that, in default thereof, the decree shall operate to vest the
title. Ib. 492.
33. Coming into equity "with clean hands."-The general equitable
principle, "that he who comes into a court of equity must come
with clean hands," must be confined to misconduct in regard to
the matter in litigation, so that it has in some measure affected
the equitable relations between the parties arising out of the
transaction. Foster v. Winchester, 497.
34. When heirs or distributees may enforce lien.-The distributees of
the estate of a deceased vendor may maintain a bill in equity
to enforce the lien for unpaid purchase-money, without admin-
istration on his estate, on averment and proof that he died in-
testate, leaving no outstanding debts, that the note is their
property and in their possession, and that there is no necessity
for administration on his estate; but an additional averment
that complainants are "his only heirs at law," without more,
does not show their right to maintain the bill as distributees.
Hopkins v. Miller, 513.
35. Probate judge seeking discovery as creditor, or "person aggrieved"
by breach of administration bond.-A probate judge, in his official
capacity, is not a "person aggrieved" by the breach of an ad-
ministrator's bond (Code, § 2575); nor can he maintain a bill,
as a creditor, for the discovery and appropriation of assets
fraudulently conveyed (§ 3545), nor can the bill be sustained on
the ground of exonerating his sureties from liability for his
official act in accepting an insufficient bond from the adminis-
trator. Williams v. Stoutz, 516.
36. Declaring absolute conveyance.-A court of equity is inclined to
consider a transaction as a mortgage rather than a conditional
sale, and does not require that the evidence should be so clear
and convincing as when the effort is to have an absolute sale
declared a mortgage, yet a conveyance absolute on its face will
be declared a mortgage, where the evidence clearly shows, as
here, that the transaction originated in a loan of money, that a
continuing debt existed, in the form of notes for the annual
rent, on which payments were made in excess of the amounts
specified, and that the value of the land greatly exceeded the
amount of the debt. Daniels v. Lowery, 519.
37. Partnership dealing in real estate; sale by partner enforced against
partnership.-When a partnership is engaged in the business of
buying and selling real estate on speculation, one of the part-
ners may make a sale in the name of the partnership, and his
bond for title, executed in the firm name, will be specifically
enforced against all the partners. Rovelsky v. Brown & Smith,
38. Conveyance of dower right before assignment.-A conveyance of the
right to dower, before it has been allotted or assigned, is void
and inoperative at law, except when made to the terre-tenant,
in whose favor it operates as a release or relinquishment; but,
when a valuable consideration is paid for it, and there is no
proof of fraud, imposition, or undue advantage, a court of equity
will protect the rights of the alienee, or of persons claiming un-
der him, against a subsequent suit for an allotment of dower;
and the fact that the entire purchase-money has not been paid,
does not defeat the defense. Wilkinson v. Brandon, 530.
39. Devise and bequest to husband as trustee, "to be held, managed and
controlled by him for his comfort and support during life, and for
the comfort, support and education of the children," with power to
"collect, receive and dispose of the rents, income and profits, in such
manner as he may think best in carrying out the purposes of this
trust;" discretionary powers of trustee, and rights of beneficiaries.
Where the testatrix devised and bequeathed all her property
to her husband, "in trust and as trustee, to be held, managed
and controlled by him for his comfort and support during his
life, and for the comfort, support and education of our children,
giving him full and complete power and authority to collect,
receive and dispose of the rents, income and profits, in such
manner as he may think best in carrying out the purposes of
this trust," and power to "improve the real estate, or to invest
or re-invest the same as he may think best for the good of said
estate and the parties interested in the same," with remainder
to the children on his death: held, that the will did not confer
on the trustee an arbitrary or capricious discretion, in the con-
trol and disposition of the rents, income and profits, but a rea-
sonable discretion to be exercised in the interest of the chil-
dren; that a court of equity would take jurisdiction of the trust
at their instance, and would ascertain and appropriate to their
use a reasonable part of the rents, income and profits; and
that it was not necessary to allege or show that the debts
against the estate had been paid, when the bill was filed eight
years after the death of the testatrix, and the rents and profits
received and appropriated by the executor were more than
three times the amount of the debts. McDonald v. Mc Donald, 537.
40. Sufficiency of allegation.-In a bill which seeks the foreclosure of
a mortgage executed by one John B. C., an averment that,
prior to the execution of the mortgage, his sister, Mary C.,
"executed a deed to the said John B., purporting to convey to
him all her right and interest in said lands, and complainant
avers on information and belief, and the advice of counsel, that
said deed so executed by the said Mary C., did convey to the
said John B. all the right, title and interest which she then had
in said lands,"-is a sufficient averment as a fact, that Mary
C. had conveyed by deed her interest in the lands to John B.
(Ex parte Reid, 50 Ala. 439, explained and limited.) Christian
v. Amer. Freehold Land Mortg. Co., 130.
41. Foreign corporation doing business in Alabama, without compliance
with constitutional or statutory provisions.-When a foreign cor-
poration, doing business in Alabama, files a bill in equity to en-
force a contract made here, it should allege a compliance on
its part with the constitutional and statutory provisions requir-
ing a known place of business and an authorized agent in the
State; but the want of such an averment is only a ground of
demurrer, and is waived if not so taken. Ginn v. New Eng.
Mort. Sec. Co., 135.
42. Same; averments of bill, as showing validity of contract.-When a
foreign corporation files a bill to foreclose a mortgage given for
money loaned, averring a compliance with constitutional and
statutory provisions as to a resident agent and known place of
business, it is not necessary that the bill should also allege the
corporation's power to lend money. (Christian v. Amer. F. L.
Mortgage Co., 89 Ala. 198, and Farrior v. N. E. Mortgage Security
Co., 88 Ala. 275, commented on, and the court declared to be
divided as to their correctness on the question of pleading in-
volved.) Nelms v. Edinburg Amer. Land Mortg. Co., 157.
43. Allegations and proof.-The allegations of a bill and the proof
must correspond, and both must be sufficient; neither proof
without appropriate allegations, nor allegations without cor-
responding proof, will entitle a party to relief. Am. Freehold
Land Mortg. Co. v. Sewell, 163.
44. Inconsistent pleadings, not objected to.-Where the original bill,
filed by a foreign corporation, sought to enforce the right un-
der a mortgage given for a loan of money, alleging that the
contract was made in Alabama; and the defendant, by answer
and cross-bill, admitting that the contract was made in Ala-
bama, averred a failure on the part of the corporation to com-
ply with the constitutional and statutory provisions imposing
restrictions on foreign corporations doing business in Alabama;
and an amendment of the bill was then filed, alleging that the
contract was made in New York, but not striking out the
former averment that it was made in Alabama; which amend-
ment the defendant answered without objection, admitting
that the contract was made in New York, and insisting that it
was void for usury under the laws of New York; held, that the
complainant was entitled to relief, the evidence showing that
the contract was made in Alabama, and that the corporation
had complied with constitutional and statutory provisions.
Ib. 163.
45. Exceptions to register's report.-When no exception is made to the
ruling or decision of the register under a reference, objection
to its correctness can not be raised for the first time in this
court. National Com. Bunk v. McDonnell, 387.
46. Issue and return of execution.-The assignee of a judgment
may maintain a bill in equity under the statute, as a creditor
without a lien, without alleging the issue and return of an exe-
cution. Jones r. Smith & Co., 455.
47. Variance between allegations and proof.—Where a mortgagor files
a bill to enjoin a sale under the mortgage by an assignee, alleg-
ing usury in the mortgage debt, and payment to the mortgagee
after deducting the usurious interest, he can not have a de-
cree on proof showing that the original debt was extinguished
by the transaction by which the assignee acquired the mort-
gage, having advanced to him the money with which he paid
the debt, and afterwards procured an assignment of the mort-
gage.-Morris r. Alston, 502.
48. Parol agreement for substitution of mortgage debts.—In a suit be-
tween the mortgagor and an assignee of the mortgage, who at-
tempts to foreclose by sale under the power, the latter can not
set up a parol agreement between them, at the time he ad-
vanced the money with which the debt to the mortgagee was
paid, that the mortgage should stand as security for the money
so advanced; especially when the conduct of the parties, at the
time and afterwards, shows a different understanding. Ib. 502.
49. Bill for discovery; necessary allegations.-A bill for discovery by a
creditor (Code, § 3545), must allege that the debtor has not
visible means subject to legal process, of value sufficient to pay
the demand, and that he has assets which are liable for his
debts, but which, by reason of concealment, hiding out, or some-
thing of that nature, can not be reached by ordinary legal pro-
Williams v. Stoutz, 516.
50. Cross-bill; when relief may be granted, though original bill be dis-
missed. When the original bill is filed by a transferree of stock
in a private corporation, against the corporation and an attach-
ing creditor of the transferror, seeking to compel a transfer of
the stock on the books of the corporation, and the issue of new
certificates to himself; if the complainant fails to make out his
case, and his bill is dismissed, the attaching creditor may never-
theless have a decree under a cross-bill, requiring a transfer of
the stock to himself on the books of the corporation. Abels v.
1. Charge as to malice.-Under an indictment against T., S. and
another, for an assault with intent to murder two other per-
sons, T. alone being on trial, and the evidence showing that,
during the difficulty, pistols were fired, and stones thrown by
the defendants; a charge requested, instructing the jury that
"malice on the part of S., not indulged in by defendant (T.),
will not authorize a conviction of the defendant of the offense
charged in the indictment," is properly refused. (MCCLELLAN,
J., dissenting). Tanner v. State, 1.
2. Requisites of charges.-The court is not bound to give every charge
asked which can be shown by technical reasoning to be abstactly
correct; it must be guaged and interpreted in the light of the
testimony, and if it is not adapted to the testimony, or ignores
any qualifying tendencies, or has a tendency to mislead the
jury, it may be refused, although it may be faultless in law in a
proper case. Ib. 1.
3. Charge as to self-defense, and duty to retreat.-A charge in these
words, "No person is excused for taking human life, if with
safety to his own person he could have avoided or retired from
the combat;" or in these, "If the defendant could have retreated
without increasing his danger, after the deceased shot him, then
he should have done so, and if he did not do so, but followed
deceased to the room, and fired the fatal shot, then he can not
invoke the doctrine of self-defense," each asserts a correct legal
proposition, and is unobjectionable. Davis v. State, 20.
4. Same.-A charge which claims an acquittal because the deceased
was at fault in firing the first shot, as the defendant advanced
after being warned not to enter his house; or which ignores
prior fault on the part of defendant in going to the house with-
out invitation, when he had reason to believe that objection
would be made to his entrance; or which ignores the duty
and opportunity to retreat after the first shot was fired,
instead of continuing to advance, is each properly refused.
5. Charge as to reasonable doubt, or sufficiency of proof.-A charge
which instructs the jury that they ought to acquit the defend-
ant, "if, after a rational sifting and weighing of the whole evi-
dence, they are not indubitably certain that he is guilty;" or
that "if they can not tell where the truth indubitably lies, this
would furnish a just ground for a reasonable doubt, and they
ought to acquit," is each properly refused. Ross v. State, 28.
6. Charge as to reasonable doubt, and sufficiency of evidence.-A charge
which instructs the jury that "if they believe from the evidence,
beyond a reasonable doubt, that the defendant is guilty as
charged, they must not acquit him because there may be a
mere probability of his innocence, unless such probability be a
reasonable probability from all the evidence," asserts incom-
patible propositions, and is erroneous; but a charge which in-
structs them that the doubt of his guilt "must be actual and
substantial, not mere possibility or speculation," is correct.
Smith v. State, 30.
7. Repeating charge.-A party can not claim, as matter of right, that
a charge already given on request shall be repeated; yet, if it
asserts a correct legal principle, and is not in exactly the same
words, the better practice is to give it as requested. Ib. 30.
8. Assault with intent to murder; shooting at alleged trespasser, under
claim of ownership; charges to jury.-Where the defendant is
charged with an assault to murder one J., a railroad employé,
whom she shot at while loading a car on the railroad track with
dirt from an embankment near her house, and which she
claimed was on her land, a charge which instructs the jury
CHARGE OF COURT TO JURY-Continued.
that, if J. was at the time standing on the railroad track, he
was not a trespasser, and they can not consider the defendant's
alleged ownership of the land, either to reduce the grade of the
offense, or to mitigate the punishment; or, that if she shot at
J. with a gun which was loaded, and he was within the distance
the gun would carry, she can not be acquitted altogether; or,
that the defendant's claim of ownership, and the fact that J.
was a trespasser, would not authorize a verdict of acquittal,
and could only be considered in mitigation of the fine for an
assault and battery-each asserts a correct legal proposition.
Newton v. State, 33.
9. Charge requiring explanation.-A charge which, though confused,
or tending to mislead, asserts a correct legal proposition, and
might be rendered clear by an explanatory charge, is not a
reversible error. Ib. 33.
10. Argumentative or misleading charge; reasonable doubt.—A charge
which instructs the jury that, if a witness for the prosecution
is a paid detective, "they may look to that fact in determining
the weight to be given to his evidence; and if they find he is
contradicted by other credible witnesses, to such an extent the
testimony can not be reconciled, and such interest and con-
tradiction generates in their minds a reasonable doubt as to
the guilt of the defendant, then their verdict should be not
guilty," is properly refused, being argumentative and mislead-
ing. Potter v. State, 37.
11. Same.-A charge which instructs the jury that, if it is reason-
able to suppose that the tracks found near the place where the
offense was committed "were made by some one else than the
defendant, this would authorize them to find that they were not
made by him; and if, after looking at the whole evidence, there
is a reasonable doubt as to the defendant's guilt, they shall ac-
quit," is properly refused, being argumentative, and invading
the province of the jury. Ib. 37.
12. Argumentative charges are properly refused. Chatham v. State, 47.
13. Drunkenness as defense.—On a prosecution for larceny, there being
some evidence that the defendant was drunk when he took the
articles charged to have been stolen, he has a right to have the
jury pass on the credibility and sufficiency of the evidence
showing the extent and degree of his intoxication, as affecting
his mental capacity to form or entertain the specific intent which
is of the essence of the offense; but the jury should be in-
structed that his intoxication is no excuse, unless so excessive
as to render him incapable of consciousness that he is commit-
ting a crime-"incapable of distinguishing between right and
wrong; stupefaction of the reasoning faculty." Ib. 47.
14. Charge as to reasonable doubt, or sufficiency of evidence.—A charge
which instructs the jury that, "if on the whole evidence the
minds of the jury are left in a state of doubt and uncertainty,
so that they can not reasonably say the defendant is guilty,
they should acquit him," asserts a correct proposition, and its
refusal is error. Elmore r, State, 51.
15. Impeaching witness by proof of former contradictory declarations;
charge invading province of jury.-When a witness is shown to
have made former contradictory declarations, whether they are
proved by other witnesses, or admitted by himself on cross-
examination, it is for the jury to decide what weight they will
give this fact; and where the only evidence of the former dec--
larations is the admission of the witness himself on cross-exam-
ination, a charge which instructs the jury that he "stands be-
fore them unimpeached, and they must consider his testimony
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