[Chapman v. Gibbs.] the application of the appellee, as the purchaser, the chancellor ordered a writ of assistance to put him in possession. The order of the chancellor asserts the doctrine, that during the pendency of a suit in equity, for a specific estate in land, whatever interest in and to it, greater than before, a third person may acquire without privity of court, is bound by the decree, without regard to his prior right or title. For instance, that a claimant of land, no matter how good his title may be, shall not by his own act acquire possession, held adversely by the defendant in a suit to subject the property specifically to the payment of his debts, so as thereby to compel the plaintiff to institute another suit against him. We think the proposition is in accordance with the rule pronounced in Creighton v. Paine, 2 Ala. 158; Kershaw v. Thompson, 4 Johns. Ch. R. 609; and Murray v. Ballou, 1 Johns. Ch. R. 566. Although these are cases of a right wholly acquired from the defendant while the suit was pending, the principle is the same in respect to any increased or additional right secured, or advantage gained. A plaintiff in ejectment may have the superior title; but, if the defendant be allowed to surrender the possession to him, or he be permitted to enter upon the land, when the mortgagee of the defendant is about to foreclose his mortgage, or to enforce his action of ejectment, the latter is prejudiced, by having his suit rendered nugatory; and the tendency of such practice would be to bring the court into contempt, through the fraud and artifice of litigants. In this case, the appellant has virtually decided her ejectment suit in her own favor, and appropriated to herself whatever interest the appellee recovered in his suit, as belonging to the estate of Nance. This interest may eventually prove to be nothing; but, at the commencement of these suits, it was at least the possession of the property. As the appellant acquired it pendente lite, it is subject to the judgment of the appellee. If the appellant gains her ejectment suit, she will recover against the interest of the estate of Nance, and, consequently, against all that the appellee obtained by his purchase. So the litigation will be concluded by the suits already instituted. But, if the parties to a suit may be changed at the pleasure of either of them, or by the interference of others, there would be no end of the litigation. The decree is affirmed. 51 504 s63 500 129 185 [Womack v. Bird.] Womack v. Bird. Trespass for Wrongful Taking of Personal Property. Plea of not guilty; what evidence admissible under. — Under the plea of not guilty, in an action of trespass for taking and carrying away personal property, the defendant cannot be allowed to prove, in mitigation of damages, or for any other purpose, that the act complained of was done under legal process. APPEAL from the Circuit Court of Greene. Tried before the Hon. JAMES Q. SMITH. This action was brought by Mrs. Ann M. Womack against William P. Bird, to recover damages for the defendant's wrongful act in taking and carrying away "twelve bales of lint cotton, averaging five hundred pounds per bale, five hundred bushels of corn, two hundred and fifty bushels of cotton seed, and twenty-two thousand pounds of cotton in the seed, or unginned cotton." The defendant pleaded not guilty, and a special plea of justification under legal process; but a demurrer was sustained to the special plea, and the cause was tried on issue joined on the plea of not guilty. On the trial, as the bill of exceptions shows, the court permitted the de-* fendant to read in evidence, against the plaintiff's objection, a writ of attachment issued against the estate of the plaintiff, returnable to the circuit court of said county; and to prove that the trespass complained of was the seizure of the plaintiff's property by him, as special coroner, under that writ. This ruling of the court, to which the plaintiff excepted, is now assigned as error. WILEY COLEMAN, for appellant, cited 1st Chitty's Pleadings, 8th edition, 502; 2 Tucker's Com. 92; 2 Saunders on Pl. & Ev. 855; 2 Greenl. Ev. 671; 6 Robinson's Practice, 644; Davis v. Hooper, 4 Stew. & P. 231; Beatty v. Holloway, 4 Ala. 178. MORGAN & JOLLEY, contra, cited Rev. Code, §§ 2639, 2687; 6 Robinson's Practice, 655; Sawyer v. Wilson, 37 Ala. 632; 9 Conn. 148; 5 Wendell, 243; 6 Greenl. 423. BRICKELL, J.-The general rule is, that a defendant in an action of trespass cannot give any matter in evidence, under the general issue, which amounts to a justification or excuse of the act complained of, or to a discharge of the trespass. The general issue is a mere denial of the allegations of the complaint. It casts upon the plaintiff the burden of proving that the defendant committed the act averred to be tortious. [Gresham v. Taylor.] The plea advises the plaintiff to come prepared only to prove that act. 9 Bac. Abr. 546. When the plaintiff proves the act, the cause of action is established. Every matter of defence, which admits the defendant to have been primâ facie a trespasser, must be specially pleaded. 2 Greenl. Ev. 625; Speck v. Phillips, 5 Mees. & Welsby, 278. Under the general issue, the defendant cannot show, in mitigation of damages, that the act complained of was done in obedience to a writ from a court of competent jurisdiction. If such is the fact, it is a complete justification, and must be specially pleaded. 1 Chitty's Pl. 500. In such case, there is no denial, but an admission of the allegations of the complaint, and an offer to show that the defendant had authority for the acts, which, in the absence of authority, were wrongful. Of such defence, the general issue gives the plaintiff no information, and he has not an opportunity of being prepared to meet it with evidence. The proposition, at last, is, although it may be expressed only as an offer to mitigate the damages, to legalize the act of the defendant as done under valid process, which, of itself, is a complete justification, and must be specially pleaded, or established rules of pleading disregarded. The result generally would be, as in this case, that the defendant would, under the general issue, obtain all the benefit he could have derived from a special plea of justification, not only a mitigation of damages, but a verdict of not guilty. Coats v. Darby, 2 Comstock, 517. The court erred in receiving in evidence the writ of attachment, and the charge given was also erroneous. It is not necessary to notice the remaining question, as it can scarcely arise on another trial. The judgment is reversed and the cause remanded. Gresham v. Taylor. Trespass for Injuries to Land. 1. Secondary evidence of deed. In trespass for injuries to land, which the plaintiff purchased from the defendant, a mortgage of the premises, executed by the plaintiff to the defendant on the same day with the deed, is admissible as secondary evidence of the contents of the deed, on proof of its loss. 2. When action lies against owner for trespass by animals. - Trespass lies against the owner of hogs, for injuries committed by them to the lands and crops of another, although he had no notice in fact of their roving and mischievous propensity. 3. Damages. In an action of trespass against the owner of hogs, for injuries done by them to the plaintiff's crops, he cannot be allowed to prove what amount of crop he would have made without the injury; but the damages would be, perhaps, the value of the crops at the time of their destruction, so far as they were destroyed. [Gresham v. Taylor.] 4. What are fixtures. — A gin, gin band, and roller are not fixtures, as between vendor and purchaser. What is a fixture, is sometimes a mixed question of law and fact. APPEAL from the Circuit Court of Lowndes. Tried before the Hon. JAMES Q. SMITH. WATTS & WATTS, with CLEMENTS & ENOCHS, for appellant. R. M. WILLIAMSON, contra. B. F. SAFFOLD, J.-The action is trespass for injuries to real property, brought by the appellee against the appellant. The matters particularly complained of are the destruction of the plaintiff's crops; the digging up of his fruit trees, and removing the hinges of his gates, and carrying them away; and the taking off of a gin, gin band, and roller. There 1. In proof of his title to the preses, the plaintiff introduced a mortgage of the same, executed by him to the defendant, from whom he purchased, as secondary evidence of his deed from the defendant, which was shown to be lost. was no error in this, because the mortgage, bearing the same date as the deed, was accepted by the defendant, as accurately describing the property. Besides this, parol proof of the contents of the deed was adduced, corroborating the description contained in the mortgage. No objection was taken to the introduction of the parol testimony, and the mortgage was, at least, cumulative evidence. 2. The injury to the crops was done by the defendant's hogs, which, getting into the fields, destroyed them by rooting, treading down, and eating them. This testimony was objected to, as inapplicable to the form of action. Chitty says: "As the propensity of animals mansuetæ naturæ, as cows and sheep, to rove, is notorious, the owner is bound at all events to confine them on his own land; and if they escape, and commit a trespass on the land of another, unless through the defect of fences which the latter ought to repair, the owner is liable to an action for trespass, though he had no notice in fact of such propensity." 1 Chit. Plead. 82, 181. 3. The damages recoverable in this action must be the natural and proximate consequence of the act complained of as injurious. What amount of crop the plaintiff would have made without the injury, is conjectural. In Burton v. Holley (29 Ala. 318), the loss of the service of mules and laborers, and the cost of their maintenance, were not allowed to be proved, as being too remote. The damage, except where vindictive or exemplary damage may be given, is confined to the actual loss sustained, which, in this case, would be, perhaps, the value [Perryman v. Greenville.] of the crops at the date of their destruction, so far as they were destroyed. 4. A gin and its band, and the roller, are not fixtures. Hancock v. Jordan, 7 Ala. 448. Many articles, by improvements in their construction, change their character in this respect. Whether they are fixtures or not, is not always a question of law. At least, the question is so dependent upon facts, as to be determinable as much by the common opinion respecting them, as by any principle of law. The court might well, in very doubtful cases, define as clearly as practicable what the law holds to be a fixture, and leave it to the jury to decide in the particular instance according to the testimony. The judgment is reversed, and the cause remanded. Perryman et al. v. City of Greenville. Action on Official Bond of Town Marshal. 1. Judicial notice of charter of municipal corporation. The courts are bound to take judicial notice of the charter of a municipal corporation, and of the authority conferred by it. It is not necessary, in pleading, to aver 2. Averment of facts judicially known. facts which are judicially known to the court. 3. Sufficiency of complaint. — In an action by a municipal corporation, on the official bond of a marshal or tax-collector, for his failure to pay over moneys collected by him as taxes, it is not necessary to aver by what authority the bond was taken, or by what ordinance the tax was collected, or its validity. 4. Estoppel against tax collector from denying validity of tax. A tax-collector, or other municipal officer, when sued for moneys which he has collected in his official capacity as taxes, and failed to pay over, cannot controvert the legality of the tax imposed, or the regularity of the assessment. 5. Internal revenue; failure to stamp contract. An instrument which is not stamped, although it comes within the provisions of the internal revenue laws of the United States, should be received in evidence, unless there is proof that the failure to stamp it was with a design to evade the payment of the stamp duty. 6. Proof of proceedings of municipal corporation. The book containing the minutes of the proceedings of a municipal corporation, is the best and only evidence to prove whether or not a claim was allowed by the council. APPEAL from the Criminal Court of Butler. This action was brought by the appellee against W. D. Perryman and others, and was founded on the official bond of said Perryman as town marshal of Greenville, which was dated the 18th January, 1870, and conditioned as follows: "The conditions of the above obligation are, that whereas the above bound Walter D. Perryman has been appointed marshal of the town of Greenville, Butler county, Alabama, by the said corporate authorities, on the 10th day of January, A. D. 1870; now, therefore, the condition of the above obligation is such, that if the said Walter D. Perryman shall well and faithfully 51 507 113 628 51 507 125 643 | 51 507 130 330 |