Action upon a judgment; sufficiency of complaint.-In an action upon a judgment, the complaint is sufficient if it sets forth the court by which the judgment was rendered, the place at which the court was held, the names of the parties, plaintiff and defendant, the date of its rendition, and the amount recovered; and it is not necessary in such a complaint to allege any particular reason for bringing the action upon the judgment theretofore recovered, other than that it was unpaid.-Kaufman v. Richardson, 430.
Action upon a judgment; can be maintained within a year and a day. An action can be maintained upon a judgment within a year and a day from its rendition, which is before the expiration of the time after the rendition of the judgment within which an execution could be issued thereto to enforce it. Ib. 430.
3. Assignment of choses in action; suit may be brought in name of assignee. The equitable title of an assignee to chose in action will be recognized by courts of law, and suit may be brought in the name of the assignor.-Snead v. Bell, 449.
1. Action of trespass; when principal liable for acts of agent.-In an action of trespass to recover damages for the wrongful taking of mules, where it is shown that the defendant was at the time of the taking a sheriff, and that one of his deputies, according to his directions, went with an officer of the United States Army, to which the mules belonged, to locate the mules, and there was further evidence tending to show that said deputy assisted said army officer in taking the mules from the plaintiff, a charge which instructs the jury that if said deputy acted as the agent and under the instructions of the defendant in taking said mules, and said taking was wrongful, then the defendant would be guilty of a wrongful taking, asserts a correct proposition of law, and is properly given at the request of the plaintiff.-Fulgham v. Carter, 227.
2. Principal and agent; contract in name of principal.-If a contract which is made with an agent discloses his principal and it appears on the face of the paper that the contract is really made on behalf of the principal, although it is signed by the agent as agent, such contract is one for the principal and not by the agent in his own behalf.-Bronson v. Russell, 360. Agency; when notice to agent not notice to principal.-When information is given to an agent upon a casual occasion, when no act or transaction of the agency is pending, and the occasion has no reference to the principal or to his business, such information to the agent is not notice to the plaintiff of the existence of the fact about which it is given.-Patterson v. Irvin, 401.
Agency; what facts sufficient to authorize the inference of agency. Proof that an alleged agent sold merchandise and that thereafter without any communication between the purchaser and the alleged principal the merchandise was shipped by the alleged principal to the purchaser, while not sufficient
to justify a witness in testifying as a matter of fact that the
alleged agent was the agent of the principal, is sufficient to
permit the inference by a court or jury that the alleged agent
was the agent of the alleged principal and was acting as such
in the transaction, and therefore in a suit to recover for de-
ceit practiced in the sale of said merchandise it is error to
exclude the representations of such agent made to the pur-
chaser as to the quality of the merchandise so sold.-Romano
v. Brooks, 514.
Authority of agent to waive written notice provided for in
policy; when such authority question of fact for the jury.
Where the local agent of an insurance company performs acts
at various times not expressly conferred by the instrument
appointing it as agent and such acts were recognized by the
principal as within the authority of the agent and were not
repudiated by it, it is a question of fact for the jury to de-
termine whether or not the agent had authority to waive
for defendant company a provision in the policy requiring
written notice of loss to be given immediately after a fire
occurred.-Cont. Ins. Co. v. Parks, 650.
ALTERATION OF INSTRUMENTS.
1. Action upon promissory note; material alteration avoids con-
tract; evidence.-An alteration which makes a promissory
note speak a language different in legal effect from that
which it originally spoke, is material, and when made by
one not a stranger to the paper, is sufficient to avoid the con-
tract as to all parties not consenting thereto; and in an action
upon such note, under issues properly presented, evidence
tending to show such material alteration is admissible.-Car-
roll v. Warren, 397.
1. Deed; description of lands conveyed; latent ambiguity.—Where
the description of lands in a deed is by Government numbers,
but the township and range are not described as being south
or north, or east or west, and in the county where the land
is described as being situated there are townships north and
south bearing the same number as that designated in the deed
in which there is the same section as that designated in the
deed, such description standing alone would constitute a
patent ambiguity, which could not be relieved by parol testi-
mony of what was intended by the parties to be conveyed;
but where in such deed there is a recital that the lands de-
scribed therein were sold for the payment of taxes that were
due from one M. D. M., the owner of said lands, such recital
makes the description set forth in the deed a latent ambiguity
and authorizes resort to competent parol evidence in aid of
the description set forth in the deed.-Brannon v. Henry, 698.
APPEALS.
1. Bill of exceptions; when properly stricken from the file.-Where
it appears from the record in a case that the bill of exceptions
was not signed within the time prescribed by law, or within
the time fixed by order of the court, such bill of exceptions
I will not be considered on appeal, and will be stricken from the
file on motion; and where by order of the court the defendant
in a criminal case is given "until January 5th, 1905," in which
to have the bill of exceptions signed by the presiding judge,
the time for signing the bill of exceptions expires on the night
of January 4th, and if the time is extended on the 5th of Jan-
uary, it is after the expiration of the time allowed by order of
the court.-Richardson v. State, 12.
2. Judgment o, conviction; void when rendered on day court not
authorized to sit.-The judgment of conviction in a crim-
inal case which is rendered upon a day when the court is not
legally in session, and at a term when the court is not author-
ized to sit, is void, and an appeal from such judgment will be
dismissed.-Walker v. State, 32.
3. Appeal from void judgment; should be dismissed.-Judgment
rendered by a court which is held at a time and place unau-
thorized by law, is void and appeal therefrom will be dis-
missed.-White v. State, 42.
Construction of act creating city court of Gadsden; rule of prac-
tice on appeal; trial by court without jury.-Under the stat-
ute creating and establishing the city court of Gadsden (Acts
1900-01, p. 1298), providing that where a cause is tried by the
court without a jury "either party may, by bill of exceptions,
also present for review the conclusions and judgment of the
court on the evidence," etc., the appellate court can not re-
view the correctness of the conclusion and judgment of the
court upon the evidence, unless it is disclosed in the bill of
exceptions that an exception was reserved thereto.-Fleming
v. State, 52.
5. Trial and its incidents; general request for charges by defendant;
how reviewed on appeal.-The recital in bill of exceptions that
the defendant "asked the court to give the following charges in
writing, to-wit:" followed by four charges numbered consecu-
tively, does not show that the court was separately requested
to give each of said charges; and the court cannot be put in
error for refusing to give said charges unless there was error
in refusing all of them.-Yeats v. State, 58.
6. Appeal does not lie from decree overruling a motion to dis-
miss cross-bill.-An appeal does not lie to the Supreme Court
from a decree of a chancellor overruling a motion to dismiss
a cross-bill for the want of equity therein; the statute author-
izing an appeal from an interlocutory decree overruling a
motion to dismiss a bill for the want of equity, (Code § 427)
having application solely to a bill in equity, and not a cross-
bill.-McGaugh v. Holliday, 185.
Trial and its incidents; refusal to give charge when not re-
viewed. Where the only recital in a bill of exceptions rela-
tive to the refusal of the court to give a charge requested, is
"The defendant, in writing, requested the general charge for
the defendant, but the court refused to give the same, to which
action of the court refusing to give the general charge in
favor of the defendant, he duly excepted," and the charge
referred to is not set forth in the bill of exxceptions, the Su-
preme Court will not review the rulings of the trial court in
refusing said charge.-Lunsford v. Bailey & Howard, 319.
8. Appeal; motion to strike pleading must be shown by bill of ex-
ceptions. Where a complaint is stricken from the file on mo-
tion by the defendant, in order for ruling to be reviewed on
appeal, it is necessary that the motion and the ruling thereon
and the exception thereto, should be shown by a bill of ex-
ceptions. Henry v. N. C. & St. L. Ry., 336.
9. Appeal; when taken from decree dismissing bill.-Where a cause
in a chancery court is submitted for a decree upon a motion
to dismiss for the want of equity, and upon demurrers, and
the chancellor renders a decree sustaining the motion to dis-
miss the bill for the want of equity, and orders that the bill
be dismissed out of court, such decree is a final decree, from
which an appeal may be prosecuted any time within a year
from its rendition.-Schwarz, R. & Co. v. Bailey, 439.
10. Appeal does not lie from refusal of court to vacate an order ap-
pointing a receiver.—An appeal does not lie from the refusal
of the court to vacate an order appointing a receiver; such
order being merely interlocutory, and not being one from
which under the statute an appeal can be taken.-Gillett v.
Higgins, 444.
11. Rulings on motion to quash should be shown by bill of excep-
tion on appeal.-The rulings of the trial court on motion to
quash a writ of attachment, service, etc., will not be reviewed
on appeal unless such rulings are presented by a bill of excep-
tions. Seaboard Air Line v. Hubbard, 546.
12. Pleading and practice; how assignment of error upon pleadings
considered on appeal.-When an assignment of error, based
upon the rulings of a trial court, upon demurrers to two sep-
erate pleas, is a joint and single assignment, it is unavailing
to work a reversal of the judgment, unless there was error in
the ruling upon the demurrer to each of the pleas.-Ib. 546.
13. Pleading and practice; variance cannot be raised first time on ap-
peal. A question of variance between the allegations of a
complaint and the testimony introduced at the trial of a case
cannot be raised for the first time on appeal.-Ensley Merc.
Co. v. Otwell, 575.
14. Appeal; from decree on demurrer must be prosecuted within 30
days. If an appeal from a decree upon a demurrer to a bill
in equity is taken after the expiration of 30 days from the
redition thereof, the Supreme Court is without jurisdiction
to entertain such appeal, and the same will be dismissed.
Dennis v. Currie, 637.
1. Arbitration; conclusiveness of award; usury.-Where the ques-
tion of indebtedness between two parties is submitted by
agreement of the parties to arbitrators and one of the stipu-
lations of the submission was that legal interest should be
computed upon the items of indebtedness found, from the
dates of maturity, and in accordance with such submission
an award is made by the arbitrators ascertaining the amount
to be due from one of the parties, for which notes are given,
which are secured by a mortgage, if upon default being made
in the payment of the notes, a bill is filed to foreclose the
mortgage, the plea filed by the debtor mortgagor to such bill,
alleging that there were numerous items of usury included in
the finding and award of the arbitrators presents no defense
to the maintenance of such bill; the issue of usury vel non
having become foreclosed and concluded by the award.-Hoff-
man v. Miller, 678.
Mortgage; assignment thereof; title does not revest by erasure
of assignment.-Where a mortgage is assigned by the mort-
gagee endorsing the assignment on the back of such mortgage,
which assignment is duly acknowledged before a notary, and
subsequently the assignee redelivered the mortgage to the
mortgagee, and erased from the assignment endorsed thereon,
the name of the assignee, such erasure and delivery of the
mortgage does not have the effect to reinvest the title in the
mortgagee, but the title remained where the assignment had
placed it.-Carter v. Smith, 414.
Assignment of choses in action; suit may be brought in name of
assignee. The equitable title of an assignee to chose in ac-
tion will be recognized by courts of law and suit may be
brought in the name of the assignor.-Snead v. Bell, 449.
Assignment of verbal contract; if not for payment of money,
need not be prosecuted in name of party really interested;
Sec. 28 Code.-When an assigned contract or agreement to sell
an amount of cotton at a stipulated price, the breach of which
is relied upon for a recovery, is not for the payment of money,
either express or implied, it is not governed by section 28 of
the Code, which requires the action, where such is the case,
to be prosecuted in the name of the party really interested.
Ib.-449.
Same; when contract not within provisions of Sec. 876 Code.
An assigned verbal contract for the sale of cotton at 74
cents per pound is not within the provisions of Section 876
of the Code, which authorizes the endorsee to maintain an
action upon all bonds, contracts and writings for the pay-
ment of money or other thing or the performance of any act
or duty, assigned to him by endorsement.-Ib. 449.
1. Pleading and practice; joint cause of action; discontinuance.
In an action of assumpsit against several defendants, where
the complaint counts upon a joint cause of action against all
of the defendants, and the record shows that each of the
several defendants was served with process, the amendment
of the complaint before the introduction of the evidence, by
striking out one of the defendants, constitutes a discontin-
uance of the action against the remaining defendants.-Ev-
ans Marble Co. v. McDonald & Co., 139.
Attachment insufficient; affidavit, writ and bond can be amended
Any irregularity or defect of form, or of substance in an affi
davit for an attachment in the bond or writ of attachment,
may, under provisions of the statute, (Code § 564) be amend-
ed before or during the trial.-Webb & Stagg v. McPherson
Co., 540.
1. Same; argument of counsel; effect of showing for absent witness.
In such case, where the state has admitted showings of cer-
tain witnesses for the purpose of going to trial, a statement
of the solicitor that the State did not thereby admit the truth
of such testimony, but that if the witnesses were present they
would swear as there shown was proper.-Smith v. State, 14.
Same; argument of counsel.-In such a case, remarks of the so-
licitor to the jury on the word "beast" used in a letter received
by the prosecutrix from defendant, in the place of "best," that
the defendant characterized himself by the use of the word
"beast," are mere expressions of opinion, and unobjection-
able. Weaver v. State, 33.
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