Mobile & Ohio R. R. Co. v. Westley Thomas.
The nine charges herein before noticed, were given by the court upon the plaintiff's request. The court seems, from the bill of exceptions, to have given, mero motu, an additional charge. That charge a majority of the court deem a fair and correct statement of the law, except in so far as it directs that notice to persons, whose duties were such that authority to receive such notice would be within the proper scope of their agency, is notice to the defendant. The question whether authority to receive notice of a fact was within the scope of the duties of an agency, must be, upon ascertained facts, a question of law, and should not be referred to the jury. The principle which should govern this question is discussed in our remarks upon the second charge given by the court upon the plaintiff's request.-See, also, Angel & Ames on Corporations, § 305; Story on Agency, § 140.
Judge, J., thinks the entire charge unobjectionable; the other judges regard it as objectionable for the reason above stated. To the qualifications of the first charge given upon defendant's request, there can be no objection, unless it be understood to affirm what is cbjected to in the charge last above noticed.
The second charge requested by the defendant, involves a question of pleading, which we do not decide, because it can be obviated on another trial.
The court erred in the refusal of the third and fourth charges requested by the defendant; it should have given them both.
1. Damages; action for.-Before "head of a family" can bring an
action for damages against the sheriff, for selling property exempt
by law, it must be shown that the affidavit prescribed by the statute,
had been duly made by him and exhibited to the officer.-Gamble v.
Reynolds....
236
2. Lease; when assumpsit for use and occupation will lie.-Where a ten-
ant for a term, under an agreement, has once entered upon the de-
mised premises and become vested with the term, a recovery of the
rent for the entire term may be had, without any other proof of
use and occupation, than such entry by him, although it may ap-
pear that he afterwards quitted the premises long before his term
expired.-Tully v. Dunn...
3. Same. Where the tenant has not entered into possession at all
under the lease or agreement, either in person or by an under-
tenant or agent, assumpsit for use and occupation will not lie, but
the remedy, generally, is upon the lease or agreement.-S. C...... 262
4. Action for conversion will not lie in this case.-The written instru-
ment, and the evidence adduced in this case, do not so identify
thirty bales, or fifteen thousand pounds of cotton, as to invest the
appellee with a title, under which he can maintain an action for their
conversion.-Browning v. Hamilton, use, &c.......
5. Accounts to be created, not subject of valid sale.-A mere possibility,
or expectancy in, or growing out of property, can not be the subject
of a valid sale, and the transfer of accounts to be made in the prac-
tice of medicine, in certain specified years, by a physician to A., does
not convey to A. such a title or interest in the accounts when cre-
ated, as would enable A. to maintain an action thereon in his own
name.-Skipper v. Stokes.....
1. Jurisdiction admiralty courts U. S.-Where the admiralty courts of
the United States have jurisdiction over the subject-matter, their
jurisdiction is exclusive.-Steamer Rio Grande v. Rawson....
1. Agreement of counsel; construction of.-The written agreement of
the counsel set out in the record is valid; and properly construed,
ARGUMENT OF COUNSEL-CONTINUED.
requires that the court at the trial should consider as duly inter-
posed every plea and replication that could be available to either of
the parties, according to the nature of the case, as shown by the
evidence.-Bradford v. Barclay, Adm'x......
1. Of clerical misprision on error.—Where, in the initial sentence in a
petition in the probate court, the petitioner, being a corporation,
denominates itself as "The Alabama Conference of the Methodist
Episcopal Church South," and in another part of the same petition,
as the "Annual Alabama Conference of the Methodist Episcopal
Church South;" and the latter name being the correct one, is used
throughout the record, even in the defendant's demurrer and plea,
this will be presumed to be a clerical error, and amended on error;
and the petitioner, as correctly denominated, will be regarded as the
plaintiff in interest, and this after a demurrer to said petition has
been overruled; especially when there are grave doubts whether
the demurrer raises the question, and when it shows that it was not
designed to present the point, and the question is for the first time
raised on appeal.—Ala. Conference M. E. Church v. Price, Ex'r......... 39
2. Allowance of amendment not revisable on error, unless reserved by
exception. The allowance of an amendment of the complaint, is
not revisable on error, unless the point is duly reserved by bill of
exceptions in the primary court.-Mock v. Walker................
669
1. Special damages; when must be averred.-A complaint in a suit for
damages for the wrongful and vexatious suing out of an attachment,
must aver special damages, in order to authorize proof, and a recov-
ery of such special damages.--Lewis v. Paull......
2. Writ of. It is not essential to the validity of a writ of attachment,
that the term of the court to which it is returnable, should be in-
serted therein.—Blair v. Miller.........
3. Same. A direction in a writ of attachment as follows:
"To any
lawful sheriff of said county, (Dale,) greeting," is a defect which
would only become essential, if the attachment should be levied in
another county than Dale.-Blair v. Miller.... . . . . .
4. Writ of; form of; substantially good.—The writ of attachment set
out in this case, substantially good, under §§ 2562 and 2849 of the
Code; and it was error in the circuit court to quash the same.--
Bruner v. Kinsel......
5. The refusal to quash an attachment is not revisable on error.—
Penn v. Edwards..
6. Complaint must be filed.—The plaintiff in attachment is required
(Revised Code, § 2998,) to file a complaint, and it is error to
render judgment by default without a complaint.-S. C........... 655
1. Trover; when it will not lie. -Trover will not lie where goods are
taken by an armed force, without any negligence or complicity on
the part of the bailee.-Abraham & Bro. v. Nunn.............
2. Bailee; liability of.-A pawnee is bound for ordinary care and an-
swerable for ordinary neglect, with the goods pawned; if they are
stolen through his negligence, he is responsible; if without any
negligence, he is discharged.-Petty v. Overall & Moulton......
1. Taken most strongly against party excepting.—A bill of exceptions
is taken most strongly against the party excepting, and it devolves
on him to show error affirmatively, and to do so, he must state the
point sought to be revised with clearness and precision, and leave
nothing to surmise and conjecture.-Lewis v. Paull.......
2. When not required. The effect of the act of the 12th December,
1857, (Revised Code, § 2250,) is to secure a revision on appeal, with-
out bill of exceptions, of any action of the probate court excepted
to, and not appearing upon the face of the decree, provided the
matter excepted to, together with the exception, appear upon the
record. -Jones' Heirs v. Jones' Adm'r....
3. Construction of.-Where a bill of exceptions states, that " "upon
the foregoing evidence, and admissions, the written vouchers on
file, and on no other evidence," the court rendered its final decree;
and only the evidence in relation to the contested vouchers is set
out, and there were other vouchers, uncontested, which are not set
out, and it is objected that this court can not review the decree of
the court below, because all the evidence is not set out,-held, that
as the bill of exceptions sufficiently shows, that all the evidence
upon which the court acted, having relation to the contested items,
is set out, the objection is not well taken.—Ivey v. Coleman, Exe'r. 409
4. What required to make it part of the record.-Where a bill of
exceptions is without date, and the record contains no evidence
that it was signed in term time, or within ten days thereafter, pur-
suant to the written consent of the parties, for that purpose, it can
not be looked to by the appellate court as a part of the record for
any purpose.--Maddox v. Broyles.....
5. Bill of exceptions; charge of the court on the evidence.-Where the
court below charges the jury, "that if they believe the evidence,
they should find for the defendant"; and the bill of exceptions does
not set out all the evidence, this court will not reverse.-Owens v.
Calloway.
301
6. Appellate court; bill of exceptions, how construed.-The appellate
court will make every reasonable intendment to sustain the ruling
of the court below, and will construe a bill of exceptions most
strongly against the party taking it.—Thomasson v. Groce......
7. Exception; how reserved. To reserve an exception to the introduc-
tion of certain proof, it must not only appear from the bill of excep-
tions that an objection was made to the introduction of the proof,
but that the party excepted to the ruling of the court thereon.-
Spear & Thomasson v. Lomax..
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