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39.

in addition, that such witnesses exercised such / ant and his named witnesses,” is properly re-
facilities, and testified that no such occurrence fused; it appearing that the names of the wit-
happened, in order that their evidence should nessess on whose testimony it was based did
preponderate.-State v. Dorsey, (La.) 26. not appear in the bill of exceptions, and the

32. Act Fla. June 7, 1887, $ 4, making the instruction being also erroneous in asserting
finding of any implements used in games of the weight to which the testimony is entitled.
chance usually played in gambling-houses, or -Davenport v. State, (Ala.) 152.
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
33. An argumentative charge should be re- will still give him the benefit of the doubt,
fused.-Cleveland v. State, (Ala.) 426.

and disregard such evidence. Held calculated
34. Where an instruction embodying both a to confuse and mislead, and properly refused.
correct and an incorrect proposition of law is ---Cleveland v. State, (Ala.) 426.
requested, it is not error to refuse to give it. Repetition.

Wooten v. State, (Fla.) 39.
35. Instructions to the jury that they may the presumption of innocence is to be regard-

42. It is not error to refuse to charge that
look to” certain facts in determining certained

by the jury as a matter of evidence, where
questions before them are properly refused.- they have been charged that the law presumes
Hussey v. State, (Ala.) 484.

36. The judge cannot be required to give as every man innocent until he is proven guilty
& charge the legal maxim, falsus in uno, by proper legal evidence, and, if they have
falsus in omnibus.-State v. Banks, (La.) 18! any reasonable doubt as to the guilt of the de-
37. On indictment charging the burning of should acquit him.-Wooten v. State, (Fla.)

fendant arising from the evidence, they
a house used as a prison, wbich was at the
time occupied by P.,” it was proved that P.
was alive when placed in the house, a few struction to the jury when the substance of

43. It is not error to refuse to give an in-
hours before the burning. Held, that a charge it is contained in a charge already given
that the state must prove beyond a reasonable

them.-Id.
doubt that he was alive at the time of the
burning should be refused, as it would author- for accused has already been substantially

44. Where the charge requested by counsel
ize the jury to infer death within a few

hours, given
by the court, the court is not

required
contrary to the presumption of the continu- to repeat the charge.Reddick v. State,
ance of life.--Childress v. State, (Ala.) 775.
38. Where the prosecution introduced but

(Fla.) 704.
one witness, who was impeached by proof of Verdict.
contradictory statements, and the testimony 45. Where two counts in an indictment
of defendant's witnesses was that he did not charge an offense in different degrees, and
have a weapon, a requested instruction that one of them is defective, but is not demurred
if the testimony of the state consists in the to, a general verdict of guilty will be referred
statements of a witness, of the truth of which to the good count, and the conviction sus-
the jury have a reasonable doubt, they cannot tained.-May v. State, (Ala.) 14.
convict, though they may not believe defend- 46. On a trial for assault with intent to
ant's witnesses, was improperly refused.-Se- murder, the jury returned a verdict finding
gars v. State, (Ala.) 558.

“the accused guilty with & assault by sut-
39. It is not error to refuse to charge that inge, with intent to murder.” Held, that the
defendant's statements of innocence brought verdict was sufficient to reasonably convey
out by the state on the examination of its wit- the idea intended, the word “sutinge” being
nesses are evidence to be considered as any intended to mean "shooting,” under the rule
other evidence in the case. Such charge of idem sonans.-State v. Wilson, (La.) 52.
would import that the jury were bound to give Judgment.
the declarations the same weight they give to
the other evidence, and would invade their concisely state the defects it complains of as

47. A motion in arrest of judgment should
province.-Childress v. State, (Ala.) 775.

40. An instruction that the testimony of cer- being patent upon the face of the record.-
tain persons named, “who testified that they State v: Dorsey, (La.) 20.
saw the pistol before the firing, is entitled to viction of petit larceny shows that defendant

48. Though the record of a judgment of con-
great weight, and, coupled with the positive
testimony of" a named witness and defend I was charged with receiving stolen goods, yet
ant, (that it was not concealed when drawn,the judgment is not void, and cannot be col-
may generate a reasonable doubt in the mind's laterally assailed.--Gandy v. State, (Ala.) 420.
of the jury, and acquit the defendant, unless Sentence.
they believe the testimony of said W. and the 49. Where one is charged, in separate
three children rather than that of the defend-counts, with burglary and larceny, and he

confesses himself "guilty as charged,” it is Appeal and error.
competent for the judge to sentence him to

57. Where defendants appeal, but gire 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 oficer or person who -Lum v. State, (Miss.) 689.
knowingly converts any state or county reve- 58. An appeal from'a judgment in a pro-
nues to his own or another's use shall be ceeding treated by plaintiffs as a criminal pros-
deemed guilty of a felony, and on conviction ecution will not be dismissed for want of cita-
must be imprisoned in the penitentiary nottion to plaintiffs, as they cannot change the
less than one year, etc. Act March 7, 1876, character of the proceedings, and claim that
(Code 1876, 8 4450,) provides that, in all cases it is civil

, to oust the defendant from an ap-
in which the imprisonment is for 12 months peal taken by him as though the proceeding
or less, the party must be sentenced to im- was a criminal prosecution, in wbich no cita-
prisonment in the county jail. Held, that the tion is required. --State v. Miller, (La.) 258.
latter statute controls as to the punishment, 59. On postponing a trial, the court ordered
and one convicted under the act of March 6th that “the special venire drawn for this case
cannot lawfully be sentenced to imprisonment appear on" the adjourned day. A copy of the
in the penitentiary for one year.-Herrington indictment and venire was served on defend.
v. State, (Ala.) 831.

ant the day before trial. Held, that the ob-
51. Where an appeal is taken on the ground jection that the special venire was supple-
that the trial court exceeded its authority in mented with the regular panel for the week
fixing the punishment, a stipulation to that first appointed for the trial, while the regular
effect will not authorize the supreme court, panel should have been that serving for the
in case the judgment is reversed, but defend latter week, would not be considered, where
ant is not discharged, to render the proper such fact was not shown, and no objeetion
sentence, the statute under which the convic was raised in the court below.-Cleveland F.
tion was had providing that the punishment State, (Ala.) 426.
shall be within certain prescribed limits, “at 60. Though it is improper to allow a witness
the discretion of the court trying” the cause. for the prosecution to state what his testi-
-Id.

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.

137.

61. Any error in excluding evidence is cured
New trial-Misconduct of jury. by subsequently admitting such evidence.-

53. After a trial and conviction, defendant Cleveland v. State, (Ala.) 426.
cannot for the first time on motion for a new Weight of evidence.
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 other than a proper consideration of the testi-

mony.-Robinson v. State, (Fla.) 6.
jury, while deliberating upon their verdict,
is not ground for a new trial, in the absence to sustain the verdict, and it is evident that

63. Where the testimony is clearly sufficient
of any showing that injurious consequences no injury could have been sustained by an er-
resulted therefrom.-Id.

ror in an instruction given to the jury, the
55. While it is a rule that the verdict will verdict will not be disturbed.- Wooien v.
not be vitiated by the fact that during the State, (Fla.) 39.
trial the jury were allowed a moderate use of
spirituous liquors, as a stimulant or refresh-

Curators.
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

Custom and Usage.
sick at the time that the verdict was reached. Evidence of, see Malicious Prosecution, 2.
-State v. Broussard, (La.) 647.*

56. It is not misconduct for the jury to pro-
cure and read law-books after they have con-

DAMAGES.
cluded their deliberations, and decided upon
their verdict, although it has not been form- Assessment, value greater than pleaded, see
ally rendered in open court.-State v. Wilson, Replevin, 1.
(La.) 52.

Exemplary, see Carriers, 15, 16.

For breach of covenant, see Covenants, 7. the offer of sale or exchange, is cori ect. --Sul-

negligence causing death, see Death by livan v. Boley, (Fla.) 244.
Wrongful Act, 1, 2.

Excessive damages.
timber cut by mortgagee, see Mortgages,
16.

5. In an action for damages for the pollu-

tion of plaintiff's well by gas-works, it ap-
trespass, see Trespass, 5-7.
wrongful attachment, see Attachment, peared that plaintiff incurred considerable ex-

pense; that the water became unfit for bath-
In action on sheriff's bond, see Sheriffs and ing cooking, drinking, and for stock; that

plaintiff bored three new wells for pure wa-
Constables, 9.
condemnation proceedings, see Eminent ter, but found the same impurity; and that
Dumain, 2, 3.

he, for some months, was obliged to send some
Punitive, see Carriers, 2.

distance to his neighbors for water. Held,

that judgment for $200 was not excessive.-
Speculative, see Telegraph Companies, 3.

Pensacola Gas. Co. v. Pebley, (Fla.) 593.
Proximate and remote.

Remittitur.
1. In an action for damages for delay in de- 6. In an action for personal injuries,
livery of cotton, it appeared that the insurance caused by defendant's train running off the
thereon expired on the day when the delivery track, the evidence showed that the defend-
should have been made, and that if plaintiffs ant's negligence was not such as to call for
had kept the cotton insured during the period exemplary damages. Held, that a verdict for
of delay, the insurance would have cost them $9,000 was excessive, and should be set aside,
eight dollars, but there was no proof that such or plaintiff required to enter a remittitur of
insurance was obtained; also that cotton buy- $3,500.-Florida Ry. & Nav. Co. v. Webster,
ers borrow money from banks at a high rate (Fla.) 714.
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.)

Death.
505.

Presumption, see Criminal Law, 37.
Penalties and liquidated damages.

2. Plaintiff was employed by defendant's DEATH BY WRONGFUL
testator as a business manager, having been
his partner. He had sold to him his entire in-

ACT.
terest, but remained ostensibly a partner: A Damages.
written agreement imposed on plaintiff the

1. Code Ala. $ 2591, authorizes the adminis-
obligation to wholly abstain from the use of
intoxicating liquors,” and “to continue and trator to maintain an action where the injury
remain sober, " giving his attention to the the distribution of the recovery, but does not

to the employé results in death, and directs
business, and promising, in the event he fix the measure of damages. Held, that evi.
should become intoxicated, that he would pay dence that deceased had a disease likely to
“as liquidated damages, "the sum of $1,000,
which the testator was authorized to retain shorten life is admissible, since the continu-
out of a debt he owed plaintiff. Plaintiff be- ance of life constitutes an element of damage.

-Columbus & W. Ry. Co. v. Bridges, (Ala.)
came intoxicated, and remained so for a long

864.
time, injuring thereby the business. Held,
that 'the sum agreed to be paid was liquidated death, when there is no evidence of wanton or

2. In an action for negligence causing
damages and not a penalty.-- Keeble v. Keeble, reckless negligence on the part of defendant,
(Ala.) 149.

the court should charge that punitive dam-
Measure for breach of contract. ages cannot be recovered.-Id.

3. A steam-boat builder is liable for defects
in construction for the amount of reasonable

Decedents.
costs incurred and paid for by the owner, to
remedy the defects and to place the boat in a Executors and administrators, transactions
proper condition, as contemplated by the con- with, see Witness, 3.
tract.-Leathers v. Sweeney, (La.) 662.

4. A charge that if plaintiff offered to sell
defendant a new buggy for $250, or to ex-

DEDICATION.
change buggies with defendant, he to pay $150 Evidence.
between the buggies, and defendant possessed

1. Whether a street has been dedicated and
himself of plaintiff's new buggy without pay, is a public street or not is a question of fact
ing him $150, and without delivering his

old provable either by record or parol evidence.-
buggy to plaintiff, or offering to deliver it at Nixon v. Town of Biloxi, (Miss.) 621.
the time he possessed himself of the new bug-
gy, or within a reasonable time thereafter, Estoppel to deny.
then he would be liable for the value of the said 2. Plaintiff in ejectment against a county to
buggy as fixed by the plaintiff when he made recover an interest in land on which defend-
ant had erected a court-house, before the Black creek introduces such a landmark as to
building was commenced offered to give it his allow testimony, as an identifying circum-
interest therein, which was of little value, on stance, that Black creek does in fact flow
condition that the building should be placed across this particular subdivision of land:
in the center of the block. He was much in- also that before the deed was made the gran-
terested in having the building erected, and, tor, and afterwards the grantee, claimed and
when it was commenced at one side of the cultivated it. ---Black v. Pratt Coal & Coke Co.
block, he made no objection until after its (Ala.) 89.
completion, eight months later. He saw in a 4. A deed, after reciting that it was made
newspaper that all

the property on which the at Fish river, in the province of West Florida,
court-house was to be erected was dedicated described the land as “a certain tract of land
to the county. He stated to one member of being and lying at aforesaid place of Fish
the commissioners' court that he objected to river, province aforesaid, commonly known.
its erection in any place but in the center of as. Ward's Old Place,' beginning at a creek
the block, unless he was paid for the property, which empties itself into the said Fish river,
but this objection was never brought to the and known by the name of 'Alligator Creek;'
attention of the court or the building commit- thence south to a rock fronting on the bay of
tee. He also stated to said member that the Mobile, calculating in said tract a superficies
county might improve his property as much of 1,000 acres, or thereabouts." Held, that
as they liked; that he would only be the safer the description was not so indefinite and un-
about getting his pay. Held, that he was es certain as to exclude evidence of extrinsic
topped by his silence to deny his dedication of facts to identify the land.-Dorgan v. Weeks,
the land, and that the condition attached to (Ala.) 581.*
the gift, if any, was waived.–Forney v. Cal. Delivery.
houn County, (Ala.) 750.*

5. Where a deed is complete on its face, and
Effect.

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 delir.
as a public street, and conveyed lots as bound-ery to the grantee is absolute, whaterer con-
ed by it, he cannot afterwards exclude the ditions may be orally attached, and parol evi-
public from using it, or demand compensation dence is incompetent to show that it was de-
for the land, though there has been no formal | livered only as an escrow, or as evidence of
acceptance by the authorities. Harrison the receipt of the purchase money.-Har.
County v. Seal, (Miss.) 622.

grave v. Melbourne, (Ala.) 255.

6. Where a warranty deed delivered to the
DEED.

grantees was returned to the grantors to have

the signature of the wife of one of the gran-
See, also, Covenants; Fraudulent Convey- tors attached and a misdescription corrected,
(inccs; V'endor and l'endce.

on failure of the grantors to redeliver the

deed, the grantees cannot sue for a breach of
Conveyance of easement, see Easements, 4.
homestead, see Homestead, 2, 3.

the original oral agreement to deliver a war-

ranty deed.-Id.
Proof of lost deed, see Evidence, 5-7.
Reformation, see Equity, 2-7.

Construction Reservation.
Rescission and cancellation, see Equity, 8-12. 7. An instrument, executed by a man and

wife, commenced in the ordinary form of a
Description.

deed, recited a valuable consideration, con-
1. In ejectment to recover possession of the tained words of bargain, sale, and convey.
S. E. 4 of section 5, etc., described in one of ance, and a covenant of warranty of title,
plaintiff's muniments of title as a part of S. E. binding on the heirs of the grantors, and was
14, section 5," etc., but also described as executed, witnessed, proved, and recorded in
"south part of section 5,-225 acres,” though the manner proper for deeds. It contained
the first description is void for uncertainty, the clause: “And we, the said (grantors
recovery may be bad of that part of the S. È agree that at and after our death the said
4 embraced in the latter description, that be- (grantee) is to have all the benefits of said
ing good to convey a strip containing 225 acres lands ip fee-simple, but it is to belong to us
of equal depth, having the southern boundary as long as we or either of us shall live. * Held
of the whole section as the base line for meas- a deed, and not a testamentary disposition. -
urement.-Tierney v. Brown, (Miss.) 104.* 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.) 3:34.

not operate as a present conveyance to J. and
3. A deed described the property as "all N. of any of the land included in the remain-
that part of the west half of the north-west der of” the grantor's estate: --Hall F. Hall,
quarter of section 19, township 17, range 3 (Miss.) 523.
west, that lies south of Black creek.”

Held,
that while the omission of land district, state,

Default.
and county might create a patent ambiguity, Judgment by, assessment of damages, see
the statement that the tract is bisected by Judgment, 1.

Delivery.

foreclose a mortgage belonging to the estate,

where the averments and proof show that
Of deed, see Deed, 5, 6.

complainants are the only heirs, that the es-

tate owes no debts, and that all the property
Demurrer.

except the mortgage debt and a few notes has
See Pleading, 24.

been already distributed. In such case, ad.
ministration would be a useless expense. -

Cooper v. Davison, (Ala.) 650.
DEPOSITION.
Application.

DISCOVERY.
1. Where cross-interrogatories are filed
without making any objection as to notice of Bill by creditors.
the time and place of taking a deposition, the 1. Code Ala. 1856, $ 3545, authorizing a cred-
objection is waived, and cannot be raised at itor who has no lien or judgment to file a bill
the trial.-Potts v. Coleman, (Ala.) 780. in chancery for the discovery of assets of the

2. By Rule 62, Chancery Practice Ala., when debtor liable to the payment of his debts,
a party files interrogatories, he must give the making no provision for the trial of any ques.
names and places of residence of the witness- tions arising on such a bill, does not violate
es, or make affidavit that the same are un- Const. Ala. art. 1, 12, preserving the right
known, otherwise no proceedings in the inter- of trial by jury.-Montgomery & F. Ry. Co. v.
rogatories shall be had except by consent. McKenzie, (Ala.) 3.22.
Held, that objection to the omission to give 2. Separate creditors cannot unite in a bill
notice of residence is waived where no objec- filed, under Code Ala. 1856, $ 3545, by a cred-
tion is noted and as to one of the witnesses itor, who has no judgment or lien, for a dis-
consent is given that a commission issue at covery of the debtor's assets, as plaintiffs.-Id.
once, and the question is first raised by mo-
tion to suppress the depositions.-Farmer v.
Farmer, (Ala.) 434.

DISORDERLY CONDUCT.
Affidavits.

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- 4198-4500, 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

Dissolution.
objection to the introduction of the deposition.
-Id.

Of attachment, see Attachment, 2.
Objections.

corporations, see Corporations, 13.

sale, see Vendor and Vendee, 9-11.
5. It is not error to refuse to exclude a dep-
osition, because the interrogatories are vague
and indefinite as to the person concerning

District Attorney.
whom inquiries are made, where it appears Assisting grand jury, see Grand Jury, 3.
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.

WORSHIP.
Suppression.

6. The action of a chancellor in suppressing Indictment.
à deposition after allowing a witness to be re- Under Rev. Code Miss. 1880, $ 2767, provid.
examined provisionally is discretionary, and ing a punishment for any person who “shall
not reviewable on appeal.-Hall v. Pegram, willfully disturb any congregation of per-
(Ala.) 209.

sons lawfully assembled for religious wor-

ship," an indictment merely following the
DESCENT AND DISTRIBU- words of the statute, and not stating bow the

disturbance was effected, is insuficient.-
TION.

Conerly v. State, (Miss.) 625.
See Executors and Administrators; Wills.

DIVORCE.
Foreclosure of mortgage by distrib-
utees.

Danger of violence.
The distributees of an estate which has not 1. Evidence of conduct by the husband gen-
been adroinistered may maintain a bill to erating a reasonable apprehension of vio-

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