COSTS-CONTINUED.

3. When costs are directed to be paid out of the estate, if the litigation is unnecessarily protracted, for the purpose of vexation, the Court will apply the proper corrective, by taxing the party so acting, with the costs. Alex

ander v. Alexander...

See Garnishment and Garnishee, 5.

See Summary Proceedings, 2.

COURT, CHARGE OF.

......797

1. Whether the admission of facts, in a written proposition to compromise, be admissible evidence, or not, it is not error to charge the jury, that if the paper was written with the view to a compromise, and the promises contained in it were made for that purpose, the defendant was not bound by them. Such a charge does not deny effect to the facts. Courtland v. Tarlton & Bullard.

...533

2. A promise to pay a sum of money in Alabama bank or branch notes, is a promise to pay in notes of the Bank of the State of Alabama or its branches, and it is proper for a Court to charge a jury that such is the proper construction, without evidence of the meaning of the terms used. Wilson v. Jones...... ......536

3. Semble: Where an error in a charge to a jnry is such as could not prejudice the party excepting, it furnishes no cause for the reversal of the judgment. Randolph v. Carlton..... ......607

4. Where the Court having charged the jury, upon the law as applicable to the evidence adduced, at the request of the defendant's counsel, and upon an inquiry by the jury, remarked, that the plaintiff would not lose his right to recover in another action, though their verdict might be for the defendant; the remark of the Court, whether in conformity to law or not, furnishes no ground for the reversal of the judgment. It could not have misled the jury, and they doubtless sought the information merely to reconcile their consciences to the performance of an imperative legal duty. Armstrong v. Tait.

635

5. A charge to the jury must be considered in reference to the facts in the cause, and if thus applied it is correct, the judgment will not be reversed, though as a universal proposition it may be erroneous. McBride and Wife, et al. v. Thompson..

.650

6. Where, giving full credit to all the plaintiff's proof, it fails to make out such a case as entitles him to recover, a charge to the jury which is erroneous, as the assertion of a legal proposition, furnishes no ground for the reversal of a judgment against him. Smith v. Houston.

.....737

7. When the defendant borrowed bills from an unchartered association, which he endeavored to show originated in a conspiracy to cheat the pub

COURT, CHARGE OF-CONTINUED.

lic by getting its bills in circulation without the means or the intention to redeem them, his request for the Court to instruct the jury, that if he was a party to the conspiracy, by engaging to aid in the circulation of the bills, this would avoid the contract under which the bills were borrowed, will be considered as merely abstract, and therefore properly refused, when there is no evidence before the jury to connect him with the conspiracy. McGehee v. Powell.

828

8. When the charge of the Court assumes that the transfer of a note is bona fide for a full consideration, and the evidence is such as to lead to this conclusion, if believed by the jury, it is no error. Sheffield & Co. v. Par

malee..

..889

2. Quere? Whether, in a controversy in respect to the location and title to lands, under the instruction of the Court, the jury by their verdict affirmed that the premises of which the defendant was in possession, was not embraced within the defendant's lines, the judgment should be reversed, where the Court, upon some other point in respect to the title, may have charged the jury incorrectly. Doe, ex dem. Pollard's heirs v. Greit....931

COURT, SUPREME.

1. It is improper to send the original papers to this Court, and if sent, will not be looked to, to settle any disputed question. Hobson v. Kissam & Co., &c. ..357

2. It is competent for this Court, under the constitutional provision, which gives it "a general superintendance and control of inferior jurisdictions," to award a writ of habeas corpus upon the refusal of a Judge of the Circuit Court, or Chancellor sitting in vacation, or in term time, and to hear and decide upon the application for the prisoner's release, or adopt such course of proceeding as would make its control complete. Chaney, ex parte. 424 3. A cause is not before the Supreme Court, so as to authorize that Court to make an order in respect to it, until the term when the writ of error is returnable. Renfro, by her next friend, Ex parte......... ......490

4. The Supreme Court cannot set aside a supersedeas which has been issued upon the suing out a writ of error and executing a bond, on the ground of defects in the bond; in such case the appropriate remedy should be sought in the primary Court. Ib.

....490

5. After a judgment upon irregular proceedings is reversed, the whole record may be corrected by the judgment of the appellate Court. Sankey's Ex'rs v. Sankey's Distributees.

..........602

:

COURT, CIRCUIT-CONTINUED.

statute only authorizes the motion to be made before the justice of the peace issuing the execution. Evans, use, &c. v. Stevens, et al........517

COURT, COUNTY, COMMISSIONERS OF, &c.

1. The Judge of the County Court has no power to adjudicate upon the tax list, and ascertain the amount of insolvencies for which the tax collector is entitled to a credit, except at the time provided by law, viz: the second Monday in September of the current year, or at the succeeding County Court, if the special Court is not held. Treasurer of Mobile v. Huggins. 440 2. Upon the failure of the County Judge to act, the power conferred upon the Comptroller to make the allowance, may be exercised by the Commissioners' Court, upon the county tax collected during the period, when State taxation was abolished. Ib.....

.....440

3. The County Court has no jurisdiction of an action of trespass quare clau

sum fregit. Elliott v. Hall.

CRIMINAL CASES AND PROCEEDINGS IN.

....508

1. Wherever a person charged with a criminal offence, is put upon his trial, he is, by operation of law committed to the custody of the sheriff, without either a general or special order for that purpose. Hodges v. The State 55 2. The act of 1812 merely furnishes a remedy, by which a fine assessed against a party committed to custody, may be recovered of the sheriff, &c. or their sureties in case of escape; but in addition to this proceeding, the party guilty of a breach of officiel duty, might be indicted, if the facts of the case were such as constituted an offence at common law: consequently, the provisions of the Penal Code, which provide for the punishment of escapes, are merely substitutes for the common law, and do not abrogate the act of 1812. Ib.

...55

3. Notwithstancing the enumerated causes of challenge in the Penal Cude, the Court may, in its discretion reject such as are unfit or improper persons, to sit upon the jury, and may excuse those from serving who, for reasons personal to themselves, ought to be exempt from serving on the jury. So, also, the Court may reject any juror who admits himself open to any of the enumerated challenges for cause, without putting him upon the prisoner. The State v. Marshall, a slave.....

...302

4. The owner of a slave is a competent witness for the State, upon a trial of the slave for a capital offence. Ib......

..302

5. It is competent to prove, on the trial of a colored person for a capital offence, charged in the indictment as a slave, that he admitted himself to be a slave. But where the proof was, that the prisoner had brought to the witness a bill of sale of himself to one E, transferred to the witness by E, which was objected to because the bill of sale was not produced-Held, :

CRIMINAL CASES, AND PROCEEDINGS IN-CONTINUED.

that although this might be considered as an admission by the prisoner, of his status, and that it was not therefore necessary to produce the instrument by which it was evidenced, yet, as the jury may have been misled, and probably acted on the belief that the bill of sale was proof, that the prisoner was, or had been the slave of E, in favorem vitæ, it was proper there should be a new trial. Ib.

.302

6. When a white person is indicted for an assault, with intent to kill and mürder, and the jury by their verdict, find him guilty of an "assault with intent to kill," the legal effect of the verdict is, that the party is guilty of an assault, or assault and battery, as the case may be. The State v. Burns, 313 7. The words inveigle, entice, steal and carry away, in the Penal Code, (Clay's Dig. 419, § 18,) denote offences of precisely the same grade, and may be included in the same count of the indictment; and upon proving either, the State is entitled to a conviction. Mooney v. The State..............328 8. The offence of inveigling, or enticing away a slave, is consummated-when the slave, by promises or persuasion, is induced to quit his master's service, with the intent to escape from bondage as a slave, whether the person so operating on the mind and will of the slave, is, or is not present when the determination to escape is manifested, by the act of leaving the master's service, or whether he is, or is not sufficiently near to aid in the escape, if necessary. Ib. ....328

9. The 40th section of the 8th chapter of the Penal Code, which declares, that no person charged with an offence capitally punished, shall, as a matter of right, be admitted to bail when he is not tried at the term of the Court at which he was first triable, if the failure to try proceeded from the non-attendance of the State's witnesses, " where an affidavit is made, satisfactorily accounting for their absence," does not make it imperative upon this, or any other Court, to admit the accused to bail, because such an affidavit was not made and acted on by the Court in which the indictment is pending: but it is competent for the Judge or Court which directs the prisoner to be brought up on habeas corpus, to allow the affidavit to be made. Chaney, Ex parte.

..424

.425

10. It is allowable for a Judge of the Circuit Court or Chancellor, in vacation to award a writ of habeas corpus, in a capital case, though the accused was by order made in term time, committed to jail. Ib..... 11. The corporate authorities of Mobile are invested with power to enact an ordinance to require the keepers of coffee-houses, taverns, &c. within the city, where wine, &c., are sold by the retail, to obtain a license from the mayor for that purpose; and to impose a fine of fifty dollars for retailing, without first obtaining such license. It is no defence to a proceeding instituted for the recovery of the fine imposed by the ordinance, that the of

CRIMINAL CASES, AND PROCEEDINGS IN-CONTINUED.

fender is liable to an indictment at the instance of the State. The Mayor

&c. of Mobile v. Rouse,..

............515

12. The statutes of this State authorizing Courts to tax prosecutors with costs whenever the prosecution is frivolous or malicious, entends only to misdemeanors, and does not warrant such a taxation in a prosecution for grand larceny. Tuck v. The State.

......664

13. Where an indictment charges a larceny of a bank note and other articles, and there is a variance between the indictment and the proof in respect to the bank note only; the Court cannot, under the 11th section of the 8th chapter of the Penal Code, permit a nolle prosequi to be entered, that another indictment may be preferred, because the accused will not consent to an amendment of the indictment so as correctly to describe the bank .......951

note. The State v. Kreps.......... Constitutional Law, 2.

See Court Supreme, 2.