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in addition, that such witnesses exercised such
facilities, and testified that no such occurrence
happened, in order that their evidence should
preponderate.-State v. Dorsey, (La.) 26.

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ant and his named witnesses, " is properly re-
fused; it appearing that the names of the wit-
nessess on whose testimony it was based did
not appear in the bill of exceptions, and the
instruction being also erroneous in asserting
the weight to which the testimony is entitled.
-Davenport v. State, (Ala.) 152.

32. Act Fla. June 7, 1887, § 4, making the
finding of any implements used in games of
chance usually played in gambling-houses, or
by gamblers, prima facie evidence that the 41. Defendant requested a charge that it is
house or place where the same are found is the jury's duty to reconcile all the evidence,
kept for the purpose of gambling, does not de- if they can, with the theory that the witnesses
prive a person charged with keeping and have spoken truly, but if the evidence in any
maintaining a room for the purpose of gamb- portion is conflicting, and on consideration of
ling of the benefit and protection of the pre-it all they have a reasonable doubt as to its
sumption of innocence which remains with truth, defendant should have the benefit of
every one on trial for crime as long as there the doubt. If the evidence about the truth of
is a reasonable doubt of his guilt.-Houston v. which they have a reasonable doubt is favor-
State, (Fla.) 48.
able to defendant, they should give him the
benefit of the doubt, and treat that portion of
Instructions.
the evidence as true, while, if adverse, they
will still give him the benefit of the doubt,
and disregard such evidence. Held calculated
to confuse and mislead, and properly refused.
Cleveland v. State, (Ala.) 426.

33. An argumentative charge should be re-
fused.-Cleveland v. State, (Ala.) 426.

34. Where an instruction embodying both a
correct and an incorrect proposition of law is
requested, it is not error to refuse to give it.
-Wooten v. State, (Fla.) 39.

35. Instructions to the jury that they "may
look to" certain facts in determining certain
questions before them are properly refused.-
Hussey v. State, (Ala.) 484.

36. The judge cannot be required to give as
a charge the legal maxim, falsus in uno,
falsus in omnibus.-State v. Banks, (La.) 18.
37. On indictment charging the burning of
"a house used as a prison, which was at the
time occupied by P.," it was proved that P.
was alive when placed in the house, a few
hours before the burning. Held, that a charge
that the state must prove beyond a reasonable
doubt that he was alive at the time of the

burning should be refused, as it would author-
ize the jury to infer death within a few hours,
contrary to the presumption of the continu-
ance of life.-Childress v. State, (Ala.) 775.

38. Where the prosecution introduced but
one witness, who was impeached by proof of
contradictory statements, and the testimony
of defendant's witnesses was that he did not
have a weapon, a requested instruction that
if the testimony of the state consists in the
statements of a witness, of the truth of which
the jury have a reasonable doubt, they cannot
convict, though they may not believe defend-
ant's witnesses, was improperly refused.-Se-
gars v. State, (Ala.) 558.

39. It is not error to refuse to charge that
defendant's statements of innocence brought
out by the state on the examination of its wit-
nesses are evidence to be considered as any
other evidence in the case. Such charge
would import that the jury were bound to give
the declarations the same weight they give to
the other evidence, and would invade their
province. Childress v. State, (Ala.) 775.
40. An instruction that the testimony of cer-
tain persons named, "who testified that they
saw the pistol before the firing, is entitled to
great weight, and, coupled with the positive
testimony of" a named witness "and defend
ant, (that it was not concealed when drawn,)
may generate a reasonable doubt in the minds
of the jury, and acquit the defendant, unless
they believe the testimony of said W. and the
three children rather than that of the defend-

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for accused has already been substantially
44. Where the charge requested by counsel
given by the court, the court is not required
to repeat the charge.-Reddick v. State,
(Fla.) 704.
Verdict.

45. Where two counts in an indictment
charge an offense in different degrees, and
one of them is defective, but is not demurred
to, a general verdict of guilty will be referred
to the good count, and the conviction sus-
tained.-May v. State, (Ala.) 14.

46. On a trial for assault with intent to
murder, the jury returned a verdict finding
"the accused guilty with & assault by sut-
inge, with intent to murder." Held, that the
verdict was sufficient to reasonably convey
the idea intended, the word "sutinge" being
intended to mean "shooting," under the rule
of idem sonans.-State v. Wilson, (La.) 52.
Judgment.

concisely state the defects it complains of as
47. A motion in arrest of judgment should
being patent upon the face of the record.—
State v. Dorsey, (La.) 26.

viction of petit larceny shows that defendant
48. Though the record of a judgment of con-
was charged with receiving stolen goods, yet
the judgment is not void, and cannot be col-
laterally assailed.-Gandy v. State, (Ala.) 420.
Sentence.

49. Where one is charged, in separate
counts, with burglary and larceny, and he

Appeal and error.

confesses himself "guilty as charged," it is]
competent for the judge to sentence him to
57. Where defendants appeal, but give no
one term of imprisonment for the commission appeal-bond, or file no affidavit of their ina-
of the burglary, and to another term for the bility to give such bond or to deposit money
commission of the larceny, the latter to begin sufficient to cover the probable costs, as pro-
at the expiration of the former.-State v.vided by Code Miss. $2335, when a stay of
Robinson, (La.) 20.
judgment is desired, though an appearance
50. Act Ala. March 6, 1876, (Code 1876, bond is given, the appeal should be dismissed.
4275,) provides that any officer or person who-Lum v. State, (Miss.) 689.
knowingly converts any state or county reve-
nues to his own or another's use shall be
deemed guilty of a felony, and on conviction
must be imprisoned in the penitentiary not
less than one year, etc. Act March 7, 1876,
(Code 1876, § 4450,) provides that, in all cases
in which the imprisonment is for 12 months
or less, the party must be sentenced to im-
prisonment in the county jail. Held, that the
latter statute controls as to the punishment,
and one convicted under the act of March 6th
cannot lawfully be sentenced to imprisonment
in the penitentiary for one year.-Herrington
v. State, (Ala.) 831.

51. Where an appeal is taken on the ground
that the trial court exceeded its authority in
fixing the punishment, a stipulation to that
effect will not authorize the supreme court,
in case the judgment is reversed, but defend-
ant is not discharged, to render the proper
sentence, the statute under which the convic-
tion was had providing that the punishment
shall be within certain prescribed limits, "at
the discretion of the court trying" the cause.
-Id.

58. An appeal from a judgment in a pro-
ceeding treated by plaintiffs as a criminal pros-
ecution will not be dismissed for want of cita-
tion to plaintiffs, as they cannot change the
character of the proceedings, and claim that
it is civil, to oust the defendant from an ap
peal taken by him as though the proceeding
was a criminal prosecution, in which no cita-
tion is required.-State v. Miller, (La.) 258.
59. On postponing a trial, the court ordered
that "the special venire drawn for this case
appear on "the adjourned day. A copy of the
indictment and venire was served on defend-
ant the day before trial. Held, that the ob-
jection that the special venire was supple-
mented with the regular panel for the week
first appointed for the trial, while the regular
panel should have been that serving for the
latter week, would not be considered, where
such fact was not shown, and no objection
was raised in the court below.-Cleveland v.
State, (Ala.) 426.

60. Though it is improper to allow a witness
for the prosecution to state what his testi-
mony was before the grand jury when the
52. Where the court exceeds its authority record shows only that a question calculated
in fixing the punishment after a lawful con- to bring out such evidence was allowed over
viction, defendant is not entitled to be dis-objection, and does not show whether it was
charged on habeas corpus, but the cause will answered, a conviction will not be reversed
be remanded for such sentence as is author- on that ground.-Billingslea v. State, (Ala.)
ized by law.-Id.

New trial-Misconduct of jury.

53. After a trial and conviction, defendant

137.

61. Any error in excluding evidence is cured
by subsequently admitting such evidence.-
Cleveland v. State, (Ala.) 426.

Weight of evidence.

cannot for the first time on motion for a new
trial object to a juror on the ground that such
62. The court will not reverse the finding
Juror had, during the trial, held a whispered of the jury upon a question of fact, unless the
conversation with a person not connected with verdict is so clearly and manifestly against
the court, and in the presence of the judge the weight of evidence as to suggest the pre-
and the defendant's counsel.-State v. Dor-sumption that it was produced by influences
sey, (La.) 26.

54. The use of intoxicating liquors by the
jury, while deliberating upon their verdict,
is not ground for a new trial, in the absence
of any showing that injurious consequences
resulted therefrom.-Id.

other than a proper consideration of the testi-
mony.-Robinson v. State, (Fla.) 6.

63. Where the testimony is clearly sufficient
to sustain the verdict, and it is evident that
no injury could have been sustained by an er
ror in an instruction given to the jury, the
verdict will not be disturbed.-Wooten v.
State, (Fla.) 39.

Curators.

55. While it is a rule that the verdict will
not be vitiated by the fact that during the
trial the jury were allowed a moderate use of
spirituous liquors, as a stimulant or refresh-
ments, the doctrine will not be extended to
cases where it is shown that at least two See Guardian and Ward.
members of the jury consumed an inordinate
amount of whisky, or other intoxicating liq-
uor, within a few hours, from which they felt
sick at the time that the verdict was reached.
-State v. Broussard, (La.) 647.*

56. It is not misconduct for the jury to pro-
cure and read law-books after they have con-
cluded their deliberations, and decided upon
their verdict, although it has not been form-
ally rendered in open court.-State v. Wilson,
(La.) 52.

Custom and Usage.

Evidence of, see Malicious Prosecution, 2.

DAMAGES.

Assessment, value greater than pleaded, see
Replevin, 1.

Exemplary, see Carriers, 15, 16.

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condemnation proceedings, see Eminent
Domain, 2, 3.
Punitive, see Carriers, 2.

Speculative, see Telegraph Companies, 3.
Proximate and remote.

the offer of sale or exchange, is cori ect.-Sul-
livan v. Boley, (Fla.) 244.
Excessive damages.

5. In an action for damages for the pollu-
tion of plaintiff's well by gas-works, it ap-
peared that plaintiff incurred considerable ex-
pense; that the water became unfit for bath-

ing, cooking, drinking, and for stock; that

plaintiff bored three new wells for pure wa-
ter, but found the same impurity; and that
he, for some months, was obliged to send some
distance to his neighbors for water. Held,
that judgment for $200 was not excessive.-
Pensacola Gas. Co. v. Pebley, (Fla.) 593.

Remittitur.

6. In an action for personal injuries,
caused by defendant's train running off the
track, the evidence showed that the defend-
ant's negligence was not such as to call for
exemplary damages. Held, that a verdict for
$9,000 was excessive, and should be set aside,
or plaintiff required to enter a remittitur of
$3,500.-Florida Ry. & Nav. Co. v. Webster,
(Fla.) 714.

1. In an action for damages for delay in de-
livery of cotton, it appeared that the insurance
thereon expired on the day when the delivery
should have been made, and that if plaintiffs
had kept the cotton insured during the period
of delay, the insurance would have cost them
eight dollars, but there was no proof that such
insurance was obtained; also that cotton buy-
ers borrow money from banks at a high rate
of interest with which to buy cotton, and that 7. Though the judge, in allowing a remit-
the interest stops on deposit of the bill of lad-titur, stated at the time that, unless the plain-
ing with the bank; and that, owing to the de- tiff entered the remittitur, he would set the
lay in delivery, plaintiffs had to pay interest verdict aside and grant a new trial, plaintiff
for one additional day; but there was no proof is estopped from saying that it was entered
that defendants were notified of these facts. under compulsion.-Pensacola Gas Co. v. Peb-
Held, that such damages were not the natural ley, (Fla.) 593.
result of the breach, and could not be recov-
ered.-Swift v. Eastern Warehouse Co., (Ala.)

505.

Penalties and liquidated damages.

2. Plaintiff was employed by defendant's
testator as a business manager, having been
his partner. He had sold to him his entire in-
terest, but remained ostensibly a partner. A
written agreement imposed on plaintiff the
obligation to wholly abstain from the use of
intoxicating liquors," and "to continue and
remain sober," giving his attention to the
business, and promising, in the event he
should become intoxicated, that he would pay,
"as liquidated damages, "the sum of $1,000,
which the testator was authorized to retain
out of a debt he owed plaintiff. Plaintiff be-
came intoxicated, and remained so for a long
time, injuring thereby the business. Held,
that the sum agreed to be paid was liquidated
damages and not a penalty.-Keeble v. Keeble,
(Ala.) 149.

Measure for breach of contract.

3. A steam-boat builder is liable for defects
in construction for the amount of reasonable
costs incurred and paid for by the owner, to
remedy the defects and to place the boat in a
proper condition, as contemplated by the con-
tract.-Leathers v. Sweeney, (La.) 662.

4. A charge that if plaintiff offered to sell
defendant a new buggy for $250, or to ex-
change buggies with defendant, he to pay $150
between the buggies, and defendant possessed
himself of plaintiff's new buggy without pay,
ing him $150, and without delivering his old
buggy to plaintiff, or offering to deliver it at
the time he possessed himself of the new bug-
gy, or within a reasonable time thereafter,
then he would be liable for the value of the said
buggy as fixed by the plaintiff when he made

Death.

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allow testimony, as an identifying circum-
stance, that Black creek does in fact flow
across this particular subdivision of land;
also that before the deed was made the gran-
tor, and afterwards the grantee, claimed and
cultivated it.-Black v. Pratt Coal & Coke Co.
(Ala.) 89.

ant had erected a court-house, before the | Black creek introduces such a landmark as to
building was commenced offered to give it his
interest therein, which was of little value, on
condition that the building should be placed
in the center of the block. He was much in-
terested in having the building erected, and,
when it was commenced at one side of the
block, he made no objection until after its
completion, eight months later. He saw in a
newspaper that all the property on which the
court-house was to be erected was dedicated
to the county. He stated to one member of
the commissioners' court that he objected to
its erection in any place but in the center of
the block, unless he was paid for the property;
but this objection was never brought to the
attention of the court or the building commit-
tee. He also stated to said member that the
county might improve his property as much
as they liked; that he would only be the safer
about getting his pay. Held, that he was es-
topped by his silence to deny his dedication of
the land, and that the condition attached to
the gift, if any, was waived.-Forney v. Cal-
houn County, (Ala.) 750.*

Effect.

4. A deed, after reciting that it was made
at Fish river, in the province of West Florida,
described the land as "a certain tract of land
being and lying at aforesaid place of Fish
river, province aforesaid, commonly known
as Ward's Old Place,' beginning at a creek
which empties itself into the said Fish river,
and known by the name of 'Alligator Creek;"
thence south to a rock fronting on the bay of
Mobile, calculating in said tract a superficies
of 1,000 acres, or thereabouts." Held, that
the description was not so indefinite and un-
certain as to exclude evidence of extrinsic
facts to identify the land.-Dorgan v. Weeks,
(Ala.) 581.*
Delivery.

5. Where a deed is complete on its face, and
bears no evidence that the wife of one of the
3. Where the owner of land has dedicated it grantors is to join in its execution, its deliv-
as a public street, and conveyed lots as bound-ery to the grantee is absolute, whatever con-
ed by it, he cannot afterwards exclude the
public from using it, or demand compensation
for the land, though there has been no formal
acceptance by the authorities. - Harrison
County v. Seal, (Miss.) 622.

DEED.

ditions may be orally attached, and parol evi-
dence is incompetent to show that it was de-
livered only as an escrow, or as evidence of
the receipt of the purchase money.-Har-
grave v. Melbourne, (Ala.) 285.

6. Where a warranty deed delivered to the
grantees was returned to the grantors to have
the signature of the wife of one of the gran-
Convey-tors attached and a misdescription_corrected,
on failure of the grantors to redeliver the
deed, the grantees cannot sue for a breach of
the original oral agreement to deliver a war-
ranty deed.-Id.

See, also, Covenants; Fraudulent
ances; Vendor and Vendee.
Conveyance of easement, see Easements, 4.
homestead, see Homestead, 2, 3.
Proof of lost deed, see Evidence, 5-7.
Reformation, see Equity, 2-7.
Rescission and cancellation, see Equity, 8-12.
Description.

1. In ejectment to recover possession of the
S. E. 4 of section 5, etc., described in one of
plaintiff's muniments of title as "part of S. E.
4, section 5," etc., but also described as
south part of section 5,-225 acres," though
the first description is void for uncertainty,
recovery may be had of that part of the S. E.
4 embraced in the latter description, that be-
ing good to convey a strip containing 225 acres
of equal depth, having the southern boundary
of the whole section as the base line for meas-
urement.-Tierney v. Brown, (Miss.) 104.*

Construction-Reservation.

7. An instrument, executed by a man and
wife, commenced in the ordinary form of a
deed, recited a valuable consideration, con-
tained words of bargain, sale, and convey-
ance, and a covenant of warranty of title,
binding on the heirs of the grantors, and was
executed, witnessed, proved, and recorded in
the manner proper for deeds. It contained.
the clause: "And we, the said [grantors]
agree that at and after our death the said
[grantee] is to have all the benefits of said
lands in fee-simple, but it is to belong to us
as long as we or either of us shall live." Held
a deed, and not a testamentary disposition.-
Griffith v. Marsh, (Ala.) 569.

2. When a deed describes the land conveyed 8. A deed granting "unto my three sons the
as "a piece of land about 100 feet long or lands above described, the same being their
wide, "further described by metes and bounds, pro rata share of my entire estate, both real
and the land is at the date of conveyance and personal, that I do now or may hereafter
fenced and known to the purchaser, the de- own. The remainder of my estate, both real
scription by metes and bounds controls the and personal, I reserve for the use and ben-
statement as to quantity.-Thompson v. Shep-efit of my younger children, J. and N., "-does
pard, (Ala.) 334.

3. A deed described the property as "all
that part of the west half of the north-west
quarter of section 19, township 17, range 3
west, that lies south of Black creek." Held,
that while the omission of land-district, state,
and county might create a patent ambiguity,
the statement that the tract is bisected by

not operate as a present conveyance to J. and
N. of any of the land included in "the remain-
der of" the grantor's estate. -Hall v. Hall,
(Miss.) 523.

Default.

Judgment by, assessment of damages, see
Judgment, 1.

Delivery.

Of deed, see Deed, 5, 6.

Demurrer.

See Pleading, 2-4.

DEPOSITION.

Application.

1. Where cross-interrogatories are filed
without making any objection as to notice of
the time and place of taking a deposition, the
objection is waived, and cannot be raised at
the trial.-Potts v. Coleman, (Ala.) 780.

2. By Rule 62, Chancery Practice Ala., when
a party files interrogatories, he must give the
names and places of residence of the witness-
es, or make affidavit that the same are un-
known, otherwise no proceedings in the inter-
rogatories shall be had except by consent.
Held, that objection to the omission to give
notice of residence is waived where no objec-
tion is noted and as to one of the witnesses
consent is given that a commission issue at
once, and the question is first raised by mo-
tion to suppress the depositions.-Farmer v.
Farmer, (Ala.) 434.

Affidavits.

foreclose a mortgage belonging to the estate,
where the averments and proof show that
complainants are the only heirs, that the es-
tate owes no debts, and that all the property
except the mortgage debt and a few notes has
been already distributed. In such case, ad-
ministration would be a useless expense.-
Cooper v. Davison, (Ala.) 650.

DISCOVERY.

Bill by creditors.

1. Code Ala. 1886, § 3545, authorizing a cred-
itor who has no lien or judgment to file a bill
in chancery for the discovery of assets of the
debtor liable to the payment of his debts,
making no provision for the trial of any ques-
tions arising on such a bill, does not violate
Const. Ala. art. 1, § 12, preserving the right
of trial by jury.-Montgomery & F. Ry. Co. v.
McKenzie, (AĬa.) 322.

2. Separate creditors cannot unite in a bill
filed, under Code Ala. 1886, § 3545, by a cred-
itor, who has no judgment or lien, for a dis-
covery of the debtor's assets, as plaintiffs.-Id.

DISORDERLY CONDUCT.
Obscene language.

3. An affidavit that "a material part of the Under Code Ala. § 4031, making it a crime
defense to said action depends exclusively on to use abusive or obscene language in the
the evidence of said witness" is sufficient to presence of a female, and sections 4494 and
authorize the taking of a deposition; that cir-4498-4500, giving both the jury and the court
cumstance being expressly made a ground for a large discretion as to the kind and amount
taking a deposition by Code Ala. 1886, § 2801, of punishment, it is proper to show, in miti-
subd. 5.-Potts v. Coleman, (Ala.) 780.
gation of punishment, that the woman in
4. A motion to suppress because the witness whose presence such language was used was
was a resident of the county of trial when the in the habit of using similar language in de-
deposition was taken is properly overruled, fendant's presence, but not that she had the
under Code Ala. 1886, § 2801, subd. 5, author- reputation of using such language generally.
izing the taking of the deposition of such-Golson v. State, (Ala.) 799.
resident on the ground stated in the affidavit
therefor. Such motion is a waiver of other
objection to the introduction of the deposition.
-Id.

Objections.

Dissolution.

Of attachment, see Attachment, 2.

corporations, see Corporations, 13.
sale, see Vendor and Vendee, 9-11.

District Attorney.

Assisting grand jury, see Grand Jury, 3.

5. It is not error to refuse to exclude a dep-
osition, because the interrogatories are vague
and indefinite as to the person concerning
whom inquiries are made, where it appears
from the answers of the witness that he fully
knew to whom the interrogatories referred.
-Florida Railway & Navigation Co. v. Web-DISTURBANCE OF PUBLIC
ster, (Fla.) 714.

Suppression.

6. The action of a chancellor in suppressing
a deposition after allowing a witness to be re-
examined provisionally is discretionary, and
not reviewable on appeal.-Hall v. Pegram,
(Ala.) 209.

DESCENT AND DISTRIBU-
TION.

See Executors and Administrators; Wills.
Foreclosure of mortgage by distrib-
utees.

The distributees of an estate which has not
been administered may maintain a bill to

Indictment.

WORSHIP.

Under Rev. Code Miss. 1880, § 2767, provid-
ing a punishment for any person who "shall
willfully disturb any congregation of per-
sons lawfully assembled for religious wor-
ship," an indictment merely following the
words of the statute, and not stating how the

disturbance was effected, is insufficient.-
Conerly v. State, (Miss.) 625.

DIVORCE.

Danger of violence.

1. Evidence of conduct by the husband gen-
erating a reasonable apprehension of vio-

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