ERROR AND APPEAL-CONTINUED.

appeal, or, for a certiorari, made in the brief of counsel, is consid-
ered as waived.-Alexander, Adm'r, v. Nelson......

24. Same; when discontinued.-Under the decisions of the supreme
court, and the provisions of the Code, the question as to when an
appeal is to be considered discontinued, or wholly defunct, is, it
seems, not clearly defined.-S. C.........

25. Plea stricken out; to revise action of court below; what necessary.
When a plea of the defendant is stricken out by the court below,
the action of the court will not be revised, unless the record shows
that an exception was duly taken to the court's action.-Blackford
v. Killan, Adm'r....

26. Judgment of the court below; will not be reviewed, when.—Unless
the record shows affirmatively all the facts upon which the court
below acted, its action will not be reviewed, if there be any suppo-
sable state of facts by which that action could be sustained.- Wise
v. Ringer......

27. Granting continuance on terms; practice.-Where the court below
imposes terms as condition of continuance, and the party accepts
them, this court will not revise the action of the court below.-
Lewis v. Wood......

28. Refusal to hear second application for continuance until previous
order is complied with.-The action of the court below, in refusing to
hear a second application for a continuance until a previous order
of the court has been complied with, will be sustained; whether
such action is revisable on appeal, quere?-S. C.......

462

462

487

488

502

502

29. Objection to complaint; when defendant will be deemed to have
waived. Where a defendant. in the court below, takes issue on the
complaint, and goes to trial without raising any objection as to the
complaint not containing a substantial cause of action, he will be
deemed, on appeal, to have waived this objection. (BYRD, J., held,
that the question of the insufficiency of the complaint not having
been raised, of insisted on in the brief of counsel, the court is not
bound to consider it, even if the complaint was totally devoid of
substance.)-Hightower v. Fitzpatick's Heirs.....
.. 597

30. Demurrer; appeal.—Where a defendant interposes several grounds
of demurrer to the complaint, and the court sustains them all, and
the plaintiff declines to amend, and judgment final is rendered
against him, and he appeals, the appeilate court will sustain the
action of the primary court, if any one of the grounds of demurrer
is well taken.-Guilford & Co. v. Kendall...........

651

31. Act of February 23rd, 1866, to allow appeal from an order over-
ruling motion to dismiss for want of equity.-The act, approved
February 23d, 1866, (Pamph. Acts, p. 94), does not authorize an
appeal from an order of the Chancellor, refusing to dissolve an in-
junction; it authorizes an appeal, by consent of the opposite party,
from a decree overruling a motion to dismiss a bill for want of
equity. Calhoun v. Powell.....
646
32. Error without injury, in admission of illegal evidence.-Where a
clause in a witness' deposition is objected to, and it is in substance
but a repetition of what had been previously testified to by the same

ERROR AND APPEAL-CONTINUED.

witness, and does not exert a wider or greater influence than the
former unobjectionable testimony had done, the introduction of
such testimony is, at most, error without injury.-Lewis v. Paull. 136
33. Motion to dismiss; rule as to time.-Where a decree for a divorce
was entered or enrolled, on 20th November, 1866, and an appeal
from said decree was taken, on 20th February following, the appeal
is in time.-Walker v. Walker......

... 487

34. When judgment of court below will be corrected.-Where it appears
from the record that the judgment of the court below was ren-
dered for a greater amount than the principal and interest due on
the note, the foundation of the action, after allowing the partial
payments endorsed thereon, the appellate court will regard it as a
clerical misprision, which will be corrected in this court.-Mock v.
Walker...

ESTATES OF DECEDENTS.

1. Estate of intestate; may be divided without an administration, when.
Although the legal title to a distributive share of the estate of an
intestate, can only be acquired through an administration; yet,
where the distributees are all adults, and there are no creditors,
and the distributees, by agreement, divide the estate, and there is
no unfairness, a court of equity will uphold such voluntary divis-
ion. McCaa, Adm'x v. Woolf et al. Exe'rs..

2. Voluntary division; title of husband to wife's share, nature of.—
Where the husband acquires the possession of the wife's chattels
under such voluntary division, although he does not acquire a legal,
he does acquire and equitable title, which a court of chancery will
uphold and enforce.-S. C.........

See, also, EXECUTORS AND ADMINISTRATORS.

PROBATE Court.

669

389

389

ESTOPPEL.

1. Case of; nature of.—Where a husband is present at a public sale
of chattels, in which his wife has an interest as distributee of an
estate, and induces another to purchase, by declaring the title under
which the property is sold, to be good, he estops both himself and
his wife, if she survives him, from afterwards disputing the title of
the purchaser; estoppel operates as a conveyance of the title of
the party estopped, to the opposite party.-McCaa, Adm'r, v. Woolf
et al., Exe'rs......

2. Conversion by administrator.—An administrator, who finds proper-
ty among the assets of the estate, and takes possession of it as the
property of the estate, and sells it, having no claim to it himself,
and not being claimed by any other person, is estopped from set-
ting up a claim adverse to the estate, and is liable to the estate for
the property thus sold.-Irby v. Kitchell..

389

439

EVIDENCE.

1. Rate of exchange between Mobile and Liverpool.-Where by the
contract H., a British subject, was to receive certain cotton as his
own, and to ship the same "to Liverpool, when opportunity
affords," to a house there, and for the trouble and protection given
to said cotton, he was "to receive two cents, or one penny sterling,
per pound, from the net proceeds of the sale of the cotton"; and
said contract was afterwards rescinded by consent, it was competent
for H., in a suit for compensation for part performance of the con-
tract, to prove the rate of exchange between Mobile and Liverpool,
in order to aid the jury in fixing the amount of compensation he
was entitled to receive, in the event they were enabled, from the
evidence, to determine what proportion of the whole service called
for by the contract had been performed.—Chamberlain v. Hilton... 101
2. Motion to exclude irrelevant.-If a party on cross-examination of a
witness evokes any testimony which is irrelevant to the issue, he
can, as a matter of right, insist in the argument of the cause in the
court below, that it shall be excluded; and if his motion to exclude
be overruled, it is a reversible error, unless the motion embraces
testimony which is relevant for any purpose, although not admissi-
ble against the objection of the adverse party; in which latter case,
the court may properly overrule such a motion. -Arrington v.
Roach, Adm'r...
155

3. Transcript from a court in another State.—A transcript from a court
in another State, can not be admitted as evidence, when it fails to
show that the person certifying, was judge of the particular court,
from the records of which the transcript was taken.-Brown v.
Johnson...
208

.......

4. Illegal. The admission of a letter as evidence against objection
in a suit against a corporation, which contains the mere statement
of a third person, and not the declaration of an officer or agent of
the corporation, made in the discharge of the duties of his office or
agency, is illegal.-Ala. & Miss. R. R. Co. v. Johnson....
5. Delivery bond.—A bond for the forthcoming of a slave levied on
under execution, executed by the claimant and another person, is
admissible in evidence for the plaintiff, in a trial of the right of
property to the slave levied on.-Madden v. Hooper, Adm'r......
6. Value of slave at time of levy.-On such a trial, since the emanci-
pation of the slave levied on, evidence of his value at the time of
the levy is admissible.-S. C.......

7. Agency.-A letter relevant to the question at issue, written by the
plaintiff's daughter, and, as the evidence conduced to show, by the
authority of the plaintiff, is admissible in evidence, in behalf of de-
fendant, in connection with the evidence tending to show the
agent's authority.-Buchanan v. Collins....

242

397

397

419

8. Facts relevant to the issue, admissible.-Where the question at issue
was the germinating quality of cotton seed, sold by plaintiff to de-
fendant, evidence which tended to show that some of plaintiff's
cotton seed, held at the same time, and kept in the same manner
as those sold to the defendant, would not germinate, and other
facts pertinent to the issue, admissible for the defendant.-S. C... 419

EVIDENCE-CONTINUED.

9. Diminution in value of rent; proof concerning.—In an action on
the case against a railroad company for injury done to a house and
lot, in a town, by the construction of a railroad cut, in the street
opposite, it is competent to show, that the value of the rent of the
property was thereby diminished; but it is not competent to show
that the rent of other property, similarly situated, belonging to
third persons, was diminished by the same cause.-Selma & M. R.
R. Co. v. Knapp...........

10. Special injury; proof of.—It is competent to show that the premi-
ses were diminished in value by the railroad cut, specifically, as a
residence and shoe shop, purposes to which they had been previ-
ously put.-S. C..........

11. Proof of criminal acts not charged, as relevant to questions of
identity, intent, or guilty knowledge.-When a defendant is on trial
for burglary, evidence of other criminal acts than those charged in
the indictment may be received, where it is necessary to prove a
guilty knowledge, to establish identity, to make out the res gestæ,
or to make out a chain of circumstantial evidence of guilt, in re-
spect to the act charged.—Mason & Franklin v. State.....
12. Evidence of a criminal act, other than that charged, prima facie
irrelevant. Where a defendant is on trial for burglary, evidence of
one or more burglaries, committed by the defendant, for which he
is not on trial, is prima facie irrelevant, and when the record fails
to show any ground for the admission of such evidence, this court
will not look at the record of another case, in this court, between
the same parties, to show that no error was committed, as was
determined in regard to the same evidence in that case.-. Mason &
Franklin v. State....

.....

13. When evidence of the value of bank-bills is irrelevant and immaterial.
Where the defendant was, according to his contract, authorized to
discharge a note in bills of a certain bank, within a fixed period, and
he fails to show on the trial, a compliance or offer to comply with
its terms, testimony tending to show the value of such bank-bills
is irrelevant and immaterial.-Weaver v. Lapsley....
14. Admissibility of a promissory note not sued on, as evidence explana-
tory of the transaction from which the cause of action originated.—A
note payable in Confederate treasury-notes," though not in suit,
may, when shown to be connected with another note sued on, being
in part consideration of the purchase for which the latter was given,
be read in evidence as a part of the transaction.- S. C.......
15. Declarations of third person.-The admission as evidence against
objection, of the declarations of the United States officers made to a
witness, is illegal, and is a reversible error, unless all the evidence is
set out in the bill of exceptions, and it clearly appears from the
record that no injury resulted therefrom to the party excepting.—
Abraham & Bro. v. Nunn.....
Ata. & Fla. R. R. Co. v. Watson...

16. Agreement of parties to admission of evidence.-Where the plaintiff,
in order to get a trial, agreed to admit that a witness of defendant,
if present, would prove certain facts, stated in defendant's affidavit,

EVIDENCE-CONTINUED.

upon a certain specified condition, and the parties went to trial,
and defendant availed himself of said admission by reading in
evidence the statement of what witness would prove, he thereby
committed himself to the condition upon which the admission was
made, and could not be permitted to withdraw that consent, after
availing himself of the benefit of plaintiff's agreement, and while
holding on to it.-Brown v. Jackson......

81

17. Declarations of a party.—A party can not give in evidence his
own declaration in his favor. He may, however, prove all of his
declarations, in the same conversation, when a part of them have
been proved by his adversary.-Buchanan v. Collins.....
419
18. Same.-Where, on the trial in the court below, a declaration of
the plaintiff was brought out, (the bill of exceptions being silent as
to which party called out this declaration), and other declarations
of the plaintiff made at the same time with the first, were called
for by the plaintiff, and rejected by the court, and exceptions taken
thereto by the plaintiff, the appellate court will presume against
the party excepting, that the first declaration was called for by the
plaintiff himself, and hold, that there was no error in rejecting evi-
dence, of other declarations, made at the same time.-S. C
....... 419
19. Declarations -Declarations, not part of the transaction, or res
gesta, held to be inadmissible as evidence.—Brand v. Abbott...... 499
20. Declarations of defendant made at time of arrest incompetent evi-
dence, on trial for larceny.-The declarations of the defendant,
made at the time of his arrest, as to how he came in possession of
the horse, for the larceny of which he is on trial,-held, to be in-
competent evidence for the defendant.-Taylor v. State.... .... 529
21. What may be given in evidence as part of the res gesta.-The
plaintiff, when testifying as a witness in his own behalf, was asked
to state the circumstances under which the note sued on was given.
In answer to this question, he commenced by stating that, some
days before the contract between himself and the defendant was
made, the defendant told him that Eliza and Caroline, the subjects
of the contract, were "family servants.' This evidence was held
admissible as showing the commencement of the negotiation be-
tween the parties which resulted in the making of the contract sued
on. So, "the statement of the same witness objected to, 'that the
wife of the defendant had had said negro girls in her possession,'
was also relevant as showing a motive on the part of the defend-
ant for purchasing them, and desiring to take the title in his
wife's name;" at the most, it would be damnum absque injuria.
Weaver v. Lapsley.....

22. Specific objection to part, when not good.-Where objection is made
to an entire piece of evidence, on specific ground, and any part of
such evidence is admissible for any purpose, although the evidence
objected to may not be competent to prove the matters specified,
the objection will be overruled.-Martin v. Hill....

23. Opinion of witness on questions of damages. -In assessing the dam-
ages occasioned by the construction of a railroad, to a person

601

.275