The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1909-05-03
PATE ". THE STATE.


PATE v. THE STATE.
Yarceny.-(DecidedJ Jan. I'll. i909.-Re-
hearing Denied Feb. 5. 1905
South, $3.50
/. Jury qualification; exemption; per-
sonaI privilege.-The statute exempt
ing sheriffs, ETC.. from jury duty (Sec.
7245, Code 1000 does not dtsduetMy
them, but merely confers personal
privilege which may be waived.
2. Evidence; former triaLv--A WIZ
ness's testimony taken down at the
former trial may be reproduced on q
sub seauent trial whore It is SHOWN
that the witness was legally sworn and
examined on the former trial, but since
that time has left the State perms-
nently, or for an indefinite time. and
al the time OF this trial 10 In such
other State.
3. Appeal; record:> objections.--An
assignment and contention that the
court erred IN the admission OF evidence
not sustained by the record. Is without
| merit.
4. Appeal and error. harmless error.
1T was harmless error to exclude
| non responsive answer to question as
| to whether defendant could read or
write, when a witness subsequently
| testtfied that the defendant could NOT
sign his name.
s. Larceny Observation-Disclosures the
| evidence was conflicting as to the mesh
marks ON the COW, and there were other
marks of identification other than the
color of her hair. charge asserting
the defendant should be acquitted
unless the jury was satisfied from the
| evidence beyond all reasonable doubt
| that the cow the defendant Is accused
Of stealing was a black or black.brown
cow with a white face. IL properly re-
| fused.
| EQUITY Court.
Heard before Hon. T. L. Sowell.
Alarmed. Opinion by Tyson e, ]. 4.
Dowdeli, Anderson and SHcCleiian.
j.. concur.
| DODGE: v. IRvINGToN LAND co.
| Etsctment.-(Decided July 8, 1908
| Rehearing Denied Jan. IL, 1909
4S South. $3.50.
Appeal and error: review; finding
of fact.-The finding OF the court on
the issue of fact In a case tried with
| out a Jury is OF the same weight as a
| verdict.
| 2. Ejectment: recovery on proof, OF
| Observation-Disclosures prior possession
being prima facie evidence Of title
| and no presumption being INDUCED
| that title is In the United States OF
| another. on proof OF actuai possession
| OF the land by plaintiff under color OF
| title, when the defendant entered, and
| prior actual possession by plainttfr'i
grantor, plaintiff is entitled to recover
In statutory eectment against one who
| shows no title in himself, nor superior
| outstanding title in a third person. not
| withstanding the defendant had color
of title to the land was originally In
the government
Appeal from Mobile Law and Equity
Court.
Heard before Hon. sanold Bsrney.
Affirmed. Opinion by Tyson, G. j.
Dowdell. Simpson and Anderson, u.
concur.
benson and Mcclellan. ~. dissent.
EXCHANGE NATIONAL BANK OF
MONTGOMERY ct all STEWART,
TRUSTEE.
Bill to Avoid Fraudulent Transfer
decided Jan. Fl, 1sO9.-4s South
467).
1. Fraudulent conveyances; remedy
at law.-The fact that a creditor may
be entitled to an action at law fol
money received does not deprive hin
OF his right to a bill to set aside al
alleged fraudulent transfer OF propert,
by an insolvent debtor.
2. Same; property which may be sub
] iected-&oney being leviahle propert'