3. By surety, for money paid.-When a surety pays a demand for which
he is bound jointly with his principal, which is purely equitable,
involving the settlement of complicated accounts, and on which the
creditor could not have maintained an action at law, his claim for
reimbursement by his principal is purely a legal demand, notwith-
standing the character of the evidence which may be necessary to
sustain it; and his only remedy, in the absence of special circum-
stances, is an action for money paid. Martin v. Ellerbe's Adm'r,
326.
4. On illlegal contract; when recovery may be had.-When the plaintiff
can establish his cause of action, without proving or relying on an
illegal agreement in any way connected with it, he can not be de-
feated by a plea setting up the illegality of the agreement. John-
son & Seats v. Smith's Adm'r, 108.
5. On promissory note payable to administrator, and signed by him as
surety or maker.-An administrator can not maintain an action on
a note payable to himself in his representative character, and
signed by him as surety for the principal maker; yet the court "is
not prepared to say that his successor in the administration
could not maintain an action on it; and whether such action be main-
tainable or not, an attorney is not guilty of gross ignorance or
gross negligence in bringing it. Moore v. Randolph's Adm'r, 575.
6. When recovery may be had under common counts, for wages under
special contract.-When a person has performed services under a
special contract of employment, and has been discharged, without
fault on his part, before the expiration of the term, he may re-
cover the stipulated wages, after the expiration of the term, under
the common counts. Holloway v. Talbot, 389.
7. For breach of contract of employment; what will defeat or reduce re-
covery.-When an action is brought to recover wages under a spe-
cial contract of employment, plaintiff having been dismissed, with-
out fault, before the expiration of the term, the defendant may de-
feat a recovery by showing that plaintiff, after his dismissal, en-
gaged in other business, thereby negativing the fact that he kept
himself in readiness to perform the contract on his part; or he may
reduce the amount of the recovery, by showing that plaintiff had
obtained after his dismissal, or might by reasonable diligence have
obtained, other employment of the same general nature; but the
other employment must have been of the same general nature, and
the onus of proving it is on the defendant. Ib. 389.
1. Contemporaneous declarations.-When money or property is given by
a parent to one of his children, it will be presumed to have been
intended as an advancement under the statute (Code §§ 2262–67),
unless that presumption is repelled by the nature of the gift, as
trifling presents, &c.; and what the parent says, at the time of
making the gift, is competent evidence of his intention in making
it. Fennell v. Henry, 484.
2. Giving note for price or value of property; parol evidence in explana-
tion. Where a father delivered slaves to a married daughter, tak-
ing from her a promissory note, bearing interest, for the estimated
value, such note shows a debt, and not an advancement; and pa-
rol evidence can not be received, to show that the the transaction
was intended as an advancement. (STONE, J., dissenting. held
that, as the note of a married woman is not binding as a contract,
the note could only operate as an admission, or acknowledgment,
and was open to parol explanation, when the question of advance
ment vel non arose on the final settlement of the estate.) Ib. 484.
3. Gift of slaves afterwards emancipated.-Slaves having been given by
a father to one of his children, in 1859, as an advancement, their
subsequent emancipation, as the result of the war, did not relieve
the child of accounting for their value as an advancement. Ib. 484.
ADVERSE POSSESSION.
1. Against patentee or grantee of United States.-A person claiming un-
der a patent from the United States, or any one succeeding to his
rights, may be barred of his right of entry or action by an adverse
possession held continuously for ten years. Coker v. Ferguson's
Adm'r, 284.
2. By purchaser under executory contract.-When a purchaser of lands,
under an executory contract, is let into possession, not having paid
the purchase-money, and not having received a conveyance, he
holds in subordination to the title of the vendor: and he can not
defeat a suit in equity by the vendor to charge the lands with the
payment of the purchase-money, by interposing the lapse of time
as a defense, without showing that his possession was open and no-
torious, asserted as hostile to the right and title of the vendor, and
continued long enough to bar a recovery at law under the statute
of limitations. Walker v. Crawford, 567.
3. By sub-purchaser.—Although the purchaser of lands under an exec-
utory contract, not having paid the purchase-money, nor received
a conveyance, does not hold adversely to his vendor; yet, if he
sells and conveys to a third person, who pays the stipulated price,
is let into possession, and receives a conveyance of the title in fee-
simple, such sub-purchaser may hold adversely to the original
vendor, and may acquire a title under such adverse possession and
the statute of limitations. Ib. 567.
4. As against the State, or railroad company as its grantee; under act of
Congress granting lands in aid of railroads, and subsequent legis-
lative resolutions.-Swann & Billups v. Lindsey, 507.
AFFIDAVIT. See CRIMINAL LAW, 31-2.
AFFRAY. See CRIMINAL LAW, 1.
1. Liability of principal, for negligence or intentional wrongful act of
agent. The rule of the common law, as announced in the leading
case of McManus v. Crickett (1 East, 106), held the master respon-
sible for an injury done by the negligent act of his servant in the
performance of his service, but not for an intentional wrongful act
of his servant, unless commanded or adopted by him; but this
rule, as applicable to railroad corporations, has been modified by
the more modern cases; and this court adopts the modified rule,
which holds the master or principal responsible for the intentional
tortious act of his agent or servant, when (and only when) done
within the range of his employment. (Limiting S. R. & D. Railroad
Co. v. Webb, 49 Ala. 240.) Gilliam v. South & North Ala. Railroad
Co., 268.
2. Same; what acts are within employment of railroad conductor.—“It
is common knowledge," that if the conductor of a passenger train
stops his train, pursues a boy on foot into the father's house, with
a pistol in his hand, seizes the boy, and carries him off on the
train, these wrongful acts are not within the range of his em-
ployment; consequently, the railroad company is not liable in
damages for such wrongful acts, without averment and proof that
it commanded, authorized, or ratified them. Ib. 268.
3. Purchase by agent at mortgage sale.—Ân agent, having control of real
estate, renting it out, collecting the rents, paying taxes and insur-
ance, and having power to sell, can not himself become the pur-
chaser of the property at a sale under a mortgage, and hold it
against his principal; especially where, by private agreement with
the mortgagee, he induces the latter not to bid against him. Ad-
ams v. Sayre, 318.
4. Action by principal, on contract made by agent.-Although the gen-
eral rule may be, that where an agent, having proper authority,
contracts in his own name for the benefit of his principal, the lat-
ter, if unknown, and, perhaps, also if known or disclosed to the
other contracting party, may, at his election, sue on the contract
in his own name; but it is a recognized exception to this rule, that
where the agent has been allowed to contract in his own name,
without notice of his agency, the principal takes the contract sub-
ject to all the rights and equities available to the other party
as against the agent if he were suing. City of Huntsville v. Gas-
Light Co., 190.
5. Contract by agent in his own name, and under seal.-R. W. C. own-
ing about one-third the capital stock in an incorporated gas-com-
pany, which had ceased to do business, and R. E. C. desiring
to purchase a controlling interest in the stock of the company, with
a view to revive and enlarge the business; the two parties entered
into a written contract, to which their individual names were sub-
scribed, and their seals affixed, purporting to be made between R.
W. C. as party of the first part, and R. E. C. as party of the second
part, and containing these stipulations: "The said R. W. C. here-
by obligates himself to procure and effect, within thirty days from
this date, the transfer to said R. E. C. of all the capital stock in
the said gas-company, and to procure, within the same time, a con-
veyance of the lots"
on which the gas-works were erected; "and
the said R. E. C., on condition that said transfer and conveyance
of title are procured and made within said thirty days, and in con-
sideration thereof, hereby agrees and promises to pay to said R.
W. C. in cash, immediately on being notified that said transfer and
conveyance have been made as agreed on, the sum of $1,000, and
further agrees and undertakes to re-transfer to said R. W. C. stock
in said company
"to a specified amount, not exceeding one-third
of the stock procured to be transferred to said R. E. C.; “and
when said transfer and re-transfer of stock are effected as above
provided, it is agreed that the said R. E. C. will, within a reason-
able time, proceed to repair and put in operation the gas-works of
said company,” and shall be entitled to new stock to the amount
of his expenditures; "it being hereby agreed, that when said
transfer and re-transfer of stock are made as above provided, the
said R. E. C. and R. W. C. will, as the stockholders in said com-
pany, provide by resolution for the increase of stock, and for the
issue of new stock to the said R. E. C. to the amount of his ex-
penditures," &c. Held, that this was the personal contract of R.
W. C., and carefully excluded the idea that he was acting as the
agent or representative of the other stockholders in the old compa-
ny. Ib. 190.
6. Same; transfer of stock held by municipal corporation, under resolu-
tion of board of aldermen.-R. W. C. was, at the time said con-
tract was made and entered into, the mayor of the city in which the
gas-works were located, and which owned some of the capital
stock in the company; and he submitted to the board of aldermen
a written communication relative to the contract, advising the
transfer of the city's stock as provided by the contract, represent-
ing that it bound R. E. C. to pay $1,000 to the company, to be ap-
plied in payment of its debts, and to "issue new stock to the pres-
ent stockholders." By resolution of the board, entered in its
minutes, the transfer of the city's stock to R. E. C., "in compli-
ance with contract entered into between him and R. W. C.,”
was authorized and declared, and the mayor was instructed to
make the proper assignment on the books of the company in his
official capacity; and it was so made by R. W. C. officially. Held,
that the transfer being authorized by the resolution of the board,
and duly made as authorized, the city could not complain that the
contract was misunderstood or misinterpreted, R. E. C. not being
a party to the error or mistake. Ib. 190.
7. Contract of agent; on whom binding.-It is generally true, that where
a party plainly appears, upon the face of an agreement, to be
acting as the agent of another, the contract is binding solely on the
principal, unless the agent superadds his own responsibility by
special stipulation. Comer v. Bankhead, 493.
8. Contract of warden of penitentiary, for hire of convicts.-The State
acquires an ownership in the services of convicts sentenced to im-
prisonment in the penitentiary, and the warden of the penitentiary
is merely an agent and officer of the State, having the custody of
the convicts, but no personal interest or property in them or their
services; and a contract made by him in his official capacity, and
approved by the governor officially, for the hire of the convicts as
authorized by law, is the contract of the State, and not of the war-
den himself, especially where it contains an express stipulation
exempting him from all personal liability for damages. Ib. 493.
9. Specific performance against agent.-A court of equity will not decree
the specific performance of a contract against an agent, when he
has no pecuniary interest in the contract, and his agency is dis-
closed on its face. Ib. 493.
10. Same, against warden of penitentiary.-A contract for the hire of
convicts, made by the warden of the penitentiary in his official
capacity, approved by the governor officially, and containing an
express stipulation exempting the warden from personal liability
for damages, will not be specifically enforced against his successor
in office: such a suit is essentially a suit against the State, which
can not be sued in its own courts without its consent. (BRICKELL,
C. J., dissenting.) Ib. 493.
11. Power of attorney construed.-A written instrument in these words,
"This is to certify that C. D. is appointed my legal and lawful
agent to sell any of my lands in Tallapoosa county to M. G., and
to sign my name to any deed or bond, and it shall stand good in
law as though I had signed it myself," signed “S. A. Phillips," is
a valid power of attorney, though not in technical form, binding
the maker personally, and authorizing the agent to sell and convey
her interest in the lands to the person named. Phillips v. Hornsby,
414.
12. Notice to agent.-Notice to an agent, in the transaction of his prin-
cipal's business, operates as notice to his prineipal, whether a cor-
poration or an individual; but, to charge a corporation with im-
plied notice, on account of actual notice to an officer or agent, it
must be shown that the notice was acquired by the officer or agent,
not while engaged in the transaction of his private business, but
while employed within the scope of his duty and power in and
about the business of the corporation. Reid v. Bank of Mobile, 199.
1. Of complaint, in action on note or written contract.-Where the orig-
inal complaint contains a single count, in the form prescribed for
an action on a promissory note by payee against maker (Code,
p. 701, Form No. 4), an amended complaint, setting out the instru-
ment in full, in form a promissory note subject to express condi-
tions, and averring that neither of the conditions has happened, is
allowable under the statute (Code, § 3156], not being the substitu-
tion of an entirely new cause of action. Dowling v. Blackman, 303.
2. Same; statute of limitations.-The amendment in such case, when
allowed, relates back to the day on which the original complaint
was filed, and can not be defeated by a plea of the statute of limi-
tations. Ib. 303.
3. Of complaint, in statement of plaintiff's name.-On appeal or certio-
rari from a judgment rendered by a justice of the peace, though
there can not be an entire change of parties, a mistake in the
plaintiff's christian name, though no objection was made to it in
the justice's court, may be corrected in the complaint filed in the
Circuit Court; and if only the initials of his christian name, or an
abbreviation of that name, was used in the justice's court, the full
name may be used in the complaint filed on the appeal. South &
North Ala. Railroad Co. v. Small, 499.
4. Amending or setting aside judgments or decrees after expiration of
term.-A court of record has no power to alter, vary or annul its
judgments or decrees, after the expiration of the term at which
they were rendered, except for the correction of clerical errors or
omissions on evidence shown by the record; but, where a judg
ment or decree is void for want of jurisdiction, either of the
subject-matter or of the parties, it may be vacated and set aside at
a subsequent term, on the application of a party having rights and
interests immediately involved. Buchanan v. Thomason, 401.
5. Same. When fraud is not imputed, the want of jurisdiction must
appear on the face of the record, except in the single case of the
death of a party before the judgment was rendered. Ib. 401.
6. Amendment by change of parties.-When a bill is improperly filed in
the name of an administrator as sole plaintiff, and the heirs are
brought in by amendment, the name of the administrator can not
be struck out by a second amendment, since this would work an
entire change of parties. McKay v. Broad, 377.
7. Amendment of affidavit in describing offense. In a criminal prosecu-
tion before a justice of the peace, an affidavit and warrant charg-
ing that the defendant "killed a hog, the property of A. B., worth
about ten dollars, against the peace," &c., do not charge any crim-
inal offense whatever: but, no objection to the sufficiency of the
affidavit or warrant being raised before the justice, and the case
being carried by appeal into the Circuit or County Court, where
the trial is to be had de novo (Code, § 4701), a complaint may be
there filed, charging that the defendant, "within twelve months
before the commencement of this prosecution, did unlawfully or
wantonly kill, disable, or destroy one hog, the property of A. B."
Blankenshire v. The State, 10.
1. When appeal lies from award.-When a pending cause is submitted
to arbitration (Code, § 3547), the award of the arbitrators can not
be revised on writ of error or appeal, until it has been entered up
as the judgment of the court, or until that court has rendered
judgment setting aside the award; and an appeal lies from the
judgment, not from the award. Collins v. L. & N. Railroad Com-
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