appli- 
cation. 

The last cause of removal alleged by the petition in 1869 
can not be regarded as sufficient, inasmuch as the acts 
complained of were done four years before, and can not be 
repeated. Besides, the time when they were done, and the 
attendant circumstances, do not admit of the inference that 
the administrator was inefficient or disposed to waste the 
property. 

There appears to have been a settlement of the estate in 
1865, at which decrees were rendered in favor of the dis- 
tributees against the administrator, and were satisfied by 
him. The estate seems to have been fully administered, 
though perhaps not entirely distributed. The administra- 
tor has been negligent about making his settlements, but 
there has not been much to do since his last settlement, 
and he has not been required to make settlements by either • 
the court or the distributees. The record shows that in 
December, 1865, he filed his accounts for a final settlement, 
and that a day was appointed to hear it, but it does not 
show what was done in the matter. 

The statement of what the administrator would swear, if 
present, admitted as evidence by counsel, tended to prove 
a reason why he had not made regular settlements, but it 
was contradicted by the evidence of the probate judge him- 
self, and of course had no influence in his decree. 

We do not think sufficient ground for the removal was 
shown. 

The decree is affirmed. 



470 FOETY-SIXTH ALABAMA. 

Hudspeth et al. v. Tliomason. 



HUDSPETH ET AL. vs. THOMASON. 

[bill in equity to entoece vendor's lien and to eefoem deed of con- 
veyance, &c.] 

1. Chancery ; when has jurisdiction to reform deeds, &c,, to require execu- 
tion of deeds in place of those destroyed. — A court oi chancery has ample 
jurisdiction to reform deeds and other written instruments, on the 
ground of mistake, even upon parol evidence, where no statutory pro- 
vision intervenes to prevent it ; and where a conveyance of lands has 
been accidentally lost or destroyed, so that the purchaser is, thereby, 
unable to show a good title, the vendor may be required to make the 
purchaser another deed. 

2. Bill to correct misdescription of deed; what no defense to. — On a bill, by 
a vendee to correct a mistake in the description of the land bought, it is 
no defense that the vendor was paid in Confederate treasury notes, if 
voluntarily received by him, where the vendee is chargeable with no 
deceit or fraud on his part. 

3. Same ; when the same hill may join one defendant to have a deed reformed 
and with another against whom vendor^s lien is sought to be enforced. — It A 
buy lands of B, and pay for them, and receive B's deed for the same, in 
which, bjr the inadvertence and mistake of B, the lands are misde- 
scribed, and after A's purchase, and before the mistake is discovered A 
sells the same lands to C, the brother of B, who pays half of the pur- 
chase-money, and gives his promissory note for the remainder, and takes 
A's bond for titles ; if after the mistake is discovered, B refuses to cor- 
rect the mistake, and he and C combine and confederate together, to 
prevent the correction of the mistake, and, also, to avoid the paj'ment 
of the remainder of the purchase-money, on the part of C, A may join 
both in a bill to correct the mistake, and to set up and enforce his lien 
on the lands, for the unpaid purchase-money. 

4. Same; when not error to treat cross-bill astcaived. — On such a bill, if 
the defendants make their answers a cross-bill, but take no steps to ob- 
tain an answer to their cross-bill, and go to a hearing on the original 
bill, answers, and cross-bill and exhibits, the chancellor may dismiss the 
cross-bill, or treat the same as waived on the part of the deiendauts, 
and proceed to decree the relief prayed in the original bill, if the 
admissions in the answers will authorize it. 

Appeal from Chancery Court of Barbour and Henry. 
Heard before Hon. B. B. McCraw. 

The appellee, Thomason, who was a non-resident and 



JUNE TEEM, 1871. 471 

Hudspeth et al. v. Thomason. 

complainant in the court below, filed his bill against E. T. 
and Joel A. Hudspeth, the appellants, seeking to enforce a 
vendor's lien on six hundred and thirty acres of land men- 
tioned in the bill, and to have corrected certain misdescrip- 
tions in the deed therefor, which had been executed to him 
by E. T. Hudspeth, and prayed for general relief, &c. 

It appears from the bill and answers that appellee, in 
1863, through his agent, one Edwards, purchased the lands 
mentioned from E. T. Hudspeth, paid him the whole price 
therefor in Confederate currency, and received a warranty 
deed therfefor from said Hudspeth and wife at the time of 
the sale. This deed was destroyed by Sherman's army in 
passing through Georgia in 1864. There is nothing in the 
proof to show who was in the possession of the land from 
the date of the sale up to the year 1865, except the denial 
of E. T. Hudspeth that he had ever surrendered his pos- 
session. 

The bill charges, that in the year 1865 E. T. Hudspeth 
rented the lands of appellee, through Edwards, his agent, 
and acknowledged at the time that the land belonged to 
appellee, and paid rent therefor ; that, in 1866, complain- 
ant sold the lands to Joel A., a brother of E. T. Hudspeth, 
who was then living on the land, gave said Joel A. a bond 
for titles, received from him $1500 in cash and his promis- 
sory note for a like amount, for the remainder of the pur- 
chase-money, and appellee then put him in possession, &c. ; 
that, after this, by some collusion and fraud, said Joel A. 
put E. T. Hudspeth in possession of the land, who now 
claims title thereto in himself ; that both defendants deny 
complainant's rights in the premises, and said Joel A. 
refuses to pay the remainder of the purchase-money, 
although long since due. 

All the parties, at the time of the transactions men- 
tioned in the bill, were of full age and acting in their own 
right. 

E. T. Hudspeth, in his answer, admits the sale as alleged ; 
that both parties assented to the sale of the same land, 
(being that described in the bill,) and that in making the 
deed he "intended to put in the right numbers," but 



472 FORTY-SIXTH ALABAMA. 

Hudspeth et al. v. Thomason. 

alleges, that by inadvertence and mistake, he drew up the 
deed so that it conveyed only eighty acres of the six hun- 
dred and thirty sold ; that, as to the remainder of the land 
mentioned in the bill, "there was no writing signed by the 
parties to be bound thereby, or by any one authorized to 
bind them, or either of them, containing said contract of 
purchase or any part thereof ;" that the sale of the lands, 
except the eighty acres, was wholly verbal and in parol, 
and supported only by a payment of Confederate money. 
He admits, that after the sale, and until he became aware 
of the mistake, that he considered the land as belonging 
to complainant ; that after this, discovering the mistake, 
" knowing that the price paid was grossly inadequate and 
paid in an illegal currency, he determined to avail himself 
of all the legal advantages given him by law under the 
facts, and that he refused to recognize complainant's rights 
in the premises." He also denies that he ever surrendered 
possession of the lands to complainant, or lost dominion of 
the land, unless "by reason of his considering it to belong 
to complainant," and holding under these circumstances, 
when he was ignorant of the mistake in the deed, and, 
therefore, believed that the legal title to the land was in 
complainant. The answer no where states when the dis- 
covery of the mistake was made, and denies that Joel A. 
was ever, legally, in possession of said lands, and alleges 
that what was charged as a payment of rent was money 
paid by respondent to said Edwards for his trouble in 
bringing about the sale between complainant and respond- 
ent, and not as rent. Joel A. Hudspeth, in his answer, 
alleges that at the time of the sale complainant had the 
legal title to only eighty acres of the land, and could not 
make title to the remainder ; that for this reason the real 
consideration of the sale to him has failed ; that this defect 
of title was not discovered by him until after the sale, and 
that when he discovered this, and "became aware that his 
brother and correspondent had received only a trifling sum 
in an illegal consideration for the sale of the lands, he 
determined to render no assistance to complainant in con- 
summating his speculation, and agreed with co-defendant 



JUNE TERM, 1871. 473 

Hudspeth et al. v. Thomason. 

that the facts, as set forth in their respective answers, be 
submitted to the chanpdilor for such decree as equity 
demanded." He also denies that complainant was ever in 
possession of the land, unless the facts stated in the answer 
of his co-defendant amount to possession, but admits that 
the $1500 note is still due. 

In both answers, which were sworn to, all collusion, com- 
bination and fraud are denied, and each prays that their 
respective answers be taken as cross-bills ; that complain- 
ant be mad« a party defendant thereto by publication, and 
required to answer the several allegations thereof without 
oath, and that the chancellor will grant them, respectively, 
"'such relief upon the facts set up," in their answers, "as 
to equity seems meet." In both answers respondents offer 
to allow complainant a rebate to the amount of the value 
of the Confederate money paid for the land to R. T. Huds- 
peth, upon the repayment by complainant of the $1500 
received by him from Joel A. Hudspeth. 

The bill was filed in March, and the answers in April, 
1869. Up to the May term, when the cause was heard, 
nothing was done towards making complainant a party by 
publication or otherwise ; no answers had been filed by 
complainant, and no decree pro confesso had been taken 
against him. 

The cause was heard upon the original bill, and the 
answers, and, on the hearing, the chancellor dismissed 
the answers as cross-bills, and decreed that complain- 
ant was entitled to the relief prayed ; that the note 
of A. J. Hudspeth was a lien on the lands mentioned 
in the bill, for the unpaid purchase-money, and that the 
land be sold for the payment of the same, <fec. ; that all 
title of R. T. Hudspeth, to the lands mentioned in the bill, 
be divested out of him and invested in complainant, and 
that said Hudspeth execute a valid and correct deed to 
complainant of the lands mentioned in the bill, within ten 
days, &c. 

The defendants appeal, and here assign as error the dis- 
missal of the answers as cross-bills, and the decree ren- 
dered by the chancellor. 
81 



474 FOBTY-SIXTH ALABAMA. 

Hudspeth et al. v. Thomason. 

PuGH & Baker, for appellants. 

W. C. Oates, and Watts & Troy, contra. 

PECK, C. J. — This case originated in the chancery court 
of Henry county, by a bill filed by the appellee as plaintiff, 
against the appellants as defendants. The objects of the 
bill were — 1st. To reform a deed of conveyance of certain 
lands sold by the defendant, K. T. Hudspeth, to the plaintiff, 
and correct a mistake in the description of the land as set 
forth in said deed ; and 2d. To set up and enforce a vendor'^s 
lien on the same land, which were afterwards, and before 
the discovery of the mistake, sold by plaintiff to the defend- 
ant, A. J. Hudspeth, the brother of said R. T. Hudspeth. 

There can be no doubt that a court of chancery has 
ample jurisdiction to reform and correct mistakes in deeds 
and other written instruments, even upon parol evidence, 
where no statutory provision intervenes to prevent it. — 
Adams' Eq. 168-9, ma. note 1 ; and, if a conveyance to a 
purchaser has been accidentally lost or destroyed, so that 
the purchaser, thereby, is unable to show a good title, the 
vendor may be compelled to make another deed of convey- 
ance. — Adams' Eq. 167, ma. note a., and "Willard's Eq. 300-1. 

On these authorities it was competent for the chaDcellor 
to correct the mistake in the description of the land, in the 
deed of the defendant, R. T. Hudspeth, to the plaintiff, and 
the deed being lost, or destroyed, it was not improper to 
require him to execute another deed containing a correct 
description of the land sold by him to the plaintiff. 

The mistake was fully admitted in his answer, and that 
is sufl&cient to sustain the chancellor's decree. 

The objection made by him, in his answer, to reforming 
the said deed and correcting the mistake, is without force. 
The fact that the land was paid for in Confederate money 
or treasury notes, did not affect the validity of the sale. — 
Ponder et al. v. Scott, 44, 241. No deceit or fraud on the 
part of the plaintiff or his agent, by whom the purchase 
was made, is pretended. The purchase was made in good 
faith, and the vendor voluntarily received his price, all he 
asked for his land, in Confederate money, and made a deed 



JUNE TERM, 1871. 475 

Hudspeth et al. t. Thomason. 

that he believed, at the time, described the land correctly ; 
but, as he admits in his answer, by his own inadvertence 
and mistake only described correctly a small part of the 
land ; therefore, it is but the plainest equity and justice to 
require him to correct his own mistake. 

2. The chancellor decided correctly in holding that the 
plaintiff had a lien on the same lands for the unpaid pur- 
chase-money due to him, on the sale made to the defend- 
ant, A. J. Hudspeth, before the mistake in the plaintiff's 
deed was discovered. Said defendant admits the purchase, 
and the note given by him to the plaintiff, made an exhibit 
to the bill, and that the same, with the exception of the 
credit entered upon it, is due and unpaid. The decree 
properly declared the said note a lien upon the said lands, 
and required the same to be paid within the time specified, 
or that the lands should be sold by the register. 

There was no objection made in the chancery court to 
the frame of the bill, or in the manner of its verification. 

The bill charges a combination between the defendants, 
and although there is a seeming denial on their part, yet 
no one can read their answers without clearly seeing that 
said defendants were acting in concert and with a common 
design — 1st. To defeat the correction of the mistake in the 
plain tifi's deed ; and 2d. To avoid the payment of A. J. 
Hudspeth's note, and pave the way to recover back the 
fifteen hundred dollars already paid to the plaintiff. They 
were, therefore, properly made joint defendants to the bill 
of complaint. 

There was no error in dismissing the cross-bills ; no step 
was taken to make the plaintiff a party to them, by publi- 
cation or otherwise ; no answer was in fact filed, nor were 
said cross-bills taken as confessed. 

They might, for these reasons, be either dismissed, or 
treated as waived by the defendants. After a careful ex- 
amination, no reversible error is discovered in the decree 
of the chancellor, and the same is affirmed at the appellant's 
costs. 



476 FORTY-SIXTH ALABAMA. 

Autry V. Walters, Adm'r. 



AUTEY vs. WALTERS, Adm'r. 

[beal action in the nature of ejectment,] 

1. Attachment; when lands as well as personal property, may be sold either 
by a venditioni exponas orfierijaciaa, — Lands levied upon by attachment, 
after judgment for the plaintiff may, as well as personal goods so levied 
on, be sold at the election of the plaintiff, by either a venditioni exponas 
or the ordinary writ of fieri facias. 

Appeal from the Circuit Court of Fayette. 
Tried before Hon. W. S. Mudd. 

This was a real action in nature of ejectment, under the 
Code, for the recovery of land, brought by appellee against 
the appellant. The land in question formerly belonged to 
Rowena McGinnis, and both parties derived title through 
her. 

The appellee, against the objection of appellant, was 
allowed to prove that on the 8th of January, 1866, an orig- 
inal attachment was duly and regularly issued out of the 
circuit court of the county, at the suit of John King against 
said McGinnis, and duly and regularly levied and endorsed 
and returned ; and that the original papers had been stolen 
from the court-house. The appellee was then allowed to 
offer in evidence, against the objection of the appellant, the 
return on said attachment, which was as follows : 

"Received in office, 8th of January, 1866. 

T. D. Ennis, Sh'ff. 

"For want of goods or chatties, I levy this attachment 
on the following lands, [describing those sued for in the 
present action,] as the property of Rowena McGinnis ; this 
8th day of January, 1866. T. D. Ennis, Sh'ff." 

The appellee then proved from the records of the circuit 
court, that the plaintiff in the attachment suit duly recov- 
ered judgment against said McGinnis, and that upon this 
judgment a venditioni exponas was duly issued on the 19th 



JUNE TERM, 1871. 477 



Autry V. Walters, Adm'r. 



of April, 1868, commanding the sheriff to expose for sale 
the lands levied on to satisfy said judgment ; that in accord- 
ance with this order, the sheriff duly advertised said lands 
and sold the same according to law ; that at this sale 
appellee became the purchaser and received the sheriff's 
deed to the lands on the 5th of July, 1869. The deed and 
all the proceedings, anterior thereto, were in due form, and 
no objection was taken to them on account of form, 'but 
the defendant objected to their admission as evidence on 
the ground that the deed, &c., were illegal evidence. The 
court overruled the objection and permitted the deed, &c., 
to go to the jury as evidence and defendant excepted. 

The defendant claimed under a deed from said McGinnis, 
dated 27th March, 1866, whereby, in consideration of $1000, 
she conveyed the lands in controversy to defendant. 
This deed had been "duly recorded." 

The jury found a verdict in favor of the plaintiff (appel- 
lee), and hence this appeal. 

Among other errors assigned is the admission of the 
sheriff's deed, <fec., as shown in the bill of exceptions. 

Wm. R. Smith, for appellant. 

E. P. Jones and A. J. Walker, contra. — We have been 
able to find only one section of the Revised Code di- 
rectly authorizing the issue of writs of venditioni exponas 
which applies to "goods" levied on by virtue of & fieri fadas^ 
and remaining unsold. But the power to issue an order of 
sale, or venditioni exponas to make the attachment, and judg- 
ment in pursuance of it effective, is deducible from several 
sections of the Code. 1. Attachments may be levied on real 
estate. — Revised Code, § 2943. 2. The levy of an attach- 
ment creates a lien from the levy. — Revised Code, § 2955. 
3. Perishable property may be sold by order of court 
before judgment, and under some circumstances by sheriff 
without an order.— Rev. Code, §§ 2956, 2957. 4th. The 
sheriff is allowed fees for selling property attached, the 
same as for selling on fieri facias, thus implying that prop- 
erty attached may be sold otherwise than under a fi^ri 



478 FORTY-SIXTH ALABAMA. 

Autry V. Walters, Adm'r. 

facias. — Rev. Code, § 3518. 5th. The form of the attach- 
ment does not provide that the property attached should 
be held subject to a future writ of fieri facias, but to further 
proceedings to be had "at the court-house" — thus implying 
that the property should be held subject to be rendered. — 
Rev. Code, § 2939. 

A writ of fieri facias may be a 'permissible, but not an 
appropriate, mode of enforcing the specific lien acquired by 
the levy of an attachment. K fieri fa/yias issues against the 
goods and chattels, lands and tenements generally of the 
defendants. Its ofl&ce is not to enforce a specific lien. 
The condition of property attachment is strictly analagous 
to that of property levied on by virtue of a fijcri facias and 
remaining unsold. A venditioni exponas was at common 
law the appropriate remedy in the latter case. — 2 Tidds. 
Practice, pp. 1020, 1021, 1068. 

The question as to the right to sell goods attached under 
a venditioni exponas, is settled in this State in the case of 
Gary v. Hines, 8 Ala. 837. When the decision in Gary v. 
Hines, supra, was made, there was no statute authorizing 
the issue of venditioni exponas to sell property attached, 
any more than there is now. — Clay's Digest, 62, § 35. This 
section expressly gives a fieri facias. Nevertheless, the 
supreme court held, that a sale might be made under a 
venditioni exponas. This decision is a rule of property. It 
has been generally acted on. It may have been the guide 
in the issue of the venditioni exponas in this case. Such 
decisions should be adhered to. 

The following authorities are decisive of the question in 
this case : Smith ex dem. v. Spencer, 4 Iredell's Law, 256 ; 
Farmer's Bank v. Thomas Wallace, 4 Harrington (Dela- 
ware R.) 370 ; Carson Loiv v. Doe ex dem. Huntington 5, 
Smedes & Marshall (Miss.) Ill ; 6 Howard's Miss. 548. 

PECK, C. J. — The only question made on this record is, 
can land levied upon by an attachment, after judgment for 
the plaintiff, be sold under a venditioni exponas ? 

We have no hesitation in answering this question in the 
affirmative. Until the year 1837, lands were not subject 



JUNE TERM, 1871. 479 

Autry V. Walters, Adm'r. 

to be levied upon by an attachment. By an act of that 
year, (Clay's Dig. p. 60, § 29,) it is provided that '* when- 
ever an original attachment shall be issued for, or upon 
any of the causes now provided by law, it shall be lawful 
to levy the same upon any land belonging to the defend- 
ant in such attachment, by the officer whose duty it may 
be to levy or execute the same, in the same manner that 
attachments are, or may be by law authorized to be levied 
on goods, chattels, or eflfects." 

In the case of Gary v. Hines, 8 Ala. 837, it is decided 
that " where a judgment is obtained in a suit commenced 
by attachment, the plaintiff may, at his election, take out 
a venditioni exponas for the sale of the property attached, 
or he may sue out an ordinary ^eri fadas." 

In that case, it is true, the attachment was levied on 
personal property, and not lands, but the language of the 
court is broad enough to embrace lands so levied upon, as 
well as personal property. 

Now, as is often the case, suppose lands and personal 
property be levied upon by the same attachment, after 
judgment, can there be any good reason why both may not 
be sold under the same writ ? We are unable to see any. 

If, in such a case, the property levied uppn is sufficient 
to satisfy the judgment, so as to render a resort to other 
property unnecessary, the appropriate writ would seem to 
be a venditioni exponas to sell the property on which the 
plaintiff acquired a lien by the levy of his attachment, 
rather than the ordinary Jieri facias. 

For these reasons, it seems to us, the court below de- 
cided rightly in overruling the appellant's objections to the 
admissibility of the venditioni exponas and the sheriff's 
deed for the lands sold under that writ. 

Let the judgment be affirmed at appellant's cost. 



480 FORTY-SIXTH ALABAMA. 

Whitley v. Moseley. 



WHITLEY vs. MOSELEY 

[action on VEKBAL agreement — PEOMISSOKT NOTES. ] 

1. Charge to jury ; what erroneous. — W., representing to the wife of M. 
that he had agreed with her husband for the purchase of his land, re- 
ceived from her the possession, and gave her, as part of the considera-- 
tion, certain notes of her husband, founded upon valuable considera-. 
tion, and the value of the rent of another place to which she removed, 
all of which he procured with Confederate currency. W. , repudiating 
the transaction as a sale of his land, but acknowledging the benefit 
that accrued to him by having his notes taken up, adjusted the matter 
with W., by agreeing to pay him a specified sum in Confederate cm- 
rency, less the rent of his own land during W.'s possession of it, — Held, 
that, in a suit by W. on this agreement, a charge that the jury must find 
for the defendant, was erroneous. 

2. Same ; measure of recovery in such case. — The measure of recovery in 
such a case is the value, at the time of the contract, the true and legal 
consideration for which the specified sum in Confederate currency was 
agreed to be paid, less the rent due the defendant. 

Appeal from the Circuit Court of Montgomery. 
Tried befora Hon. James Q. Smith. 

Whitley induced Moseley's wife, who, as he knew, had no 
authority in the premises, to agree to sell Moseley's lands 
to him, by informing her that he had made the contract 
with her husband, who was then absent in the army. Ac- 
cording to Mrs. Moseley's requirements, Whitley paid for 
the lands, partly, with two outstanding notes due by her 
husband to one Brown and to one McDaniel, and the re- 
mainder of the purchase-money in Confederate money, and 
the rent of another place, to which she removed on giving 
Moseley possession of her husband's lands. This occurred 
in 1864, and shortly after this, in October, 1864, Moseley 
returned home, repudiated the sale, and returned the 
money paid by Whitley, but acknowledging the benefit re- 
ceived by the taking np of his notes, which Whitley had 
bought with Confederate njoney, agreed to pay Whitley 



JUNE TERM, 1871. ' 481 

Whitley v. Moseley. 

$1437, which was to be reduced by the rent of his place 
while in Whitley's possession, the amount of the rent to 
be afterwards agreed on between them. For this indebt- 
edness, Moseley gave Whitley a due bill, which did not 
state what kind of money it was to be paid in, but there was 
proof that it was understood and agreed between the par- 
ties that the due bill was to be discharged by payment of 
Confederate money. 

The complaint contained two counts. The first declared 
upon the two promissory notes made by Moseley in favor 
of Brown and McDaniel, and sets forth specially the pur- 
chase of the land, the delivery of the notes to Moseley, 
Moseley 's refusal to sanction the purchase, or to deliver up 
the notes, and alleges that these notes are now the prop- 
erty of the plaintiff. To this count the court sustained a 
demurrer, but the grounds of the demurrer do not appear 
in the record. 

The second count was based upon the settlement by 
Moseley with Whitley, and specially sets-forth all the facts 
as above stated. 

This was all the evidence, and the court, at the request 
of the defendant, charged the jury that if they believed 
the evidence, they must find for the defendant. 

The charge given, and sustaining the demurrer to the 
first count of the complaint, are now assigned as error. 

Watts & Troy, for appellant. — 1. The first count in the 
complaint stated a good cause of action, and the demurrer 
ought not to have been sustained. 

If it be said that it shows a parol contract for the sale 
of the land, this was no reason to make the count bad, for 
it is shown that the contract was rescinded, and the defend- 
ant became liable to pay the amount of the notes made by 
himself, received under the rescinded contract, he having 
retained them, and refused to deliver them to plaintiff, who 
is alleged to be the owner thereof. 

2. The charge given by the court, that the plaintiff could 
not recover on the evidence, which is all set out in this bill 
of exceptions, was clearly erroneous. It is presumed that 



482 Jj^QBTY-SIXTH ALABAMA. 

Whitley v. Moseley. 

the judge gave it on the supposition that a contract paya- 
ble in Confederate treasury notes could not be enforced. 
But in this the court mistook the law, as is now well settled 
by this court. 

Even if the agreement shown in the bill of exceptions 
to pay the balance, $1437, in Confederate money, was ille- 
gal and void, still the plaintiff was entitled to recover the 
amount of the notes executed by the defendant to McDan- 
iel and Brown, which had become the property of plaintiff, 
and the balance of the rent of the land obtained from 
Goldsmith, and the amount paid Dr. Sale for defendant. 

EiCE, Semple <fe GoLDTHWAiTE, contra. 

B. F. SAFFOLD, J.— The grounds of the demurrer 
which was sustained to the first count in the complaint, are 
not stated in the transcript. 

The case made by the bill of exceptions is briefly as fol- 
lows : Whitley, without any authority to do so, represented 
to Moseley's wife that he had contracted with her husband 
to buy his land at a given price. Under the influence of 
this statement, Mrs. Moseley gave up to him the posses- 
sion of the land, and received from him, as the considera- 
tion, certain notes made by Moseley, in favor of other 
parties, some Confederate money, the value of the rent of 
another place to which she removed, &c. When Moseley, 
who was in the Confederate army at the time of this trans- 
action, returned home, he repudiated the contract entered 
into with his wife. But admitting that he had derived 
benefit from the payment of his debts by Whitley, he made 
a settlement or adjustment of matters between them, by 
which he agreed to pay Whitley an ascertained amount 
of money, in Confederate currency, to be reduced by the 
rent of his own land in Whitley's possession. 

Upon this contract, made by Moseley after a full under- 
standing of the whole matter, and which seems to be ex- 
plicitly stated in the special count, Whitley is entitled to 
recover the amount he is " legally, justly and equitably 
entitled to receive, according to the contract, by the judg- 



JUNE TERM, 1871. 483 

Vo88 & Co. V. Bobertson, Brown & Co, 

ment of the court."— Ord. 2t), § 3, Conv. 1865. The meas- 
nre of recovery is the value, at the time of the contract, of 
the true and legal consideration for which the specified 
sum in Confederate currency was agreed to be paid, less 
the rent due to the defendant. In determining this amount, 
the court may be suflficiently guided by the principles de- 
clared in the cases of Herbert dt Gessler v. Easton, 43 Ala., 
and Block v. McNeil, at the present term. 
The judgment is reversed and the cause remanded. 



YOSS & CO. vs. ROBERTSON, BROWN & CO. 

[TBIAIi OP BIGHT OF PBOPEBTT, &C.] 

1. Agent, authority to seU; what does «of authorize. — An authority to an 
agent to sell goods, does not authorize him to pledge them . 

2. Bill of lading ; how far negotiable.— A bill of lading is only quati ne- 
gotiable, and is not subject to the rule that the owner of negotiable 
paper can not protect himself against a bona fide holder for valuable 
consideration, on the ground that he did not authorize it to be used 
except for some particular purpose. 

3. Liens ; how lost. — Liens at law exist only in cases where the party en- 
titled to them has the possession of the goods. If the possession be 
parted with, the lien is gone after it attaches. 

Appeal from the Circuit Court of Mobile. 
Tried before Hon. John Elliott. 

On the 18th day of March, 1868, one J. A. Powell, being 
indebted to Robertson, Brown & Co., the appellees, in the 
sum of $370 72-100, they, on that day, sued out an attach- 
ment against him, which was immediately levied upon 
twelve bales of cotton, which were delivered to appellants 
upon making the statutory affidavit that they had a just 
claim thereto, and executing the proper bond, &c. 

Powell having failed to appear at the trial term, judg- 



484 FORTY-SIXTH ALABAMA. 

Voss & Co. V. Robertson, Brown & Co. 

ment by default was rendered against him, and trial was 
had of the right of property in the cotton levied on, under 
the claim filed by the appellants. 

On the trial, there was evidence tending to show that 
Powell was the owner of the cotton levied on and claimed 
by the appellants, who set up title in themselves by reason 
of the transactions hereinafter stated : 

On the 11th day of March, 1868 G. W. Hayes delivered 
to the Selma & Meridian Railroad Company thirteen bales 
of cotton, to be shipped to A. A. Voss & Co,, (of which 
the twelve bales of cotton levied on were part,) and took 
the bill of lading therefor in his own name. On the 16th 
day of March, Hayes delivered this bill of lading to A- A. 
Voss & Co., the appellants, grocery merchants in Mobile, 
and who were in the habit of receiving cotton " for sale in 
the usual way," and thereupon they advanced said Hayes 
on the cotton $ 1 ,000, which they borrowed from Murphy 
& Co., to whom the cotton was delivered, to be sold by 
them as usual among cotton factors and commission mer-. 
chants. On the same day, Hayes drew a draft on appel- 
lants in favor of ojae Johnson for whatever balance might 
result from the sale of the cotton, with the understanding 
and agreement that this draft was to be placed to the 
credit of Johnson on an account due by him to Voss & 
Co,, and this was to close up the whole of the transaction 
between Hayes and Voss & Co. On the next day, this 
last " draft was shown to Johnson, who had come to the 
store of said Voss & Co., with said Powell, and Johnson 
remarked that it was all right." 

In May or June, 1868, the cotton was sold, and the 
amount arising therefrom, after paying the $1,000 advance 
and expenses, was placed to the credit of said Johnson ; 
and before this sale, but some time after the advance was 
made, Powell notified appellants of his claim to the cotton. 

The evidence was conflicting as to whether or no Hayes 
had express authority from Powell to sell the cotton ; but 
the evidence was positive that Voss & Co. had no notice 
whatever but that Hayes was the owner of the cotton, 
until after the $1,000 had been advanced and the draft 



JUNE TERM, 1871. 485 

Voss & Co . V. Bobertson, Brown & Co. 

drawn by Hayes against the cotton for the balance of the 
proceeds in favor of Johnson, and that they made this ad- 
Vance bona Jide in the way usual among cotton factors and 
merchants, on the faith of said cotton. 

This was in substance all the evidence, and thereupon 
the court charged the jury that " although they might be- 
lieve from the evidence that Powell authorized said Hayes 
to ship and sell his cotton, still this would not authorize 
Hayes to pledge the cotton for his own debt, or for any 
advance made to him, Hayes ; that if it was not sold to 
claimants, but left with them to be sold, and although 
claimants may have advanced $1,000 to Hayes for himself, 
still, claimants could not be protected against the plaintiflf, 
Powell." To this charge appellants excepted. 

The appellants then asked the court to charge the jury 
that " if the claimants had a lien on said cotton for such 
advances, and delivered said cotton to Murphy & Co., to 
be held by said Murphy & Co. as their bailees or agents, 
then their lien continued on said cotton in said Murphy & 
Co.'s possession." This charge the court gave with the 
qualification, that "if the jury should believe from the 
evidence that claimants parted with the possession of said 
cotton, and had no longer any control over it, and the levy 
of the attachment was made before they regained the 
same, said lien was lost, and could not prevail against the 
plaintiff." To this charge, as qualified, claimants (appel- 
lants) excepted. 

The last charge given by the court, at the instance of 
the plaintiffs, was as follows : " If the jury believe from 
the evidence that Hayes was Powell's agent, and that he 
had authority to take the advance from Voss <fe Co., and 
thus created a lien on the cotton in their favor to the 
amount of the $1,000 advance, still, the balance of the 
proceeds of the cotton was subject to plaintiff's attach- 
ment, subject to the lien of Voss & Co., and the attach- 
ment being levied before the cotton was sold and the pro- 
ceeds placed to the credit of Johnson on authority [of the 
order] drawn by Hayes, said attachment stopped said bal- 
ance in the hands of Voss & Co, as Powell's property, and 



486 FOETY-SIXTH ALABAMA. 

Voss & Co. V. llobertson, Brown & Co. 

the jury must find the balance of the proceeds of such 
cotton, after satisfying the debt due Voss & Co., to be the 
property of Powell, and liable to the satisfaction of the 
debt due by him to plaintijffs." To this charge the appel- 
lants excepted. 

There was a verdict for the plaintiffs, (the appellees,) 
and hence this appeal. The charges given by the court, 
and the qualification of the charge asked, are now assigned 
for error. , 

Wm. Boyles, and Morgan, Bkagg & Thorington, for ap- 
pellants. 

R. H. Smith, cont'^a. 

(No briefs came into Reporter's hands.) 

B. F» SAFFOLD, J. — A line of separation between the 
respective rights of a principal, and of a third party, to 
protection against each other on account of the tort of 8.n 
agent, is not easily defined. One who has clothed his 
agent with all the apparent muniments of an absolute 
title, and authorized him to dispose of the property, as 
sole owner, ought rather to suffer than one whom his con- 
duct has enabled his agent to impose on. On the other 
hand, immunity to the third person on account of inno- 
cence of intention merely, would destroy all rights of 
property. One who deals with another respecting prop- 
erty, must be charged with the responsibility of that 
other's right or authority to dispose of it as he claims? 
to do. 

An agent to sell has no authority to pledge the goods of 
his principal, although the property be entrusted to him, 
and the pledgee be ignorant that he is an agent. — Story on 
Agency, §§ 224, 78, 437 ; Bott v. McCoy & Johnson, 20 Ala. 
578. A bill of lading is rather quo^i negotiable than 
actually so, and consequently is not subject to the rule 
that the owner of negotiable paper can not protect himself 
against a bona fide, holder for valuable consideration, on 
the ground that he did not authorize it to be used except 



JUNE TEUM, 1871. 487 

Vo88 <fe Co. V. Robertson, Brown & Co. 

for some particular purpose. — Pars, on Cont. p. 600, 601, 
239 ; 6 East, 17, 538. 

The charges given by the court are in conformity with 
the above principles. The qualification to the charge asked 
by the claimants asserted a correct proposition. Liens at 
law exist only in cases where the party entitled to them 
has the possession of the goods ; and if he once part with 
the possession after the lien attaches, the lien is gone. 
lAckbarron v. Mason, 6 East, 21-27. It is unnecessary to 
consider the last charge given at the request of the plain- 
tiffs. The verdict was not affected by it. 

The judgment is affirmed. 

[Note by Repoeter. — A.t a subsequent day of the term 
the appellant's counsel applied for a rehearing, or at least 
a modification of the opinion, and filed in support thereof 
the following argument] : 

The proposition is certainly true, that as between the 
principal and the agent, or as between the agent and a 
third person, dealing with the agent with notice of his 
agency, a power to sell will not authorize a pledge. But 
this is not a case arising between the principal and the 
agent, nor is it a case arising between the principal and a 
third party, who has dealt with the agent with notice of the 
agency. Voss & Co. had no notice that Hayes was an agent, 
nor was there any circumstance from which they could infer 
that fact. The bill of lading was in the name of Hayes ; the 
cotton was ufider his control and in his possession ; every- 
thing went to show that he was the owner of it ; and 
Voss & Co. dealt with him as the owner of the cotton. 
Therefore, it is respectfully submitted, that the charge of 
the court below was erroneous. As between Voss & Co., 
and the plaintiffs and Powell, the facts do not show that 
the question of Hayes' agency could be raised to the preju- 
dice of Voss <fe Co. and to invalidate a transaction they had 
effected with Hayes in good faith on their part and without 
notice of any agency. "As a general rule, he who employs 
an agent shall lose by his fraudulent, negligent or illegal 



488 FORTY-SIXTH ALABAMA. 

Voss & Co. V. Robertson, Brown & Co. 

act, rather than an innocent person. It is a universal rule, 
based on principles of policy, propriety and justice, that if 
a principal puts his agent in a condition to impose on in- 
nocent third persons, by apparently pursuing his authority, 
he shall be bound by his acts." — Dunning dc Smith v. Rob- 
erts, 35 Barb. p. 463 ; 33 Barb. pp. 17, 18, and cases there 
cited. The real question in this case, as we respectfully 
submit, is not what power was intended to be given to the 
agent, but what power a third person who dealt with the 
agent had a right to infer he possessed, from his own acts 
and those of his principal. — 1 Peters (S. C.) Rep. pp. 444, 
445 ; 8 How. (U. S.) Rep. p. 384 ; Copeland v. Touchstone, 
16 Ala. pp. 333, 334, and authorities there cited. 

A factor is an agent. — 1 Bouvier, p. 306. By the bill of 
lading the cotton was consigned to appellants. The sale 
by Murphy & Co. is the same in principle as if it had been 
made by appellants. It is submitted that the cotton was 
not pledged to appellants, but that the money advanced 
was a sale pro tanto to Voss & Co., and that, as to the ex- 
tent of this amount advanced. Toss & Co. stood in the atti- 
tude of bona fide purchasers. In support of this proposi- 
tion, we particularly refer to the case of Hall v. Hinks et ah, 
21 Maryland Reports, pp. 416, 417, and authorities there 
cited. 

A factor, who is nothing but an agent, deals with goods 
entrusted to his principal as if they were his own, and all 
persons to whom he disposes of them may set off or retain 
the amount of the factor's indebtedness when an action is 
brought for the price, either by the factor or his principal, 
13 Johnson, p. 9 ; Paley on Agency, 326. 

The effect of a consignment of goods, generally, is to 
vest the property in the consignees. — 17 Howard, 107. If 
Powell consented that Hayes should ship said cotton to Mo- 
bile as his own, and in his own name, consigned by bill of 
lading to Voss & Co., and the latter in good faith made ad- 
vances on it to Hayes, then it is submitted that Powell is 
estopped by his own act ; and if Powell is estopped, it 
would follow that his creditors would be. 

In Gardner & Say re v. Allen's Executors, 6 Ala. p. 187, 



JUNE TEBM, 1871. 489 

Voss & Co. V. Eobertson, Brown & Co. 

this court say — " Where one purchases goods of a factor, 
under the belief, authorized by the facts of the case, tJiai 
the latter was the real owner, he may set off a debt due him 
from the factor, to an action for the purchase-money, 
brought either by the factor or his principal." — See, also^ 
Story on Agency, § 420, and authorities there cited. 

Upon the hypothesis, warranted by the proof, that Pow- 
ell authorized Hayes to ship the cotton to Voss &, Co., and 
take a bill of lading in his own name, then Powell concealed 
his name. This was a fraud. In such a case, the pur- 
chaser of goods, before they are paid for, may, in an action 
by the principal, set off a debt due h