3. Same. The admission of parol evidence, to prove a fact, in aid of
the record, which the court must have judicially known, is not a rever-
sible error.-Doe d. Saltonstall and Wife v. Riley & Dawson.......... 164
4. Same. When all the evidence is set out in the bill of exceptions, and
shows that the plaintiff was not entitled to recover, the appellate court
will not reverse in his favor on account of erroneous charges or refu-
sals to charge
5. Presumption in favor of judgment.—In a suit on a promissory note,
where the record shows a judgment on verdict for the plaintiff, while
it appears from the bill of exceptions that the defendant pleaded the
statute of limitations, that evidence of a subsequent promise was intro-
duced, and that a charge was asked by the defendant predicated on
that evidence, it will be presumed, on error, that a replication was filed,
and that an issue was before the jury to which the evidence and the
charge were applicable.-Bettis v. Saint..
214
6. Waiver of irregularities by failing to object-Clerical misprision.—If a
writ be sued out against two administrators, and the suit discontinued
in the declaration as to one, on whom process was not served, on the
ground of non-residence, the other defendant, if he appear and defend
without objection, cannot avail himself of the irregularity (if any)
on error; and the naming of the non-resident administrator, as a de-
fendant, in the margin of the minute entries, is a mere clerical mis-
take. Shorter v. Urquhart.....
7. Defective service of process not available on error.—The sheriff's failure
to serve a copy of the complaint with the summons is a mere irregu-
larity, which, after judgment by default, is not available on error-Dew
v. Cunningham...
8. Overruling demurrer to several pleas of which one is good.-Where a
demurrer to several pleas, each going to the whole declaration, is over-
ruled, and the plaintiff declines to reply, the judgment on the demurrer
will not be reversed on error, if any one of the pleas is good, since the
erroneous overruling of the demurrer to the others could not have
prejudiced the plaintiff. Jesse v. Cater..
9. Judgment corrected and affirmed.-Where the affidavit for the gar-
nishment is made by the real owner of the judgment of which satisfac-
tion is sought, and judgment is rendered in his name against the
garnishee, while the affidavit and garnishment correctly describe the
original judgment, the judgment will be corrected in the appellate
court, at the costs of the appellant, and rendered in the name of the
plaintiff in the original judgment.-Jackson v. Shipman..... ...... 488
10. Error without injury in rendering judgment for costs against surety on
claim bond. The rendition of a joint judgment for costs against the
claimant and his surety on the claim bond, even if erroneous, is not
prejudicial to the claimant, and for that reason is not available on
11. Admission of evidence prima facie irrelevant cured by subsequent proof.
The admission of evidence which, when offered, was prima facie irrele-
vant, is not a reversible error, when the record shows that its relevancy
was made to appear by evidence subsequently introduced.-King v.
Pope.....
II. WHAT ERRORS ARE REVERSIBLE.
12. Charge upon credibility and sufficiency of evidence held erroneous.—Where a wit-
ness for the prosecution is impeached by proof of his contradictory
declarations on a material point, it is error to instruct the jury, "that
they must believe the witness of the State, unless they believe that the
contradicting witness is entitled to more weight and credit than said
witness for the State." Such a charge invades the province of the jury,
who are the sole judges of the credibility and degree of credit to be ac-
corded to each witness; and it is also objectionable, because the contra-
dicting evidence, though less credible than the testimony of the witness
for the State, may yet be sufficient to raise a reasonable doubt in the
minds of the jury, and thus secure the defendant's acquittal.-Corley
v. The State.....
13. Setting aside juror for cause of challenge, after acceptance, reversible
error. If the court improperly set aside a juror for a cause of challenge
on the part of the State which has been lost by previously accepting
him, and the prisoner excepts to its decision, the error entitles him to
a reversal of the judgment of conviction.-Stalls v. The State........ 25
14. Charge dispensing with proof of venue, erroneous.-Held, on the author-
ity of Brown's case, 27 Ala. 47, that a charge which instructed the jury
"that, if they believed the evidence, they must find the defendant
guilty," when the bill of exceptions purported to state all the evidence,
but did not show that the venue was proved, was erroneous.-Huffman
V. The State......
15. Charge upon sufficiency of evidence in proceeding under bastardy act.—
It is erroneous to instruct the jury, in a proceeding under the bastardy
act, that if the State produced a preponderance of evidence, they
might upon such preponderance of proof find the defendant guilty."--
Satterwhite v. The State.. . . . . .
16. Reversal on account of erroneous charge, notwithstanding deficiencies in
plaintiff's proof.-Where plaintiffs claim under a deed of gift, which
the court erroneously holds to confer no title on them, and therefore
charges the jury that, on all the evidence, they are not entitled to re-
cover, the judgment will be reversed at their instance, although the
bill of exceptions, while purporting to set out all the evidence, does not
show that they proved their identity with the donees named in the deed.
Elmore v. Mustin..
17. Reversal for erroneous charge.-An erroneous charge is a reversible
error, unless the record clearly shows that it was harmless.-Foust v.
Yielding..
ESTATES OF DECEASED PERSONS.
1. Statute of distribution (Code, § 1990), as to separate estates of married
women dying intestate, construed.—The provisions of the Code (§§ 1990,
1997), regulating the distribution of the separate estate of a married
woman dying intestate, do not apply to separate estates created by
deed before the 1st March, 1848, although the marriage took place
after that day; and the husband, in such case, takes nothing under the
statute.-Willis v, Cadenhead...
1. Estoppel under covenant and by acts in pais.-The owner of lands
through which a railroad passed, having previously granted the right
of way to the company, was apprised when the agents of the company
entered on his land to open the road, and knew that they claimed the
right under his deed, but raised no objection, and took a contract for
supplying the company with a portion of the materials used in the con-
struction of the road: Held, that he was estopped from afterwards
bringing trespass against the members of the company, although the
instrument by which he conveyed the right of way might be inopera-
tive as a deed.-Pollard v. Maddox..
2. Estoppel against trustee by acceptance of trust—A trustee for a married
woman and her children, under appointment from the chancery court,
knowing at the time of his acceptance that the deed creating the trust
was fraudulent as to creditors, assumes all the duties, liabilities and
disabilities which attach to ordinary trustees, and is estopped from set-
ting up against the beneficiaries the claims of creditors, or his own
claims as surety of the debtor.-Henderson v. Segars..
3. Estoppel by recognition of partition fence.-The recognition by the parties,
as a partition fence, of a structure which is built entirely on the land
of one proprietor, operates as an estoppel in pais, and prevents either
from complaining of any act done by the other which would have been
lawful if the fence had been on the division line.-Henry v. Jones.... 385
4. Estopped by submission and award.—Where a submission to arbitration is
made under an order of court, and the award entered up as the judg-
ment of the court, a party is not thereby estopped from pleading any
matter not necessarily within the scope of the award.-Jesse v. Cater. 475
5. Estoppel by deed.--If the maker of a note, having an equitable set-off
which is available against an assignee after maturity, executes a mort-
gage to the assignee to secure the payment of the note, this does not
estop him from afterwards setting up against the assignee his equitable
set-off-Carroll v. Malone.
6. Estoppel in pais against setting up defense to note.-If the maker of a prom-
issory note induces a third person to trade for it, by assuring him that
he has no set-off against it, and that he will pay it promptly, he cannot
afterwards assert any ground of relief against the purchaser.-Drake v.
Foster...
7. Estoppel against tenant from denying landlord's title.-Where the tenant has
enjoyed the undisturbed possession of the land during the period of the
lease, he is estopped, in any proceeding for the recovery of rent, from
denying the landlord's title.-Cook v. Cook ....
... 660
8. Estoppel against mortgagee.-Conceding that a mortgagee, who, prior to the
execution of his mortgage, consented to a postponement of the sale of
the property under execution against the mortgagor, is thereby es
topped, in a contest with the plaintiff in execution, from saying that
the delay is constructively fraudulent as against his mortgage; yet this
does not prevent him from taking advantage of a subsequent postpone-
ment without his consent.-Albertson, Douglass & Co. v. Goldsby..... 711
1. In bastardy proceeding.—Where the mother and the putative father of the
child, both being made witnesses by the statute (Code, § 3807), are ex-
amined on the trial, their testimony must be weighed by the jury like
that of other witnesses.-Satterwhite v. The State......
2. Answers to interrogatories, admissiblity of.-A party's answers to interroga-
tories, under the statute in aid of discoveries in common-law suits, if
his adversary declines to read them, cannot be considered by the court
as evidence for him for any purpose.-Wells v. Bransford............ 200
3. In assumpsit.-Where plaintiff and defendant are both examined as wit-
nesses under the statute, in assumpsit on the common counts for ser-
vices rendered, and contradict each other in some particulars, and the
defendant then introduces a witness who testifies to conversations of
the plaintiff which, in some particulars, contradict her testimony on
the trial, the plaintiff cannot be allowed to prove her good character,
by the declarations of the defendant, or in any other manner.-Owens
v. White.....
4. Entries on physician's books evidence of what facts.—The original entries in
the books of a physician, which are declared by the Code (§ 2298) to be
"evidence for him, in actions for the recovery of his medical services,
that the service was rendered", are evidence of the items of his account
for medicines administered and furnished to his patients in the course
of his practice; but the value of the medicines, as well as of the active
services rendered, must be otherwise proved.-Richardson v. Dorman's
Executrix...
II. MATTERS JUDICIALLY KNOWN.
5. General course of business.—It is the duty of courts judicially to know the
general course of the transactions of human life, and whatever ought
to be generally known within the limits of their jurisdiction; e. g., the
peculiar nature of lotteries, and the mode in which they are generally
carried on.-Salomon and Boullemet v. State....
6. Death of sheriff.-The sheriff being the executive officer of the orphans'
court, that court must be presumed to have known when his term of
office expired, whether by limitation or death, and to have acted on its
judicial knowledge. The admission of parol evidence, therefore, in aid
of the record, even if erroneous, is error without injury.-Doe d. Salton-
stall and Wife v. Riley and Dawson..
7. Variance between averment and proof as to name of person assaulted.—A
variance between the averment of the indictment and the proof, as to
the name of the person assaulted, is immaterial, where the names may
be sounded alike without doing any violence to the letters found in the
variant orthography; as in the names of Chambless and Chambles.-Ward
v. The State.
8. Evidence confined to matters in issue.-If the declaration alleges that
the injuries complained of were done by defendant's children and ser-
vants, plaintiff cannot be allowed to prove injuries done by the defend-
ant himself in person; and defendant's threats that he would kill the
hogs are therefore inadmissible, because they tend to show that he did
kill them.-Smith v. Causey.
9. Unnecessary averment, if descriptive, must be proved.-If the declara-
tion alleges that the injury was done with the defendant's dogs, the
averment, though unnecessary, cannot be disregarded, since it is de-
scriptive of the cause of action....
10. Variance in criminal case. -Under an indictment for an assault on A,
with intent to murder, the defendant's threats, made several hours
"previous to the fight," that he would kill B, are not admissible evi-
dence against him.-Ogletree v. The State......
IV. ADMISSIBILITY AND RELEVANCY GENERALLY.
11. Indictment for assault and battery-Admissibility of evidence in exten-
uation.-Evidence showing that the person assaulted “was a lazy vaga-
bond, who would not work if he could help it; that money could not
be made out of him by legal process; that he had been indebted to the
defendant a long time, and would not pay; and that defendant, on the
morning of the day on which (in the evening) the assault was commit-
ted, had offered him ten dollars per hour if he would work for him in
payment of said indebtedness, and he had refused to do it," is not ad-
missible for the defendant in mitigation or extenuation of the assault.
Ward v. The State....
12. Indictment for arson—Admissibility of evidence of previous attempt to
procure burning.-The fact that the defendant, some five or six
months before the burning charged in the indictment, requested
another person (witness) to burn the house, is admissible evidence
against him.-Martin and Flinn v. The State....
13. Same.-Admissibility of evidence showing attempts to suppress testi-
mony of witness for prosecution-Promises and threats made by a
third person, after indictment found, to a witness for the prosecu-
tion who had been before the grand jury, to induce him to leave
the State, to the effect that, if he would leave, defendant "would pay
him $200 or $300, and would give him money to set up business in New
Orleans, and, if he refused, would kill him, or get some one else to kill
him," are not admissible evidence against the defendant, unless his con-
nection with the person by whom they were made is otherwise shown;
but the facts that the witness, at the time appointed for his departure
with the person (one E.) who made the representations, "passed by de-
fendant's house, and saw defendant standing in his door,-that defend-
ant waived his hand to him to pass on by, which he did for a short
distance, and waited a short time there, when E. came out of the house,
with defendant's horse and buggy, and he saw defendant give him some
$25 for him," and that E. then carried him away with the horse and
buggy, are competent evidence to be weighed by the jury............_71
14. Indictment for carrying on lottery-Evidence tending to prove concern-
ment.-Evidence showing that a bookseller in this State, through a
series of months, kept on hand in his store tickets in a lottery not
authorized by the legislative authority of this State, and at various
times sold them; that he continued to keep such tickets on hand, after
having been indicted and convicted for selling them, and instructed his
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