PLEADING AND PRACTICE —Continued.
cess may be set aside on motion, but is not good matter for a plea in
abatement. Jones v. Nelson's Executrix, 471.
23. Plea of not guilty; effect of. — In ejectment by an administrator in his
representative capacity, the plea of not guilty admits the plaintiff's
right to sue in that character, and renders it unnecessary for him to
prove his letters of administration. Clarke v. Clarke's Ádm'r, 498.
24. Unlawful detainer; plea of bankruptcy. The bankruptcy of the de-
fendant in an action of unlawful detainer, pending an appeal by him
to the circuit court, pleaded puis darrein continuance, is no bar to
the action, although the plaintiff has regained the possession of the
premises, and the action is only prosecuted for the damages and costs.
Lomax v. Spear & Thomason, 532.
25. Same; regaining possession by plaintiff. If the plaintiff in an action
of unlawful detainer regains the possession of the premises, pending
an appeal by the defendant to the circuit court, the defendant can
only take advantage of this, if at all, by a plea puis darrein continu-
Ib. 532.
26. When cause stands for trial. - Under the provisions of the "stay law"
of 1866 (Rev. Code, § 2660), an action to recover damages for a
wrongful arrest and imprisonment, whether in the form of case or
trespass, stands for trial at the first term, if the summons and com-
plaint have been executed twenty days before its commencement.
Kelly v. Moore, 364.
PRESUMPTIONS.
PROHIBITION.
See ERROR AND APPEAL, 4, 5; EVIDENCE, 32–36.
1. 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 contempt
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 ap-
pear that the petitioner has ever answered the bill, or moved to dis-
miss it for want of equity, or sought relief in any other mode in the
chancery court. Ex parte Hamilton, 62.
2. To circuit judge, sitting as judge of statutory inferior court.
will interfere by prohibition, to restrain a circuit judge from sitting
as the presiding judge of a statutory inferior court, when the act
creating that court, and making him the presiding judge thereof, is
declared unconstitutional. Ex parte Roundtree & Orr, 42.
3. To circuit judge, in matter of habeas corpus.
A circuit judge has juris-
diction 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 under
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 pre-
sume, in advance of the hearing, that he will render an improper
decision, nor restrain his action by prohibition. Ex parte State, ex
rel. Brooks, 60.
RAFFLING. See CRIMINAL LAW, 11.
1. 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
RAILROADS
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-
payers, 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 company, or the
want of an exact conformity between the proposition and the sub-
scription, 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.
2. Power of municipal corporation to issue bonds in aid of railroad. — The
charter of the city of Mobile confers no express power on the cor-
porate authorities to issue the bonds of the city in aid of a railroad
corporation, to enable it to purchase certain swamp lands within the
city, either as a gratuity, or in consideration of the location by the
railroad company of its machine shops and workshops on the said
lands; nor is such power necessarily implied in the grant of general
police powers, or in any of the special powers expressly conferred;
nor can the issue of such bonds be supported by any considerations
of supposed benefit to the city, or to the health of its inhabitants,
arising from the reclamation, drainage, and improvement of the lands.
N. O., M. & C. Railroad Co. v. Dunn, 128.
As to the liability of railroad companies as common carriers, see title
COMMON CARRIER.
When rehearing cannot be had. - After judgment by nil dicit, rendered
on the second day of the term, the defendant cannot have a rehearing
under the statute (Rev. Code § 2814), on the ground of surprise, ac-
cident, or mistake, because his attorney did not hear the cause called,
and the court announced, on the fifth day of the term, that all liti-
gated cases were continued. Wheeler v. Morgan, 573.
How far of force. The Revised Code, as a whole, has never been
adopted by the present government of the State; only such laws and
parts of laws therein contained as are not in conflict with the con-
stitution and laws of the United States, or with the constitution of
this State, have been “continued in force." Ex parte Amos, 57.
SCIRE FACIAS.
Amendment of. A scire facias, or citation, to revive a probate decree
on which no execution was issued within one year after its rendition,
whether regarded as process or as pleading, is within the statute au-
thorizing amendments. Lowry's Adm'r v. Newsom & Wife, 570.
SECURITY FOR COSTS.
Who may move to dismiss for want of. · When a garnishment is sued
out on a judgment, the judgment debtor cannot move to dismiss it for
want of security for the costs (Rev. Code, § 2975), when he has not
intervened for the purpose of contesting the garnishee's answer.
Edmondson v. De Kalb County, 103.
1. At law, what is. The validity of a debt as a set-off is determined,
not by its consideration, but by the relation of the parties to it; and
when it is asserted against a partnership consisting of only two
partners, or against their assignee, its validity is not affected by the
fact that it was contracted with them when doing business together
as another partnership. McGehee v. Harrison, 522.
2. Equitable set-off against judgment; diligence required of plaintiff. - The
defendant in a judgment at law, rendered by default, in favor of a
partnership, cannot have relief against it in equity, on the ground
that the plaintiffs were in fact not partners, but joint creditors, who
were insolvent, and against whom he had separate debts, unless he
shows some sufficient reason why he failed to defend at law, or to in-
voke the aid of equity before judgment. Moore v. Faggard, 525.
SHERIFF.
1. Amendment of sheriff's return on fi. fa.
A sheriff's return on an exe-
cution, made at the proper time, and correctly stating the facts then
existing, cannot be amended by incorporating into it facts subse-
quently occurring, with which the sheriff had no connection; e. g.
the payment of the purchase-money of lands sold under the execution,
by the purchaser to the plaintiff in the writ, after the return day.
Bibb v. Collins, 450.
2. Same; parties to motion. An amendment of the sheriff's return on an
execution, so as to make it show that the purchase-money of lands
sold under the writ was paid by the purchaser to the plaintiff in exe-
cution, if proper in other respects, should not be made in the absence
of the sheriff who made the sale, and of the plaintiff in the execution.
Ib. 450.
3. Conveyance by sheriff, of lands sold by predecessor. On motion for an
order against a sheriff, requiring him to execute to the purchaser a
conveyance of lands sold under execution by his predecessor (Rev.
Code, § 2869), the return on the execution is conclusive, until it is
amended, or vacated in a direct proceeding; and if such an order can
be granted on parol proof of the fact that the purchase-money has
been paid, it can only be when the parties to be affected by the fact
are before the court. lb. 450.
SPECIFIC PERFORMANCE. See CHANCERY, 35–37.
1. Construction of statutes; legislative adoption of judicial construction. — In
the subsequent enactment of a statute, substantially the same as one
which has already received a judicial construction, the legislature will
be presumed to have known that construction, and to have intended
to adopt it. O'Byrnes v. The State, 25.
2. Remedial statute held operative on pending actions. The act approved
April 23, 1873, amending section 2376 of the Revised Code, by pro-
viding for publication against a non-resident defendant, husband or
wife (Sess. Acts 1872-3, p. 113), is a remedial statute, and applies
to actions pending at the time of its passage. Eskridge & Wife v.
Ditmars & Co. 245.
3. Computation of time under statute or municipal ordinance. - 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 six successive days," a sale on the 28th day of the month,
under a notice first given on the 22d, is unauthorized and premature.
City Council of Montgomery v. Adams, 449.
When cause stands for trial. — Under the provisions of the "stay law'
of 1866 (Rev. Code, § 2660), an action to recover damages for a
wrongful arrest and imprisonment, whether in the form of case or
trespass, stands for trial at the first term, if the summons and com-
plaint have been executed twenty days before its commencement.
Kelly v. Moore, 364.
Notice of motion, and recitals of record as to service of process.
the summons and complaint, having been lost before final judgment,
are substituted on motion, and the substituted papers show that the
original process was served on the defendant, he cannot complain on
error that he had no notice of the motion to substitute, nor can he
contradict the recitals of the record as to the service of process on
him. M. & M. Railroad Co. v. Smith, 329.
SUMMARY PROCEEDINGS.
1. Amendment of notice.·
In a summary proceeding by notice and
motion, the notice, which serves the double purpose of process and
pleading, is amendable under the same rules that govern the amend-
ment of complaints in ordinary actions. Palmer v. Fitts, 489.
2. Presumptions in favor of judgment. In summary proceedings by
notice and motion, if the record shows that the court had jurisdic-
tion, and that the parties appeared and joined issue, the same pre-
sumptions will be indulged in favor of the judgment, as in actions
commenced by summons and complaint. Shouse v. Lawrence, 559.
SUPERSEDEAS. See EXECUTION, 9.
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1. Assignment of mortgage; subrogation of creditor to rights of surety.
When a mortgage of land, given by the principal debtor to his surety
for indemnity against the debt, is transferred by the surety to the
personal representative of the deceased creditor, in consideration of
his release from liability on the debt, the transfer will be upheld in
equity as an equitable assignment of the mortgage, although it
contains no technical words of conveyance, and is neither attested
nor acknowledged as a deed; and the mortgage may be foreclosed
by the assignee. Carlisle v. Wilkins's Adm'rs, 371.
2. Subrogation of creditor to rights of surety under mortgage.- A creditor,
whose claim against the insolvent estate of his deceased debtor has
been destroyed as a subsisting debt, by the failure to file it within
nine months after the declaration of insolvency, cannot be subro-
gated in equity to the rights of a surety under a mortgage given
for his indemnity by the debtor. Watson v. Rose's Executors, 292.
3. Same; of creditor to surety's rights under mortgage given by debtor. -
To entitle a creditor to subrogation in equity to the rights of a surety
under a mortgage given by the debtor, it is not necessary that he
should have exhausted his legal remedies, or should have reduced
his debt to judgment. Saffold v. Wade's Executor, 214.
4. Same. When a mortgage has been given by a debtor to indemnify
his surety against two debts, due to different persons, one of the
creditors cannot have a decree subjecting the mortgaged property
to sale for the satisfaction of his debt, on a decree pro confesso against
the other creditor as a non-resident, without averring that his debt
had been paid, or released, or that he had waived or refused the
benefit of the common security. Ib. 214.
1. Exemption of factories, machinery, &c., from taxation. The act ap-
proved April 23, 1873, entitled "An act for the encouragement of
mining, manufacturing, industrial, mechanical, and commercial pur-
TAXES Continued.
suits within the State of Alabama" (Sess. Acts 1872-3, pp. 72-4),
was intended to exempt from taxation, for the period therein pre-
scribed, not factories, buildings, machinery, &c., already erected and
in use, but such as were then in process of erection, and such as
might be afterwards erected within the period specified; and the first
section of said act, which contains an evident mistake in the use of
the words "before erected and used," must be read as if those words
were omitted, or as if the word "not" were inserted before them.
Baugh, Kennedy & Co. v. Ryan, 212.
2. Title of purchaser at tax sale.
The tax-collector's certificate to the
purchaser of lands sold for unpaid taxes, given under the 72d sec-
tion of the revenue law of 1868, does not convey such title as will
enable the purchaser to maintain ejectment, within two years after
the sale, against the owner remaining in possession. Hibbard v.
Brown, 469.
3. Tax-assessor's books; admissibility as evidence to prove ownership of
property. Returns of property made to tax-assessors, as to the own-
ership of property, are admissions against the party making them;
but, as to any other person, they are mere hearsay. Wright v. Mer-
riwether's Adm'r, 184.
4. Estoppel against tax-collector from denying validity of tax. — A tax col-
lector, 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. Perryman v. City of Greenville, 507.
Severance of tenancy in common: —
Tenants in common of a growing
crop may make a partial division of it among themselves as it is gath-
ered; and when this is done, each holds in severalty the part allotted
to him, while they remain tenants in common of the undivided resi-
due. Gafford v. Stearns, 434.
1. What constitutes trespass.- A mortgagee of personal property, going
on the premises of the mortgagor, accompanied by a deputy sheriff,
whom he has indemnified to seize the property, but who has no legal
process, cannot escape the consequences of his trespass in taking the
property, on the ground that the mortgage was forfeited, and con-
tained an express power authorizing him to take possession. Thorn-
ton v. Cochran, 415.
2. Sufficiency of complaint, in description of property and statement of time.
A complaint in trespass, in the form prescribed in the Revised Code
(p. 677), for wrongfully taking "to wit, on the day of February,
1871, eleven bales of lint cotton, seventeen thousand pounds of seed
cotton, three hundred bushels of corn, and twenty-five bushels of
wheat," is not demurrable for an insufficient description of the prop-
erty, nor for indefiniteness in the statement of the time. Ib. 415.
3. 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. Gresham v. Taylor, 505.
4. 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 in-
jury; but the damages would be, perhaps, the value of the crops at
the time of their destruction, so far as they were destroyed. 16.505.
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