act from one that imparts presentation to the personal representative. Within this descriptive phrase is included | tate, and filed as required-a very distinct such acts in the premises as definitely brings the claim against the estate of his intestate to his particular attention, and manifests a purpose to enforce payment thereof against the estate. Suit upon the claim or demand against the personal representative is of this class, and when suit is instituted within the statutory period, and continuously presented, that operates a presentation of the claim sued on. "Mere knowledge of the existence of a claim on the part of an executor or administrator, no matter how full and complete it may be, will not prevent the operation of the statute of nonclaim." Allen v. Elliott, 67 Ala. 432. There is no authority, statutory or otherwise, for the effectuation of a valid presentation, to avert the bar of the statute, of a claim against a decedent's estate by simply filing it, however complete the statement of it, in the chancery court. The demurrers to the replications were properly sustained. [9] The court gave, for the defendant (appellee) charge 12, as follows: "If you believe the evidence in this case, you should find for defendant on his plea 6a." The respective counsel treat this as the general affirmative charge for the defendant. Such was its effect. The burden of proof was upon the [8] It appears from the special replica- plaintiff to show presentation to avert the tions that the plaintiffs (here) were not par- bar of nonclaim asserted in plea 6a. Mitchell ties to the litigation therein mentioned. They v. Lea, 57 Ala. 46; Kornegay v. Mayer, 135 sought to be let in to litigate. 164 Ala. 312, | Ala. 141, 33 South. 36. The bill purports to 51 South. 344. This was denied them. Ob- contain all the evidence. On the evidence viously what they there did, or undertook to do, did not constitute a suit on their claim. So the proposition of the replications is resolved into the theory the pleader therein plainly manifested, viz.: That mere notice, not actual presentation, to an executor or administrator of a claim against the estate in his care is a presentation, if such notice is effected within the statutory period. The quotation (ante) from Allen and Elliott is opposed to the theory. These decisions, and others might be added, require the like conclusion: Floyd v. Clayton, 67 Ala. 265; Smith v. Fellows, 58 Ala. 467. The counsel for appellants attaches undue importance, as well as misinterprets, the word "impliedly," as employed by Judge Stone, on page 472, in Smith v. Fellows. The effect of the strong language elsewhere used, in this connection, in that case entirely refutes any notion that there may be an effective presentation as the result of implication. The term "impliedly," as there used, has reference only to the claimant's purpose to look to the estate for payment of his claim. Anterior to that-in order to effect a valid presentation—the claim must "be brought to the attention of the personal representative" in such sort as to accomplish the object the statutes intend. It appears from the replications that this essential drawing of the claim to the particular attention of the administrator is asserted to have been effected only by reason of the fact that the claim was filed in the cause mentioned-a cause to which the administrator was a party respondent. alternative in the averment quoted before from the first replication gives unmistakable evidence of this. The other replication is less effectual for its purpose, for that, aside from a general statement, as from the premise of fact therein laid, that the claim was presented as required by law, it is averred that the claim was duly presented to the es The shown, the plaintiffs did not discharge the The judgment must be affirmed. ANDERSON, SAYRE, and SOMERVILLE, JJ., concur. (185 Ala. 166) PALMER v. SULZBY. (Supreme Court of Alabama. Jan. 13, 1914.) 1. MORTGAGES (§ 446*)-FORECLOSURE—BILL— ORIGIN OF DEBT. Since notes secured by a mortgage on real estate imported a consideration, it was not necshould allege the origin of the debt and the essary that a bill to foreclose the mortgage nature of the consideration for which the notes were given. Cent. Dig. § 1310; Dec. Dig. § 446.*] Equity has jurisdiction to foreclose a mortgage, notwithstanding there is a power of sale contained therein. Cent. Dig. 8 1156; Dec. Dig. 390.*] Appeal from Chancery Court, Jefferson Bill by James F. Sulzby against Mrs. Mary From a dePalmer to foreclose mortgage. cree overruling demurrers to the bill, respondent appeals. Affirmed. Thompson & Thompson, of Birmingham, for appellant. James A. Mitchell and W. T. Hill, both of Birmingham, for appellee. SAYRE, J. [1] Bill to foreclose a mortgage averring that defendant was indebted by promissory notes executed by defendant and secured by the mortgage. Defendant demurred to the bill on the ground that it should contain specifications as to the origin Hill, Hill, Whiting & Stern, of Montgomof the debt and the nature of the considera- ery, for appellant. R. C. Brickell, Atty. Gen., tion for which the notes were given. Our and W. L. Martin, Asst. Atty. Gen., for the judgment is that the averments of the bill State. in this respect were sufficient. The notes imported a consideration, and that was enough. Hunley v. Lang, 5 Port. 157. [2] Defendant also demurred to the bill because complainant had ample remedy under the power of sale in the mortgage. All the authorities concur that the jurisdiction of equity exists as well where there is a power to sell as where there is none. McGowan v. Branch Bank of Mobile, 7 Ala. 828; Vaughan v. Marable, 64 Ala. 67. WALKER, P. J. [1, 2] In the opinion heretofore rendered in this case, the court considered the questioned rulings of the trial court in the proceedings which led to the conviction of the appellant. It is only since the rendition of that opinion that the fact has been called to the attention of the court, or has been noticed by it, that by the judgment appealed from, rendered on a verdict of guilty which assessed against the defendant only a fine, There was no error in the ruling on demur- he was sentenced to imprisonment in the pen rer. Affirmed. itentiary for a term of six months. This sentence was not authorized by law, as the statute (Code, § 7620) provides that "in all ANDERSON, MCCLELLAN, and SOMER- cases in which the imprisonment or sentence VILLE, JJ., concur. (9 Ala. App. 95) MINTO v. STATE. to hard labor is twelve months or less, the party must be sentenced to imprisonment in the county jail, or to hard labor for the county." It is plain that, so far as the sentence of the defendant to imprisonment is concern (Court of Appeals of Alabama. Nov. 20, 1913. ed, the judgment of the trial court should On Application for Rehearing.) 1. CRIMINAL LAW (8 1218*)-SENTENCE. Under Code 1907, 8 7620, providing that, in cases in which the sentence to hard labor is for 12 months or less, a party must be sentenced to imprisonment in the county jail or to hard labor for the county, a sentence, in prosecution for keeping a gaming table, of months in the penitentiary was unauthorized. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3320-3328; Dec. Dig. 8 1218.*] have been reversed. Robinson v. State, 6 Ala. App. 13, 60 South. 558. As the judgment of this court in the case was rendered during its present term, that judgment is subject to be recalled or to be changed in any respect in which a change of it may be required to make it conform to the law, unless, by reason of the existence of some special state of facts, the court has lost the power to render such Judgment in disposing of the appeal as should have been rendered. It is urged by the counsel for the appellant that this court cannot now take such action as will result in the Where a judgment of the appellate court imposition upon the appellant of a legal affirming a judgment of conviction was void sentence to imprisonment or to hard labor, in so far as the sentence was concerned, the court could, at the same term, correct such judgment and impose a lawful sentence, notwithstanding part of the void sentence may have been executed, since, as the first sentence was void, it was not a double punishment for 2. CRIMINAL LAW (§ 996*) — JudgmENT AMENDMENT AND CORRECTION - AUTHORITY OF COURT. the same offense. as it may be that, in consequence of the judgment of affirmance heretofore rendered, he has served part of the unauthorized sentence to imprisonment in the penitentiary. There is nothing in the record to indicate that any part of such sentence has been executed. But, whether or not the defendant has commenced the imprisonment provided for, the fact does not deprive this court of the power to make such disposition of the case brought into it by the appeal as will result in the correction of the error committed by the trial court in imposing a sentence not authorized by law. The defendant could not have served any part of a former sen [Ed. Note. For other cases, see Habeas Cor-tence of imprisonment, as there has been no pus, Cent. Dig. § 4; Dec. Dig. § 4.*] Appeal from City Court of Montgomery; Gaston Gunter, Judge. Mike Minto was convicted of keeping a gaming table, and he appeals. Former opinion (see 8 Ala. App. 306, 62 South. 376), affirming a judgment of the lower court, modified, and the judgment of the lower court reversed and remanded, in part. such sentence which the law can recognize. We are cited to rulings to the effect that, when a defendant in a criminal case has paid his fine or his imprisonment has begun, the court has no power to recall him to revoke his former sentence and impose one which inflicts a greater punishment. 12 Cyc. 783, 784, and authorities there cited. In the cases cited, the sentence first imposed was •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes one which the court had the power to impose. In such a case it has been deemed that to permit the imposition of another sentence after the one first imposed had been wholly or partially executed would be in contravention of the rule against any one's being twice lawfully punished for the same offense. Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; State v. Meyer, 86 Kan. 793, 122 Pac. 101, 40 L. R. A. (N. S.) 90, 94, Ann. Cas. 1913C, 278. The reason which supports this prohibition of a second sentence cannot apply when the first sentence was a void one, or, in the eye of the law, no sentence at all. The sentence first imposed cannot be treated as valid, for the purpose of preventing the imposition of another one, and at the same time as void for the purpose of enabling the defendant to obtain a discharge from any restraint under it. We do not find that anything has occurred which is entitled to be given the effect of disabling this court to render such judgment as the facts disclosed by the record call for. As it has been found, as was stated in the opinion heretofore rendered, that no error was committed which would warrant a reversal of the judgment of conviction, and as the error above pointed out affects the judgment appealed from only so far as concerns its imposition of punishment, the former judgment of affirmance will be set aside, and a judgment will be rendered affirming the judgment appealed from, except as to the part of it which dealt with the sentence to be imposed upon the defendant, reversing such judgment as to that part of it, and re manding the cause, to the end that the defendant be sentenced as required by law. Affirmed in part, reversed in part, and remanded. On Application for Rehearing. [3] In the brief filed in support of the appellant's application for a rehearing as to the reversal of the part of the judgment of the trial court which imposed a sentence of imprisonment in the penitentiary and the remandment of the cause for the imposition of a sentence authorized by law, it is urgently contended that the ruling made in the case of Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872, and the opinion rendered in support of that ruling, demonstrate the incorrectness of conclusions stated by us in disposing of the feature of the case just mentioned. We think that the opinion rendered in the recent case of Ex parte Spencer, 228 U. S. 652, 33 Sup. Ct. 709, 57 L. Ed. 1010, furnishes a sufficient answer to this contention. What was said in that opinion shows that the facts in the case of Ex parte Lange were materially different from those in the case at bar, and that such a ruling as was made in that case would not be a proper one in a case situated as the one at bar was ed. The case of Ex parte Lange was there recognized as one of a subsequent sentence being unauthorized because there was a legal part of the former sentence which had already been satisfied, the court saying of that case: "In that case a circuit court of the United States imposed a sentence of a fine of $200 and one year's imprisonment, the statute authorizing only a fine or imprisonment. The fine was paid, and on the next day the prisoner was brought before the court by habeas corpus and an order was entered vacating the former judgment and the prisoner again sentenced to one year's imprisonment. It was held that the court had not the power to vacate the judgment and resentence the prisoner; that such action was double punishment for his offense, the legal part of the former sentence having been satisfied. It was further held that the judgment was void, not merely erroneous, and that the prisoner was entitled to be discharged, upon petition in habeas corpus." And it was held in Ex parte Spencer that the result which was proper under the facts presented in the case of Ex parte Lange could and should be avoided, where the unauthorized sentence complained of is the subject of review by an appellate court, which is vested with the power to change or modify it or to reverse the judgment, with directions for the imposition of a lawful sentence. In this connection it was said: "When the orderly procedure of appeal is employed, the case is kept within the control and disposition of the courts, and, if the judgment be excessive or illegal, it may be modified or changed and complete justice done, as we have said, to the prisoner and the penalties of the law satisfied as well." In the case at bar, the term at which the former judgment of affirmance had been rendered not having expired, the power conferred by the appeal upon this court to review the judgment appealed from and to reverse that judgment in whole or as to any part of it which might be found not to be in conformity with the law remained unimpaired up to the time of the reversal of a part of that judgment and the remandment of the cause. While the case remained in this situation, this court could not be deprived of its power to change or modify its former judgment by the conduct of the appellant in refraining from making in this court any complaint of the judgment appealed from, because of the illegality of part of the sentence which it imposed, and then, when the sentence the illegality of which he had not called to the attention of this court was put into execution, availing himself of that ground of objection on a petition in habeas corpus to another court. The writ of habeas corpus is not to be permitted to be used to obtain a discharge from an illegal restraint, so long as the party complaining may be protected retains the power to require a legal sentence to be substituted for the illegal one which is complained of. Application for rehearing overruled. (9 Ala. App. 89) ADAMS v. STATE. at which the judgment of affirmance was rendered, from setting aside such judgment and reversing the judgment of conviction as to the part imposing sentence and remanding the case for proper sentence. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. § 1133.*] Appeal from City Court of Montgomery; (Court of Appeals of Alabama. June 5, 1913. Armstead Brown, Judge. 1. CRIMINAL LAW ( 404*)-EVIDENCE-GAM- Where, in a prosecution for keeping a gaming table, there was evidence that accused and others used a small table in a certain room for gaming, and that defendant received a "take out," it was permissible to exhibit to the jury a large table with figures on it of a kind commonly used in playing games of chance, which was found in the same room when the officers entered it. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 873, 891-893, 1457; Dec. Dig. 404.] 2. CRIMINAL LAW (§ 1122*)-INSTRUCTIONSWEIGHING EVIDENCE. In the absence of a showing in the record as to the connection in which the court stated in its oral charge the expression "you are not bound by a preponderance of the evidence," it cannot be said that the statement was improper, as it would be presumed that it was a part of the instruction as to the evidence required James Adams was convicted of keeping a gaming table, and appeals. Affirmed. Charge 2 referred to in the opinion is as follows: "The court charges the jury that if, after a consideration of all the evidence in this case, you believe that the witness Will Jackson exhibited malice or ill will against defendant, then you may disregard his evidence." L. A. Sanderson, of Montgomery, for appellant. R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State. WALKER, P. J. The indictment charged that the defendant kept, exhibited, or was interested or concerned in keeping or exhibiting, a gaming table for gaming. Code, § 6985. There was evidence tending to prove that the defendant with several others engaged in a game of hazard for money, a small table in a room on the second story of [Ed. Note. For other cases, see Criminal a building being used for the purpose; that Law, Cent. Dig. 88 2940-2945; Dec. Dig. the defendant received a "take-out" in this 1122.*] to convict. 3. CRIMINAL LAW ( 560*)-EVIDENCE-SUF A request to charge that if, after considering all the evidence in the case, the jury believed that a certain witness exhibited malice toward accused that they might disregard the evidence was properly refused, since it permitted the jury to disregard such witness' evidence because of his ill will, even though they believed it to be true. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1772-1785; Dec. Dig. 8 757.*] game; that he had been seen in the same room on another occasion; that, when during the game testified about there was a knocking on the locked door at the foot of the stairs leading to the room mentioned, the defendant was the person who went down and opened the door; whereupon a deputy sheriff entered and arrested the participants in the game. [1] Over the defendant's objection, the prosecution was permitted to exhibit to the Jury a large table with figures on it, of a kind that is used in playing a game of chance, which the evidence tended to show was found in the same room when the game above mentioned was interrupted. We are of opinion that this evidence was competent. The presence of such a gambling device in the same room was a circumstance having some tendency to shed light on the import of the conduct of the defendant, which was deposed to. That conduct, considered without reference to its surroundings, might have been regarded [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1772-1785; Dec. Dig. 8 that the defendant was interested or concernas equivocal and as not clearly indicating - 5. CRIMINAL LAW (§ 757*) — INSTRUCTIONS WEIGHT OF EVIDENCE. The court could not instruct the jury as to the weight to be given the evidence of a particular witness, should they find that he held malice toward accused. 757.*] ed in keeping or exhibiting a table for gaming; whereas, if it was permitted to be looked at in the light of the fact that the scene of it was a room in which was kept a table plainly adapted to use for gambling purposes, all reasonable doubt as to its indicating the commission by the defendant of the offense with which he was charged might be removed. When the contention is that the defend ant's receipt of a toll or pay for gaming con- | labor for the county instead of to imprisonducted on a table in a room over which ment in the penitentiary, the appellant had he appeared to exercise some control or su- in no way called to the attention of this pervision signified that he kept or exhibited, court, or to the trial court, so far as the or was interested, or concerned in keeping or record indicates, the illegality of the senexhibiting, the table for gaming, it is not tence imposed upon him. In the oral and to be denied that the presence in the same written arguments made in his behalf by room of another table plainly adapted to his counsel in this court, the judgment ap gambling purposes may be regarded as a pealed from was complained of solely be circumstance having some tendency to sup-cause of rulings of the trial court made prior port the contention and to negative a conclusion that the conduct of the defendant indicated merely his participation in an isolated game of chance rather than that he was interested or concerned in keeping or exhibiting the table for gaming. [2, 3] The record does not show in what connection the court used in its oral charge, the expression which was excepted to: "You are not bound by a preponderance of the evidence." The contrary not appearing, it may be presumed that the statement was made in the course of the court's instruction to the jury as to the evidence required to warrant a conviction. Used in such a connection, the statement may have been an entirely proper one, as a jury is not bound to convict in a criminal case on a mere preponderance of the evidence. Shields v. State, 104 Ala. 35, 42, 16 South. 85, 53 Am. St. Rep. 17. It is not made to appear that the expression was one of which the defendant properly could complain. [4, 5] Written charge 2 requested by the defendant was properly refused. Under it the jury might have disregarded the testimony of a witness, if they found that he exhibited ill will or malice against the defendant, though they were convinced that the witness spoke the truth. Besides, it is not the province of the court to instruct the jury as to the weight to be given to the testimony of a particular witness because of his malice or ill will. Norwood v. State, 118 Ala. 134, 24 South. 53. Affirmed. to the rendition of the verdict and the imposition of the sentence. And, after the affirmance of that judgment, the appellant submitted to the sentence which had been imposed upon him being put into execution, without ever having raised a question as to the legality of such a sentence following the verdict which had been rendered. So it appears that the appellant, while he had full opportunity in this court to complain of the illegality of the sentence, attacked the judgment appealed from only upon other grounds which involved no question of the power of the court to impose such a sentence on the verdict rendered, and, after that judgment was affirmed, submitted himself to the execution of the sentence which it imposed, still without suggesting its illegality. In view of these facts, we are not of opinion that the partial execution of that illegal sentence constitutes an obstacle in the way of the exercise by this court, promptly upon the illegality of the sentence being called to its attention, of the power over the judgment appealed from which it retained during the term at which the judgment of affirmance was rendered. If the partly-executed sentence had been merely erroneous or voidable, and not void, an insuperable obstacle in the way of the substitution of another sentence in its place would have been the lack of power to punish an offender twice for the same offense. But, while the appellant could not lawfully be detained under the void sentence, yet, so long as his case is under the control of a court vested with the power to have a legal sentence substituted for the il[6] We are of opinion that, for reasons legal one, his submission without complaint stated in opinions delivered in the case of to the partial execution of the illegal senMinto v. State, 64 South. 369, the court prop-tence is not to be permitted to deprive that erly set aside the judgment of affirmance in this case, reversed the judgment appealed from as to the part of it relating to the sentence imposed, and remanded the case, to the end that the appellant be sentenced as required by law. In the argument of the counsel for the appellant in support of his application for a rehearing as to that action of the court, it is suggested, as a ground of objection to the propriety of it, that at the time it was taken the appellant had already begun to serve the unauthorized sentence to the penitentiary. Prior to the action referred to being taken by the court in response to a suggestion made by the Attorney General that, under the verdict rendered, the appellant should have been sentenced to im On Application for Rehearing. court of the power to have the judgment imposing it corrected so as to make it conform to the law. In that court, while it still retained such power over the case, until the illegality of the sentence is in some way called to its attention, the appellant's submission without complaint to its partial execution is not to be regarded otherwise than as voluntary. He cannot, while the Judgment appealed from still is under the control of this court, escape the penalty to which the law subjects him for the offense of which he was properly convicted as a result of conduct amounting to his tacit acquiescence in a restraint which he could have avoided by calling the court's attention to the invalidity of the sentence which undertook to impose it. |