showed that he had accepted a conveyance, because, 1st, it was un-
reasonable to suppose that, after exhibiting the caution shown by other
facts connected with the purchase, he would have rested for so long a
period (three years) after discovering his vendor's want of title, with-
out any written evidence of his purchase, when the agreement was that
a conveyance was to be executed in a very short time"; 2d, the bill
did not allege, positively and explicitly, that he never accepted a deed,
but only averred that the vendor "never complied with his promise in
relation to the title to said land", and that complainant "has no deed
to said land"; 3d, he executed a mortgage on the land, of even date
with the notes given for the purchase money, to secure the payment of
the notes, and recited therein that a deed had been executed to him;
and, 4th, the register reported, on a reference, that he had construc-
tive possession of the land by reason of the conveyance to him....... 399
10. Laches in seeking rescission of contract fatal to relief.-A party who seeks the
rescission of a contract, on the ground of fraud, must move within a
reasonable time after the discovery of the fraud. What is a reasonable
time must depend on the circumstances of each particular case. Here,
a rescission was refused, because the infant, after attaining his majority,
and with knowledge of the fraud, accepted from his guardian a deed
for the land, remained in possession more than seven years after the
sale, and more than five years after the discovery of the fraud, and
showed no excuse for his delay.-Kern v. Burnham..
11. Removal of husband as trustee.-Where the wife files a bill against her
husband to compel the specific execution of an agreement to make a
settlement on her, and does not allege that she is separated from him
on account of his improper conduct, or that he intends to remove from
the State without her, or that she has reasons to apprehend a denial of
her right to the property settled on her by the court, or that his habits
are such as render him incapable of or unfit for the discreet and proper
management of the estate, the court will not appoint another trustee
in his stead, nor forbid his interference with the property.-Andrews v.
Andrews.
432
12. Constructive trust.—An executor, while keeping his testator's estate to-
gether under the directions of the will, drew his bill of exchange, in
favor of one D., which was accepted for accommodation by K. A. & H.,
and then discounted in bank. The executor applied a small part of the
proceeds to the discharge of debts of the estate, and loaned the residue
to said D., as money belonging to the estate. D. afterwards confessed
judgment, in favor of the executor, for the amount of his indebtedness
to the estate, including this sum, and became insolvent. The executor
also became insolvent, and removed from the State. A succeeding ad-
ministrator collected a portion of the judgment, not exceeding the
amount of the debt due the estate; and the acceptors, after paying the
bill, filed their bill in equity against him, claiming the right to share in
the sum collected. Held, that the bill contained no equity.-Kirkman,
Abernathy & Hanna v. Benham.
13. Equitable set-off.-If a note under seal is assigned by endorsement after
maturity, the assignee takes it subject to all equitable defenses existing
in favor of the maker prior to notice of the assignment, whether they
grow out of the same, or out of a different transaction. (WALKER, J.,
dissenting, held that, where the assignee acquired the legal title by en-
dorsement, without notice of the maker's equity, he ought to be pro-
tected.) Carroll v. Malone.....
521
14. Decree of divorce on account of insanity unnecessary yet proper.—If a mar-
riage is void by reason of the insanity of either one of the contracting
parties, no decree of divorce is necessary to restore the parties to their
original rights; yet a decree of divorce, in such case, is conducive to
good order and decorum, and to the peace and conscience of the party
seeking it.-Rawdon v. Rawdon......
565
15. Jurisdiction to remove cloud on title.-If the mortgagee obtains a decree of
foreclosure against the personal representatives and devisees of the
mortgagor, without making the heirs-at-law parties to the suit, and be-
comes the purchaser of the premises at the master's sale, this consti-
tutes such a cloud on the title of the heirs, after they have set aside
the probate of the will by bill in chancery, as authorizes them to ask
the interposition of equity for its removal.-Hunt and Frowner v. Acre
and Johnson.
16. Original and concurrent jurisdiction.-The original jurisdiction of equity
is not affected by legislative enactments, conferring jurisdiction on the
courts of law, unless the statute contains prohibitory or restrictive
words; but such enactments are held to confer concurrent remedies.-
Waldron, Isley & Co. v. Simmons....
17. Section 602, defining jurisdiction of chancery courts, construed.-Under sec-
tion 602 of the Code, which defines the powers and jurisdiction of the
chancery courts in this State, the first subdivision, which includes" all
civil causes in which a plain and adequate remedy is not provided in
the other judicial tribunals," is but the adoption of the pre-existing
rule; the second and third subdivisions, which include cases founded on
a gaming consideration, and cases to subject the equitable title to real
estate to the payment of debts, are modifications, by way of enlarge-
ment, of the system of equity jurisprudence and jurisdiction which had
been established in England prior to the American revolution; and the
fourth subdivision, which includes "such other cases as may be pro-
vided for by law," embraces all cases which, at and before the adop-
tion of the Code, were known to be within the jurisdiction of courts
of equity, and are not embraced in the first three subdivisions........ 629
18. Jurisdiction of equity to enforce payment of partnership debt out of estate of
deceased partner.--A court of equity had original jurisdiction to enforce
the payment of a partnership debt out of the estate of a deceased
partner, and that jurisdiction is not taken away by any provision of the
Code of Alabama.....
19. Statute of limitations, how applied in equity.-The statute of limitations
applicable to actions at law is not binding on the chancery court, in
cases of exclusively equitable cognizance; but that court, besides re-
fusing to interfere where there has been gross laches, or a long or
unreasonable acquiescence in the assertion of adverse claims, often
adopts, in cases to which the statute of limitations does not strictly
apply, a period within which its aid must be sought, similar to that
prescribed in analogous cases at law.-Askew v. Hooper..
20. Laches fatal to relief.-A bill for the rescission of a contract of pur-
chase, on the ground of the vendor's false representations, was filed
thirteen or fourteen years after the discovery of the fraud, and, although
it alleged that the complainant abandoned the land on the discovery of
the fraud, showed no act on his part which would have precluded him
from enforcing the specific execution of the contract, if a favorable
fluctuation in the price of the land had made it his interest to do so;
and the laches was held fatal to the relief, on demurrer for want of
equity..
24. Legal defense to note no ground of equitable jurisdiction.-Where a note,
given for the purchase money of town lots, at a place which was the
contemplated terminus of a railroad then in process of construction,
was made payable "when the first locomotive engine on the M. railroad
should arrive" at the town, the fact that the railroad company was
sold out, and the road completed by another company subsequently
incorporated, is available (if at all) as a defense at law, and therefore
constitutes no ground for a resort to equity.
See PLEADING AND PRACTICE IN CHANCERY.
1. Jurisdiction of circuit court on appeal from justice's court.-When the record
shows that appellant, against whom a judgment had been rendered by
a justice of the peace, having prayed an appeal to a jury under a special
statute, afterwards appealed to the circuit court, gave bond for the
appeal, appeared in that court, and pleaded to the statement filed
against him, and that the cause, after several continuances and a mis-
trial, was finally tried by a jury, the objection cannot be raised for the
first time on error, that the circuit court had no jurisdiction of the
case, because there was no judgment in the justice's court at the time
the appeal to the circuit court was taken.---Gresham v. Tucker....... 611
1. Code construed with reference to previous judicial decisions.—In
the framing of the statutes embodied in the Code, the legislature must
be presumed to have had in view the then existing laws, and the con-
struction placed upon them by the judicial decisions; and where the
provisions of the Code are substantially the same with the old law, the
legislative sanction of the judicial construction which it had received
may be inferred.—Per Walker, J. Ex parte Banks..
2. Section 3243, statute against gaming, construed.-Sweeney v. The
State
Also, Huffman v. The State..
3. Section 2136, authorizing “wife and mother, after desertion by hus-
band, to prosecute or defend suit in his name, construed in Er parte
Cole.
4. Section 3613, as to change of venue in criminal case, construed in Ward
v. The State.
CODE, CONSTRUCTION OF-CONTINUED.
5. Section 3254, concerning lotteries, construed in Salomon and Boullemet
v. The State..
6. Section 1888, concerning appeals from decrees of division of estates, con-
strued in May's Heirs v. May's Adm'r..........
7. Section 2318, concerning deposition of sole witness, construed in same case, 141
8. Section 12, as to “proceedings" in actions governed by old law, con-
strued in Godden v. Le Grand..
9. Same section construed in Daily v. Burke.
10. Section 1887, imposing costs for failure to present claims to executor, con-
strued in Wallace v. Nelson.....
11. Section 1966, respectiong confessions of parties in suits for divorce, con-
strued in King v. King....
12. Section 2456, as to lien of judgments, construed in Daily v. Burke..... 328
13. Sections 2407—2417, authorizing rehearing after final judgment in action
at law, construed in Pratt & McKenzie v. Keils & Sylvester.......... 390
14. Section 2403, authorizing amendment of pleadings, construed in Stodder
v. Grant & Nickels..
416
15. Section 2357, concerning voluntary non-suits, construed in Palmer v. Bice, 430
16. Section 1883, statute of non-claims, construed in McHenry v. Wells.... 451
17. Constitutionality of Code.-The constitutional provision (Art. III, § 23),
that no bill shall have the force of a law until it be read on three sev-
eral days in each house of the general assembly, does not require that
everything which is to become a law by the adoption of the bill
shall be thus read; nor does the provision (Art. III, § 1) prescribing
the style of laws affect the validity of a body of laws, when the bill by
which they were adopted pursued the prescribed form.-Dew v. Cun-
ningham.
18. Section 1990, concerning distribution of wife's separate estate, construed
in Willis v. Cadenhead..
19. Section 602, defining jurisdiction of chancery courts, construed in Waldron,
Isley & Co. v. Simmons. ...
20. Section 2142, as to suits against partners, construed in same case...... 629
21. Section 3047, regulating sheriff's fees, construed in Mastin v. Cullom
& Co.....
22. Section 2298, making entries on books of physician evidence for him, con-
strued in Richardson v. Dorman's Executrix..
1. How far of force in this State. The common law of England, as
changed and modified by our statutes, is part and parcel of the law of
this State, so far as applicable to our institutions and government.
Barlow v. Lambert......
1. Dissolubility of marriage contract.-The English doctrine, that the disso-
lubility of the marriage contract depends upon the law of the coun-
try in which it was solemnized, is founded on the doctrine of perpetual
allegiance, is therefore inconsistent with the spirit of our institutions,
and is here repudiated.-Thompson v. The State......
1. Constitutional power of Congress to regulate commerce.—'
e.-The constitutional
power vested in Congress to regulate commerce between the several
States, necessarily includes the power to regulate navigation, as one of
the means by which commerce is carried on, and, where the navigation
extends into the interior, is not arrested by the intervention of State
boundaries; but the grant of this power to Congress does not operate
as an absolute prohibition on the States to legislate on the subject.—
Commissioners of Pilotage v. Steamboats Cuba, Swan, and J. H. Bell.. 185
2. Registration act not regulation of commerce.-The act of February 15, 1854,
"to provide for the registration of the names of steamboat owners,"
which requires a written statement of the names and residences of the
owners of steamboats navigating the waters of this State to be filed in
the probate court of Mobile, and imposes a penalty of $500 for its vio-
lation, is not a regulation of commerce, within the constitutional grant
of that power to Congress..
3. Nor in conflict with license laws of United States.-The laws of the United
States, regulating the coasting trade, do not confer rights, in the
proper sense of that term, but rather impose restrictions on the trade;
and the additional requisition of this State statute, as it does not
obstruct or dispense with any of the requisitions of the acts of Con-
gress, cannot be said to be in conflict with them..
4. Nor violative of ordinance of 1819, as imposing tax or duty.—The requisition
which this statute makes upon the owners of steamboats, is not a tax,
duty, impost, or toll, within the ordinance of 1819, by which Alabama
accepted the conditions of the act of Congress admitting her into the
Union, and declared "that all navigable waters within this State shall
forever remain public highways, free to the citizens of this State and
of the United States, without any tax, duty, impost, or toll therefor,
imposed by this State.".
5. Constitutionality of Code.-The constitutional provision (Art. III, § 23),
that no bill shall have the force of a law until it be read on three sev-
eral days in each house of the general assembly, does not require that
everything which is to become a law by the adoption of the bill shall
be thus read; nor does the provision (Art. III, § 1) prescribing the
style of laws affect the validity of a body of laws, when the bill by
which they were adopted pursued the prescribed form.-Dew v. Cun-
ningham.....
1. Contracts construed by aid of surrounding circumstances.-In the construc-
tion of a written contract, the court must place itself in the situation
of the contracting parties at the time of its execution, and look at the
occasion which gave rise to it, the relative position of the parties, and
their obvious design as to the objects to be accomplished; but if the
meaning and intention of the parties cannot be ascertained from the
language of the instrument, when thus illustrated, it is void for uncer-
tainty. Pollard v. Maddox.....
2. Bill of sale construed most strongly against maker.-The salutary rule, that
a written instrument, the language of which is of doubtful import, or
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