Reports of Cases Argued and Determined in the Supreme Court of Alabama

COMMON CARRIERS- Continued.

notice to him of an intention thereby to place them in his care and
custody: merely placing them in such a position that he could easily
have taken them, but without calling his attention to them, is not
sufficient. The same rule equally applies as between the carrier and
his agent, when he seeks to hold the agent liable for the loss of goods.
O'Bannon v. Southern Express Co. 481.

4. Lien for freight, and liability for refusal to deliver goods.- A common
carrier has a lien on the goods transported by him, for the freight
due for the whole route, and may retain the goods until the freight
is paid; but the payment of the freight, and the delivery of the
goods, are concomitant or concurrent acts; and if the consignee is
ready and willing to pay the freight due, on having the goods deliv-
ered to him, and the carrier refuses to deliver them unless he will
pay more than is due, the consignee may maintain detinue for the
goods, or trover for their conversion, without making a formal ten-
der, or paying the money into court. Long v. M. & M. Railroad Co.

512.

COMMON LAW. See EVIDENCE, 33.

COMPUTATION OF TIME.

1. Under municipal ordinance or statute. Under a municipal ordinance
providing for the sale of hogs found running at large, and requiring
that notice of the time and place of sale shall be given for siz
successive days," a sale on the 28th day of the month, under a notice
first given on the 22d, is premature and unauthorized. City Council
of Montgomery v. Adams, 449.

2. Under statute of limitations. An action, commenced on the 17th Oc-
tober, 1870, founded on a promissory note due on the 9th April,
1860, is not barred by the statute of limitations of six years (Rev.
Code, § 2901), since the period of time which elapsed between the
11th January, 1861, and the 21st September, 1865, must be de-
ducted. Jones v. Nelson's Executrix, 471.

CONCEALED WEAPONS. See CRIMINAL LAW, 2.

CONFEDERATE STATES.

1. Judgments rendered during late war. - Following the decision of the
supreme court of the United States (Horn v. Lockhart, 17 Wallace,
570), this court now holds, that judgments rendered by the courts
of this State during the war, "so far as they did not impair, or tend
to impair, the supremacy of the national authority, or the rights of
citizens under the constitution, are to be treated as valid and bind-
ing." Tarver v. Tankersley, 309; Riddle v. Hill's Adm'r, 224; Powell
v. Young, 518.

2. Same. A judgment rendered by a probate court of this State in 1863,
on final settlement of a guardian's accounts, is not void because ren-
dered by a rebel court, but is conclusive and binding, until set aside
or reversed, and is a bar to any subsequent decree. Foust v. Cham-
blee's Adm'r, 75.

3. Same; executions during provisional government. · A purchaser of
lands at sheriff's sale in 1866, during the existence of the pro-
visional government in this State, under an execution issued on a
judgment of the circuit court rendered in 1862, has such a title as
he may successfully defend at law against a subsequent purchaser at
execution sale under a junior judgment. Foster v. Moody, 473.
4. Grant of administration during late war; action by administrator.

An
administrator, appointed by a probate court of this State, during the
late war, cannot maintain an action in the courts of the present state
government, by virtue of those letters alone; but, if he sold property

CONFEDERATE STATES- Continued.

---

belonging to the estate, under orders of the probate court, taking a
note payable to himself as administrator, and has not been dis-
charged from his fiduciary responsibility, nor superseded by a sub-
sequent appointment, he may maintain an action on it in his own
name; and his subsequent appointment as administrator, pending
the suit, will enable him to enforce the collection of the judgment,
and at the same time protect the defendant in paying it.
Erwin &
Jones v. Hill's Adm'r, 580.
5. Promissory note for money loaned to company manufacturing iron for
Confederate States. A promissory note, given for money (or other
notes) loaned to a company engaged in the manufacture of iron for
the late Confederate States for military purposes, is without legal
consideration, and no recovery can be had on it, if the lender knew
at the time that the funds borrowed were to be used in aid of the
illegal business of the company; but, if it is shown that the company
was also engaged in other business, which was not illegal, and the
loan was made in a general way, without any reference to the illegal
business, mere knowledge on the part of the lender that the company
was engaged in an illegal business, and that it might possibly or
probably use the funds obtained from him in advancing that illegal
business, would not prevent a recovery by him. Oxford Iron Co. v.
Spradley, 171.

6. Value of cotton in January, 1865; how ascertained. In ascertaining
the value of cotton at Wetumpka, Alabama, on the 1st January,
1865, evidence of the relative value of the United States and Con-
federate currency at that particular time and place is not inadmissible;
but it is not correct to ascertain the value of the cotton in Confeder-
ate currency, and reduce that to its equivalent in gold or United
States currency. Bozeman v. Rose's Executors, 321.

7. Contracts payable in Confederate money; measure of recovery.- In esti-
mating the amount which a party is legally, justly, and equitably
entitled to recover (Ordinance No. 26 of convention of 1865), when
suing on a note given for the price of property sold during the late •
war, and which, by contemporaneous agreement between the parties,
might be discharged by a payment in Confederate treasury-notes,
the criterion is the value of the property in lawful money at the time
of the sale; and although it is permissible, in determining that value,
to consider the relative values of Confederate money and lawful cur-
rency, yet this must not be made the standard. Erwin v. Hill, 580.
8. Receipt and disbursements of Confederate money by guardian. On a
settlement of a guardian's accounts in chancery, his receipts of Con-
federate currency should be set off against his disbursements in the
same currency; and any excess of such disbursements should be
credited to him at its value in United States currency at the time.
Monnin v. Beroujon, 197.

9. Allowance to guardian for ward's board. — In making an allowance to
the guardian, in lawful money, for the board of his ward during the
war, it is not proper to find the value in Confederate currency, and
then reduce that to its value in gold or United States currency. Ib.

197.

CONFLICT OF LAWS.

1. What law governs as to limitation of action. - Causes of action accruing
prior to the 17th January, 1853, and possessions commencing before
that day, are not governed by the statute of limitations prescribed
by the Code (Rev. Code, § 2926), but by the statute which was of
force at the time when they accrued or commenced. Daniel v. Day,

CONFLICT OF LAWS-Continued.

2. What law governs succession and testamentary disposition of property. –
At common law, the succession to the personal property of an intes-
tate, or the validity of a testamentary disposition of it, was governed
by the law of the owner's domicile at the time of his death; while
that of real property was governed by the law of the place where it
was situated. Brock's Adm'r v. Frank, 85.
3. Execution and attestation of will; what law governs. To make a will
operative to pass real estate, it must be executed and attested ac-
cording to the laws of the place in which the lands are situated. A
will, executed in Georgia, in 1840, and there probated, will not con-
vey lands in Alabama, unless it is shown that the attesting witnesses
subscribed their names in the presence of the testator, as required by
the Alabama statute then in force. Doe v. Pickett, 584.

CONSTITUTIONAL LAW.

1. Judicial construction of constitutional provision.. - When a constitu-
tional provision has received a settled judicial construction, and is
afterwards incorporated into a new or revised constitution, it must
be presumed to have been retained with a knowledge of that con-
struction; and the courts will, therefore, feel bound to adhere to that
construction. Ex parte Roundtree, 42.

2. What is "inferior court of law and equity.”.

Held, on the authority

of Nugent v. The State (18 Ala. 521), that an "inferior court," which
the general assembly is authorized by the constitution to establish, is
a court whose judginents or decrees can be reviewed by an appellate
tribunal, whether that tribunal be the circuit or the supreme court;
and not necessarily a court whose jurisdiction is inferior, or limited,
within the meaning of that term at common law. Ib. 42.
3. Constitutional provisions as to election of judges. Since the constitu-
tion provides that all judges shall be elected by the people (Art. VI.
§ 11), the general assembly cannot, in creating an "inferior court of
law and equity," make the judge of the circuit court, within whose
territorial jurisdiction the new court is established, the presiding
judge thereof. Ib. 42.

---

4. Constitutionality of "Law and Equity Court of Morgan county," created
by act of December 17, 1873. Tested by the principles above de-
clared, the inferior court of record in the town of Decatur, created
by the act approved December 17, 1873 (Sess. Acts 1873-4, p. 68),
and called "The Law and Equity Court of Morgan county," is un-
constitutional, because the judge of the fourth judicial circuit is, by
the act itself, declared to be the presiding judge of said court.

42.

Ib.

5. Constitutional provisions as to election of judges. Since the constitu-
tion provides that all judicial officers shall be elected by the people
(Art. VI. § 11), the legislature cannot, by statute, prescribe any
other mode, which shall be compulsory on the parties, for the selec-
tion and appointment of a special judge, on account of the incompe-
tency of the presiding judge from interest or relationship. Ex parte
Amos, 57.

6. License-tax on express company.
The city of Montgomery has author-
ity, under its charter, to levy and collect a specific tax on all express
companies doing business within its corporate limits; and this power
is not taken away, as to the Southern Express Company, by that
provision of the act in relation to said company, approved February
26, 1872, which declares, “Nor shall any municipal corporation levy
any percentage tax upon the receipts of said company; nor by any
other provision of said act City Council of Montgomery v. Shoë-

CONSTITUTIONAL LAW - Continued.

7. License-tax on peddlers; constitutionality of revenue law imposing, and
punishing failure as misdemeanor. The revenue law of 1868, in its
provisions requiring a license for peddling, and punishing the failure
to take out a license as a misdemeanor (Sess. Acts 1868, pp. 297,
330, § 105, 111), is not obnoxious to any constitutional provision,
state or federal; and its validity is not in any manner affected by the
subsequent act approved March 2, 1871, entitled "An act to author-
ize manufacturers and makers to peddle the products of their va-
rious making without license." (Sess. Acts 1870-71, p. 10.)
mour v. The State, 52.

Sey-
8. Ordinance No. 40 of constitutional convention, "to allow widows, or-
phans," &c., "to review validity of sales made by guardians,” &c. —
Ordinance No. 40 of the constitutional convention of 1867, entitled
"An ordinance to allow widows, orphans, and others, to review the
validity of sales and settlements of estates made by guardians, trus-
tees," &c., is inoperative proprio vigore, and requires legislative action
to give it force and effect. Balkum v. Satcher, 81.

9. Subscription by town or county in aid of railroad; validity of.

The

act approved December 31, 1868, authorizing counties, cities, and
towns to subscribe for stock in railroad companies, on an affirmative
vote of the citizens at a special election held for that purpose (Sess.
Acts 1868, p. 514), having been held by this court to be a constitu-
tional exercise of power by the legislature; a subscription of stock
by a municipal corporation, made in response to a proposition from a
railroad company duly organized, and on an affirmative vote of the
citizens, at a special election held in substantial compliance with the
terms of the statute, cannot be held invalid, nor a tax levied to pay
the interest on its bonds enjoined, at the suit of citizens and tax-pay-
ers, on account of irregularities, not fraudulent, in any of the pro-
ceedings preceding the subscription, which were not objected to
before the subscription was made and the bonds issued; such, for
instance, as an informality in the proposition of the railroad com-
pany, or the want of an exact conformity between the proposition
and the subscription, or the failure of the municipal authorities to
enter their action on their minutes within ten days, or to hold the
election within thirty days. Fielder v. M. & E. Railroad Co. 178.
10. Constitutionality of law appropriating funds in county treasury. ·
There is no constitutional provision, which inhibits the general as-
sembly from appropriating funds in the county treasury to the pay-
ment of claims which were not chargeable on those funds when they
were collected. Palmer v. Fitts, 489.

CONTESTED ELECTIONS.
1. Right to office; how determined, and protected. The right to an office,
dependent on an election by the people, is to be determined by the
number of legal votes received at the election, and not by the certifi-
cate of the returning officer, though issued under a mandamus from
the circuit judge; and the office being a species of property, the
person legally entitled to it is also entitled to all the protection given
by law to other property. Reid v. Moulton, 255.

2. Jurisdiction of equity, on ground of fraud, in matter of contested election.
The incumbent of a municipal office, claiming to have been re-
elected by the people at the expiration of his term, may, if he has
no adequate remedy at law, maintain a bill in equity for an injunc-
tion, against the person who has received the certificate of election,
and against the returning officer by whom it was issued, who also has
in his possession the ballot-boxes, poll-lists, &c., to restrain the use

CONTESTED ELECTIONS—Continued.

of the certificate, on the ground that it is founded on false and
fraudulent returns, corruptly made by some of the managers of the
election, although the holder of the certificate is not charged to have
participated in the fraud; and having acquired jurisdiction on ac-
count of the fraud, the court may go on and make all necessary
orders for the preservation of the ballots, &c. (BRICKELL, J., dis-
senting.) Reid v. Moulton, 255.

3. Contest of election to municipal office.

The general statutes on the
subject of contested elections, contained in the Revised Code, are
not applicable to elections for municipal offices; and the 12th sec-
tion of the amended charter of the city of Mobile (Sess. Acts 1865-
66, p. 202), while it provides that the election of any municipal offi-
cer may be contested before the judge of the circuit or city court,
and prescribes how testimony may be taken, fails to prescribe the
mode of contest, or to specify any grounds or causes of contest;
consequently, there is not a plain and adequate remedy at law for
contesting such election. (BRICKELL, J., dissenting, held that the
deficiencies of the charter were supplied by the general law, and
that a quo warranto, or an information in the nature of a quo war-
ranto, was an additional adequate remedy.) Ib. 255.

4. When prohibition lies not to chancellor. This court will not award a
writ of prohibition to the chancellor, at the instance of a defendant
in a pending suit, to restrain action under a bill for injunction in the
matter of a contested election, and under an attachment for con-
tempt in violating the injunction, on the ground that the chancery
court has no jurisdiction of the subject-matter of the bill, when it
does not appear that the petitioner has ever answered the bill, or
moved to dismiss it for want of equity, or sought relief in any other
mode in the chancery court. Ex parte Hamilton, 62.

CONTINUANCE.

Conditional. In a chancery cause, an order granting a continuance
to the defendant, on condition that he execute a bond, with sureties,
for the payment of whatever decree may be finally rendered against
him in the suit, is not in excess of the discretionary power of the
court in the imposition of terms. Dudley v. Witter, 456.

CONTRACTS.

Books

Reports of Cases Argued and Determined in the Supreme Court of ..., Volume 51