Walker v. State

89 Ala. 74

Opinion

STONE, C. J.

There is nothing in the objection, that the warrant was issued by a justice of the peace, returnable to the Criminal Court. The statute expressly provides for it. — -Act to establish a criminal court of Pike county, approved February 25, 1889; Sess. Acts, 631, §3; Code of 1886, § 4204. Nor is there any thing in the objection, that the affidavit employs the present, instead of the past tense, in describing the killing. The meaning can not be misunderstood.

As against all the world, except the mortgagee and his privies, the mortgagor is treated as the owner of mortgaged property. — 3 Brick. Dig. 645, § 177. He has an insurable interest in the property.—Com. Fire Ins. Co. v. Cap. City Ins. Co., 81 Ala. 320. The cow was correctly described as the property of Dennis Ramsey.

The Criminal Court erred in disallowing the evidence offered by defendant of the value of the cow in the neighborhood in which she was killed. As a general rule, that is the better standard of value; for, ordinarily, that determines the price at which the lost property can be replaced. — 1 Sedg wick Dam. (7tla Ed.), 586, note. It was competent also to prove the value at other near and accessible markets, to be weighed by the jury with the other evidence in fixing the amount of the fine.— Whipple v. Wilcox, 10 N. H. 130. The testimony was admissible in the form in which it was asked, and also in the form allowed by the court.

Reversed and remanded.