LIMITATIONS, STATUTES OF-CONTINUED.
owners", which gives a remedy against the boat by admiralty process,
"in the same manner as is provided by the laws of this State for the
recovery for work and materials furnished steamboats," refers only to
the form and mode of conducting the proceeding, but does not limit
the suit to thirty days after the accrual of the cause of action. The
limitation of the suit is one year, as prescribed by section 2481 of the
Code.-Commissioners of Pilotage v. Steamboats Cuba, Swan, and
J. H. Bell.......
2. Exceptions to statute prescribed by Code.-A suit commenced within
one year from the time the Code went into operation, on a cause of
action subsisting at the time of its adoption, is expressly exempted
(Code, § 2502; Pamphlet Acts 1853-4, p. 71) from the influence of its
provisions as to the limitations of actions.-Bettis v. Saint........... 214
3. When administrator is bound to plead statute.-An administrator is not
bound to plead the statute of limitations, when he has personal assets
sufficient to pay the debts; but a different rule prevails, where a resort to
the realty is necessary to raise a fund for that purpose.-Pollard v.
Scears' Adm'r..
484
4. How applied in equity.-The statute of limitations applicable to ac-
tions at law is not binding on the chancery court, in cases of exclu-
sively equitable cognizance; but that court, besides refusing 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 analo-
gous cases at law.-Askew v. Hooper...
5. Assumpsit. Where a party has the the right to bring either trover
for the conversion of his slave, or assumpsit for the proceeds of sale,
and elects to proceed in the latter action, the statute of limitations
begins to run from the time that cause of action accrued, and the fact
that the other remedy is barred does not defeat the action.-Ivey's
Adm'r v. Owens and Wife......
6. Limitation of appeal.-On motion to dismiss the appeal in this case,
because it was not taken within six months after the rendition of the
decree, (Code, §§ 1888, 2039,) the court said, that the question was one
of difficulty and importance, and declined to consider it, because its
decision could not affect the result of the case.--Williams and Wife v.
Gunter......
7. Same. A valid appeal cannot be taken, without giving bond, or secu-
rity for costs, within the period prescribed by the statute of limitations
governing appeals; when application is made for an appeal within the
prescribed period, but no bond, or security for costs, is given until
after its expiration, the appeal will be dismissed on motion.-Mays v.
King.
8. Promise made on Sunday does not avoid statute of limitations.-A
subsequent promise to pay a debt, whether express or implied, if made
on Sunday, does not take the case out of the statute of limitations.-
Bumgardner v. Taylor.....
See CRIMINAL LAW, 22, 23, 24.
1. Does not lie, in criminal case, on refusal of change of venue.—The
granting of an application for a change of venue in a criminal case
(Code, §§ 3608, 3609) is discretionary with the court to which the
application is made, and its refusal is not revisable in the appellate
court by mandamus or otherwise. (Rice, C. J., dissenting.)—Ex parte
Banks..
2. Lies to compel dismissal of suit brought by non-resident without
giving security for costs.-If a suit is brought by a non-resident with-
out first giving security for the costs, and the court overrules the
defendant's motion to dismiss it for that reason, a mandamus will be
awarded by the appellate court to compel the dismissal, when no final
judgment has been rendered in the cause.-Ex parte Cole................
MISTAKE.
See CHANCERY, 3.
ERROR, 6.
MORTGAGES AND CONDITIONAL SALES.
1. Existing debt necessary to constitute mortgage.-A conveyance
made in satisfaction of a precedent debt, although it may contain a
redemption clause, cannot take effect as a mortgage, since a mortgage
is impossible where no debt exists.-West and Wife v. Hendrix................... 226
2. Agreement to re-sell does not make absolute deed mortgage.—When a deed is
made for a consideration paid at the time,-whether the payment is
made in cash, or by the surrender and satisfaction of a precedent debt,
-an agreement on the part of the vendee to allow the vendor to pur-
chase at a future day, for the same or for an advanced price, does not
convert the transaction into a mortgage.....
3. Concurrent intention necessary to constitute mortgage.-To convert a convey-
ance, absolute in its terms, into a mortgage, the intention and under-
standing of both parties to that effect must concur; the fact that the
party who executed the conveyance intended and considered it as a
mortgage, is not sufficient to make it a mortgage......
.... 226
4. Inadequacy of price insufficient.-Inadequacy of price or consideration, of
itself, is not sufficient to convert an absolute conveyance into a secu-
rity for the re-payment of money.
5. Absolute deed, with bond conditioned to reconvey, held conditional sale, and not
mortgage. Where S. executed to H. an absolute conveyance for a tract
of land, reciting therein a money consideration in hand paid, and took
from him a receipt in full of an account held by him against W. for the
same amount; and H. at the same time executed to S. a penal bond,
which recited the sale, and was conditioned that he should "re-convey"
MORTGAGES AND CONDITIONAL SALES CONTINUED.
the land on the payment, by a specified day, of a sum of money equal
to the amount of the expressed consideration with interest: Held, that
the transaction, as evidenced by the deed and bond, was not a mort-
gage, but a sale with an agreement to re-sell on the payment by the
specified day of the stipulated amount; and that the contemporaneous
declaration of H., as proved by the subscribing witness, that the
transaction was intended as a security for his debt against W., and his
subsequent declarations that the debt was still subsisting, together with
the facts that the land was worth nearly three times as much as the
amount expressed as the consideration, and that S. retained the posses-
sion of it without any agreement to pay rent, were not sufficient to
convert it into a mortgage..
6. Mortgage by husband of wife's land.—If the husband, during cover-
ture, and after issue born, execute a mortgage of his wife's land, the
deed conveys all his interest as husband and tenant by the curtesy
initiate. Boykin v. Rain ....
7. Decree of foreclosure, conclusiveness and effect of.-The effect of a decree of
foreclosure under a mortgage is not so extensive as that of a decree in
a proceeding in rem: it does not prejudice the rights of those who ought
to be, but are not parties. If the mortgagor dies before the rendition
of the decree, and the suit is thereupon revived against his adminis-
trator and sole devisee, and not against his heirs, the decree of fore-
closure, and the complainant's purchase of the premises at the master's
sale, are both void, as against the heirs of the mortgagor, if they set
aside the probate of their ancestor's will, by bill in chancery, within
the time allowed by the statute.-Hunt and Frowner v. Acre and John-
..... 580
8. Proper parties to bill of revivor in foreclosure suit.—In a suit for the
foreclosure of a mortgage, if the mortgagor dies before the rendition
of the final decree, and his will is admitted to probate by the court
having jurisdiction, his heirs-at-law, as well as his personal representa-
tives and devisees, are proper parties to the bill of revivor, and the
complainant proceeds without them at his peril, since they have the
statutory right to impeach the probate of the will, by bill in chancery,
at any time within five years.
9. Usury a defense to suit for foreclosure of mortgage.-Usury in the
transaction in which the mortgage had its origin, may be set up as a
defense, pro tanto, to a bill for foreclosure; and its effect, if established,
is to discharge the party from the payment of any interest whatever on
the debt
580
1. Construction of statute imposing costs on successful plaintiff, in action against executor
or administrator, for failure to prove presentation of claim.-Under the statute
(Code, § 1887) which imposes the costs on a successful plaintiff, in an
action against an executor or administrator, commenced after the death
of the testator or intestate, for a failure to prove a presentation of his
demand, if the defendant intends to raise the question of presentation,
he must present it on the record by plea or suggestion, so that the
NON-CLAIM, STATUTE OF-CONTINUED.
plaintiff may have an opportunity of proving the presentation, and the
issue must be tried by the jury; but, if no such plea or suggestion is
made, and the plaintiff has a general verdict on the issues joined, he is
entitled to full costs.-Wallace v. Nelson.....
2. What constitutes a bar under statute of non-claim prescribed by Code.-A bar to
a claim against an estate cannot be made out, under the statute of non-
claim prescribed by the Code (§ 1883), by uniting the time which elapsed
before the Code went into effect, with the time which elapsed after that
event. McHenry v. Wells.
3. What constitutes a bar under statute of 1850.--Under the act of 1850, (Pam-
phlet Acts 1849–50, p. 68,) a claim against an estate was barred, by the
failure to present it to the personal representative, or to file it in the
office of the probate judge, not within eighteen months from the grant
of letters testamentary or of administration, but within eighteen months
after the publication of notice by the executor or administrator....... 451
4. What is sufficient presentation af claim.-At a meeting between the admin-
istrator and several of the distributees of an estate, two of whom claimed
to hold debts against the deceased, the account in reference to the trans-
action out of which the claims arose was stated in writing, with the as-
sistance of the administrator, who then asked one of them, "if that item
was all he claimed"; to which the latter replied, "that it was all they
claimed": Held, that this was a sufficient presentation to avoid the stat-
ute of non-claim.-Pollard v. Scears' Adm'r.
See BILL OF EXCEPTIONS, 4.
1. Right to repair partition fence.—Where there is a partition fence between
two adjacent land proprietors, or a fence which, although built entirely
on the land of one, is recognized by both as a partition fence, each one
has a right to enter on the land of the other for the purpose of repair-
ing it.-Henry v. Jones..
385
2. Right to repair gives no right to destroy.-If a gate, erected on the land of
one proprietor, is also recognized as a part of the partition fence be-
tween him and the adjacent proprietor, the right to repair it as a fence
does not authorize its destruction as a gate; and an entry for the latter
purpose is not protected by the statute..
1. What constitutes partner quoad third persons.-On the formation of a part-
nership for the purpose of speculating in Indian lands, certain rules
and regulations were adopted, at a meeting of the company, by which
the number of shares was fixed, and his interest assigned to each part-
ner; and by which it was required, that a specified sum should be paid
on each share,--that relinquishments should be executed to the compa-
ny, of all interests in any of the lands embraced in their contract; that
any service should be performed for the company, in furtherance of its
business, when called upon by a resolution of the company; and that
a failure to comply with any of their requisitions, or any violation of
good faith to the interest of the company, should forfeit to the company
the interest of the person so offending: Held, that a person to whom an
interest in the company was assigned at this meeting, and who assented
within a reasonable time afterwards to take it, was liable as a partner,
at least quoad third persons who afterwards dealt with the company,
although he was not present at the meeting, did not pay the installment
on the share assigned to him, did not execute the relinquishments, and
did not perform any of the services required by the rules and regula-
tions.-Grady v. Robinson.....
2. Relinquishment by partner, without notice, no discharge of liability to third persons.
A relinquishment by one ostensible partner to another, of all his inter-
est in the partnership, does not discharge him from liability as a partner
to third persons who afterwards deal with the company without notice
of such relinquishment..
3. Partner's authority to bind firm by sealed instrument.-A sealed instrument,
executed by one partner in the name of the firm, under a prior verbal
authority, or subsequently verbally ratified, is binding on the firm.... 289
4. Allowance to surviving partner for expenses in settling business of partnership.—
Where the business of a trading partnership is continued for a consid-
erable length of time after the death of one of the partners, whose per-
sonal representative, in seeking a settlement of the partnership accounts
in equity, elects to have a report and decree of the profits which accrued
during that time, the surviving partner is entitled, at least, to an allow-
ance and deduction for "tavern bills and other expenses incurred in the
adjustment and settling up" of the affairs of the partnership.—O'Reil-
ly's Adm'r v. Brady....................
5. 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 pay-
ment 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.
Waldron, Isley & Co. v. Simmons.....
6. Section 2142 of Code, in reference to suits against partners, construed,-Section
2142 of the Code, which provides that one partner, or his legal repre-
sentatives, "may be sued for the obligation of all," provides a plain and
adequate remedy at law to enforce the payment of a partnership debt
out of the estate of a deceased partner, but does not take away the orig-
inal jurisdiction of equity in such cases....
1. Diploma of physician, when admissible evidence.—In an action on an open ac-
count for services rendered as a physician, a diploma from a medical col-
lege would be admissible evidence, if the services were rendered since the
passage of the act of 1854, (Pamphlet Acts 1853-4, p. 48,) "to allow all
regular graduates of any medical college in the United States to practice
medicine"; but, since that act cannot retro-act so as to authorize a recov-
ery for medical services rendered before its passage, and since the Code
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