62 COMMISSIONERS OF SCHOOLS; ROADS & REVENUE.

COMMISSIONERS OF SCHOOLS.

1. The school commissioners of the several townships in the State, are special corporations, and as such have no power to take and hold lands. School Commissioners v. Aiken, 5 P. 169.

2. Thus they cannot maintain indebitatus assumpsit against vendee of lands, sold as the property of the township to recover the price, Ibid,

3. But where land, the property of the township is legally sold by the commissioners, and the vendee refuses to comply with the terms of sale by giving his notes, it seems an action might lie in favor of the commissioners, and a recovery in damages be effected, or a resale on the terms prescribed by the Ibid.

statute.

4. A condition in sale of sixteenth section, that if the vendee failed to comply with the terms of sale, by giving notes with security, the lands should be resold, and the first purchaser held responsible, would not, it seems, render void the contract of sale, or defeat an action to recover of the first purchaser, after a legal resale, the difference of price between the first and the last sale. Ibid.

5. But when commissioners under such conditions sold lands of the township, and on refusal of the vendee to comply, effected a resale at a price less than the minimum affixed by law,-held that an action could not be to recover of the first purchaser the difference between the first and last sale.

Ibid.

corpo

6. The school commissioners of the several counties are bodies rate, and may sue as such. They are properly designated as "school commissioners" of the "township," (describing it by its number and range,) and it is not necessary that they should be described as of "the 16th section" of such township. School Commissioners v. Dean & McDade, 2 S. & P. 190.

7. In an action to recover a forfeiture incurred by one who failed to comply with a contract for leasing certain lots in the 16th section-held 1st:That a contract for such leasing was embraced by the statute of frauds, and required a memorandum in writing.

2d. That a memorandum made by the clerk appointed by said commissioners, to attend said sale, was not sufficient under the statute of frauds. Cammack, et al, v. Masterson, 3 S. & P. 411.

COMMISSIONERS ROADS AND REVENUE.

1. Overseers of a public road are not authorized to take lumber for repairs, &c., without the owners consent.

Reynolds v. Speers, 1 S. 34. 2. No appeal or certiorari lies on proceedings of commissioners of roads in laying out a road, until after a final order, confirming the report of a jury. Smith v. Commissioners of Roads, 1 S. 183. 3. No appeal or writ of error from the decision of the commissioners on the establishment of a ferry, or a refusal to lay out a road.

Ricks v. Hall, 4 P. 178.

4. When an act of the legislature repealed a power previously given to the judge of the county court and the commissioners of roads and revenue,

to establish a poor house; and required a sale by them of all the property purchased with that view-held that the judge and commissioners could alone maintain an action for the purchase money at said sale, and that the county treasurer had no authority to sue.

Harben v. Stuart, 4 P. 370.

See "Highways and Roads."

COMMON CARRIER.

1. At common law an action ex delicto against common carrier, might be maintained against all or any part of the joint owners of a conveyance; but in assumpsit the rule is otherwise, and all the joint owners must be made defendants, and a non-joinder would be reached by plea in abatement. But the statute 1818, embraces within its provisions the joint owners of a steamboat or other vessel; and when they are sued as partners for liabilities incurred by the vessel, a recovery can be properly had against a portion of the owners. Jones et al. v. Pitcher, 3 S. & P. 135. Sproul v. Kellar, 4 S. & P. 383.)

2. A bona fide agreement for the sale of an interest in a steamboat between the part owner and a stranger, whereby the title was to be executed when the purchase money was paid, to hold the policy as collateral, and to receive the consideration money in freight-held an absolute sale, so as to free the vendees from all liability as owners; it appearing that the interest in the boat had passed into the possession of the vendee. Ibid.

3. An allegation in the declaration against the joint owners "that defendants before, and at the time of shipment, were the owners and proprietors of the boat, and co-partners in freighting, and which boat had been previously employed in carrying and transporting cotton and other merchandise for hire,”—held a sufficient averment of the character of the joint owners as common carriers. Ibid.

4. By the common law in relation to common carriers which has been adopted in the jurisprudence of this State, a carrier of goods for hire is responsible at all events for any injury to goods not arising from the acts of God or the public enemy.

Ibid.

5. The "acts of God" embrace only such occurrences as arise from natural causes, as lightning, earthquake and tempest, and no other cause will excuse, except they are expressly provided for.

1bid.

6. A saving in a bill of lading in respect to the "damages of the river,” would it seems be construed as the exception "perils of the sea."

Ibid.

7. A custom in a particular navigation, to preserve particular stations in ascending or descending a river, must be observed at the peril of the own

ers.

Ibid.

8. It is necessary to aver in the declaration, that defendant accepted or undertook to carry the goods. Sommerville v. Merrill, 1 P. 107.

9. In an action the bill of lading is not evidence without proof of its execution, but its production shows a written contract, and parol evidence as to contract would not be admissible.

F. & E. Peck v. Dinsmore, 2 P. 213.

10. The strict rule applicable to the responsibility of carriers of goods does not apply to a conveyance of slaves.

Williams & Hitchcock v. Taylor, 4 P. 234. 11. The owner of a steamboat who employed a slave thereon, is only liable to the master when the slave is killed-for gross negligence, and where the owner of a slave knows of certain defects existing in such boat at the time of hiring, he assumes the risk of such accidents and injuries as may occur therefrom. Ibid.

12. Trustees authorized to receive the profits of a steam boat on which a slave is hired, not liable for damage to said slave, it not appearing that they had a right to the possession of said boat at the time of the injury; nor will the acts of one trustee, without they were authorized by law, hind another in relation to such liability. Ibid.

COMMON LAW.

1. In criminal cases, when not effected by statute, the common law of England is in force in this State, so far as is incumbent with the spirit of our institutions; and though the common law punishments in some cases may be repealed, the offence may nevertheless be punished as all misdemeanors are, by fine and imprisonment. State v. Cawood, 2 S. 360.

2. The common law will be presumed to govern in our sister states unless the contrary be shown. Goodman v. Griffin, 3 S. 160.

CONSIGNOR AND CONSIGNEE.

1. By a contract, in the ordinary form of a bill of lading, by which one man acknowledges to have received from another, some articles of merchandise to be delivered to a third person, who is to pay the freight, the title by the shipment eo instanti passes to the consignee; but the bill of lading is not so conclusive upon the question as to prohibit the introduction, in some cases of proof to that point.

Jones, et al. v. Simms & Scott, 6 P. 138. 2. And when the consignee has not accepted the consignment, but disclaims all interest in the goods shipped, the court will intend that the title reverted. Ezell v. English, 6 P. 311.

CONSTABLE.

Since the statute 1823, constables may exercise process in cases of forcible

entry and detainer.

Ward v. Lewis, 1 S. 26.

2. The approval of his bond by the judge of the county court is not required to be entered of record in open court.

Seaman, et al. v. Duphfey, et al. 4 S. & P. 159. 3. In such case the certificate of the judge that a constable is authorized to enter upon the discharge of the duties of his office is sufficient evidence of approval by the judge.

Ibid. 4. A levy and sale by one constable under an execution for another, which are recognized and returned by the latter, not void on the ground of false Pruit & Martin v. Lowry, 1 P. 101.

return.

5. On motion against a constable for failing to return an execution, it is no excuse that he forgot to make a return when he delivered it to the magistrate. So when on appeal to the county court the constable was permitted to make a return upon an execution, alledging that he forgot to do so when he returned it to the justice-held to be error.

Gayle & Heustis, admrs, v. Weir, 3 P. 193. 6. The statute requirement that certain officers shall renew their bonds annually, as affecting the liability of securities, is to be considered as the bonds of officers elected annually.

Richardson & Son v. Bean & Washington, 5 P. 27. 7. How far the failure to renew the bond annually, as required by statute, would be a failure to perform the duties of the office.—Quere ?

Ibid.

CONSTITUTIONAL LAW.

1. Elections of judge of the county court made by the legislature may be controlled during the session, and the offices filled may be regarded as State ex rel. Mead v. Dum, A. R. 48. 2. A bank charter is a contract between the State and individuals, and snbsequent legislation cannot impair it.

vacant.

Logwood v. P. & M. Bank, Huntsville, A. R. 25. 3. That section of the statute 1819, in reference to tax collectors, which authorizes an original motion in the supreme court against a delinquent tax collector, is contrary to the constitution of the state, and therefore void. State v. Flinn, A. R. 8.

4. The statute of 1820 authorizing the circuit court to refer questions of law, novel and difficult, (in criminal cases) is not an enlargement of jurisdiction of the supreme court, but only an additional mode of carrying up such a cause after final judgment.

Phleming v. State, A. R. 42. 5. "The legislature cannot impair or change the right to a debt, but they can legally alter or modify the remedy or mode of proceeding to recover the debt." Wheat et al. v. State, A. R. 199. 6. The jurisdiction of justices of the peace in relation to forcible entry and detainer, not repugnant to the constitution. Ward v. Lewis, 1 S. 26. 7. Where a verdict in assumpsit in circuit court is for less than $50, and no affidavit is filed according to the statute, the court cannot render judgment for plaintiff, as it has no jurisdiction for such sum under the constitution. Carter v. Dade, 1 S. 18.

8. The statute chartering the Bank of the State of Alabama, is constitutional. Lyon v. State Bank, 1 S. 442. 9. Since the adoption of the constitution, banking in this State is a franchise.-semble. State v. Stebbins, 1 S. 299.

10. The statute 1827, repealing in part that of 1818, incorporating the St. Stephens Company, is constitutional. Ibid. 11. The legislature at all times has the power to limit or prohibit the issuance of a paper currency, when not permitted by previous express authority. Ibid.

12. When a penalty has accrued to an individual under a statute, it is a vested right, and it cannot be effected by any subsequent repeal of the Taylor v. Rushing, 2 S. 160.

statute.

13. The statute authorizing a summary judgment in the supreme court against securities in writ of error bond, is not unconstitutional, nor is the exercise of this authority the assumption of original jurisdiction.

Johnson et al. v. Atwood, 2 S. 225. 14. When a statute merely changes a remedy, it may act retrospectively, on an existing right. Anonymous 2 S. 228. 15. A citizen may, by the acceptance of a public office waive constitutional right, and an act providing that a public officer shall vote only in a certain event, is not unconstitutional." State v. Adams, 2 S. 231.

16. Courts of justice cannot inquire into the motives or reasons of the executive in making an appointment, when the right to make the appointment exists. Ibid.

17. The statute poviding a punishment for those who bring stolen goods into the State is constitutional. State v. Seary, 3 S. 123. 18. The act of Dec. 1821, conferring an annuity and a military title upon Samuel Dale for military services, created no obligation as a contract, nor vested any right in the annuitant, and the subsequent act of 1823, repealing the same, was constitutional. Dale v. Governor, 3 S. 387. 19. The State of Alabama has the undoubted right to extend its civil and criminal jurisdiction over any tract of Indian country within her limits, where the Indian title is not extinguished.

Ibid.

Caldwell v. State, 1 S. & P. 327. Opothle-Yoholo v. Mitchell, 2 S. & P. 125. 20. The statute of 1829, extending the jurisdiction of the State over the Creek nation, is constitutional. 21. An offence committed in the Indian territory, to which the Indian title has not been extinguished, but over which territory the jurisdiction of the State courts has been extended, is properly cognizable in the courts of this State, and the conviction of one for felony on such lands held legal.

Ibid.

22. The constitution of this State does not prohibit the condemnation of private property by the government for the public benefit, if compensation be made to the owner thereof.

Aldridge v. the T. C. & D. Rail-Road Company, 2 S. & P. 199. Davis by Gerard v. T. C. & D. R. Road, 4 S. & P. 421. 23. It is not essential that the property so condemned should be in the continued occupation of the government or its agent. Ibid.

24. A retrospective act of the legislature which would take away the right of property, or dissolve the obligation of a contract would be unconstitutional, and void; but a retrospective action may be valid, as an act to change the remedy after a cause of action has accrued, or the jurisdiction of the court, or the mode of procuring testimony, or prosecuting the suit.

Bloodgood v. Cammack, 5 S. & P. 276. 25. The prohibition against passing expost facto laws in the constitution of the United States, applies to criminal not to civil cases. I bid.

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26. The tonnage duty levied on vessels entering the port of Mobile, 9 sec. statute 1822, entitled an act for the government of the port of Mobile," was an infraction of the constitution of the United States.

Sheffield v. Parsons, 3 S. & P. 302.