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[Zaner v. The State.]

garded as surplusage, or void, and that the judgment should be reversed back to the conviction only, and the cause remanded, not for a new trial, but that the court may render a proper sentence. This case is distinguishable from those cases in which that course was pursued, in this: in those cases, there was either no verdict of a jury, or the verdict presented no obstacle to the court adjudging the place and character of punishment prescribed by the law. For instance, in Herrington v. State, 87 Ala. 1, no jury was called; the defendant pleaded guilty to the charge of embezzlement, and thereupon the court sentenced him to imprisonment in the penitentiary for the term of one year, which was unauthorized by the statute. Also, in De Bardeleben v. State, 50 Ala. 179, the offense charged being grand larceny, the jury returned a general verdict of guilty, which was followed by a judgment of conviction, and sentence to two years imprisonment in the county jail. It was held, that the statute did not authorize in such case punishment by imprisonment in the county jail. In each of the cases, the sentence only was reversed, leaving the judgment of conviction to stand, and the cause remanded, that the court might pronounce a proper sentence. The proceedings were regular and proper, up to, and including the judgment of conviction; the error consisted only in adjudging the place and nature of the punishment.

It may be that, where the jury has no discretion as to the place, nature, or term of the punishment, and the authority to adjudge it resides in the court, if the verdict finds the defendant guilty, and also designates the place, character and term of the punishment, the same would be regarded as surplusage, or void, and as presenting no obstacle to the court adjudging the proper sentence. An informal verdict is ordinarily sufficient to sustain a judgment of conviction and sentence. But, where the jury has a discretion as to the term of the sentence, and they fix it in connection with, and based upon a prescribed place and character of punishment, that portion of the verdict fixing the place can not be regarded as surplusage, or the verdict as merely informal. Non constat, the place and nature of the punishment may have induced the jury to agree upon the period fixed in the verdict. A verdict which exceeds the limits of the law, or is unauthorized, or so irregular and illegal that it can not be made the predicate of a legal sentence, is incapable of sustaining a judgment of conviction, and a sentence following the verdict.--Gunter v. State, supra. It has been repeatedly held, that a verdict of guilty under an indictment for murder, not expressly finding the degree of the offense, though fixing the punishment at imprisonment in the

Zaner v. The State.]

penitentiary for life, is fatally defective, and does not warrant the sentence declared in the verdict.-Dover v. State, 75 Ala. 60. When the sentence of the court follows an irregular and unauthorized verdict, the error reaches beyond the sentence, to the verdict itself, and a reversal of the sentence back to the conviction does not cure the error. In such case, the judgment should be reversed, and the cause remanded for a new trial.

The charge given by the court asserts a correct proposition of law. In view of the evidence tending to show that defendant was cautioned not to go by the shop of deceased, and of his dying declarations, which were admitted without objection, we can not say that the charge authorizes the jury to infer facts of which there is no evidence. And, in view of the same evidence, the charge requested by the defendant, and refused, is defective in that it ignores the question, whether defendant provoked, or was at fault in bringing on the difficulty.

For the error mentioned, the judgment must be reversed, and the cause remanded for a new trial.

Reversed and remanded.

INDEX.

ACCESSORY. See CRIMINAL LAW, 1.

ACCOUNT.

1. Conclusiveness of account rendered.-An account rendered to a
debtor, and retained by him without objection within a reason-
able time, becomes a stated amount, and is prima facie correct;
but the presumption as to its correctness is not conclusive.
Rice v. Schloss & Kahn, 416.

2. Proof of account.-An account is not admissible as evidence, on
the testimony of the plaintiff's clerk, or book-keeper, that it is
a correct transcript from the books. The several items must
be proved, or it must be shown that the account was rendered
to the defendant, and by him retained so long, without objec-
tion, as to raise a presumption of its correctness, or that the
parties, their clerks, or book-keepers, have gone over all the
items, made corrections, eliminated errors, and struck a bal-
ance. Ib. 416.

3. Burden of proof, as to correctness of account.—In an action on an
open account, the onus is on the plaintiff to establish its cor-
rectness, and not on the defendant to show mistakes, or
credits to which he is entitled; and in an action on a stated
account, the onus is on the defendant to impeach its correct-
ness; but, where the complaint counts on both, and the evi-
dence leaves it doubtful whether the account is open or stated,
a charge which places the burden of proof on either party,
without regard to the character of the account, is erroneous.
Ib. 416.

ACTION.

1. Common ́counts; work and labor performed under contract within
statute of frauds.-When the complaint contains only the com-
mon counts, the plaintiff may recover for work and labor per-
formed while he remained in the defendant's employment,
although his contract of employment was within the statute of
frauds. Krou v. Verkentoren, 113.

2. When action lies for money had and received.-Under a contract
for the sale of timber by plaintiff to defendant, to be cut,
hauled and sawed into lumber, plaintiff to have one-fourth of
what it made, he can not maintain an action for money had
and received, without proof that the lumber has been sold, or
otherwise converted by the defendant to his own use. Snod-
grass v. Coulson, 347.

3. Who may sue; whether contract is joint or several.-A tract of land
subject to an outstanding vendor's lien having been sub-divided
by the purchaser, and separate portions sold to different per-
sons, against one of whom he filed a bill to enforce his lien,
after which a bill was filed against him and the several sub-pur-
chasers to enforce the original lien; a purchaser of the parcel
sold under the first decree afterwards bought the decree in the
second suit, and, as part of the consideration, entered into a

ACTION-Continued.

written agreement with all the parties to that suit, by which he
promised to institute proper proceedings in it, by petition or
otherwise, to have the equities of all the parties determined,
as to the order in which their several portions should be sold, if
necessary, with leave to each of them to propound his interest
by petition or answer, and to appeal: Held, that though his
agreement was made with all the defendants jointly, the in-
terest of each was several and distinct, and each might main-
tain a separate action for a breach, without joining the others.
Burton v. Henry, 281.

4. Action by father for damages, on account of injuries causing death of
minor son.-At common law, if the father consented to the em-
ployment of his minor son in a dangerous service, and the son
had arrived at the age of fourteen years, each of them assumed
the risks incident to the service, and neither could maintain an
action for damages against the employer, on account of per-
sonal injuries to the minor resulting from the negligence of
another person employed in the same service; and there is
nothing in the statutory provisions giving and regulating ac-
tions for damages on account of wrongful acts causing death or
personal injuries (Code, §§ 2588-93), which gives the father, in
such case, a right of action against the employer for personal
injuries causing the death of the son while in the service.
Lovell v. De Bardelaben Coal & Iron Co., 13.
5. Action against partnership; judgment and execution.-When an ac-
tion is brought against a partnership by its firm name only, not
giving the names of the individual partners, the judgment re-
covered "binds the joint property of all the associates, in the
same manner as if all had been made defendants, had been
sued upon their joint liability, and served with process" (Code,
§ 2605); but an execution on such judgment can not be levied
upon the separate property of the individual partners, nor upon
a tract of land which was bought with partnership funds, for
partnership purposes, and conveyed to the partnership by its
firm name, the legal title being thereby vested in the several
partners individually. Powers v. Robinson & Co., 225.

6. Action at law between partners, or partnerships with common partner.
At common law, one partnership could not maintain an action
against another, when the two had a common partner; but.
statutory provisions now making partnership demands joint
and several (Code, § 2605), the creditor partnership may main-
tain an action at law against a member of the debtor partner-
ship individually, not joining the common partner as a de-
fendant with him. Alexander Bros. v. Jones, 474.
7. Action by transferree of account for medical services.-The trans-
ferree of an account for medical services rendered can not
maintain an action and recover judgment on it, unless his trans-
ferror could; but he may recover without production of the
license, on sufficient secondary evidence of it. Kilgore v.
Stanley, 523.

8. Action for damages against owner of warehouse and landing on navi-
gable river.—In an action to recover damages for the defendant's
refusal to receive and keep, at his landing, pine logs belonging
to plaintiff, which were to be rafted down the river; if the com-
plaint only alleges that the defendant was "the owner and
keeper of a public landing and warehouse on a navigable
river," and refused to receive plaintiff's logs, when offered, for
shipment in the usual course of business, it shows no cause of
action; and an additional averment that the refusal was mali-
cious, does not cure the defect. Compton v. Hankins, 411.

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