[Lasseter v. Deas.] gives the appellate court prima facie jurisdiction, and, though the case may be subsequently dismissed for want of jurisdiction, orders made by the court when the case is pending that are necessary to a submission of the case, or the determination of the question presented for the court's action, or that necessarily follow its order, as a judgment for costs, are within the jurisdiction of the court for the purposes for which the appeal is entertained, and therefore valid.-Carey v. McDougald, 27 Ala. 616. The case having been revived within the period by a valid order of the Court of Appeals, the trial court was not in error in its rulings with respect to this matter. The complaint in the suit as originally brought contained counts in trover, trespass, and case. On the second trial of the case, after the suit had been revived in the name of Mariah P. Deas, as administratrix of the estate of the original plaintiff, J. C. Deas, the plaintiff filed an amended complaint by adding the common counts. Thereupon the defendant, in answer to the claim, set up under the common counts filed pleas of set-off based on a counterclaim due from the original plaintiff to the defendant on a demand secured by a mortgage, in which plaintiff waived his exemptions as to personal property. The plaintiff filed a special replication to the defendant's pleas of set-off, averring in effect that the original plaintiff, J. C. Deas, did not own as much as $1,000 worth of personal property at the time of bringing the suit or at the time of his death, and alleging that therefore the claim upon which plaintiff's suit was based was exempt from the payment of the claim which defendant sought to set off in his said pleas. The court overruled the defendant's demurrers to the special replication undertaking to set up an exemption as an answer or bar to the defendant's claim pleaded as a set-off to plaintiff's demand. [Lasseter v. Deas.] As it is specifically averred that the defendant's demand, which he offered to set off, was secured by an instrument in which the plaintiff waived his exemptions as to personal property as against the payment of debts, we cannot think the exemption sought to be claimed and pleaded in the special replication is that which might be secured to the original plaintiff as a resident of the state under the provisions of section 4164 of the Code, and it is persuasive of this conclusion that the court overruled demurrers to the replication, for we assume that the court would not have overruled the demurrers to the special replication in the very teeth of the language of the pleadings. It would seem, then, that the pleadings, although not scientifically drawn, were framed and considered on the theory that the plaintiff, as administratrix, in this suit could set up in the special replication the statutory exemption as to personal property belonging to a decedent at the time of his death in favor of a widow as against the payment of debts.Code, § 4200. It nowhere even appears that the administratrix, in whose name the action was revived, is the widow of J. C. Deas, who, as plaintiff, originally brought the suit, and the complaint before the court could not possibly bring the case within the influence of such an exemption as is provided by section 4200 of the Code. Mariah P. Deas, in whose representative capacity as administratrix the suit was revived, irrespective of the fact that she is the administratrix of the estate of J. C. Deas, could maintain a personal action as the widow of said J. C. Deas (if, in fact, she is his widow) to recover the exempt property or money due her deceased husband, if it did not exceed $1,000 in value (Gamble v. Kellum, 97 Ala. 677, 12 South. 82; Jackson v. Wilson, 117 Ala. 432, 23 South. 521); but this is not such an action. This is a suit originally brought by J. C. Deas, individually, as plaintiff, [Lasseter v. Deas.] declaring on a cause of action accruing to him individually, in which can be determined only the respective individual rights involved in that suit between him and the defendant, and, the plaintiff having died pending the suit, that suit and the issues involved in it only are revived and prosecuted in the name of his personal representative, Mariah P. Deas, as the administratrix of his estate.-Code, § 2499. After the order of revivor, Mariah P. Deas, as administratrix, became, in legal effect, the party plaintiff in the action, and occupied the same position in that capacity as if she had originally commenced it. Jenkins v. Bramlett, 131 Ala. 598, 32 South. 575; Pearson v. King, 99 Ala. 125, 10 South. 919. The amendments to the pleading filed after the case had been revived in the name of Mariah P. Deas, as administratrix, were within the lis pendens of the original pleadings, and related back to the commencement of the suit at a time when J. C. Deas was the party plaintiff (Code, § 5366; T. C. I. Co. v. Barker, 6 Ala. App. 413, 60 South. 486), and the issue was as to the individual rights and liabilities of the respective parties involved in the subject-matter of that suit, in which the exemptions of the property of the deceased husband from the payment of debts in favor of the widow could not in any way enter. Even if the action had been a suit brought by the widow, as such, to recover the amount due her deceased husband by the defendant, in determining the defendant's liability and the amount of his indebtedness to the deceased husband, the defendant would be entitled to plead and prove any legal set-off he might have to the demand sued upon, without regard to any exemption existing in favor of the widow to property belonging to her deceased husband at the time of his death, for her right of exemption could only pertain to the amount actually due from the defendant to her husband at the [Lasseter v. Deas.] time of his death, and, in determining what that amount is, the defendant is entitled, when properly pleaded, to have taken into consideration any set-off to the demand sued upon that exists in his favor. On the other hand, if we consider the replication as endeavoring to claim an exemption in favor of the original plaintiff (Code, § 4164), it is patently bad, for it is alleged in the plea it purports to answer that the demand sought to be set off against the plaintiff's claim was one as to the payment of which the deceased has waived his exemptions as to personal property. The replication, in any light in which it may be viewed as to the exemption sought to be claimed, was manifestly bad, and not susceptible of amendment except by a total departure. We think the demurrers sufficiently pointed out and called this to the attention of the court, and that the court was in error in overruling the demurrers. The third count was not subject to the demurrers interposed to it, and the demurrers were properly overruled. No objection or exception is shown to have been made or reserved to the finding of the court (sitting without a jury in the trial of the case) on the evidence (Williams v. W. I. Co., 106 Ala. 254, 17 South. 517; Alosi v. B. W. W. Co., 1 Ala. App. 630, 55 South. 1029), nor will the finding of the trial court upon conflicting evidence be reversed on appeal, where it necessitates a consideraton by the appellate court of the weight of the evidence and credibilty of the witness.-Ala. S. & I. Co. v. Kratzer I. C. Co., 2 Ala. App. 604, 56 South. 767; Davidson v. State, 5 Ala. App. 106, 59 South. 687. No other errors among those assigned and insisted upon are available to appellant in the condition of the transcript, which fails to show proper exceptions reserved in the trial court to authorize a review here of other rulings complained of. For the error pointed out, the judgment of the lower court must be reversed. Reversed and remanded. [Duffin, et al. v. Summerville.] Duffin, et al. v. Summerville. Action for Trespass Against Justice of Peace and His Official Bond. (Decided December 4, 1913. Rehearing denied December 18, 1913. 63 South. 816.) 1. Justice of the Peace; Acts Judicial and Ministerial.-The acts of a justice of the peace are both judicial and ministerial; those permitting of the exercise of his legal discretion or requiring decision of questions of law being judicial while those of a clerical nature such as the issue of process, etc., are ministerial. 2. Same; Liability for Official Acts.-Justices of the peace are liable to the party aggrieved for the non-feasance, misfeasance or mal-feasance in the performance of ministerial duties, as are other ministerial officers. 3. Same.-Justices of the peace are exempt from civil liability for their judicial acts if done or performed in a case where they have jurisdiction of both the subject matter and the person, however erroneous they may be, and however malicious or corrupt may be the motive prompting them. 4. Same; Judicial Acts.-An act of the justice of the peace, although it involves the exercise of judgment and discretion, is not a judicial act, and the justice is not immune from suits by individuals for damages resulting therefrom, unless the act is done or performed in a matter wherein he had jurisdiction. 5. Same. Where the want of jurisdiction of a justice of peace over a particular case is caused by matters of fact, to make him liable for acts done without jurisdiction, it must appear that such facts were known to him or ought to have been known by him; the justice not being liable for mere error of judgment in determining in favor of his jurisdiction the existence of a matter of fact upon which the law makes that jurisdiction to depend, unless he knew or should have known that the fact did not exist. 6. Same.-Ignorance of law on the part of a justice of the peace does not relieve him from liability for acts done in a suit over which, by law, he has no jurisdiction. 7. Same. Where a justice of the peace enters judgment in reliance on the return of an officer showing service of process upon a defendant, he is not liable, though the process was not in fact served, in the absence of notice or knowledge of lack of service. 8. Same. A justice of the peace is not liable for entering judgment against the defendant upon whom process has not been served where he relies on the sworn testimony of a person who appears for such defendant, and professes to be his agent and to have authority, although he has no such authority, unless the justice knows or has reason to believe that such person has no authority; however, |