done by him with "her means "shall be deemed | married woman's contract, which fails to aver
to be done as her agent, and on her account, that it was in writing, signed by herself and
as to all persons dealing with him without husband, is demurrable.-Knox v. Childers-
notice, unless the contract which changes burg Land Co., (Ala.) 578.
this relation shall be recorded. Held not to
render a wife liable for debts incurred by a
Conveyances and gifts between.
1887, defining the rights of married women, a
21. Since the Alabama act of February 28,
deed from a husband directly to his wife vests
the legal title in her, and ejectment may now
be maintained based on such title.-Manning
v. Pippen, (Ala.) 572.
husband in carrying on a mercantile business
in his own name with money belonging to
her, as the words "her means," in said sec-
tion, are controlled by the context, and refer
only to property of a visible character, the
possession of which is indicative of owner-
ship, and of the same general nature as the based on her promise to execute her will, and
22. A conveyance by a husband to his wife,
species of property enumerated in the stat-devise to him one-third of her estate, includ-
ute.-Leinkauf v. Barnes, (Miss.) 402.
ing said lands, is based on a valuable consid-
eration, and the recital in the deed of a val-
to show such promise.-Id.
15. A married woman cannot bind her stat-uable consideration is open to parol evidence
utory separate estate so as to charge it with
a contract in the form of a will agreeing to
convey a portion of it to certain parties on her
death.-Bolman v. Overall, (Alā.) 455.
23. As before act Ala. Feb. 28, 1887, a con-
veyance by a husband directly to his wife
was absolutely void at law, though it might
give her an equity if otherwise valid, a pur-
chaser of the land at execution sale under
date of such conveyance and the passage of
the act of 1887, took it free from any rights
at law which that act would otherwise have
given to the wife by virtue of the convey-
ance.-Maxwell v. Grace, (Ala.) 319.
16. Where a wife, her husband joining, ex-judgment against the husband, between the
ecutes a trust-deed of her property to secure
payment of supplies to be advanced, and on
default the land is sold under the deed, and
bought in by creditors, she cannot recover
against one who subsequently becomes the
owner, on the ground that the deed was not
valid to convey the corpus of her estate be-
cause given to secure her husband's obliga-
tion.-Walker v. Ross, (Miss.) 107.
17. Under Code Ala. 1876, § 2707 et seq., a
deed by a husband and wife of her separate
estate, duly executed, attested, and acknowl-
edged, without fraud in its execution, the con-
sideration of which was in part a debt for ar-
ticles of support furnished the family, and in
part a debt due by the husband, vests a legal
title in the grantee, and is a complete defense
to ejectment by the wife.-Conner v. Arm-
strong, (Ala.) 449.
18. Code Ala. § 2348, provides that a mar-
ried woman cannot alienate her lands, or any
interest therein, without the assent and con-
currence of the husband; manifested by his
joining in the alienation in the mode pre-
scribed by law for the execution of convey-
ances of land. Section 2346 gives her full
capacity to contract in writing, as if she were
sole, with the assent of the husband. Held,
that an agreement to sell land, executed by
the wife in writing, with the assent of the
husband expressed in writing, is as binding,
and may be enforced in the same manner, as
if she were unmarried.-Knox v. Childers-
burg Land Co., (Ala.) 578.
19. Under Code Ala. § 2350, providing that
a wife may enter into and pursue any lawful
trade or business as if she were sole, if her
husband "has abandoned his wife or is a non-
resident of the state," contracts entered into
by a wife on or after the date of the passage of
the act, are binding on her if her husband
has either abandoned her or is a non-resi-
dent; but she is not bound by those entered
into before, unless her husband has both
abandoned her and become a non-resident.-
Young v. Pollak, (Ala.) 279.
24. Where a married woman claims her
earnings accumulated in a small mercantile
business as her equitable separate estate, by
way of gift from her husband, her claim will
not be sustained, unless it is made clear that
the husband intended to divest himself of all
interest in such earnings, and to set them
apart to the wife.-Bolman v. Overall, (Ala.)
455.
25. Under Code Ala. 1886, §§ 2341-2351, de-
priving the husband of any right of trustee-
ship or control over his wife's statutory sep-
arate estate, and providing (section 2347) that
"the wife must sue alone,
**and upon
all contracts made by her, or engagements
into which she enters,
* she must be
sued as if she were sole," the husband is not
a necessary party to a bill to foreclose a ven-
dor's lien on land sold to a married woman as
her statutory separate estate, though he joined
with her in the note for the purchase price.—
Ramage v. Towles, (Ala.) 342.
26. A husband, being sued, defended on the
ground that the debt was his wife's, not his.
As a witness for himself, he was asked by the
plaintiff whether he had made certain repre-
sentations in New York, in 1882, as to his rea-
sons for doing business in the name of his
wife, and whether he was insolvent in that
year. The questions were disallowed. Held
error, as they tended to test the bona fides of
the husband and wife in conducting the busi-
ness in her name.-McQuaid v. Fontane, (Fla.)
274.
Of account stated, see Account Stated, 5.
witness, see Witness, 10-15.
Implied Trusts.
20. A bill for the specific performance of a See Trusts, 1-6.
Right to compensation for, see Ejectment,
11, 12.
Incumbrances.
Covenants against, see Covenants, 1.
INDICTMENT AND INFOR-
MATION.
Allegation of ownership, see Arson, 1-3.
Motion to quash, formation of grand jury, see
Criminal Law, 4.
Necessity of, see Constitutional Law, 9.
Particular crimes, see Burglary, 1; Carry-
ing Weapons, 2; Disturbance of Public
Worship; False Pretenses, 1, 2; Forgery,
3, 4; Perjury, 1; Receiving Stolen Goods.
Finding and filing.
1. The fact that the district attorney ap-
peared before the grand jury, and assisted in
the examination of witnesses, is no ground
for quashing an indictment.-State v. Adam,
(La.) 30.
2. If it appears, from the whole tenor of the
proceedings, that an indictment against sev-
eral persons, therein charged jointly with an
offense, properly indorsed as against "A. and
als., was presented in open court by the
grand jury, the fact that, in his minutes of
the day, the clerk erroneously copied the title
so as to make it read as against "A." only,
cannot vitiate the proceedings. State v.
Description of person-Misnomer.
3. Defendant was indicted for the murder
of Churchill, and there was evidence that the
name of deceased was Churchwell, and other
that deceased was as well known by the name
of Churchill as by Church well, his true name.
Held that, independent of the names being
idem sonans, there was no error in the ver-
dict of conviction.-Reddick v. State, (Fla.)
Indorsement.
See Negotiable Instruments, 4.
See, also, Guardian and Ward.
Land of infant taken in condemnation
ceedings, see Eminent Domain, 2, 3.
Sale of liquor to minor, see Intoxicating Liq-
uors, 2.
Ratification of contract.
By executors, etc., see Executors and Ad
ministrators, 21, 22.
Mandamus to compel issuance, see Manda
mus, 3,
To restrain diversion of surface water, see
Surface Water.
Jurisdiction.
1. The supreme court, whose jurisdiction in
equity causes is simply appellate, will not is-
sue a temporary injunction pending the ap-
peal in a cause before it, on an appeal from
an order of the circuit court denying the in-
junction asked for, where it is sought to re-
strain a suit at law, and the facts on which it
is asked constitute a good defense by an equi-
table plea to the legal suit. -Cohen v. L'En-
gle, (Fla.) 235.
2. Where defendant sold complainant's prop-
erty under a deed of trust, and sued for the
balance alleged to be due on the note secured
by it, the chancery court has jurisdiction of a
bill charging fraud in the sale, and usury in
the note, and praying that the prosecution of
defendant's suit be restrained. — Adams v.
Ball, (Mo.) 109.
Rights enforced and wrongs pre-
vented.
3. Where parties financially irresponsible,
without valid title, but claiming under a void
attachment sale, cut timber constituting the
Principal value of land purchased, of which
others claiming under a purchase in bank-
ruptcy proceedings are in possession, equity
will enjoin the continuance of such trespass
at the instance of the latter, on the ground of
the inadequacy of the remedy at law, and the
irreparable nature of the injury.-Sullivan v
Rabb, (Ala.) 746.
4. Complainant alleged that he was the ex-
clusive owner of the right to sell cigars and to-
bacco in an hotel, and that defendant, having
rented space in the hotel office, had sublet to
F., allowing him to sell cigars, etc. Held,
that an interlocutory injunction restraining
defendant from interfering with the ease-
ment claimed by complainant was properly
dissolved, on defendant's answer that he had
neither an interest in the business of F., nor
any control over it. Clay v. Powell, (Ala.)
330.
Restoration of property.
5. Where defendant sold complainant's prop-
erty under a deed of trust, and sued for a bal-
pro-ance alleged to be due, on a bill charging
fraud in the sale, and usury in the note, and
praying that the prosecution of defendant's
suit be restrained, a preliminary injunction is
proper, but an order for the restoration of the
property is improper.-Adams v. Ball, (Miss.)
109.
Where one executes a chattel mortgage
while an infant, mere acquiescence or failure
to disaffirm by some positive act of repudia-
tion, after attaining majority, is not a legal
ratification.-Hill v. Nelms, (Ala.) 796.*
Information.
See Indictment and Information.
Review on appeal.
6. Upon an appeal from an order granting
an injunction, the action of the chancellor
will not be reversed, unless it is clear that he
has committed an error or abused a sound ju-
dicial discretion in granting it.-McKinne v.
Dickenson, (Fla.) 34.
7. Where the hearing of an application for
an injunction is upon bill, answer, and affi- | defendant's agents were instructed to take no
davits in support of the bill, and the answer risks on merchandise of married women, of
fails to explain as fully as it should a material which plaintiff was ignorant.-Queen Ins. Co.
point in the case, and the action of the chan- v. Young, (Ala.) 116.
cellor in granting the injunction is, as to this
Insurable interest.
point, supported by the bill and the affidavits,
though controverted by the answer to the ex-
tent that the latter goes, it cannot be said
that the chancellor has abused his discretion,
or committed any error justifying the inter-
position of the appellate court.-Id.
Action on bonds.
8. In a suit on a bond given for an injunc-interest therein, with no allegation that she
tion against the further prosecution of a suit
therein recited, the obligors are estopped
from denying that there was such a suit pend-
ing.-Person v. Thornton, (Ala.) 470.
9. It may be shown aliunde that the bond
erroneously recites the name of the nominal
defendant in the suit sought to be restrained,
and that there was a suit pending in which
the person so recited as defendant was the
real party in interest, though others were the
nominal defendants.-Id.
10. A decree for damages on the injunction
bond before final hearing is improper.-Ad-
ams v. Ball, (Miss.) 109.
11. Under Code Miss. § 897, giving the
county all remedies to which individuals are
entitled, a county must pay the attorney's fees
of fence commissioners on dissolution of an in-
junction wrongfully sued out by the county
against the commissioners.-Freeman v. Su-
pervisors, (Miss.) 516.
2. A plea to an action on a policy averring
that when plaintiff purchased the goods in-
sured, (a stock of merchandise,) she was, and
still remained, a married woman; that she
purchased them on credit, had not paid, and
refused to pay, for them, and denied her lia-
bility, and that hence she had no insurable
had no separate estate which she could and
did bind for the payment of the goods, or that
her husband dissented from the purchase,-is
insufficient, as in either case she could make
a purchase valid as to third parties.-Id.
3. After a policy of insurance on a stock of
goods has been assigned to plaintiffs with the
consent of the defendant company, an objec-
tion that plaintiffs have only an equitable in-
terest in the goods is without merit.-Home
Protection of North Alabama v. Caldwell,
(Ala.) 338.
4. Complainant held fire policies in defend-
ant companies which defendants' agent,
through whom they were procured by com-
plainant, assumed to cancel, and to substitute
therefor policies in other companies, without
the knowledge of complainant, who was a for-
eign woman, and ignorant of her legal rights.
After her property was destroyed, she brought
suit on the substituted policies; her attorneys
being led by the agent to believe that the no-
tice of cancellation of the original policies had
been served on her authorized agent, and that
those policies were no longer in force. It did
not appear that complainant knew that the
substituted policies had been procured upon
the representation that there was no other in-
Credit-surance on the property. Held, that there
was no ratification of the attempted cancella-
tion, nor any abandonment of her vested
Of life insurance companies, claims of policy-rights under defendants' policies.-Niagara
holders, see Insurance, 20.
Appointment of syndic-Appeal.
INSOLVENCY.
See, also, Assignment for Benefit of
A judgment or decree appointing a provis-
ional syndic in an insolvency proceeding, un-
der Rev. Civil Code La. art. 3093. cannot be
suspensively appealed from. It must be exe-
cuted, although an appeal was granted from
it, and was perfected.-State v. Ellis, (La.)
See Criminal Law, 33-44; Trial, 7-15.
INSURANCE.
Dee, also, Marine Insurance.
Action on policy, real party in interest, see
Parties, 2.
Exemption of policy from execution, see Ex-
emptions, 2.
Contract-Validity.
1. A policy on a stock of merchandise pur-
chased by a married woman is valid, though
Fire Ins. Co. v. Raden, (Ala.) 876.
5. A provision in a policy of fire insurance,
that it may be terminated at any time by the
company by giving notice "to the person who
taken, "does not apply to a case where the per-
may have procured this insurance to be
son who procured the insurance was the agent
of the company to issue it. If susceptible of
such a construction, the provision would be
contrary to public policy.-Id.
Application-Part of policy.
6. In an application for an insurance policy
containing a reference to a clause making ex-
ceptions, the latter clause forms a part of the
application. The application and the policy
must be construed as one instrument.-Wein-
berger v. Merchants' Mut. Ins. Co., (La.) 728.
Conditions of policy.
7. A policy described the property as a
"dwelling-house, when completed to be occu-
pied as a private dwelling-house, " and pro-
vided that if it should become vacant without
written permission indorsed on the policy, the
policy should be void, and all insurance im-
mediately cease. At the time of the negotia- | thority from his principal.-Insurance Co. of
tions the building was being erected. It was North America v. Forcheimer, (Ala.) 870; Ni-
intended that the house should be leased on agara Fire Ins. Co. v. Raden, (Ala.) $76.
completion, and the company's agents were
so informed, and it was leased two months Actions on policies-Limitations.
after the issuing of the policy, but afterwards
15. A condition in a policy that no suit
became vacant, remaining so 14 days, when it against the insurer shall be sustained unless
was burned. The assured having had knowl- commenced within 12 months next after the
edge of the vacancy, and not having procured loss, and that the lapse of this period shall be
permission therefor, held, that the policy was conclusive evidence against the validity of
forfeited.-Royal Ins. Co. v. Lubelesky, (Ala.) any claim asserted in any subsequent action,
Conditions of policy-Waiver.
8. Where a company, by its habits of busi-
ness, creates in the mind of a policy-holder
the belief that payment of premiums may be
delayed until demanded, or otherwise waives
the right to demand a forfeiture, this is bind-
ing on the company, notwithstanding the pol-
icy expressly provides for a forfeiture on non-
payment of premiums when due.-Home Pro-
tection of North Alabama v. Avery, (Ala.)
143.
9. The omission by defendant to notify
plaintiff that it claimed a forfeiture of the pol-
icy for the breach of a clause against addi-
tional insurance is no waiver of the forfeiture,
when defendant only learned of the breach
after the loss.-Queen Ins. Co. v. Young,
(Ala.) 116.
is a bar to a suit commenced 12 months after
the loss, it not appearing that this condition
was waived by the insurer.-Ohio v. Western
Assur. Co., (Miss.) 102.
16. In an action on an insurance policy, the
plea set out a provision of the policy that it
should become void if the assured was not the
sole and unconditional owner of the property,
or if the building stood on ground not owned
by him in fee-simple, or if his interest was not
truly stated, unless the consent of the com-
pany was indorsed thereon; and averred that
the policy was issued to the assured on prop-
erty described therein as "his;" that when
the insurance was effected and the loss oc-
curred he had but a leasehold in the land, and
held the property under an executory con-
tract of purchase, which provided that if he
failed to make either of the stipulated pay-
ments the contract should determine at the
vendor's option; and further alleged that the
sued, and had no other title. Held a good de-
fense.-Brown v. Commercial Fire Ins. Co.,
(Ala.) 500.
10. A local soliciting agent of an insurance
company cannot, without express authority,
waive a forfeiture for breach of a clause
against additional insurance, after the destruc-assured had paid nothing when the policy is-
tion of the goods.-Id.
11. Under a provision in the policy that an
appraisement of the damage by arbitrators
shall neither determine the validity of the
contract, the company's liability, nor any
question but the amount of the loss, an agree-
ment by an adjuster, who represents both de-
fendant and the company taking the addition-
al risk, agreeing upon the appointment of ar-
bitrators to appraise, with the stipulation that
no other question shall be thereby affected, is
no waiver of the forfeiture for breach of a
clause against additional insurance.-Id.
Agents.
12. A replication alleging that the assured
applied for insurance to A., an insurance
agent at a place named, and soon after re-
ceived the policy sued on, and paid him the
premium, and did not pay him commissions or
any other remunerations, and that the only
transactions between the assured and the
company were those had with A., does not
sufficiently plead A.'s agency for the compa-
ny.-Brown v. Commercial Fire Ins. Co.,
(Ala.) 500.
13. Code Ala. 1886, § 1205, providing that
any person
who inspects any risk,
or does any other thing in the making
of a contract ofsurance, "for or with an un-
licensed foreign insurance company, shall be
held to be an agent of such company, does not
apply to a person who inspects a risk already
taken, and such person is not liable to the
penalties prescribed for acting as such agent
by section 3897.-Ex parte Robinson, (Ala.)
827.
14. An agent to procure insurance has no
power to cancel a policy without express au-
17. It was not necessary that the plea should
negative the indorsement of consent on the
policy. Such consent is proper matter for
replication.-Id.
18. In an action on an insurance policy,
plaintiffs' petition prayed for a reformation
of the policy, and for recovery on the policy
itself. Held, that there was no inconsistency
in such alternative prayers, and defendant's
motion to compel plaintiffs to elect whether
they would proceed on the demand to reform
the policy or on the policy itself, was properly
Ins. Co., (La.) 728.
overruled.-Weinberger v. Merchants' Mut.
Mutual benefit insurance. -
19. The charter of a mutual benefit associs-
tion provided that notices of assessments
posted in the rooms of the Cotton Exchange
should be deemed proper notices to all mem-
bers. Members were required to be members
or employés of the exchange, but it was also
provided that "any member may withdraw
from the Cotton Exchange without severing
his connection with this association," and in
course of time a class of members arose who
had ceased to be members of the exchange,
and had lost the privilege of access to its
rooms, and the company adopted the custom
of sending by mail written notices of assess
ments to all such members, and even to others
who requested it. Deceased had ceased to be
a member of the exchange, and notices had
been sent to him for several years, until one
which he failed to receive, whereupon he was
suspended, and forfeited his rights as a mem
ber. Held, that the company was estopped to
claim that deceased was entitled to no other
notice than the posting.-Gunther v. New Or-
leans Cotton Exch. Mut. Aid Ass'n, (La.) 65.
Insolvent company-Claims of pol-
icy-holders.
1880, § 1115, as amended by act Feb. 23, 1886,
makes the sale to a minor an offense, whether
the dealer knew that he was a minor or not.
—Id.
Criminal prosecution.
3. On indictment under Laws Fla. c. 3413,
§ 11, for carrying on the business of dealer in
20. Where a life insurance company becomes
insolvent and dissolves, the claims of policy. spirituous, vinous, and malt liquors, without
holders become debts due in præsenti, and sold was either spirituous, vinous, or malt
a license, the state must prove that the liquor
entitle their owners to the benefit of the laws liquor. Evidence that the liquor sold was
relating to the individual liabilities of stock-"beer" is not sufficient, unless it be shown
holders of corporations.-McDonnell v. Ala- that it was "malt beer. "-Netso v. State,
bama Gold Life Ins. Co., (Ala.) 120.
(Fla.) 8.
INTEREST.
Insurable, see Insurance, 2, 3.
Appellate jurisdiction.
4. The constitution of Florida gives to any
criminal court of record that may be estab-
lished by the legislature in a county juris-
Judicial notice of rates prevailing in other diction of all criminal cases not capital which
states, see Evidence.
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may arise in the county, and provides that the
circuit court shall have final appellate juris
diction of all misdemeanors tried in them, and
1. The body of a note made no reference to that the supreme court shall have appellate
interest, but in the margin were figures rep-jurisdiction of cases of conviction of felony by
resenting both principal and interest from them. Held, that the sale of liquors contrary
date to maturity. A mortgage, executed as to act Fla. 1887, (chapter 3700,) for the enforce-
part of the same transaction, recited that it ment of the nineteenth, or local option, article
was given to secure the payment of this note, of the constitution, is a misdemeanor, under
"with interest from its date to maturity."
the terms and effect of the third section of said
Held that, construing the two instruments act making such sale a misdemeanr, and of
together, they sufficiently show that the note Const. art. 16, § 25, defining a misdemeanor as
bears interest from date-Prichard v. Miller, any criminal offense punishable with death
(Ala.) 784.
or imprisonment in the state penitentiary, and
a judgment of conviction thereof, rendered
by a criminal court of record, is subject to be
reviewed by the circuit court.-State v. Butt,
(Fla.) 597.
See, also, Justices of the Peace.
Salary.
2. A judgment enforcing a contract execut-
ed in another state was reversed because it
included interest from the institution of the
action, without any evidence of the rate of in-
terest applicable to the contract having been
given. Held that interest could not be award.
ed from the time the judgment was rendered
at the rate prevailing in the state where the
action was prosecuted, on the assumption 1. As the act Miss. March 8, 1888, relating to
that the liability on the contract had been judicial districts, did not remove from office the
merged in the judgment; the effect of the re-circuit judges and chancellors not thereby as-
versal being to expunge the judgment in the signed to the districts created by the act, but
court below.-Insurance Co. of North Amer- permitted them to continue to discharge their
ica v. Forcheimer, (Ala.) 870.
duties in their old districts till the expiration
of their terms, such judges and chancellors
are entitled to the benefit of section 35 of the
act, allowing each chancellor and judge a sal-
salary of $2,500.-Stone v. Wharton, (Miss.)
631.
Local option law, title of act, see Constituary of $2,750 per annum, instead of his former
tional Law, 5.
Construction of bond.
1. Where a retail liquor dealer gave a bond
conditioned for the observance of "all the
provisions of the Revised Code of 1880," he
was bound to observe such Code as amended
and in force at the time of the execution of
the bond.-O'Flinn v. State, (Miss.) 390.
Sale to minor.
2. Where a minor goes into a saloon, and
buys liquor from a person standing behind the
bar and transacting business, though such
person is not the dealer er an authorized
clerk, a condition in the bond of the dealer
against the sale of liquors to minors is violated
where it is not shown that the person selling
the liquor was a mere interloper, as Code Miss.
Powers-Adjournment of court.
2. Under Rev. St. La. 1870, § 1934, a district
judge has the discretionary power to adjourn,
by a written order to the sheriff, a regular
term of the court, to any day preceding the
next regular session, as he thinks proper; and
to require the attendance of jurors accord-
ingly.-State v. Pate, (La.) 21.
Appealable, see Appeal, 4.
Collateral attack, see Criminal Law, 48.
Correction on appeal, see Appeal, 16.
Creditors' right to redeem, see Assignment
for Benefit of Creditors.
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