INTERNAL REVENUE - Continued.

2. Same. 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. Perryman v. Greenville, 507.

3. Who may affix and cancel stamp.· - Under the second proviso to the
158th section of the internal revenue law of the United States, which
was of force on the 29th August, 1871, only the collector of the
proper district can affix and cancel the stamps on a writing, which
was not properly stamped at the time of its execution; the "assist-
ant assessor has no such power. Miller v. Underwood, 453.

JUDGMENTS AND DECREES.

1. Amendment of judgment nunc pro tunc..

A judgment cannot be
amended nunc pro tunc by reference to an agreement of the parties,
which has not been made a part of the record. Coker v. Patty's
Heirs, 511.

2. Foreign judgments. -

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A foreign judgment creditor, asking the aid of
a court of equity here, occupies the position of a general creditor
only, and not of a judgment creditor. Saffold v. Wade's Executor,

214.

3. Judgment against county; how collected.-

On a judgment against a
county, neither an execution nor a garnishment can be sued out;
but the judgment must be filed as a claim against the county, and if
not paid, the creditor has his remedy by motion against the county
treasurer and the sureties on his official bond, or by mandamus
against the commissioners' court in a proper case. Edmondson v.
De Kalb County, 103.

4. Judgment in favor of deceased plaintiff. Although a judgment in
favor of a deceased plaintiff, when it cannot by relation be referred
back to a day previous to his death, is void; yet, in an action on a
judgment rendered in a suit by an administrator in his representative
character, a suggestion on the record, prior to the term at which the
judgment was rendered, of the plaintiff's death, with leave to revive
in favor of his successor when known, will be presumed to be a cler-
ical error, or to have been subsequently ascertained to be unfounded
in fact, when the record shows that the parties afterwards appeared,
and that the defendant withdrew his pleas, and suffered judgment to
go by nil dicit. Falkner v. Christian's Adm'r, 495.
5. Judgment against partnership. A judgment against a partnership
binds only the partnership property (Rev. Code, § 2538), and an ex-
ecution issued on it does not authorize a levy and sale of property
belonging to one of the partners individually. McCoy v. Watson,

466.

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6. Form of judgment against two, when one only appears and pleads.
In an action against two defendants, both of whom are served with
process, if only one appears and pleads, and judgment on verdict is
rendered against both, this is a mere formal defect (Rev. Code,
§ 2811), which will not work a reversal, if the complaint contains a
substantial cause of action. M. & M. Railroad Co. v. Smith, 329.
7. Form of judgment against wife's separate estate. — In an action against
husband and wife, for necessary family supplies furnished to them
(Rev. Code, § 2376), the complaint specifying and describing the
property of which the wife's separate estate consists, a judgment on
verdict in favor of the plaintiffs, with the words added, "for which
let execution issue, and against the separate estate of the said E.
C.," the wife, is sufficiently formal. Starke & Wife v. Malone &
Foote, 169.

8. 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 citi-
zens under the constitution, are to be treated as valid and binding."
Tarver v. Tankersley, 309; Powell v. Young, 578; Riddle v. Hill's
Adm'r, 224.

75.

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9. Same. A judgment rendered by a probate court in 1863, on final set-
tlement of a guardian's accounts, is not void because rendered by a
rebel court, but is conclusive and binding, until set aside or reversed,
and is a bar to any subsequent decree. Foust v. Chamblee's Adm'r,
10. Same; executions during provisional government. A purchaser of lands
in 1866, during the existence of the provisional government in Ala-
bama, 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 under execution on a junior judg-
ment. Foster v. Moody, 473.

11. Same; liens of execution and subsequent mortgage. The lien of a
mortgage, made and recorded in 1866, while an execution was in the
hands of the sheriff, issued on a judgment rendered during the late
war, is superior to that of the execution, or of the purchaser at the
execution sale. Carlisle v. Wilkins's Adm'rs, 371.

12. Lien of judgment and execution. A judgment is not a lien on the
defendant's lands (Rev. Code, § 2872), until an execution has been
issued on it, and placed in the hands of the proper officer to be exe-
cuted; and this lien only continues so long as executions are regu-
larly kept up, without the lapse of an entire term. Mobley v. Leop-
hart, 587.

13. Judgment against executor not binding on successor.- A judgment
against an executor is, as to a succeeding administrator de bonis non,
res inter alios acta: it is neither binding on him, nor admissible as
evidence against him. Graves's Adm'r v. Flowers, 402.

14. Conclusiveness of chancery decree foreclosing mortgage. — A decree in
chancery, foreclosing a mortgage given for the purchase-money of
land, is conclusive, not only of the defences which were actually set
up and adjudicated, but of every other defence affecting the justice
and equity of the decree which might have been set up; and such a
decree having been settled by compromise, and a new note and mort-
gage given on the same land, the defendant cannot, in the absence of
fraud, set up in defence of a second foreclosure suit any facts which
would have constituted a good defence to the first suit, except on
such a showing as would entitle him to a bill of review. Murrell v.
Smith, 301.

15. Final settlement of guardian's accounts; conclusiveness of. When the
record shows a final settlement of a guardian's accounts in the pro-
bate court, by which he is discharged, that court cannot, on a peti-
tion subsequently filed by the administrator of the deceased ward,
disregard and ignore such settlement, and render another decree
against the guardian on an ex parte statement of his accounts: the
former settlement is conclusive, until it is reversed on error or set
aside as void in a direct proceeding for that purpose, and it is not
necessary that it should be pleaded in bar of the subsequent applica-
tion. Foust v. Chamblee's Adm'r, 75.

16. Parties to probate decree. — On final settlement of a guardian's ac-
counts, after the death of the ward, and after the grant of letters of
administration on his estate, if the record shows that due notice to

JUDGMENTS AND DECREES- Continued.

the administrator was given by publication, although he did not ap-
pear, the appointment of a guardian ad litem for the deceased ward
is mere surplusage, and the decree is not void for the want of proper
parties. Foust v. Chamblee's Adm'r, 75.

17. Conclusiveness of probate decree, affirmed on error, refusing to set aside
sale of decedent's lands for want of jurisdiction. A decree of the
probate court, affirmed by this court on appeal, refusing to set aside
a sale of a decedent's land, under an order of said probate court in
1863, as void for want of jurisdiction, is a bar to a bill in chancery
subsequently filed by the same parties, which seeks to set aside the
sale on the ground of fraud, and relies, as proof of fraud, on the
same facts then set up, with others, as showing want of jurisdic-
tion, to wit, the sale for cash in 1863, payment in Confederate
currency, the purchase of part of the lands by the administrator,
who had no interest in the estate, and of another part by the probate
judge who made the order, and who afterwards confirmed the sale,
and the want of notice to some of the parties. Balkum v. Satcher, 81.
18. Conclusiveness of probate decree, rendered by agreement. A writing,
signed by the ward and her husband, certifying that they have exam-
ined the accounts of her guardian, as filed by him for settlement with
the probate court, and have found them correct, and that they desire
the court to approve them as stated, does not estop them from after-
wards maintaining a bill in chancery (Rev. Code, S$ 2274, 2451) to
correct errors of fact and law in the settlement. Monnin v. Beroujon
& Wife, 196.

tate.

19. Conclusiveness of probate decree on final settlement of decedent's es-
A decree of the probate court, rendered on the final settle-
ment of an intestate's estate at the instance of the administrator,
which ascertains each distributee's share of the assets remaining in
the hands of the administrator, renders decrees against the adminis-
trator for the several sums thus ascertained, and recites payment of
these several sums by the administrator, either to the distributees or
their guardians, and that thereby the decrees are satisfied and dis-
charged, is final and conclusive, and may be pleaded in bar of a
citation to make another settlement, although it does not order that
the administrator be discharged. Tarver v. Tankersley, 309.
20. Form of decree against administrator on settlement. - On final settle-
ment of an administrator's accounts in the probate court, if it ap-
pears that the assets in his hands consist partly of gold, and partly
of currency, it is proper to render a decree against him, in favor of
each distributee, for his share of each kind of money, distinguishing
between them. Lowry's Adm'r v. Newson & Wife, 570.
21. Retroactive effect of judicial decisions. - A decision of this court, over-
ruling former decisions, which had been acquiesced in and acted on
by the community generally for several years, will not be allowed a
retrospective operation, so as to overturn acts done and contracts
executed in good faith and reliance on those decisions. Hardigree v.
Mitchum, 151.

22. As to the presumptions which will be indulged in favor of judgments,
see ERROR ANd Appeal, 4, 5; Evidence, 35, 36.

JURISDICTION.

1. Of justice of the peace, in case of petit larceny. - A justice of the
peace has jurisdiction of the offence of petit larceny, when the value
of the stolen property does not exceed ten dollars; and, on convic-
tion, he may sentence the offender to hard labor for the county, for
a term not exceeding twelve months. Ex parte Henry Sam, 34.
2. Of circuit judge, in matter of habeas corpus. — A circuit judge has ju-

risdiction to grant a habeas corpus, on behalf of a person restrained
of his liberty; and although he would have no power to discharge
the prisoner, if it appeared on the hearing that he was confined un-
der the judgment or sentence of a court of competent jurisdiction,
and an order of discharge by him would be void, yet this court will
not presume, in advance of the hearing, that he will render an im-
proper decision, nor restrain his action by prohibition. The State, ex
rel. Brooks, 60.

3. Of probate court to allot exempt property.

Under the constitutional
grant to the probate court of jurisdiction "for orphans' business,"
that court may entertain jurisdiction of a petition by a decedent's
widow or child, for the allotment and appraisement of personal prop-
erty, under the act approved April 23, 1873, as exempt from admin-
istration. Thompson's Adm'r v. Thompson, 493.

4. Of probate court to settle estates of deceased partners having common ad-
ministrators. The fact that the insolvent estates of two deceased
partners, who together composed the partnership, have a common
administrator, does not render void the decrees of the probate court
on the final settlement of his accounts, when no controversy appears
to have arisen between the individual and the partnership creditors.
Baldwin & Starr v. Deming's Adm'r, 553.

JURORS AND JURY.

1. Organization of grand jury by court, after quashing regular venire. —
The presiding judge of the circuit or city court, having quashed, er
mero motu, the venire drawn and summoned as grand jurors for the
term by the officers charged with that duty (Rev. Code, §§ 4062-72),
has no power to originate and organize another grand jury in their
stead; and an indictment found by such grand jury is unauthorized
and void. O'Byrnes v. The State, 25.

2. Objection to indictment on account of defects in grand jury.

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When

the record shows that the indictment was found by a grand jury who
were summoned and organized by the court without authority, the
objection is available on motion in arrest of judgment, or on error.
Ib. 25.

3. Plea in abatement to indictment, on account of defects in grand jury. —
Under the statutes of this State (Rev. Code, §§ 4087, 4187), a plea
in abatement to an indictment, on account of any disqualification or
incompetency of any one or more of the grand jurors by whom it
was found, or any irregularity in the drawing and summoning of the
grand jurors, "except that they were not drawn in the presence of
the officers designated by law," cannot be entertained. These stat-
utory provisions are not affected by the act approved Dec. 31, 1868,
entitled "An act to amend section 4063 of the Revised Code."
Sess. Acts 1868, p. 551. Boulo v. The State, 18.

4. Venire for trial of capital felony. - The order of the court in this
case, as to the summoning of the jury for the trial of the prisoner,
held to be a substantial compliance with the requirements of the stat-
ute, Rev. Code, § 4173. Lewis v. The State, 1.

5. Oath of petit jury. When the record in a criminal case shows that
the jury were sworn "to well and truly try, and true deliverance
make, between the people of the State of Alabama and the prisoner
at the bar," this is not substantially the oath which ought to be ad-
ministered to them (Rev. Code, § 4092); and the judgment of con-
viction will be reversed on account of this error. Ib. 1.
6. Objections to venire. The venire in a criminal case cannot be quashed
on motion (Rev. Code, § 4175), because of mistakes in the names of
the persons summoned as jurors, or discrepancies in their names be-
tween it and the copy served on the prisoner. Hall v. The State, 9.

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JURORS AND JURY- Continued.
7. Competency of juror. A person summoned as a juror, who states
that, "from what he had heard, he did not know whether he could
give the defendant or the State justice, but supposed he could," can-
not be said to have "a fixed opinion which would bias his verdict "
(Rev. Code, § 4180), and is competent as a juror. Hall v. The State, 9.
8. Calling jurors. — It is discretionary with the court, whether the names
of the jurors, as they are drawn, shall be called only from the clerk's
desk, or from the outer door of the court-house; and this discretion is
not revisable on error. Ib. 9.

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9. Peremptory challenge of juror. In a criminal case, the prisoner's right
to challenge a juror peremptorily, if not waived, is not lost until the
juror is sworn, or until the oath is tendered to him; and a waiver of
the right will not be implied, especially in a case of felony, because
the prisoner, after twelve jurors had been drawn, and had taken
their seats in the jury box, and the places of two who were chal-
lenged had been filled, being asked by the court, "if he was now sat-
isfied," replied, “I have nothing to say at present," and did not ob-
ject to any of them until after some had been sworn, when he chal-
lenged one of the others, who was rising to take the oath. Drake v.
The State, 30.

JUSTICE OF THE PEACE.

1. Jurisdiction of petit larceny.

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A justice of the peace has jurisdiction
of the offence of petit larceny, when the value of the stolen property
does not exceed ten dollars; and on conviction, he may sentence the
offender to hard labor for the county, for a term not exceeding twelve
months. Ex parte Henry Sam, 34.

2. Liability of justice and sureties on official bond, for wrongful arrest
and imprisonment. Under the statute declaring the legal effect of
official bonds (Rev. Code, § 169), the sureties on the official bond of
a justice of the peace are liable, jointly with him, for a wrongful
arrest and imprisonment by him under color of his office. Kelly v.
Moore, 364.

LACHES. See CHANCERY, 23, 27, 28, 32, 34, 38.

LANDLORD AND TENANT.

1. When landlord cannot maintain action against purchaser of crop from
tenant. - The landlord cannot maintain an action for money had
and received, against one who, with knowledge of his statutory lien
on the tenant's crop (Rev. Code, §§ 2961-63), and of the non-pay-
ment of the rent, purchases the crop from the tenant, and sells it.
Blum v. Jones, 149.

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2. Conflicting liens of landlord and mortgagee for advances. In trover
by the mortgagee of the tenant, against the landlord, for the conver-
sion of the mortgaged crop, the defendant may show that, by the
terms of the contract of renting, which were not known to the plain-
tiff, although he had knowledge of the renting, the tenant was in-
debted to him for advances, and turned over the crop to him, before
the expiration of the term, because he was himself unable to gather
Holman v. Lock's Adm'r, 287.

it.

3. Sale of rented premises during term; assignee's right to rent. - Rent
being an incident to the reversion, the purchaser of rented premises
from the landlord, during the term, is entitled to the rent subse-
quently accruing, and attornment by the tenant is not necessary to
perfect his right to recover it. Rev. Code, § 1568. Wise v. Falkner,

359.

4. Same; how assignee must declare. If the tenant has attorned to the
assignee or purchaser of the reversion, the latter may declare for the
rent as on a demise by himself; but, if there has been no attornment,