tained in a mortgage, is a power coupled with an interest, is irrevocable, appendant to the land, and passes by an assignment of the mortgage and secured debt: and a sale under the power by the assignee, no unfairness or oppression being averred, cuts off the equity of redemption.— McGuire v. Van Pelt, 345. 15. Assignment of mortgage and secured debt; substitution of new note. —When a mortgage and the debt secured by it are assigned, the acceptance by the assignee of a new note from the debtor, while it discharges the mortgagee as the assignor of the old note, in the absence of an agreement to the contrary, does not extinguish the debt, nor impair the mortgage as security for it.—Ib. 345. 16. Tender, as pre-requisite to bill to redeem.-In a bill to redeem, filed by the mortgagor or his assignee, an averment of a tender before filing the bill is only material as affecting the question of costs, and is not essential to the equity of the bill. (Explaining and limiting Daughdrill v. Sweeney, 41 Ala. 310.)—Ib. 345. 17. Sale of property by mortgagee, under legal process, for mortgage debt.—A mortgagee cannot deprive the mortgagor of his equity of redemption, by selling the mortgaged property under legal process, in an action at law founded on the mortgage debt. If the property is land, such a sale would convey no title to the purchaser; and if personal property, it might, perhaps, convey the entire interest in the property, freed from the mortgage. Boswell & Woolley v. Carlisle, Jones & Co., 554. 18. Mortgage of homestead.-A mortgage, or other alienation of the homestead, by the husband alone, is absolutely void, and inoperative for any purpose; but, if the wife joins in the conveyance, and it is acknowledged by her and her husband before a proper officer, who certifies the fact of such acknowledgment, in the form prescribed by the statute for other conveyances (Rev. Code, § 1548), such certificate is, in the absence of all statutory provisions on the subject, sufficient proof of "the voluntary signature and assent of the wife;" and it can only be impeached by proof of fraud or imposition practiced towards her a fraudulent combination between the parties interested and the officer taking the acknowledgment.-Miller v. Marx, 322. 19. Same.-When the wife joins with her husband in a mortgage of the homestead, and the certificate of acknowledgment is in the proper form (Rev. Code, § 1548), she cannot avoid its effect by simply showing that she signed it reluctantly, and after great hesitation; especially where it is not shown that the mortgagee used or connived at the employment of any influences to procure her signature. If there was no coercion, and no false or fraudulent representations were made to procure her signature, her act is in law "voluntary," notwithstanding such reluctance and hesitation.--Coleman v. Smith, 369. 20. Same; foreclosure after husband's death.-When the homestead has been aliened by the owner in his lifetime, by a mortgage duly executed and acknowledged by him and his wife, the mortgage may be foreclosed after his death, notwithstanding the minority of his children; and in the event of such foreclosure, the children can claim no part of the proceeds of sale until the mortgage debt is paid.-Weber v. Short, 311. NEW TRIAL. 1. Refusal not revisable.--The granting or refusal of a new trial is matter of discretion with the primary court, and its action is not revisable on error or appeal.-Shelby Iron Company v. Cobb & Lewis, 636. NIGHT-WALKER. See CRIMINAL LAW, 115, 116. NOTARY PUBLIC. 1. Notarial seal; certificate of probate.-When a deed is acknowledged or proved before a notary public (Rev. Code, § § 1083, 1090), it is not necessary that his certificate of acknowledgment or probate should be under his official or notarial seal.—Harrison v. Simons, 510. OVERRULED CASES. 1. Barclay and Wife, v. Plant & Co., 50 Ala. 509, overruled by Daniel v Stewart, 278. 2. Boggs v. The State, 45 Ala. 30, overruled by Smith v. The State, 1. 3. Daughdrill v. Sweeney, 41 Ala. 310, overruled by McGuire v. Van Pelt, 345; and Carlin v. Jones, 624. 4. Dunklin v. Kimball, 50 Ala. 251, overruled by Giovanni v. First National Bank, 305. 5. Giovanni v. First National Bank, 51 Ala. 177, overruled by Giovanni v. First National Bank, 305. 6. Howard v. Jones & Starke, 50 Ala. 67, overruled by Giovanni v. First National Bank, 305. 7. Lyman v. The State, 45 Ala. 72, overruled by Smith v. The State, 1. 8. Mellon v. Andrews, 45 Ala. 453, overruled by McConnaughy v. Baxter, 379. 9. Murrell v. The State, 44 Ala. 367, overruled by Langham v. The State, 114. 10. Norvell v. The State, 50 Ala. 174, overruled by Wooster v. The State, 217. 11. Pizalla v. Campbell, 46 Ala. 35, overruled by Weber v. Short, 311. 12. Pulliam, Wills & Rankin v. Newbury's Adm'r, 41 Ala. 168, explained and limited by Crawford v. Kirksey, 282. 13. Ray v. The State, 50 Ala. 112, overruled by Porter v. The State, 95. 14. Stalls v. The State, 28 Ala. 25, overruled by Smith v. The State, 1. 15. Stanley & Elliott v. The State, 26 Ala. 26, overruled by Smith v. The State, 1 PARTNERSHIP. 1. Claim of exemption in partnership property.—Partners can not, during the existence of the partnership, claim an individual exemption in partnership property, when taken under legal process for partnership debts. (Overruling Howard v. Jones & Starke, 50 Ala. 67; Dunklin v. Kimball, 50 Ala. 251; and Giovanni v. First National Bank, 51 Ala. 177, so far as it follows those cases.)-Giovanni v. First National Bank, 305. PAYMENT. 1. Application of partial payment.-When partial payments are made on a debt past due (Rev. Code, § 1830), they should be applied first to the extinguishment of the accrued interest, and only the residue be applied to the principal.-Coleman v. Smith, 369. 2. Payment to executor, in Confederate currency, for purchase-money of land. — Where lands were sold on credit in July, 1861, and the purchaser paid the several notes, as they fell due during the war, to the vendor's executor, in good faith, in Confederate currency, the debt was thereby extinguished; and in the absence of fraud or collusion between the purchaser and the executor, the persons interested in the vendor's estate, whether as heirs, devisees, or creditors, can not assert a vendor's lien on the land.-McQueen v. McQueen, 433. PLEADING AND PRACTICE. 1. Sufficiency of plea in bar, negativing fault and negligence.-In an action against a common carrier for the non-delivery of goods, a plea in bar, averring that the steamboat, on which the goods were shipped, "was accidentally destroyed by fire, without the fault or negligence of this defendant," sufficiently negatives negligence on the part of the defendant's agents and servants.—Grey's Executor v. Mobile Tr. Company, 387. 2. Plea of tender.-A plea of tender before suit brought, accompanied with the payment of money into court, must include interest up to the time of the payment, or show a legal reason why it should not be included. Chapman v. Lee's Adm'r, 616. 3. Statute of limitations of three years; how pleaded.—A plea setting up the statute of limitations of three years, but not averring that the claim sued on is an open account, is bad on demurrer; but, if not demurred to, and construed on error as if well pleaded, the appellate court cannot impute error to a ruling of the primary court, holding the statute no bar to the claim sued on, when the record does not show that any term of the contract was left unsettled by the parties.- Wright v. Preston, 570. POWERS. See EXECUTORS AND ADMINISTRATORS, 2, 3. PUBLIC LANDS. 1. Ancient French claim of Nicholas Baudin's heirs to Mon Louis Island. The cession by the French government of Louisiana, in 1710-13, to Nicholas Baudin, of the land therein described as "The land of Grosse Point, to begin at and run along the course of Fowl river, till it reaches the Oysters (Oyster Pass) which separate Massacre Island from the main land," is a complete grant, conveying to the said Baudin the fee simple to the entire tract of land now known as Mon Louis Island; is protected, as a valid and complete title, by the third article of the treaty of 1803 between the United States and France; and having been recognized and confirmed by act of congress in 1829, as recommended in the report of the commissioners (5 Amer. State Papers, 130), though with a reservation in favor of the prior conflicting claims of other persons, is superior to the claim of Henry Francois, to whom, as an actual settler prior to 1819, a portion of the land was confirmed, as a donation, by act of congress in 1822, and a patent issued to his heirs in 1870, containing a similar reservation.-Trenier v. Stewart, 458. 2. Title to Fort Charlotte lots in Mobile.-The lots occupying the site of old Fort Charlotte in Mobile, surveyed and sold under the authority of au act of congress approved on 20th April, 1818, as shown by the map and plat returned to the general land-office by the surveyor-general, though fronting on the Mobile river, did not extend to the river, but were separated from it by a narrow strip of land; and neither this strip of land, nor the adjacent land in front, since reclaimed from the water, passed to a grantee by a patent from the United States for the lots.-Boulo v. N. 0. Railroad Co., 480. 3. Title to shore on tide-waters.-The title to the shore, on all tide-water streams, resides in the State, for the benefit of the public; and its use by the public, for the purposes of commerce, is not only permissible, but in accordance with the trust annexed to the title.-Ib. 480. RECEIVERS. See CHANCERY, 14, 15. REDEMPTION OF REAL ESTATE. 1. Tender, as pre-requisite to bill to redeem.—In a bill to redeem, filed by the mortgagor or his assignee, an averment of a tender before filing the bill is only material as affecting the question of costs, and is not essential to the equity of the bill. (Explaining and limiting Daughdrill v. Sweeney, 41 Ala. 310.)~ McGuire v. Van Pelt, 345. 2. Same. In the averment of a tender, or excuse for not making a tender in person, the court holds the bill in this case sufficient, under the rule declared in Spoor v. Phillips, 27 Ala. 193; and declares Daughdrill v. Sweeney, 41 Ala. 310, which held that the tender must be accompanied with the payment of the money into court, overruled by McGuire v. Van Pelt, at present term.-Carlin v. Jones, 624. 3. Who may redeem under statute.—As to the statutory right to redeem lands sold under a power in a mortgage (Rev. Code, §§ 2509-21), by a purchaser from the mortgagor after the sale, the court declined to consider the question, but cited several cases from the Tennessee and Massachusetts Reports, saying, "These decisions place a liberal construction on statutes which allow redemption of lands sold under execution, mortgages," &c.--Ib. 624. 4. Rents and profits; taxes; interest on money tendered.-If the mortgagor, or his assignee, makes a proper tender, and it is refused, he will be entitled to recover rents from the time of the tender and refusal, although he does not pay the money into court on the filing of his bill; and the defendants will be allowed a credit for all taxes paid, with interest thereon, while the complainant will be charged with interest on the money tendered. - I b. 624. 5. Parties to suit for redemption; who may intervene.-A subsequent incumbrancer, or sub-purchaser from the mortgagee, whose rights accrue pending a suit for redemption by a purchaser from the mortgagor, may intervene by petition, and be made a party to the suit.-Ib. 624. RESISTING PROCESS. See CRIMINAL LAW, 122, 123. RETAILING SPIRITUOUS LIQUORS. See CRIMINAL LAW, 124, 140. REVISED CODE. 1. § 1. Meaning of signature.-Harrison v. Simons, 510. 2. § 28-9. Apportionment of county debt.-Chambers County v. Lee County, 3. 534. §909. Presentment of claims against county.-Chambers County v. Lee County, 534; Marengo County v. Coleman, 605. 4. §§ 1083, 1090. Official acts of notary public.-Harrison v. Simons, 510. 5. § 1535, 1544, 1549-50. Execution and attestation of conveyances.-Harrison v. Simons, 510. 6. § 1548. 7. 8. Certificate of probate of deed.-Miller v. Marx, 322; Coleman v. § 1609. Execution of power of sale by surviving or sole acting executor. 1830. Application of partial payments.-Coleman v. Smith, 369. 9. § 1858-60. Advances to make crops.-Boswell & Woolley v. Carlisle, Jones & Co., 554. 10. § 1862. Statute of frauds, requiring contracts to be in writing.-Iughes v. Hatchett & Trimble, 539; Boswell & Woolley v. Carlisle, Jones & Co., 554. 11. 1867. General assignment for creditors.-Crawford v. Kirksey, 282. 1898. Advancements to children.--Coleman v. Smith, 369. 12. 13. 2061. Exemptions in favor of decedent's family.-Miller v. Marx, 322. 14. §§ 2367, 2397. Custody of children on divorce or separation.-Anony mous, 428. 15. § 2374. Contracts between husband and wife relating to her separate estate. -Coleman v. Smith, 369. 16. §§ 2376-7. 17. § 2333. 18. § 2426. Liability of wife's separate estate for necessaries.-Janney v. Infant's marriage.-Beggs v. The State, 108; Cooley v. State, 162. The Guardian's duty in lending out money.-Lee v. Lee, 590. 19. § 2509-21. Redemption of real estate.-Carlin v. Jones, 624. 2687. When officer may justify under process.-Murphy v. The State, 252. 2698. Proof of private statute.-Perry v. N. O. Railroad Co., 413. 2756. Charges requested.-Jacobson v. The State, 151. 20. 21. 22. 23. §§ 2901, 2908. Statute of limitations.-James v. James, 525. 2961. Attachment for rent.-Campbell v. Hatchett, 548. 24. 25. 3148. Submission of pending cause to arbitration.--Shelby Iron Company v. Cobb & Lewis, 636. 26. § 3350. General demurrer.-McGuire v. Van Pelt, 344. 27. §§ 3479-80. Execution on decree of foreclosure.-Hughes v. Hatchett & Trimble, 539. 28. §§ 3489-90. Special supersedeas bond.-Hughes v. Hatchett & Trimble, 539. 29. § 3500. Damages on affirmance.- Wright v. Preston, 570; Crawford v. Kirksey, 282; Hughes v. Hatchett & Trimble, 539. 31. 30. § 3539 G. Exemptions in favor of decedent's family.-Miller v. Marx, 322. §3555. Carrying concealed weapons.-Stroud v. The State, 77. 32.3580. Resisting execution of process.-Murphy v. The State, 252. 33. 3593. Extortion.-Collier v. The State, 125. 34. 3598. Living in adultery.-Buchanan v. The State, 154. 35. 3599. Bigamy.-Beggs v. The State, 108; Cooley v. The State, 162. 36. § 3618. Retailing spirituous liquors without license.-Smith v. The State, 1; Raisler v. The State, 64; Lawson v. The State, 118. Selling liquor to minor.-Weed v. The State, 13; Adler v. The State, 16. 37. § 3619. 38. § 3620. Playing cards, &c. in public place.—Wetmore v. The State, 198. 39. § 3622. Betting at cards.-Jacobson v. The State, 151; Mitchell v. The State, 160. REVISED CODE-Continued. 40. § 3625. Gaming on premises of licensed retailer.-Campbell v. The 41. State, 89. §§ 3635-6. Forgery.-Gooden v. The State, 178. 42. §§ 3661-2. Rape, and carnal knowledge of female under ten years of age. Vasser v. The State, 264. 43. § 3687. Maltreatment of county convict.-Sanders v. The State, 42, 183. 44. § 3691. Enticing or employing servant under written contract with another.-Langham v. The State, 114. 48. § 3707. 49. § 3714. 50. § 3760. 51. § 3948. 52. §§ 3951, 53. § 3982. 54. § 4061. 55. § 4087. 56. § 4111. 57. § 4112. 58. § 4113. 59. § 4123. 60. § 4125. 61. § 4143. Burglary.-Brown v. The State, 123; Matthers v. The State, 65; Removing mortgaged property.-Nixon v. The State, 120. Larceny from house.-Smith v. The State, 59. Obtaining money, &c., by false pretense.-Colly v. The State, 85. 3954. Limitation of prosecution.-Ross v. The State, 177; Hurt Warrant of arrest.-Murphy v. The State, 252. Hard labor on non-payment of costs.-Ex parte McKivett, 236; Sufficiency of indictment in description of offense.-Sanders v. 259. Averment of defendant's name in indictment.-Lee v. The State, Joinder of offenses in indictment.- Wooster v. The State, 217; Amendment of indictment.-Ross v. The State, 177. 62. § 4146. New indictment.-McIntyre v. The State, 167. 63. §§ 4171, 4173. Special jury in capital case.-Floyd v. The State, 61; Gray 64. § 4180. 65. § 5187. 66. § 4199. 67. § 4201. v. The State, 86; Lee v. The State, 259. Challenge of juror for cause.-Smith v. The State, 1. Objection to indictment on account of defects in grand jury.— Conviction of less offense than charged.-Sanders v. The State, 42; Discharge of jury on account of sickness of juror.-Mixon v. The 68. §§ 4209-11. Certified transcript on change of venue.- Childs v. The State, 25. 69. § 4242. Application for bail, on bill of exceptions.—Ex parte Weaver, 250; 70. Ex parte Allen, 258. § 4258. Judgment against bail.-Cain v. The State, 170. 71. § 4305. Suspension of judgment on bond for appeal.-Williams v. State, 71. 72. §§ 4314-16. Judgment on appeal.-Burch v. The State, 136. SCIRE FACIAS. See BAIL. The |