ERROR AND APPEAL-CONTINUED.

7. Error without injury in admission and subsequent withdrawal of evidence.— The erroneous admission of evidence, which is afterwards withdrawn from the jury, and which they are expressly instructed by the court not to regard or any purpose, is, at most, error without injury.-Williams v. Ivey.

.... 220

8. Sume, in admission of redundant evidence.—Where the probate of a will is shown by a transcript from the records of the proper court, duly certified, other parts of the transcript, containing entries relating to the testator's estate, which can have no other effect than to strengthen the conclusion that the will was admitted to probate, are merely redundaut evidence; and their admission as evidence is, at most, error without injury.-Jemison v. Smith....

..... 140

9. Sume, in sustaining demurrer to special plea.-The sustaining of a demurrer to a special plea, if erroneous, is not available to the defendant, when the record shows that he had the full benefit of the same defense under the general issue.-Kannady v. Lambert..

814 10 Same, in refusal of charge asked.-Since the statute (Code, § 2855) im- . peratively requires, that a charge to the jury, if correct and not abstract, must be given in the language in which it is asked, the doctrine of error without injury cannot be applied to the refusal of such charge, although the legal proposition embraced in it was substantially enunciated in another charge given by the court.-Polly v. McCall......... 246 11. Presumption in favor of ruling of primary court.—In a probate case, where the correctness of the ruling of the primary court depends on the proof, and the record does not purport to set out all the evidence on which the probate judge acted, the appellate court will presumie that his decision was justified by the evidence.-Ward v. Camerou's Adm'rs.......

12. Sime-When a charge is requested, which, on the facts hypothetically stated, asserts a correct legal proposition; but those facts might be met and avoided by proof of other facts, which would render the charge erroneous,―f the bill of exceptions does not purport to set out all the evidence, the appellate court will presume, in favor of the ruling of the primary court, that such additional facts were proved.-McLemore v. . Nuckolls.....

622

..... 591

13. Sume-So, the appellate will presume that a charge given was not abstract, when the bill o. exceptions does not purport to set out all the evidence...

14. Sume.-When no pleas appear in the record, the appellate court will presume that proper pleas were filed to let in the evidence which the primary court admitted.-Wynne v. Whisenant..........

591

... 282

15. Same-In a criminal case, the appellate court will not presume that the prisoner was tried and sentenced without an indictment, simply because the several minute-entries, showing the trial, conviction and sentence, are copied into the transcript before the indictment.-Cawley v. The State....

16. Presumption of injury from error.-If evidence is erroneously excluded by the primary court, on a single specified ground, the appellate court will presume injury from the error, although it appears that the evi

59

ERROR AND APPEAL-CONTINUED.

dence was, prima facie, inadmissible on another ground, which, if the
objection had there been raised, might have been obviated by the intro-
duction of other evidence.-Moseley's Adm'r v. Mastin......

171

17. Same-Under the Code, (§ 2255,) if plaintiff amends his complaint,
after the court has sustained a demurr r to the original, and proce-ds
to trial on the amended complaint, he does not thereby waive his right
to assign as error the judgment on the demurrer, unless the record
shows that, in consequence of the amendment, he sustained no injury ly
that judgment. (Overruling Sheppard v. Shelton, 34 Ala. 652, and lim-
iting Stallings v. Newm in, 26 Ala. 300, to cases commenced before the
Code.)-Williams v. Ivey...
.. 220

18. Damages on affirmance.On the affirmance of a judgment which has
been superseded (Code, § 3032,) the ten per cent. damages should be
computed on the amount of the original judgment, and not on that sum
with the interest thereon up to the time of t e affirmance.-Lawrence
v. Jones.....

ESTATES OF DECEDENTS.

617

1. Advancements -Money, or property, given by a parent to a child, will
be presumed to have been intended as an advancement, unless such pre-
sumption is repelled by the nature of the gift, or by other evidence
showing that it was intended as an absolute gift. To show that an ab-
solute gift, and not a mere advancement, was intended, the contempora- i
neous declarations of the parent are admissible evidence for the child;
"and when the question arises between distributees, there is much rea-
son, as well as authority, in support of the proposition," that the subse-
quent declarations of the parent, expressive of his intention in parting
with the property, are admissible evidence for the same purpose. But
in this case, conceding the admissibility of such subsequent declarations,
and considering them in connection with the other facts proved, they are
not sufficient to show that the primary court erred in deciding that the
property was intended as an advancement.-Autrey v. Autrey's Adm'r, 542
2. Same, in case of partial intestacy.--In cases of partial intest cy, advance-
ments are not required to be brought into hotchpot, (Code, §§ 1582,
1596,) to entitle the parties to share in the property undisposed of by
the will.-Greene's Executor v. Speer and Wife.............

450

3. Widow's quarantine. A plantation, about five miles distant from
the town in which the husband resided at the time of his death, from
which he drew his supplies and derived his entire income, aud the super-
intendence of which constituted his only business, is not so connected
with his residence, (Code, § 1359,) as to entitle the widow to the posses-
sion or rents thereof, until her dower is assigned. (A. J. WALKER, C. J.,
dissenting.)-McAllister v. McAllister.....
366
4. Statute of non-claim.-A claim against the estate of a deceased person is
barred, unless presented to the personal representative within eighteen,
months after the grant of letters testamentary or of administration,.
(Code, § 1883,) notwithstanding the failure of the personal representative
to give notice to creditors, as required by the statute.-Bank of Mont-
gomery v. Plannett's Adm'r...

16

ESTATES OF DECEDENTS--CONTINUED.

5. Validity of order of sale by probate court, for division.—An order of the
probate court, for the sale of a decedent's lands for the purpose of divi-
sion among the heirs, obtained by an administrator de bonis non legally
appointed, is not rendered void by the prior descent of the land to the
heirs, the payment of all the debts, and the distribution of the personalty
by the administrator in chief; although those facts might constitute
good grounds of objection, in the probate court, to the granting of the
order.—Watson v. Collins' Adm'r......................

....... 515

6. Distribution of extate by consent.—Where the slaves belonging to a de ce-
dent's estate remain undivided, after the payment of his debts and the
final settlement of the administration on his estate, and are afterwards
divided by consent among the several distributees, who execute recip-
rocal conveyances to each other for their respective shares ;-the hus-
band of one of the female distributees thereby acquires a complete equi
table title to the slaves allotted to him and his wife; and, on his death,
while thus in possession of them, his personal representative is charge-
able with them as belonging to his estate.-Anderson's Executor v. An-
derson's Heirs.....

See, also, EXECUTORS AND ADMINISTRATORS.

ESTOPPEL.

612

1. By bond. The sureties on a bond, which recites that the prin-
cipal obligor has been duly elected intendant of the town of C., and
is thereby made ex officio a justice of the peace," are estopped, when
sued on the bond for the default of their principal, from alleging that
he was not a justice of the peace; it appearing that he was at least að
justice de facto, and received much business as a justice on the faith and
credit of the bond.-Williamson and McArthur v. Woolf............. 296
2. Same, and en pais.-A delivery bond, executed by the defendant in det-
inue, which does not recite any fact showing that the defendant had
possession of the property at the service of the writ, does not estop him
from showing, in defense of the action, that he did not have the posses-
sion of the property at that time; nor does the giving of such bond
operate an estoppel en pais against him.- (Explaining and limiting Wallis
v. Long, 16 Ala. 738.)-Miller v. Hampton.......

357
3. By deed. At common law, in the absence of an actual delivery of the
property itself, a gift could only be consummated by deed, or other in-
strument under seal; not because the delivery of the deed was held a
symbolical delivery of the property, but on the principle of estoppel.—
Connor v. Trawick's Adm'r.....

4. By judgment. On the execution of a writ of inquiry, after judgment by
default, in trespass for taking personal property, the judgment by default
estops the defendant from showing, even in mitigation of damages, that
the plaintiff had not such a tit'e as would authorize a recovery; yet he
may show, in mitigation, that the plaintiff was not the owner of the
property, as that fact is not necessarily inconsistent with the plaintiffs
right to recover.-Sterrett's Executor v. Kaster.....

258

404

ESTOPPEL-CONTINUED.

5. Conclusiveness of admission undeath-When a bill in chancery, under
oath, is offered in evidence against the complainant in a subsequent suit,
he is not thereby estopped from denying its averments.-McLemore v.
Nuckolls.

EVIDENCE.

591

I. ADMISSIBILITY AND RELEVANCY.

1. Relevancy of evidence on question of negligence by common carrier.—In an
action against a common carrier, to recover damages for injuries to
goods shipped by sea, (or where the same matter is relied on as a de-
fense against an action by him to recover freight,) the fact that similar
goods, shipped by sea to the port of delivery, usually arrived safe and
uninjured, would be admissible evidence against him, as a circumstance
tending to show that any damage by breakage was the result of negli-
gence on his part; and e converso, the fact that such goods usually ar-
rived in a damaged and broken condition, is admissible evidence for
him, as tending to show that the breakage was not the result of negli
gence on his part. (Explaining and I miting,first head-note in O'Grady
v. Julian, 34 Ala, 88.)-Steele & Burgess v. Townsend.....

2. Same, on question of care or negligence in treatment of slave —One of the
questions in the case being, whether the purchaser was guilty of negli-
gence in his treatment of a female slave, during the time she remained
in his possession, b fore he tendered her back to the vendor; and it
having been proved that the slave was badly burned, while in his pos-
session, by the accidental exp'osion of a fluid lamp, whereby her value
was greatly impaired, and was afterwards sent by him, by the public
stage, to the place of the vendor's residence,-it is permissible for him
to prove that the slave violated his orders in using the lamp, and that
he was advised by a physician, whom he consulted, that he might send
her by the stage with safety.-Stone & Best v. Watson....
3. Proof of value of slave.—In ascertaining the purchaser's damages, re-
sulting from a breach of warranty of the soundness of a slave, proof of
the value of the slave a few months after the sale is admissible, as shed-
ding light on the question of value at the time of the sale..

.....

4 Same. A slave being described in the bill of sale as a seamstress, it
is permissible for the purchaser, in an action to recover damages on ac-
count of her unsoundness, to prove what would have been her value, if
sound, "taking into consideration the fact that she was a good, No. 1
seamstress",

5. Same. In proving the value of a slave, a witness cannot be allowed to
state what her value would be, "if she possessed the qualities which she
was reputed to possess."..

6. Proof of medical bill, as part of damages.—It is permissible for
the purchaser, in an action to recover damages on account, of the un-
soundness of a slave, to prove at whose request a physician was called
in to the slave, and as whose property the physician attended her; but
the physician's account for services rendered to the slave, which was
paid by the purchaser, is not admissible evidence for him, until it has
been proved that the services were rendered as charged, for the treat-

201

236

236

236

236

EVIDENCE-CONTINUED.

nent of a disease existing at the time of the sale, and that the charges were correct..

7. Relevancy of evidence in trespa88.-Ia trespass for an assault and battery, and for false imprisonment, evidence of an arrest and imprisonment without legal process, or under legal process which is void on its face, is relevant and admissible; secus, as to evidence of an arrest and imprisonment under process which is not void on its face.-Williams v. . Ivey.....

236

... 198

8. Some, in mitigatim of damages-On the execution of a writ of inquiry, after judg» ent by default, in trespass for taking personal property, the fact that the property was, at and before the levy of the exe. cution, which constituted the trespass complained of, in the possession of the defendant in execution, is competent evidence for the defendant, in mitigation of damages, as tending to show that he acted in good faith in having the levy made.-Sterrett's Executor v. Kast r..... ..... 404 9. Same in action for breach of promise to marry; seduction.-If evidence of seduction can be received, in any case, to aggravate the damages in an action for a breach of promise to marry, it is only where the seduction fullows the promise, and is effected by means of it: seduction prior to the promise is not admissible evidence.- Espy v. Joues..... 10. Sime; plaintiff's want of chastity.-Acts of fornication, committed by the plaintiff prior to the defendant's promise to marry her, and in which the defendant himself participated, are not admissible evidence for him in mitigation of the damages.

11. Sume, in action for overflowing land. In an action to recover damages for overflowing lands, a recovery cannot be had for injuries accruing after the commencement of the suit; but evidence of such injuries is admissible, with a view of affording information to the jury of the consequences of the diversion under similar circumstances before suit brought. Polly v. McCall,

451

454.

246

12. Relevancy of evidence, in trover, showing time of slave's death —In trover 'by the wife, after the death of the husband, for the conversion of a slave belonging to her statutory separate estate, which went into the defendant's possession under a mortgage executed by the husband with-out authority of law, and was accidentally drowned while thus in his. possession, it is wholly immaterial whether the death of the slave occurred before or after the death of the husband; consequently, the exclusion of evidence bearing on that question is not a matter available on eror.-Patterson v. Flanagan... 427

13. Proof of demand by judgment and receipt.—In an action by the bailee of goods, against the owners of a steamboat, for negligence, the fact in issue being, whether the owners of the goods had demanded of plaintiff compensation for the damage sustained; the record of a judgment recovered by them against him, for the injury to their goods, and their receipt for the money paid by him in satisfaction of their demand, a'e competent evidence to prove the demand.-McGill v. Monette............. 14. Redundant evidence.-Where the probate of a will is shown by a transcript from the records of the proper court, duly certified, other parts of the transcript, containing entries relating to the testator's estate,

295