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.
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-
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
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
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.
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.
Assessment, value greater than pleaded, see Replevin, 1.
Exemplary, see Carriers, 15, 16.
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.
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.)
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
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.*
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.
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.
Judgment by, assessment of damages, see Judgment, 1.
Delivery.
Of deed, see Deed, 5, 6.
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.
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.
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.
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.
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
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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