The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1903-03-23

ments which were shown TO be necessary,
and the plaintiff would allow him credit
on the rents in the event he failed to
make the payments on the purchase mon
ey. is admissible. Affirmed. Opinion by
HARRISON, J.
State vs.. Graham Habeas corpus pro-
eeedings. Appeal from Judgment of the
Probate judge of Coffee county.
l. Discharge of Prisoner by Discontinue
ance of Observation-Disclosures one charged
with the commission of a felony is i'm
prisoned in county jail under nit
tlmus issued by a justice of the peace
and while he is still in custody a regu-
lar term of the Circuit court is held and
no Indictment Is preferred against him
by the grand jury organized at that term.
and no order is made by the court con-
tinuing the cause for investigation, and
the court adjourns without taking any
action whatever in such case, there is a
discontinuance of the prosecution. the
mttimus becomes functus officlo, and the
prisoner is entitled to be discharged: and
the fact that the order of continuance
is shown to have been entered upon the
docket kept by the grand jury does not
prevent the discontinuance of the prose-
cution. Affirmed. Opinion by Tyson, j.
NhsoH vs.. the state. indictment Tor sell
Ing spirituous, vlnous and malt liquors.
Appeal from the County court of Cof-
fee.
l. Constitutionality of Act Creating
County Court; Effect of Provision Re-
curing Judge to be Learned In the
Law. Although the provision OF the act
OF the general assembly creating the
county court of Coffee county (acts of
l"O-l9Ol. p. SGD that the Judge of said
court shall be a person learned in the
law may be unconstitutional and void
as Vlolative of section 2, article of the
constitution of 1875, which was of force
az the time of the passage of the act,
sueh provision of the act may be stricken
oul WITHOUT AFFECTING the other provisions
Vi .he act; and, therefore, its unconsti-
tutionallty does not render the whole act
unconstitutional and void, but the pro-
VISION OFFENSIVE to the constitution will
pe rejected and the purpose of the legis-
iature In creating said act will be given
effect by enforcing the unobiectionable
provisions which are separate and dis
tinct.
Indictment for Selling Spirituous. Vim
Gus or Malt Liquors; What Constitutes
Si Hiectlon by the Stakeholder an in
uiesNnehe lor selling splriIuous, vinous
ana malt liquors contrary to law and
without license, conviction NAV he had
upon the proof of one act of Illegal SELL
ing and, therefore, when the state proves
one act OF illegal selling, such proof con-
stitutes an election by the state to pro-
eeeo Tor that offense, and evidence of
oeher ana distinct acts of selling at diff
ferent times Is inadmissible.
J. Appeals; Rulings Upon Motion TO
strike Pleas; Not Reviewed When Not
SHOWN by Bill of Exceptions.-The rul-
ings OF trial court on motions to strike
certain pleas from the file, will not be
reviewed on appeal, when the nations
tne pleas and the rulings thereon are not
SHOWN in the bill of exceptions. Reversed
ana remanded. Opinion by Dowdell, j.
Farmer VS.. Sellers Bill in eouity to en-
iorce specific performance of contract
Appeal from the Chancery court of
Henry.
l. Appeal for Specific Performance of
contract; Necessary Averments.-In a bill
10 ENFORCE the specific performance of a
contract where 1t is alleged that one
selpulatloh OF the contract sought to be
enforced was that the defendant should
convey certain lands to the comnIainant
or TO another named person 'as thew
might elect and the bill nowhere. nor
III any way AYERS that these parties have
elected that the land should be conveyed
TO the complainant as prayed for in the
Dill rather than to the other named DER
son VINO was not party to the bill. si,cb
Dill cannot be maintained the election
provided for in said contract being
condition precedent to the conveyance
by the defendant himself In order to au-
thorize the relief prayed for by averment
and proof
same; Same.-In such a case the fact
that the bill is filed nv tbe otha,, -
party as attorney for the comnlair,a,st
does not constitute an estonnei ~ sa,s
other party in such sort as to make ~
necessary to aver and prove the elec-
ton provided for in the contract. Re.
Versed and remanded. Opinion by MccleI-
land, G. ]. o'ei-