The Montgomery advertiser., 1906-10-12
ECHOI.S V. THE STATE.

l. Criminal law: evidence other
offenses.--On a trial for larceny. EVIL
dencc that the chattels or a third per-
son were stolen at the time the prop
rrty Of the prosecutor was stolen was
admissible as part of the res gestae.
> Same: opinion evidence; proof OF
value; witnesses: competency.-A per-
son who has been a merchant for
number Of years and who has some
knowledge Of the value Of goods IS
competent on trial for larceny to
give his opinion Of the value Of the
goods :tolen.
2. Larceny; possession of stolen
property explanations by accused; adj
NEUTRALITY-SUSPICIOUS.. on Il trial for lar
cenv. the state showec that accused
had possession of some of the stolen
property it was competent for him to
explain his possession and show that
a third person brought the same to
him
Appeal from Jefferson Criminal
Court.
Heard before Hon. s. l.. Weaver.
bv HARRISON. J.
Weakley. C. j., Dowdell and benson.
j. concur.
ODOM AS Elk. V. MOORE.
| Action for Attorneys Fees.-tDecided
| May Q. 1906. Al SO. Rep, 1922
| l. Appeal; rulings favorable to ap-
pellant; review.-The defendant canho.
on appeal, raise the question of, the
sufticiency of his plea to which the
court overruled a demurrer.
. Executors and administra tors;
actions against: subsequent settlement
and discharge; effect.-A personal rep
rcsentative cannot defeat a suit against
her to enforce a liability against the
| hor icnN
ing the liability, making a final set
Element. surrendering the assets of the
estate to the legatees or Judge of Pro-
| bate and obtaining discharge from
the Probate Court finally dischargine
her from further liability. where 1t is
shown that she had assets sufficient
to pay all claims. including demand
| sued on.
| g. Same; pleading: pleas in bar-A
plea interposed by an executrix as
sorting that subsequent to the bringing
| of the action she surrendered all the
! assets of the estate as required by
law, and was discharged from further
| liability. is plea In bar of further
| maintenance of the action. and not a
! plea in bar of the suit.
A. Same; actions against; replica
ton: sufficiency.-Where defendant ex-
ccutrix pleaded subsequent discharge
as cxecutrix, and settlement of the
estate. a replication alleging that the
claim sued on had been duly filed in
| the Probate Court and presented to
| the eXccutriX, and subsequently there
| to sued on. at which time the executrix
had sufficient assets to pay the indebt-
| edness of the estate. including the
plaintiffs claim. and that without de-
| c1aring the estate insolvent and with
out paying the claim. the cxecutrix
procured an order finally discharging
her. was SUFFICIENT as a replication to
| the pleas and to Justify the further
| maintenance of the suit and good
against demurrer interposed
| D. Appeal: review: questions not
! raised In lower court.-Where the va
| rance between the complaint and proof
| was not raised in the lower court it
is not available on appeal.
6. Same; harmless error; verdict
Tho evidence warranted a finding for
| 4 larger amount than that returned
| by the jury. and in that state of the
| record it was harmless error TO refuse
| Il new trial because the verdict was
contrary to the evidence
Appeal from Birmingham CITY Court
Heard before Hon. Charles A. Sem
Ahirmcd. Opinion by Weakley. C. r
Tyson, Simpson and Anderson. III
concur.