"either party, on timely application, may set aside his default, on such terms as the court may impose," when taken in connection with rule 84 (Id. p. 1220), is that such timely application shall be made at the term at which the decree of dismissal is rendered. It follows, therefore, the decree of dismissal being final, the chancellor had no authority to set the same aside on the petition of complainant, after a final adjournment of the court. Byrd v. McDaniel, 26 Ala. 582; Ex parte Gist (Ala.; Oct. Term, 1898) 24 South. 831. There is no error in the record, and the decree of the chancellor is affirmed. (120 Ala. 339) LEWIS v. STATE. (Supreme Court of Alabama. Jan. 19, 1899.) HOMICIDE-SELF-DEFENSE-BURDEN OF PROOFCONFLICTING INSTRUCTIONS. 1. The burden of proving self-defense is on defendant. 2. Where the state relies on self-defense to prove that defendant was at fault in bringing on the difficulty, the burden of proving it is on the state. 3. A charge that, in order for defendant to set up self-defense, he must show that he was free from fault in bringing on the difficulty, is erroneous. 4. The error is not cured by correct statements in regard thereto in other parts of the charge. Appeal from city court of Montgomery; A. D. Sayre, Judge. Len Lewis was convicted of an assault with intent to murder, and he appeals. Reversed. On the trial of the case the defendant introduced evidence tending to show that the assault which was proven by the state's evidence was committed in self-defense. The only question presented for review on the present appeal was the portions of the court's general charge to which the defendant reserved separate exceptions. In the court's general charge to the jury there were included, among others, the following instructions, which are numbered for convenience of reference: (1) "The burden of proof of self-defense is on the defendant; and, in order for him to be entitled to his discharge, it must be proved by a sufficient amount of evidence to raise at least a reasonable doubt of his guilt." (2) "When stated in that general form, it is true that the burden is on the defendant of proving the plea of self-defense by at least such weight of evidence as will raise in your minds a reasonable doubt of his guilt. But you will recollect that I told you that three things must appear from the evidence in order to make out a case of self-defense, in answer to a charge of felonious assault, and defined them to you, to wit: First, that there was a necessity to strike; second, that there was no reasonable means of avoiding it by retreat; and, third, that the defendant was free from fault. Now, when the plea of self-defense is considered with reference to these elements, the burden of proof is distributed in this way: The defendant must show that he was under the necessity to strike, and that he could not reasonably avoid it by retreat; and, this being done, the burden rests on the state to show that the defendant was not free from fault." (3) "If, after considering all the evidence, that tending to show a case of selfdefense included,-they had a reasonable doubt as to whether defendant was guilty, or whether he acted in self-defense, they must acquit the defendant." (4) "In order for the defendant to set up self-defense, he must show that he was entirely free from fault in bringing on the difficulty." To the portions of the court's general charge which are above numbered the defendant separately excepted. This indictment was signed by the solicitor of the Twelfth judicial circuit, and the indorsements upon it were in all respects regular. There appeared on it the following entry: "Filed in open court, this, the 30th day of January, 1897. [Signed] O. Worthy, Clerk." The copies of the minute entries offered to be introduced by the defendant were the order of the judge of the criminal court of Pike county adjourning the January term, 1897, of said court, until the first Monday in Feb. ruary, 1897, and continuing all the business not finally disposed of; and the entry upon the minutes of the convening of the court on the first Monday in January, 1897, and the adjourning of said court on that day, there being no business in said court. The state objected to the introduction of said certified copies of the indictment and the minute entries as evidence in the case, on the ground that they were irrelevant. The court sustained this objection, and the defendant duly excepted. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the general affirmative charges in his favor, and duly excepted to the court's refusal to give the same as asked. Hill & Hill, for appellant. Charles G. Brown, Atty. Gen., for the State. MCCLELLAN, C. J. The court correctly charged the jury that "the burden of proof of self-defense is on the defendant, and, in order for him to be entitled to his discharge, it must be proved by a sufficient amount of evidence to raise at least a reasonable doubt of his guilt." The doctrine that the burden is on the state, where self-defense is relied on, to prove that the defendant was at fault in bringing on the difficulty, is also correctly stated in the general charge given ex mero motu by the court. But in another part of the general charge the jury are instructed that, "in order for the defendant to set up self-defense he must show that he was entirely free from fault in bringing on the difficulty." This was a palpable misplacing of the burden of proof on the inquiry as to who was the aggressor, and the statement is so entirely opposed to, so in conflict with, what is said on this subject in another part of the charge, that the error of it cannot be eradicated by considering the charge as a whole. At the best it could only have been concluded by the jury that the charge contained antagonistic statements on this point, and their adoption of the correct exposition would have been entirely problematical. Reversed and remanded. (120 Ala. 434) Ex parte SCUDDER-GALE GROCER CO. 1. The answer of respondent to a petition for mandamus, if uncontroverted, must be taken as true. 2. A newly-installed judge continued many cases to another week. It was generally understood that such order included default cases, and the clerk made no default docket for the day fixed by rule of the court for hearing motions for default judgment. A plaintiff moved on such day for such judgment, but the court, being informed that the case would be litigated, continued the case until the next motion day. Held not an unreasonable exercise of discretion, so as to warrant issuance of mandamus to compel entry of judgment. 3. A plaintiff moved for default judgment on the regular day fixed by rule for such motions, but the court continued the case until the next motion day, and meanwhile defendant filed pleas. After the latter date, and without invoking further action of the trial court, plaintiff applied for mandamus to compel entry of judgment by default. It did not appear that plaintiff could not have obtained his relief, if entitled to it, in the trial court. Held that, as it did not appear that the court had refused to do its duty, mandamus would not issue. 4. Plaintiff in mandamus must show that he has a clear legal right to compel performance of the duty sought to be enforced. Application by the Scudder-Gale Grocer Company for mandamus to compel A. A. Coleman, judge of the Tenth judicial circuit, to enter judgment by default in favor of petitioner In an action by it. Writ denied. Sam Will John and W. K. Brown, for petitioner. SHARPE, J. The application was made to this court on December 2, 1898, and seeks the issuance of a writ of mandamus to compel the Judge of the Tenth judicial circuit, holding the circuit court for the county of Jefferson, to enter a judgment by default as of the 5th day of November, 1898, in an action of detinue pending in that court, wherein the petitioner was plaintiff, upon the ground that, the defendant therein being in default, the petitioner, on a day when, by the rules of that court, such motions could be heard, moved the court to enter a judgment by default, which motion the court refused, and passed to a later day. The return of the circuit judge was submitted with this application. It shows, in effect, that 1 Rehearing denied February 10, 1899. he was inducted into office two days before the motion for judgment was made; that, as incident to a change of officers and an accumulation of business, an order was made by the court continuing many cases to another week of the term; that, when plaintiff's motion for judgment was made, the court was informed by the clerk "that there was no default docket made to be called on that day, and that there was a general impression by the bar that all cases had been passed, to be reset under the order made on Thursday"; and the court was also informed that petitioner's case would probably be litigated. Thereupon the court declined to entertain the motion at that time without consent of the opposite party; stating to plaintiff's attorney, as a reason therefor, the misunderstanding as to the call of such cases, together with the information that the case would probably be defended. The case was then continued to the next motion day, before which time pleas were filed in the cause. The proper conduct and disposition of the business of nisi prius courts necessarily involves the exercise of some discretion by the court. The precise time at which a cause ready for trial should be entered upon, depending, as it frequently does, upon considerations of convenience, both public and private, can hardly be made the subject of unbending rules, so as to give to a party to a cause the absolute right to demand and require that his case, though ready for trial, shall be immediately entered upon and disposed of. Varying circumstances may arise, which cannot be foreseen, calling for the present use of discretion, which is in the power alone of the trial court. Since it is the only tribunal which can take immediate cognizance of the attending circumstances, the trial court is presumed to be the one most capable of determining the proper action in the given case. Therefore it is an established rule that, though the abuse or arbitrary and unjust use of discretion may be controlled, yet the discretion of the court to which it properly belongs, when reasonably exercised, is not to be supplanted by the judgment of another, though a superior, court; and that, therefore, mandamus will never be used to control such exercise of discretion, even though it may not be in accord with the judgment of the supreme court. High, Extr. Rem. § 154, 156; Ex parte City of Montgomery, 24 Ala. 98; Ex parte South & North Alabama R. Co., 44 Ala. 654; Ex parte Shaudies, 66 Ala. 134. The answer to this petition is uncontroverted, and must be taken as true. Its statements and admissions of fact are those upon which petitioner submits his right to relief. High, Extr. Rem. § 462. It appears therefrom that the action of the court complained of did not amount to a denial of petitioner's motion, but only to the making of an interlocutory order postponing and fixing the following Saturday for its hearing. As to the propriety of that action, we will express no opinion further than to say that, under the facts shown by the return, we are unable to say that such action was without the reasonable exercise of the court's discretion. Stone v. McCann, 79 Cal. 460, 21 Pac. 863; People v. Superior Court of City of New York, 19 Wend. 701; High, Extr. Rem. § 168; Merrill, Mand. § 204. But other sufficient reasons appear why the writ cannot be granted. The petitioner makes this application after the day so appointed for the hearing of his motion, without invoking further action in the trial court. If, under the special practice act of that court, the pleas could have been ignored, no reason appears why he could not have obtained his judgment by default on that day. The right of a defendant, under a similar act, to plead after 30 days from service, was discussed in Hudson v. Wood, 102 Ala. 631, 15 South. 356. If, however, the pleas did present an obstacle to judgment by default, the court, unless moved to strike them out, could not legally render such judgment without disposing of them, which might have been by a motion addressed to its discretion. The court will not be required to commit error. Heard's Shortt, Extr. Rem. 271; State v. Judge of Orphans' Court of Macon, 15 Ala. 740; Comer v. Bankhead, 70 Ala. 136. The existence of another adequate remedy to enforce a right, and the absence of a clear legal right to the writ, are each conditions fatal to an application for mandamus, which issues only in case of necessity. Merrill, Mand. §§ 209, 222; High, Extr. Rem. § 177; 2 Brick. Dig. p. 240, and cases cited. When the duty sought to be enforced is of a private nature, affecting only the right of the relator, when it is not clear that there has been a refusal to act, either positive or by conduct equivalent thereto, on the part of the officer, the writ will be denied; and the reason, as stated in Merrill, Mand. § 222, is that "it would be an abuse of justice to convict one of nonfeasance or misdemeanor in neglecting his official duty when he has not refused to do what may be required, and to mulet him in costs when he is not in default." See, also, Heard's Shortt, Extr. Rem. 248. In view of the failure of petitioner to invoke the proper action in the circuit court, it does not appear that, at the time of this application, the court is in the attitude of refusing to do its duty. As to the duty sought to be enforced, the rule is that it must relate to a specific legal remedy, adequate to restore the party complaining to the situation in which he was when the act complained of was done. 2 Brick. Dig. p. 240. The specific relief prayed by this petition is to compel the entry of a judgment by default as of the 5th day of November, 1898. It is not claimed that application was ever made to the circuit court to enter such judgment nunc pro tunc, nor are we advised of any authority in that court to so render the judgment, or in this court to command such rendition. A demand depending for its enforcement upon the invention of such retroactive fiction is not the clear legal right which alone can be aided by mandamus. For the several reasons stated, the writ must be denied. (122 Ala. 449) FINNEY V. DENNY. (Supreme Court of Alabama. Jan. 31, 1899.) SET-OFF-PLEADING-APPEAL-HARMLESS ERROR. 1. A plea of set-off, alleging that at the time suit was commenced plaintiff was indebted to defendant in a certain sum, by liquidated or by unliquidated demand, as the case may be, amounting to said sum, to wit, a certain date, and due at that date to defendant, is not objectionable as failing to show what the demand is, or when it was due. Code 1886, p. 797. 2. A recital in a judgment that it was shown that the only claim of set-off defendant had was that mentioned in a certain plea, on which there was a verdict for plaintiff, does not show that defendant was not injured by error in sustaining a demurrer to other pleas of set-off. Appeal from circuit court, Chambers county; N. D. Denson, Judge. Action by John D. Denny against Charles E. Finney. From a judgment entered on a verdict for plaintiff, defendant appeals. Reversed. The complaint counted upon an instrument under seal executed by the defendant to the plaintiff. The defendant filed the following pleas: "(1) That he has fully paid off and discharged the instrument sued on before the commencement of this suit. (2) That at the time this suit was commenced the plaintiff was indebted to him in the sum of two thousand dollars, by an unliquidated demand, amounting to five thousand dollars, stated above, to wit, the 25th of December, 1891, and due at that date to the defendant, which he hereby offers to set off against the demand of the plaintiff; and he claims the judgment for the residue. (3) That at the time this suit was brought the plaintiff was indebted to him in the sum of two thousand dollars by a liquidated demand amounting to two thousand dollars, stated above, to wit, the 25th of December, 1891, and due at that date to the defendant, which he hereby offers to set off against the demand of the plaintiff; and he claims the judgment for the residue." "(5) Comes the defendant, and for further answer to said complaint, and as a defense to the action of plaintiff, saith that at the time said action was commenced the plaintiff was indebted to him in the sum of two thousand dollars due for money paid by mistake by defendant to plaintiff, on, to wit, December 25, 1891, which money plaintiff was not entitled to receive, and which, of right, the plaintiff was due to defendant on said date, which defendant hereby offers to set off against the demand of the plaintiff; and he claims the judgment for the residue." To the second and third pleas the plaintiff demurred upon the grounds: (1) The pleas fail to state what said unliquidated or liquidated demand was; (2) that they fail to state when said demand offered to be offset was due; (3) they fail to show a cause of action by defendant against plaintiff. This demurrer was sustained, and the defendant duly excepted. Upon issues joined on the first and fifth pleas there was verdict in favor of the plaintiff. After reciting the ruling upon the pleadings, and the finding of the verdict by the jury, the judgment entry then recites: "It is therefore adjudged by the court that the plaintiff, John D. Denny, have and recover of defendant, C. E. Finney, the said sum of two hundred and forty dollars as damages, besides the costs of this suit; for which let execution issue. It was shown in this case that the only claim of offset that defendant had against the plaintiff was that claimed in plea No. 5. And, it further appearing to the court that the instrument upon which this suit was brought, and upon which this judgment is based, contains a waiver of exemptions as to personal property, it is therefore adjudged," etc. The transcript contains no bill of exceptions, and on the appeal taken from this judgment the defendant assigns as error the ruling of the court in sustaining the demurrers to the second and third pleas. E. M. Oliver and Lum Duke, for appellant. Robinson & Duke, for appellee. TYSON, J. The pleas of set-off filed by defendant were sufficient under the authority of Lang v. Waters, 47 Ala. 624; Sledge v. Swift, 53 Ala. 110; Rosser v. Bunn, 66 Ala. 89. Form of plea of set-off, Code 1886, p. 797. The recital in the judgment, "It was shown in this case that the only claim of offset that defendant had against the plaintiff was that claimed in plea No. 5," is not conclusive that no injury was suffered by defendant by sustaining the demurrers to his pleas Nos. 2 and 3, if it can be considered by this court for any purpose; non constat, defendant offered no evidence, and very properly, in support of the averments of these pleas. Judgment reversed, and cause remanded. (120 Ala. 351) SPEAR v. STATE. (Supreme Court of Alabama. Jan. 19, 1899.) RESISTING ARREST-JUSTIFICATION-PROCESS-EX ECUTION-TRANSFER OF JURISDICTION-WRIT OF ARREST-DESCRIPTION OF OFFENSE--SUFFICIENCY. 1. An officer charged with the execution of process must do so unless it is void on its face, or the court issuing it is without jurisdiction; but he is not bound to inquire into the regularity of the proceedings prior to its issuance. 2. Acts 1888-89, p. 631, establishes a criminal court in Pike county, and provides that all pending indictments for misdemeanors be transferred, that all indictments preferred by the grand jury be returned by the clerk of the circuit court to the criminal court, that process thereon be issued by the clerk of the latter court, that the clerk of the circuit court shall be ex officio clerk of the criminal court, and vests in the latter exclusive jurisdiction of such causes. Held that, in a prosecution for resisting arrest, an objection that it does not appear that the indictment was filed in the criminal court is untenable, since the act ex vi termini conferred jurisdiction on the criminal court, and the failure to indorse on the indictment its filing in that court is immaterial clerical error. 3. An objection that the writ of arrest was signed by the clerk of the circuit court cannot be sustained, since such clerk is ex officio clerk of the criminal court, which accused was bound to know. 4. An accused cannot justify his resisting of a writ of arrest because his initials, and not his full Christian name, were given. 5. Under Code 1896, § 5253, providing that a writ of arrest shall contain a statement of the offense charged by name, a writ of arrest reciting that accused was indicted for the "offense of carrying a concealed pistol" sufficiently designates the offense charged. Appeal from city court of Montgomery; A. D. Sayre, Judge. George Spear was convicted of resisting the execution of a writ of arrest, and he appeals. Affirmed. On the trial of the case the state introduced two deputy sheriffs, who testified to their going to the house of the defendant with a writ of arrest, and seeking to execute it, and that thereupon the defendant presented a pistol at them, and demanded that they leave his house. The state then introduced in evidence the writ of arrest, which was in words and figures as follows: "The State of Alabama, Pike County. To Any Sheriff of the State of Alabama: An indictment having been found at the Sg. term, 1897, of the circuit court of said county against G. Spear for the offense of carrying a concealed pistol, you are therefore commanded forthwith to arrest," etc. This writ was dated January 30, 1897, and signed, "O. Worthy, Clerk of the Circuit Court of Pike County." The defendant objected to the introduction in evidence of said writ of arrest, upon the ground that it was inadmissible, since it was a "writ of arrest issued from the circuit court of Pike county against G. Spear, and not against George Spear, the defendant." The court overruled this objection, and the defendant duly excepted. The defendant, as a witness in his own behalf, testified that he did not resist the execution of the writ. For the purpose of showing that the indictment returned by the grand jury of Pike county, and on which the writ of arrest attempted to be executed on the defendant was issued, had never been returned out of the circuit court to the judge of the criminal court of Pike county, and filed in the criminal court of Pike county, as required by law, but was still pending in the circuit court of Pike county, the defendant offered to introduce in evidence a certified copy of the indictment returned by the grand jury of Pike county, and also the certified copy of the minute entries of the criminal court of Pike county. The certified copy of the indictment above referred to was as follows: "The State of Alabama, Pike County. Circuit Court, Spring Term, 1897. The grand jury of said county charge that before the finding of this indictment G. Spear, whose Christian name is to the grand jury unknown, carried a pistol concealed about his person, against the peace and dignity of the state of Alabama." D. A. Baker, for appellant. Charles G. Brown, Atty. Gen., for the State. TYSON, J. The defendant was indicted, tried, and convicted in the city court of Montgomery for resisting officers in the execution of a writ of arrest issued by the clerk of the criminal court of Pike county. By provisions of the act of the general assembly "to establish a criminal court for the county of Pike" (Acts 1888-89, p. 631), it was made the duty of the judge of the circuit court, within 10 days after the passage and approval of this act, to enter an order upon the minutes of his court directing and requiring the clerk to deliver to the judge of the criminal court all indictments for misdemeanors then pending and entered in said circuit court; and upon the transfer and delivery of the same the jurisdiction of the circuit court ceased, and exclusive jurisdiction was conferred in said cases upon the criminal court of Pike county. And all indictments for misdemeanors preferred by the grand jury after its passage were and are to be returned by the clerk of the circuit court to the judge of said criminal court, and filed in said criminal court, and process thereon to be issued by the clerk of that court. This act further provides that the clerk of the circuit court shall be ex officio clerk of the criminal court. The only question raised and insisted upon in argument by appellant's counsel is that the writ of arrest undertaken to be executed by the officers upon the defendant was void. It can now be regarded as the settled law of this state that an officer charged with the duty of executing process is bound to do so unless the process is void upon its face, or the court issuing it is without jurisdiction. The officer, in discharging this duty, is not bound to inform himself of irregularities in the indictment or other initial proceedings, made the basis for the issuance of the writ. Murphy v. State, 55 Ala. 252. In the case of Brown v. State, 109 Ala. 87, 20 South. 109, Chief Justice Brickell stated the doctrine to be: "As a general proposition, it may be stated that the officer is justified in the execution of the process when it proceeds from a court or magistrate having jurisdiction to issue it, unless invalidity appears on its face. He is not bound, and has no authority, to inquire into the regularity or legality in the proceeding prior to its issue." The first insistence of defendant is that it nowhere appears that the indictment has been filed in the criminal court of Pike county, and that the writ on its face purports to be issued by "O. Worthy, Clerk of the Circuit Court of Pike County," and therefore it must have been issued upon an Indictment for a misdemeanor pending in the circuit court of that county, of which that court had no jurisdiction, it having been ousted by the act above referred to establishing the criminal court. The words of this act ex vi termini conferred jurisdiction upon the criminal court, and the mere failure to indorse upon the indictment its filing in that court, if this fact had been made to appear, was a mere clerical irregularity, which could avail the defendant nothing. And again, the fact that the writ was signed by O. Worthy, designating himself as "clerk of the circuit court," cannot affect the validity of the writ. By the act establishing the criminal court he was, by virtue of being clerk of the circuit court, ex officio clerk of the said criminal court; and this the officers and the defendant were bound to know. Indeed, it was unnecessary that he should have added any words descriptio personæ after his signature. Johnson v. State, 73 Ala. 21. His official relation to these courts was a matter of law, of which all officers, persons, and courts in this state will take notice. The contention that the writ designated the defendant as "G. Spear," instead of setting out his full Christian name, is without merit. This might have been a good ground for a plea in abatement to the indictment, but, without this plea, if defendant had gone to trial, the conviction would have been legal. Winter v. State, 90 Ala. 637, 8 South. 556; Washington v. State, 68 Ala. 85; O'Brien v. State, 91 Ala. 25, 8 South. 560. It not infrequently happens that an offense is committed and an indictment is preferred against the offender where his name is entirely unknown, and therefore not alleged in the indictment. In such a case the warrant or writ of arrest would contain no name at all, but only such a description of the person charged that would enable the officer executing the writ to sufficiently identify him for the purpose of making the arrest. Any other rule would license strangers, whose true names are unknown, to commit crimes, and, if apprehended in them, legalize their resistance of the officers of the law charged with the duty of enforcing it, and impose upon the officer the burden of knowing, before undertaking the arrest, that the true name of the offender is correctly stated in the warrant. Should he be misinformed in this respect, and notwithstanding he may know that the person upon whom he is undertaking to execute the writ is the person wanted, yet, forsooth, because the warrant designates such offender by his initials, he has the right to resist the officer. This appears from the testimony of the defendant to be this case, at least in so far as his being the person intended to be named in the warrant. It finds no lodgment in any of the adjudications of this court or in sound reasoning and logic. The only remaining point insisted upon for the invalidity of the writ is that it omitted to state any offense. It contains these words: "An indictment having been found at the |