South and North Alabama Railroad Company v. Wood.

the defendant. The deposit being for an illegal púrpose, the" depositor had till the last moment to withdraw from the transaction, by revoking the authority to pay.

1

Affirmed.

SOUTH AND NORTH ALABAMA RAILROAD COMPANY V. WOOD.

(74 Ala. 449.)

Evidence-judicial notice.

Courts will not take judicial notice of the rule for the measurement of corn in the shuck, nor that a railroad car of given dimensions cannot contain three hundred bushels thereof.*

A

CTION for non-delivery of corn. The opinion states the point.

Thomas G. Jones and John W. Inzer, for appellant.

STONE, J. Much that enters into and shapes human transactions is so general and uniform in its operation, as to be reducible to a rule. The flow of water, the alternation of the seasons, seed-time and harvest, the operation of mechanical powers, are of this class. So whether certain language is or not, in its very nature, obscene or insulting; whether a weapon of a particular kind is, or is not deadly; what effect a serious wound in a vital part will have; what are fermented, and what distilled spirits; these, and many other factors in judicial determination, are so generally known as to dispense with all proof of them, as a general rule. All men know them, and therefore they need not be proved. This is sometimes called judicial knowledge; frequently, common knowledge.

We do not think however that the rule for the measurement of corn in the shuck falls within this class. True, we know that a cubic yard, which consists of twenty-seven cubic feet, cannot contain one hundred bushels of corn in the shuck. Can we know precisely what it will hold? Is there any generally known, inflexible rule on the subject? So much must depend on the variety and quality of the corn, and the quantity of shuck left *See ante, p. 201.

South and North Alabama Railroad Company v. Wood.

upon it, that no fixed rule can be declared. Suppose we were to declare that a box car 28x8x4 feet cannot hold 300 bushels of corn in the shuck. Can we, with any proximate certainty, say how much it will contain? A result, so variable as this, cannot become a subject of judicial cognizance. As we said, when this case was before us at a former term (71 Ala. 215; 46 Am. Rep. 309), “we have nothing to do with these questions. The jury found there was a loss, and we can only inquire whether the law for their government was correctly given in charge to them." Whart. Ev., §§ 329 et seq.

There is no error in the record, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.

A growing and unripe crop is not "movable” or “personal property.”

YONVICTION of fraudulent disposition of mortgaged property. The opinion states the case.

C

Amzi Bradshaw, for appellant.

J. H. Burts, assistant attorney-general, for State.

WILLSON, J. In substance the indictment charges that the defendant, on the third day of June, 1882, executed to J. E. Wilson a valid mortgage lien, in writing, upon "eighteen acres of cotton, then and there being movable property," "and that he thereafter, on the first day of October, 1882, sold said cotton to divers persons with intent to defraud said Wilson," etc.

To constitute the offense attempted to be charged in this indictment, the property upon which the lien was given must have been "personal or movable property" at the time such lien was executed. Penal Code, art. 797. It is no offense against the law of

Hardeman v. State.

this State to sell or otherwise dispose of real property upon which the owner has given a written lien..

Before proceeding further we should determine what meaning should be given to the words "eighteen acres of cotton," used in the indictment in describing the property mortgaged. We think that but one reasonable signification can be placed upon them, and that is that the property consisted of a cotton crop growing upon eighteen acres of land. This would be the ordinary signification of the words, and they must be thus understood. Rev. Stat., art. 3138; Penal Code, art. 10.

What character of property is a crop of growing cotton, considered with reference to the offense of which defendant stands convicted? Is it "movable property" within the meaning of article 797 of the Penal Code? If not, then it is unnecessary to consider this case further, because it is to that character of property alone that this indictment applies.

It is true that the indictment alleges that the eighteen acres of cotton were movable property. Such allegation however is but a conclusion of the pleader, and is not sufficient unless the other statements show that it was that kind of property. Thus, suppose the allegation had been that the property consisted in eighteen acres of land; followed by another allegation that the land was movable property; it would not be contended that the latter controlled the former allegation, and that therefore the indictment charged the offense known to the law. The two allegations would be repugnant to and contradictory of each other, and the indictment would unquestionably be bad. But suppose in the case before us the allegation had been that the property consisted in so many pounds of cotton, and that the same was personal property, or was movable property, these allegations would have been consistent with each other, and the latter would have determined the character of the property. In this case the allegation that the property was movable can add nothing to the sufficiency of the indictment, unless the description of the property, "eighteen acres of cotton," may mean cotton in that state or condition which would render it movable property.

We now recur to the question, is growing cotton movable property, as alleged in the indictment? "Movable" property is such as attends a man's person wherever he goes, in contradistinction to things immovable. 2 Bouv. Law Dict., word "Movables." Thus

Hardeman v. State.

money, jewelry, clothing, household furniture, boats and carriages are said to follow the person of the owner wherever he goes; they need not be enjoyed in any particular place; and hence they are movable. 1 Schoul. Pers. Prop 25. Certainly a crop of cotton growing upon land cannot by any stretch of the rules of construction be brought within this definition of movable property. It is most clearly a thing immovable. It may however become movable. Says the author last quoted: "Fruits, so long as they are hanging on the trees, the crops until they are gathered, and timber trees while they are standing, are things immovable, or real estate, because they are attached and appendant to the ground. But when the fruits or crops are gathered, or the trees cut down, as they then cease to be attached to the soil, they become movables." 1 Schoul. Pers. Prop. 123. We think it too plain to be controverted, or to require a further investigation of authorities, that a crop of growing cotton is immovable property, and is not within the meaning of "movable property " as used in the article of the Penal Code under which this conviction was obtained.

But it may be said that the cotton was personal if not movable property, and if so that the offense attempted to be charged could be committed in relation to it. This position is correct. If the property be either personal or movable it is the subject of the offense der nounced by the Code. It is to be observed however that this indictment does not allege, or in any manner show, that the property was personal property. It characterizes the same as movable property, and the two words are by no means synonymous in their legal signification, and do not mean the same thing in the Code. There may be personal property which is not movable. Personal property not only includes movable property, but more. It is a more comprehensive word. Thus, crops growing upon land are held to be personal property, so far as not to be considered an interest in land, under the statute of frauds. 2 Bouv. Law Dict., Personal Property." So annual crops, if fit for harvest, may acquire the character and incidents of personal property, so far as to be subject to execution as personal chattels. Horne v. Gambrell, W. and W. Con. Rep., § 997. But it has never been held that ap ungathered crop, still appendant to the ground, is, under any circumstances, movable property. Whilst the question, as to whether or not cotton growing is personal property within the meaning of the article of the Code referred to, is not presented directly for our