« AnteriorContinuar »
An issue of fact having been joined, a jury was conductor, or other person in charge of the said impaneled, and the plaintiff offered testimony. train. After the plaintiff closed her testimony, the court, The plaintiff contends that the court erred in on motion of defendant, directed the jury to re- in admitting the contract between defendant and turn a verdict for the defendant, which was done Fitzgerald to be read in evidence-First, because accordingly. The judgment on this verdict was said contract was not proven: and, secondly, beaffirmed in the Supreme Court. It appears from cause it was immaterial, irrelevant, and incompethe report of the case, that the work of building tent. this road was done by contractors, under a con- As to the first ground of objection, it will be tract with the railroad company, containing pro
seen, by reference to the bill of exceptions, that visions substantially the same as those herein the execution of the contract by Fitzgerald on his quoted from the contract between the defendant part, was fully proven by the testimony of the company and the contractor Fitzgerald. In the
witness. Deweese; and the defendant, having opinion the court say: "The work of constructing
acted under the contract, and claimed the benefit a railroad is not corporate work, unless it be done of its provisions, would be estopped to deny any by a corporation through its agents and seryants;
of its obligations; and even as against a stranger, and a person may contract with a railroad com- I think it may introduce the contract as the best pany to construct its road, without becoming its
evidence of the terms and relations which, at the agent or servant. This proposition, therefore, re
time of the occurrence upon which the action was solves itself into a single question: May a railroad
based, existed between defendant and contractor. corporation, having power to contract as fully as
As to the second ground, we have seen that the a natural person in relation to its corporate busi
contract or contractual relation between the deness, enter into a contract with another person for fendant and the contractor was not only material the construction of its road, without retaining and relevant, but that, even admitting for the sake control over the mode and manner of doing the
of argument that the plaintiff's decedent was work? We can see no reason to doubt it. Of killed through the negligent management of the course, any condition imposed upon the right to
train in question, in our opinion, the question of constrnct its road must be performed, and the
the liability of the defendant therefor would turn company cannot shift its responsibility for the
upon the said work being done by the defendant performance. But this is no new principle, nor through his servants and employees, or by an inone applicable to railroad corporations alone. dependant contractor. The contract upon which Where a right is possessed by a natural person,
the road was built and paid for, then, was neither and a duty is attached to the exercise of the right,
immaterial nor irrelevant. such duty must be performed. Such natural per
The judgment of the district court is affirmed. son cannot relieve himself from liability through the intervention of an independant contractor.
NOTE.-The liability of a railroad company for inOn the other hand, where the law exempts a nat
juries to persons or property, sustained in the con
struction of its road by reason of the negligence of ural persun, as employer, from liability for the
employees, can arise only where the relation of maswrongful act of his contractor, it will also exempt
ter and servant exists between the company and the a corporation, as employer, from liability for the employee. wrongful act of its contractor.” To the same pur- It has been said that “The test which determines port are the cases of Hunt v. Pennsylvania R. Co.,
whether the relation is that of master and servant, or 51 Pa. St. 475, and McCafferty v. Spuyten Duyvil
of contractor and contractee, is whether the employer
retain the power of selecting, directing and dischargR. Co., 61 N. Y. 178, cases cited by counsel for
ing the workmen, the retention of which power makes defendant.
him responsible as a master and the surrender of In the case at bar, Fitzgeral was clearly an inde
which relieves him of liability as such."2 But “The
true test by which to determine whether one who renpendent contractor. He had the use of the en
ders service for another does so as a contractor or not, gine and cars of the defendant as a part of the
is to ascertain whether he renders the service in the consideration for the work performed by him; course of an independent occupation, in which he reand if the engineer and fireman of the train which presents the will of his employer only as to the result did the damage were borne on the pay-rolls of
of the work, and not as to the means by which it is the defendant while working on the contract, as
A provision that the work shall be under the genclaimed by counsel for plaintiff, which does not
eral supervision of an engineer or architect furnished fully appear from the evidence, doubtless their
by the employer,4 or the retention of power to discompensation was fully accounted for by the contractor to the company. 1 conclude, therefore,
1 Sec. 284, Woods' Ry. Law, note. that the train, consisting of an engine, tender, and
2 Pierce on Railroads, 286, citing, Brackett v. Lubke, 4 one or two flat cars, which struck and killed
Allen, 138; Forsyth v. Hooper, 11 Allen, 419. plaintiff's decedent, was rot being run by, nor un
3 Cunningham v. I. k. Co., 51 Tex. 503; Barry v. St. der the control or management of, the defendant Louis, 17 Mo. 121; Eaton v. E. & N. R. Co., 59 Me. 520; company; and that the defendant is not bound to
Pack v. N. Y., 8 N. Y. 222; Kelley V, N. Y., 11 N. Y. 432;
Gourdier v. Cormack, 2 E. D. Smith, 254; Callahan v. respond to any damage, if any, suffered through, B. & M. R. Co., 23 Iowa, 562. or by reason of the negligence of the engineer, 4 Kelly v. Mayor, 11 N. Y. 43.2; Robinson v. Webb, 11
But in Illinois a railroad company was held liable for damages to lands trespassed upon by the employees of an independent contractor, constructing the road; 17 and in another case it was intimated that the rail. road company would be responsible for the killing of stock by a construction train operated by such a contractor. 18
The distinction between the liabilities of owners of real and personal property for the wrongful acts of contractors and their servants, if such ever existed, has been generally overruled.19
charge incompetent workmen, or to terminate the contract if the work is unsatisfactory, or the right to detain a sum of money to indemnify the employer against the negligent acts of the contractor or his employes,' does not make the relation that of master and servant.
The railroad company is responsible for the negligence of employees, where it retains immediate superintendence and control over the details of the work, though as between the parties the relation of contractor and contractee may be said to exist; 8 or where it authorizes an unlawful act or nuisance; ' or the injury is a necessary result of the work contracted to be done; 10 or where it employs an incompetent contractor."
A positive obligation imposed by law upon the railroad company can not be shifted upon a contractor. 12 The duty to fence its tracks is of this nature, 13
Where a boy received injuries from the negligent construction of a turn-table, the road being yet in the hands of contractors to build the same, and being operated by them for general traffic purposes without authority, it was held that the railroad was not liable for damages.14
Where an unaccepted road is operated by contractors in carrying passengers, the contractors only are liable for any injuries such passengers may receive.15 And where an employee of a contractor to build an embankment in injured in such work, the contractor, and not the railroad company is responsible for negligence causing the injury, though the track, cars and motive power are furnished by the company. 16
17 C. & St. L. R. Co. v. Woolsey, 85 III. 370. See also Lowell v. B. & L. R. R. Co., 23 Pick. 24.
18 West v. St. L. V. & T. R. Co., 63 III. 545.
19 Pack v. Mayor, 8 N. Y. 222; Kelly v. Mayor, 11 N. Y. 432; Blake v. Ferris, 5 N. Y. 48; McCafferty v. S. D. & P. M. R. Co., 61 N. Y. 178; Robinson v. Webb, 11 Bush. 464; keedie v. L. & N. W. Ry. Co., 4 Exch. 244; Hobbitt v. Same, Id. 254.
1. CORPORATION.-Master and Servant-Agency,
A road master of a railroad company, or a conductor on a train, are not so far agents of the railroad company as to be legally authorized to employ physicians or surgeons to attend upon an employee who is injured by the cars of the company, unless they are specifically charged with that duly. The conductor's direction to the physician or surgeon to extend such medical aid, or his promise that the same when rendered shall be paid for by the company, do not render such company liable for the same, unless there is proof that he is authorized so to do. A contract by a road master, conductor or other agent without authority, may be ratified by the corporation, and so become binding upon it. The action of the General Manager may, by his ratification of such a contract made by a subordinate agent, render the corporation liable thereon. Peninsular etc. Co. v. Gary, S. C.
Fla., June Term, 1886. 2. CRIMINAL LAW.-Burglary in Dwelling-house
What Constitutes $ 1309 R. S. 1879.-Stealing a keg of beer from an ice-house or beer cellar which formed the basement of a building above, but without any internal communication between such basement and the building above, where it appears that there was but one way of ingress and egress from such ice house or basement and that, by way of a door up the outside, and further that the occupants in the building above neither owned, nor bad control over such ice-house, beer cellar or basement or the business or uses to which it was applied-such stealing is not “a larceny committed in a dwelling house" within the meaning of s 1309 R. S. 1879 of Mo. State v. Clark, s. C. Mo., June 21, 1886.
Bush 464; Steel v. S. E. R. Co., 16 C. B. 550; Painter v. Mayor, 46 Pa. St. 213.
5 Cuff v. N. & N. Y. R. Co., 35 N. J. L. 17; Robinson v. Webb, 11 Bush. 464; Reedie v, L. & N. W. R. Co., 4 Exch. 244; Hobbitt v. L. & N. W.R. Co., Id. 254.
6 Wray v. Evans, 80 Pa. St. 102; Schular v. H. R. R. Co., 33 Barb. 653.
7 Blake v. Ferris, 5 N. Y. 48; Tibbets v. K. & L. R. Co., 62 Me. 437; St. P. W. Co. v. Ware, 16 Wall. 566.
8R. R. Co. v. Hanning, 15 Wall. 649; L. S. I. Co. v. Erickson, 39 Mich. 492; Camp v. Churchwardens, 7 La. Ann. 321; Cincinnati v. Stone, 5 Ohio St. i8.
9P. W. & B. R. Co. v. P. & H. S. T. Co., 23 How. (U. S.) 209; Robinson v. Webb, 11 Bush, 464; Eaton v. E. & N. A. Ry. Co., 59 Me. 520; Cuff v. N. & N. Y. R. Co., 35 N. J. L. 17; Congreve v. Morgan, 5 Duer, 495; Diggert v. Schenck, 23 Wend. 446; Vanderpool v. Husson, 28 Barb. 196; Norton v. Wiswall, 26 Barb. 618; King v. N. Y. C. & H. R. Co., 06 N. Y. 181; Storrs v. Utica, 17 N. Y. 104; Clark v. Fry, 8 Ohio St, 358; Ellis v. S. G. C. Co , 22 Eng. L. & E. Rep. 198; Chambers v. C. L. I. & T. Co., 1 Disney (0.), 327.
10 Robbins v. Chicago, 2 Black, 418; Water Co. v. Ware, 16 Wall. 566; Matheny v. Wolffs, 2 Duv. (Ky.) 137; Mc. Cafferty v. S. D. & P. M. R. Co., 61 N. Y. 178; Carman v. 8. & I. Ry. Co., 4 Ohio St. 399; Hale v. S. E. Ry. Co., 6 H. & N. 488; Lockwood v. Mayor, 2 Hilt. 66.
11 Cuff v. N. & N Y. R. Co., 35 N. J. L. 17; Robinson v. Webb, 11 Bush. 480.
12 Veazie v. P. R. Co., 49 Me. 119; Hilliard v. Richard son, 3 Gray, 349.
13C. St. P. & F. R. Co. v. McCarthy, 20 Ill. 385; I. C. R. Co. v. Finnegan, 21 M. 646; R. R. I. & St. L. R. Co. v. Hef. lin, 65 . 366; H. & G. N. R. Co. v. Meador, 50 Tex. 77; Gardner v. Smith, 7 Mich. 409; B. C. & E. S.R. Co. v. Aus. tin, 21 Mich. 390; Nelson v. V. & C. R. Co., 26 Vt. 717; Clement v. Captield, 28 Vt. 302. But see Clark v. H. & St. J. R. Co., 36 Mo. 202. 14 K. C. Ry. Co. v. Fitzsimmons, 18 Kas. 34.
15 U. P. R. R. Co. v. Hause, 1 Wy. 27; Cunningham v. I. R. R. Co., 51 Tex. 503; Meyer v. M. P. R. CO., 2 Neb. 320.
16 C. Ry. & Bk. Co. v. Grant, 46 Ga. 417; Felton v. Deall,
32 Vt. 365.
a contract of purchase made by her, and may be sued at law. Parker v. Reynolds, s. C. Ala. July 2, 1886.
Jurisdiction - Crime Committed Partly in One County and Partly in AnotherConstitutionality of Statute-Conspiracy-Evidence.- A conspiracy to take the life of the deceased was formed in Martin county. Pursuant to that conspiracy he was seized and bound. After such seizure he was taken into the country of Orange and there killed. Held, that, under the statute of Indiana providing that where a crime is committed partly in one county, and partly in another, the jurisdiction is in either, the courts of Martin county had jurisdiction. A statute providing that when a crime is committed partly in one county and partly in another, jurisdiction is in either, is constitutional; and where the assault is made in one county, and the killing done in another, the court of the county where assault was committed has jurisdiction. A conspiracy may be proved by circumstantial evidence. Archer v. State, S. Ct. Ind., May 24 1886, N. East. Rep. Vol. 7, 225.
Time Necessary to cool heated Passion-Instruction as to Dangerous Weapons- Excluding of Instruction as to Reasonable doubt, when Proper.-1. If the passion had time to cool, the killing is not reduced to manslaughter, though in fact the passion had not cooled. 2 Bish. Crim. Law, $ 733. Six hours held sufficient time. 2. An instruction which recites that if etc., "by means and use of a dangerous weapon, towit a wooden club;” is not objectionable as telling the jury that the clnb was a dangerous weapon, but, as it should be, this question is left to the jury. 3. When a court has properly instructed as to "reasonable doubt," it may, properly exclude an instruction that if the jury find that defendant is guilty of some grade of offence, and if they entertain a reasonable doubt as to which grade of offence the defendant is guilty of, they will acquit him of the higher degree and convict him of the lower. S. C.
Mo., June 21, 1886. State v. Grayor. 5. DEED—Presumption-Statute of Limitations.
When a deed has been recorded within twelve months from its date, but the certificate of probate or acknowledgment is substantially defective (Code, $ 2154), a certified copy is not admissible as evidence without further proof. Under the rule laid down in Hutchings v. Wbite, 40 Ala. 253, if the deed has been recorded in the proper office for more than twenty years, the presumption will be indulged that its execution was legally proved or acknowledged; but the court is unwilling to extend the rule to deeds which have not been recorded twenty years. In ejectment, or the statutory action in the nature of ejectment, the plaintiff must recover, if at all, on the strenghth of his own title; and when he fails to make out a prima facia case, the defendant is not required to adduce any evidence, nor will erroneous ruling on evidence offered by the defendant, work a reversal.
England v. Hatch, S. C. Ala., July 2, 1886. 6. EQUITY–Married Woman.-1. A decree of the
chancellor relieving a married woman of the disabilities of coverture as to her statutory or other separate estate (Code, $ 2731), although it does not confer on her a general power to contract, expressly authorizes her to “buy” and “to be sued as a femme sole; " and she is personally bound by
7. EQUITY PRACTICE-Parties.-A co-complainant
who alleges that he had disposed of all his interest in the property in dispute before the commencement of the suit is an improper party thereto. When some allegations in a bill show a case en. titling a complainant to reliet, but are contradicted by other allegations in the same bill, and it is impossible for the court to determine the true nature of the case sought to be made by the bill, a demurrer thereto should be sustained. It is the duty of the attorney, on an appeal to this court, to see that the transcript of the proceedings in the court below is properly made up by the clerk. Bridger
v. Trasher, S. C. Fla., June Term, 1886. 8. EviDENCE.-Parol Evidence-Damages-Meas
ure of Damages. The rule which excludes parol testimony for the purpose of varying a written contract is confined to the parties to the contract, or their privies, and does not prevent strangers thereto from introducing such evidence. The rule that the measure of damages in trover is the value of the property at the time of the conversion is applicable to negotiable paper. If property pledged is delivered by the pledgee to the pledgor to sell or dispose of as his agent and to account to him for the proceeds, the pledgee's title is preserved and he can recover it of any person wrong. fully obtaining possession thereof; but if the pledgee gives the property to the pledgor to dispose of for himself, upon the promise to give the pledgee part of the sum realized, the pledgee's Jien is lost. Kellogg v. Tompson, S. J. C. Mass.,
May 20 1886. N. Eng. Rep. Vol. 2, 170. 9. EXECUTORS AND ADMINISTRATORS Bonds
When Responsible to Unknown Heirs Discovered after distribution of Estate-Descent and Distribution-Posthumous Heirs- When they Inherit, etc. § 134, Art. 93, of Code-Executors and Administrators-Bond-Heir Suing for Share of Estate-Evidence.- Where executors or administrators fail to follow the statute provisions in regard to the distribution of estates, their bonds are responsible to an absent heir for his portion of the estate, although his whereabouts were unknown at the time, if he appear within 12 years, or before limitations run. Sec. 134 of article 93 of the fol. lowing Code allows posthumous children of an intestate to inherit as other heirs, but says that no other posthumous child sball. This, however, does not refer to posthumous children of collateral relatives who were born before the death of the intestate from whom they inherit. An heir suing an executors' bond for his portion of an estate, which was not set aside in the distribution thereof, must show what that portion would have been, and cannot presume the death of another who has been for years unheard of. Ct. of App. Md., April 30,
1886. Atl. Rep. Vol. 4, 679. 10. HUSBAND AND WIFE-Common Lar Status of,
as to property and Debts of Wife-Separate Prop. erty of Wife Under Statute. At common law the personal property of the wife in possession at the time of her marriage, vested immediately and ab. solutely in the husband, by the marriage, and upon his death it went to his representatives, (2 Kent. Com. 11th Ed., 129) but as to choses in action, they are not vested absolutely in the husband, but
he has power to sue for, and recover or release and assign them, and when reduced to possession, it is evidence of conversion of the same to his own use, and the money becomes, in most cases absolutely his own. Kent. Com. pp. 116, 117. The husband also became possessed of the wife's real estate. 2 Kent. 110, 111. He became liable to pay her antenuptial contracts, but if they are not recovered during coverture he discharged while her liabil. ity therefor is revived. In such case when the husband was sought to be made liable by the creditor, he must, in general, sue the husband and wife jointly. 1 Chitty on Pl. (16 Am. Ed.) pp. 656; 42 Mo. 304. But in no case could the wife be sued upon a mere personal contract made during coverture, and judgment thereon is a mere nullity. The husband's marital rights and seizin in the wife's fee simple real estate, during coverture, became liable to seizure and sale, for the husband's debt. Where real estate is purchased with the separate money or means of the wife and as such is, the proceeds and profits thereof, her separate property within the meaning of $$ 3296, 3295, R. S. Mo. 1879, it may be subjected to the payment by ber creditors of her ante-nuptial debts, such as a note made jointly with her husband before marriage. By $ 3295 the husband's common law marital interest in his wife's real estate is not exempt from liability to the payment of a joint and several ante-nuptial debt of both husband and wife, for the exempt debt contemplated by that section, are the sole debts of the husband. S. C. Mo., June 7, 1886.
Conrad v. Hovoard. 11. INSURANCE.-Contract to Maintain other In
surance. The policy provided that the insured should maintain insurance on the property, to the extent of fourt-fifths of the value, and in case of failure so to do “the assured shall be a co-insurer to the extent of such deficit, and in that event shall bear his, her, or their proportion of any loss;" but that in case the insurance exceeded such fourfif.hs, the assured should not recover from the company more than its pro rata of the cash value of the property. The insured failed to maintain other insurance to the extent of four-fifths, the deficiency being about $10, 000. Held, that the company was not a co-insurer with the insured of the deficiency so as to make the company bear $5,000. of the amount, but that the insured was an insurer of the extent of the whole $10,600. and must contribute to that extent with the company. Chesboro v. Home Ins. Co., S. C. Mich., Ins Law Jourpal, Vol. 15, 515. 12. JUDGMENT—Foreign Judgment-Bar to Pend
ing Action-How Pleaded – Identity of ItemsParol Evidence.- A judgment in the Supreme Court of New York, between the parties to a suit in this State, in favor of the plaintiff, for the same cause of action, is a bar to the further prosecution of the action in this State, although the latter was pending when the former was commenced. Such judgment may be pleaded specially in bar, or may be proved under the gen issue. In the action in New York two of the items declared on, were in part mis-described. Held, that the misdescription was amendable, and that parol evidence was admissible to prove that such items are identical with those declared on in this action. Whiting v. Burger, S. J. Ct., Me. June 14, 1886. Atl. Rep. Vol. 4, 694. 13. LIBEL AND SLANDER.—Pleading - Prima Facie
Case-Privileged Publication - Actionable Words
-Exceptions-General Charge to Jyry — Objections how Made – Bond for Costs-Evidence of Plaintiff's Social Condition-Damages.-In an action for libel, it is not necessary for the plaintiff either to allege or to prove, in making out his prima facie case, that the publication complained of, was not privileged. This is a matter of defense, to show absence of legal malice in the publication. The publication in a newspaper, by a teacher in a school for the preparation and education of persons seeking to become teachers, of and concerning a pupil therein, that "by her conduct in classs, by her behavior in and around the building, and by her spirit as exhibited in numberless personal interviews, she has shown herself tricky and unreliable and almost destitute of those womanly and honorable characteristics that should be the first requisites in a teacher,"constitutes a libel, and the words used are unambiguous and actionable. An objection to the general charge of a court should specificially point out wherein the objection lies. The California Statute (Acts 1871, p. 553, $ 1) requiring an undertaking for costs, in actions for damages for libel, does not deprive the court of jurisdiction in case such underiaking is not filed; and the object of the statute is effected if, when the objection is made, an undertaking be executed, and the defendant thus secured the costs and charges which may be awarded to him. In an action for libel, it is competent for plaintiff to show his or her condition in life, not merely from a pecuniary standpoint, but as to family and family connections, as bearing dpon the question of damages. Dixon v. Allen, s. C. Cal., May 18, 1886. Pac. Rep. Vol. 2,
179. 14. MANDAMUS–Pleading–Evidence.-The pleading
in mandamus make an issue of fact as to whether certain names appearing on a petition under the act of 1883, Chapter 3416, for a permit to sell li. quors, and necessary to constitute a majority of the registered voters of the election district, are the authorized signatures of the persons represented by such names. Upon such an issue a person of a name similar to one so appearing on such petition was called as a witness in behalf of the respondents, and testified that he was a registered voter of the election district, but that he neither signed nor authorized any one to sign his name to the petition, and it was shown that but one similar name appeared on the list of registered voters of the district, and there was no evidence in rebutal of his testimony, except that the original petition was admitted in evidence without proof of the genuineness of such signature either by any witness thereto or by other legal testimony: Held, That the signature was not valid as that of a legal petitioner under the statute. The applicant for a permit to sell liquors should, before making the affidavit required by the statute, know of his own knowledge that the petitioners have signed, and did so in the presence of two witnesses, and should have such personal knowledge of the circumstances of their signing as will enable him to swear in good faith that none of the means prohibited by the statute have been used in proćuring their signatures. The testimony is the case held to, not only establish that a majority of the registered voters of the district did not sign the petition, but also to show otherwise a prima facie case violative of the statute. State v. County Commrs. S. C. Fla.,
June Term, 1886. 15. PARENT AND CHILD-Wages of Minor.-When
a minor son makes a contract for his services on
his own account, and his father knows of it, and makes no objection, the father cannot recover of the employer, wages which he has paid to the son; and in such a case the question is not whether the
was emancipated or not, but whether the father knew of the contract, and made no objection. Atkins v. Sherbino, S. C. Vt., June 22, 1826. Atl. Rep. Nol. 4, 704. 16. PARTITION — Remainder-Infant Practice.--A
tenant for life may maintain a bill in equity for the partition of lands, and it is the better practice to make all the persons having an interest, tenants for life and remainder-men, parties to the suit. If a remainder-man is not made a party to the suit, his rights are not affected by any degree that may be rendered; and if an infant remainder-man is made a party, but is not properly brought before the court, the decree will be reversed on error, no matter how the question may be presented. When the complainant is the father of an infant defendant, whose mother is dead, service of process should be made on her general guardian, if she has any; and if process is served on the person who is averred to be her guardian, but the bill is not sworn to, and there is no affidavit of the fact that he is such guardian, and no proof of the fact, the infant is not properly before the court. Where the defendants who have answered are actually present in court, either in person or by their solicitors or guardians ad litem, at the allowance of an amendment, they shall be deemed to bave notice thereof; but the entries of record, made at the time, must show their presence, and when they do not, recital in a subsequent decree pro confesso, taken before the register, is not sufficient. At common law, a tenant in common was not liable to his co-tenant for use and occupation, unless there was an actual eviction, or an agreement to pay rent; and the English statute (4th and 5th Anne.) changing this rule, having been enacted after the settlement of this country, is not of force with us. For rents actually received one tenant in common is liable to account to his co-tenant; but, when the rents were received from a tenant to whom necessary advances to make a crop were supplied, such advances, and other necessary costs and expenses incurred, must be deducted from the gross amount received. Gayle v. Johnson, S. Ct. Ala., July 2, 1886.
special plea, whereby the plaintiff is compelled to take issue on it. In delivering the opinion of the court on this point, Stone, C. J., said: "The principle invoked is applied, and rightly applied, where a demurrer has been improperly sustained to a special plea that is sufficient in law, and yet the record affirmatively shows that under the general issue the defendant could, and did, obtain the benefit of the defense he sought to set up by his special plea. In such case, if there is error, it is without injury. Phænix Ins. Co. v. Moog, 78 Ala. The question is very different in such a case as this. Overruling the demurrer was a judicial determination that the plea was sufficient. Plaintiff was thereby left without discretion. He must go out of court under the ruling on the demurrer, or he must take issue on the plea. Taking issue on it he stakes the fate of his case on its truth or falsity. And if the jury find the averments of the plea to be proved, the defendant is entitled to a verdict, whether the plea be good or not. Mudge v. Treat, 59 Ala. 1; Betancourt v. Eberlin, 71 Ala. 461. It results that if the jury found the plea to be true as averred, the defendants were entitled to a verdict, and the only redress open to plaintiffs is to have a review of the ruling on the demurrer." Montgomery, etc. R. R. Co. v. Chambers, s. C.
Ala., Dec. Term, 1885-86. 19. PLEADING AND PRCTICE-Foreign Judgment.
A judgment of a court of record valid under the laws of the State where recorded is valid here. A plea to an action on a judgment of another State that the debt for which such judgment was rend. ered had been paid, is a defense existing anterior to said judgment and on motion should be stricken from the record. When a suit is brought in the courts of this State upon a judgment rendered in another State, the defendant can plead in bar that the court in which said judgment was recovered never acquired jurisdiction of his person. A transcript of the proceedings and judgment in a suit in the Superior Court of Massachusetts, which does not show that a summons to the defendant to appear was ever issued or that the defendant appeared in person or by attorney to said suit, is inadmissible in evidence against the defendant named therein. A return by the sheriff, on another paper in the cause, that be had served a summons on the defendant, no summons, appearing in the transcript, is insufficient to authorize the conclusion that such summons in fact existed or was served. Drake v. Granger, S. C. Fla., June Term, 1886.
17. PARTNERSHIP-Participation in Profit and Loss
Merely Does not 'Constitute.-A mere participation in profit and loss does not necessarily constitute a partnership. Thus, where one party, owner of certain cattle, agrees with another that he shall be interested in a partnership portion of the profit and loss of the venture, such an agreement alone does not constitute the parties partners in the goods, as between themselves, but only partners in the profits and losses. Donnell v. Harshe, 67 Mo. 170; 68 Mo. 242, 80 Mo. 352; 45 Mo. 524; Alfard v. De La Torree, (Eng. H. C. Ch.) 3 Cent. L. J., 75; Story on Part., $ 27; Clifton v. Howard, S. C. Mo., June 7, 1886.
20. PRACTICE-Cost 8-Court has no Power to Ren
der Judgment for Costs at a Subsequent Term to Final Disposition of Cause.-Defendant, a railroad company, being summoned as garnishee, made answer that it was not a debtor to the execu. tion defendant. Plaintiff then filed a denial, setting up facts which, if true, made the railroad company a debtor to the execution defendant. To this the company replied by putting in issue the matters stated in the denial. Subsequently the company, by leave of court, filed a supplemental answer, stating that while it was not indebted to the execution defendant at the time of the service of the garnishment, still there was a dispute pending between them, which resulted in litigation, and to save costs, etc., it agreed to pay him $100 by way of compromise. The company brought the money into court and asked to be discharged. The execution defendant, though brought into court, made no claim for the money, and the sup.
18. PLEADING—Improperly Sustaining Demurrer to
Special Plea-When Error Without Injury and When Not.-1mproperly sustaining a demurrer to a special plea is error without injury, when the record affirmatively shows that the defendant had the benefit of the same defense under the general issue; but the principle does not apply to an erroneous overruling of a demurrer to a bad