should be applied, to the end that the surviving partner would be charged with the sum stated.

connection with these expenditures, the com- Ala. 609; Burns v. Campbell, 71 Ala. 271), plainant calls the special master's attention to the fact that, after the death of James O. Dickens, Charles C. Dickens wrongfully continued to conduct the business of the English Manufacturing Company as if it was his own, and bought new goods and mixed them with the goods on hand and sold from the common stock thus mixed, and kept no accounts whatever showing what portion of his receipts and disbursements relating to the winding up of the copartnership, and what portion thereof related to the new business thus conducted by him."

In the account headed "Statement of Account of C. C. Dickens," filed by cross-appellant with the special master, along with the explanations mentioned, there appears this statement: "Amount paid by C. C. Dickens out of firm assets for purchases made by him, and part of freight on the same from Nov. 30/08 (the date of J. O. Dickens' death) to Jan'y 29/09......41,674.88." Evidently the date, "Nov. 30/08," was intended to read, "Nov. 30/06"; that being "the date of J. O. Dickens' death."

If we interpret the quoted statements, in connection with the other parts of the explanation filed by cross-complainant, aright, the stated insistence cannot be approved. The special master, and the chancellor in confirming his report, were well invited to decide that this sum out of the trust fund went into new goods, and that these goods were commingled with other partnership as

sets.

The result of the application of this rule to the status created by the unauthorized continuance of the business by the surviving partner would be to give the cross-appellant the proportionate benefit of both the trust fund invested in new goods and the purchases therewith made. When translated into the form of an account, the surviving partner would be charged with the trust fund and with the goods into which it went, and denied credit of the sum so expended by him. Such was, as we understand it, the special master's notion, and that approved by the chancellor, when in his report he said: "I hold that she (complainant cross-appellant) would not have the right to recover of respondent her share of the capital used, with interest thereon, and in addition thereto take two-thirds of the goods in which said capital was invested, with the profits made from the sales of the same. Upon broad equitable principles, apart from the rule establishing the surviving partner's liability, this should not be allowed."

According to the account, and accompanying explanation, filed with the special master by the complainant (cross-appellant), the purchases made by the surviving partner, after the dissolution of the partnership by death, were made with trust funds, thereby excluding, as to the sum in question, any basis upon which to apply the doctrine with

goods purchased with trust funds took the place of the funds in the trust. They did not represent, nor were they, individual property of the surviving partner. Hence there was no commingling of separately owned properties or funds, but only, as the special master ruled, "a change from a moneyed asset into a property asset."

The assignments made upon the cross-appeal are without merit; and, upon that appeal, the decree is affirmed. Affirmed on both the main and cross-appeals. All the Justices concur.

There is no contest of the abstract sound-respect to the "commingling of goods." The ness of the legal proposition that, "on the dissolution of the firm by the death of one of the partners, it is the survivor's duty to settle up the partnership affairs within a reasonable time, and pay over to the representatives of the deceased partner the amount due to them; and if he takes the responsibility of continuing the business of the firm, and using the property of the partnership, he becomes liable for losses that may occur; and it is the option of the representatives of the deceased partner either to insist upon a division of the profits, which may be made in thus carrying on the business or upon being paid the amount of the deceased's share in the capital, with lawful interest thereon, after deducting his indebtedness to the firm." Clay v. Field, 138 U. s. 464, 473, 474, 11 Sup. Ct. 419, 34 L. Ed. 1044; 30 Cyc. p. 640, and notes; Brown's Appeal. 89 Pa. 139, 147; 2 Lindley on Part. (4th Ed.) star pages 977-979, and notes thereon. But it is insisted by cross-appellant that the rule that "when goods are intermixed wil fully, without mutual consent, the entire property belongs to him whose property was originally invaded, and its distinctive character destroyed" (Alley v. Adams, 44

(2 Ala. App. 196)

CLARK v. STATE. (Appellate Court of Alabama. June 30, 1911. Rehearing Denied Nov. 23, 1911.) 1. COSTS (§ 322*)-CRIMINAL PROSECUTION. judgment against the accused that he perform Code 1907, $$ 6584, 7635, provide that on hard labor, and if costs are not paid or judgment confessed, the court may impose additional hard labor for a period, not exceeding 10 months, to pay such costs. Section 6638 provides that the sheriff's fees for removing a prisoner from one county to another shall be that execution shall issue therefor. Held, that taxed against the prisoner upon conviction, and the provision that execution should issue there

for was not the exclusive method of collecting | of the Code contain the applicable provisions costs for removing a prisoner in misdemeanor of the law on that subject. By the express cases, and the defendant might be sentenced to hard labor to pay the fee.

sued for a debt prior to the action on the bond was properly excluded, as not affecting his credit, constituting an element of dam

ages.

[Ed. Note.-For other cases, see Garnishment, Dec. Dig. § 247.*]

3. APPEAL AND ERROR (8 877*)-RIGHT TO ALLEGE ERROR.

A party may not complain of the overruling of an objection to evidence made by the adverse party.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by C. D. Ritter and another against F. L. Hoy and others on a garnishment bond. From a judgment for defendants, plaintiffs appeal. Affirmed.

The court sustained defendant's objection to the following question propounded by [Ed. Note.-For other cases, see Appeal and plaintiff to its witness Ritter: "State whethError, Cent. Dig. § 3567; Dec. Dig. § 877.*] er or not, at the time of the suing out of the garnishment in this case, you were a 4. APPEAL AND ERROR (8 260*)-QUESTIONS I will REVIEWABLE RULINGS ON EVIDENCE-Ex-practicing attorney in Birmingham.

CEPTIONS.

A ruling on a motion to exclude evidence is not reviewable where no exception was re

served to it.

[Ed. Note.-For other cases, see Appeal and Error, Cent Dig. §§ 1503-1515; Dec. Dig. § 260.*1

5. EVIDENCE (8 474%*)-OPINION EVIDENCECONCLUSION OF WITNESS.

In an action on a garnishment bond give en to secure the issuance of process of garnishment in an action on a note, questions eliciting the mere opinions or conclusions of witnesses as to the amount due on the note at the time of the suing out of the garnishment were properly excluded.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 88 2220-2233; Dec. Dig. § 4742.* 6. GARNISHMENT (§ 247*)-ACTIONS ON GARNISHMENT BONDS-DAMAGES-QUESTION FOR JURY.

Where plaintiff garnished two banks in an action against defendant, who gave a bond as authorized by statute, and thereby effected the dissolution of the garnishments on the day of the issuance and service of the writs, the question whether the issuance and service of the writs entailed on defendant in the action any actual damage susceptible of ascertainment was for the jury in an action on the

bond.

[Ed. Note.-For other cases, see Garnishment, Dec. Dig. 247.*]

ask you to state whether or not your coplaintiff, Tribble, had been sued for debt prior to this action. What bank had you done business with up to the time of this action?" The fourth assignment of error is as follows: "The court erred in overruling plaintiff's objection to the following question propounded to the plaintiff Ritter by the defendant: 'Mr. Hoy was trying to collect this note, wasn't he?" The following questions were propounded to the witness Jaffe, objections to which were interposed by the defendants and sustained by the court: "I will ask you to state whether or not, prior to the 26th day of January, 1910, Ritter had any credit at your place. Did not Ritter have a good credit in Birmingham?"

The charges referred to were as follows: "If you believe the evidence in this case, you must find a verdict for the defendant for actual damages, although after a consideration of all the evidence you are not thoroughly satisfied that the plaintiffs are entitled to punitive or vindictive damages. (2) The court charges the jury that the garnishment was wrongfully sued out, unless it was actually necessary in order to obtain satis

7. DAMAGES (§ 163*)—ASSESSMENT OF DAMAG-faction of Hoy's debt when judgment would ES EVIDENCE.

Where an action is for actual damages which are uncertain or have not been admitted. the burden of establishing the amount thereof by evidence is on plaintiff.

[Ed. Note. For other cases, see Damages, Cent. Dig. 88 454-459; Dec. Dig. § 163.*] 8. GARNISHMENT (8 247*)-ACTIONS ON GARNISHMENT BONDS-PUNITIVE DAMAGES.

have been obtained on said debt. If the evidence reasonably satisfies the jury that the garnishment was not necessary in order to obtain satisfaction of such judgment, they should find a verdict for the plaintiff for the actual damages done by the suing out of the garnishment, including any loss that the evidence may show the plaintiffs have sustained to their credit by the suing out of said gar

Where a garnishment was not sued out maliciously or vexatiously, punitive damages cannot be assessed in an action on the garnishment; but the verdict should not exnishment bond.

[Ed. Note. For other cases, see Garnishment, Dec. Dig. 247.*]

9. APPEAL AND ERROR (§ 1066*)-HARMLESS ERROR-INSTRUCTIONS.

ceed the amount of the bond sued on. The fact, if it was a fact, that the said Hoy honestly believed that a garnishment was necessary to the collection of his debt, is no defense to the plaintiff's right to recover such damages, if in fact the garnishment was not necessary in order to collect the debt. (3) The court charges the jury that if they find, from all the evidence, that the defendant Hoy sued out the writ of garnishment in this case for the purpose of harassing or vexing the plaintiff, that the jury may, at their discretion, award the plaintiffs punitive or [Ed. Note.-For other cases, see Appeal and vindictive damages, in addition to actual Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] | damages sustained by them. (4) The court

Where, in an action on a garnishment bond, the evidence on which to base an assessment of actual damages was confined to the tying up of the money of plaintiff by the service of the garnishment writ and of the effect on his credit, a charge authorizing such actual damages as were sustained, which would be interest on the money tied up for the length of time it was tied up, and such damages as resulted to plaintiff's credit, was not prejudicial to plaintiff.

charges the jury that as a matter of law, prior to this action. The matter called for the plaintiffs are not required to show the could have had no bearing on any issue in this amount of actual damages, but this is a case. It is suggested in argument that the question for the jury. (5) The court charges inquiry was pertinent on the question of the jury that under the law in a case like credit. We do not think so. The mere fact this plaintiffs are not required to prove the of one's being sued on an alleged debt would amount of actual damages, but it is suffi- have no legitimate tendency to prove that cient if they show facts from which the jury he owed such debt and was in default in can by the exercise of their judgment infer its payment, and could not be regarded as a actual damages. (6) The court charges the circumstance unfavorably affecting his credjury that the plaintiffs are not required to it. On the other hand, the fact that he had prove the amount of actual damages they never been sued for a debt would have no have sustained, but that, if you find from tendency to prove that he had been indebted all the evidence that plaintiffs are entitled to or that he enjoyed or was entitled to credit. recover, then it is the duty of the jury to [3] The bill of exceptions does not show take into consideration all the facts and cir- that the plaintiffs interposed any objection cumstances proved, and if from all those to the question asked the plaintiff Ritter as facts and circumstances the jury find plain- to Mr. Hoy's trying to collect the note. tiffs have suffered actual damages on ac- The statement is that the defendants objectcount of the wrongful suing out of the writed to that question. The plaintiffs cannot of garnishment, then the jury should consid- complain of the overruling of an objection er such facts and circumstances proved, and made by the defendants. assess such actual damages as they believe the plaintiffs have sustained by reason of the wrongful suing out of said garnishment." The following charges were given at the instance of the defendant: "(2) Unless you believe that Hoy sued out the garnishment maliciously or vexatiously, you cannot find punitive or exemplary damages.

*

(5) If you believe from the evidence in this case that C. D. Ritter and George Tribble were indebted to Hoy on January 26, 1910, and if you further believe from the evidence that said Hoy honestly believed that there was reasonable and probable cause for suing out the garnishment in question, then you can only find for the plaintiffs such actual damages as the evidence satisfied you they sustained. (6) If you believe that Hoy did not sue out the garnishment maliciously or vexatiously, you can only find for the plaintiffs such actual damages as they have shown you by the evidence that they have sustained, which would be interest on the money tied up, if you believe that any was tied up, for such length of time as it was tied up, and such damage, if any, to the plaintiff's credit."

[4] The ruling of the court on the motion of the defendants to exclude the answer of the witness Jaffe to the question in regard to the general credit of the plaintiff Ritter is not presented for review, as no exception was reserved to that ruling.

[5] The expressed purpose of the questions asked the defendant Hoy on his cross-examination in reference to the consideration of the note sued on in the garnishment case was "to show that the amount for which the garnishment was run was greater than the sum actually due at that time." Instead of undertaking to show this by bringing out the facts, the questions asked in that connection were calculated to elicit the mere opinions or conclusions of the witness as to the amount then due. There was no error in sustaining the objections to those questions.

[6] The bond sued on was given to secure the issuance of process of garnishment in a pending suit against the plaintiffs in this action, counting on a promissory note alleged to have been executed by them. Two banks in Birmingham were named as the garnishees. The defendants in the suit gave bond, as authorized by the statute, and there

Gaston & Pettus and C. D. Ritter, for ap- by effected the dissolution of the garnishpellants. W. T. Ward, for appellees.

ments on the day of the issuance and service of the writs. Under the evidence it was a WALKER, P. J. [1] The plaintiffs (appel- question for the jury whether or not the lants here) could not have been prejudiced issuance and service of the writs entailed by the action of the court in sustaining ob- upon the plaintiffs any actual damage which jections to questions propounded to the plain- was appreciable and susceptible of ascertaintiff Ritter as to whether or not at the time ment and assessment. In the circumstances of the suing out of the garnishment he was developed by the evidence it was not for the a practicing attorney in Birmingham, and court to say that such was the fact. This as to what banks he had done business with being true, it was justified in refusing to give up to that time, as the evidence sought to be written charges 1, 2, and 3 requested by the elicited by each of those questions was sub-plaintiffs, as each of those charges involved sequently admitted by the court. the assumption that the plaintiffs sustained actual damages.

[2] There was no error in sustaining the objection of the defendant to the question to the plaintiff Ritter as to whether or not his

[7] Where an action is for actual damages which are uncertain or have not been admit

thereof by evidence is upon the plaintiff. | charge on simple negligence was sufficiently Buist v. Guice, 96 Ala. 255, 11 South. 280; favorable to the company. Hood v. Disston & Sons, 90 Ala. 377, 7 South. 732; 13 Cyc. 192. The statement of this proposition discloses a fault in each of the plaintiffs' written charges numbered 4, 5, and 6, justifying the refusal of the court to give them.

BIRMINGHAM RY., LIGHT & POWER CO. sion or commission; and one may be guilty of

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes