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a universal custom, and that the builder was and the Atlantic coast as far as Boston.
entitled to them only during the time of con. * This application is made and accepted
struction; and that defendant had erected subject to all other clauses and conditions in
buildings by such plans.-Id.

the policies of the company." The policy con-

tained a condition, “warranted by the assured
MANDAMUS.

Texas, nor Yucatan, nor anchorage thereof,”

etc. The vessel was damaged on a voyage
To courts and judicial officers.

from Galveston to Vera Cruz, and was con-
1. In Louisiana, mandamus does not lie to demned and sold. Held, that as the applica-
compel a district judge to give his approba- tion formed part of the policy, the insured
tion to the appointment of a deputy-sheriff could not plead ignorance of the conditions of
whose name is submitted for confirmation by the policy as an excuse

for violating its terms,
the sheriff, where he has refused to sanction and the insurance company was not liable on
it.

His action is final, and cannot be reviewed the policy.–Wemberger v. Merchants: Mut.
by the supreme court.-State v. District Ins. Co., (La.) 728.
Judge, (La.) 648.

2. A mandamus does not lie against a dis- Interest insured.
trict judge to direct him to annul an appoint- 2. A steam-ship company took out an open
ment of a provisional syndic in insolvency policy on merchandise to be shipped on its
proceedings, and to cancel the letters issued steamers, which the company might agree to
to the provisional syndic, when for reasons insure prior to the sailing of its vessels, any
assigned the judge has declined to do so.- losses to be paid to it or order. Goods shipped
State v. Ellis, (La.) 530.

by plaintiff were insured under such policy.
3. Mandamuis will not lie to compel the The evidence showed that the bill of lading
issuance of an injunction restraining the city issued to plaintiff exempted the steam-ship
of New Orleans from disposing of the general company from liability for nearly all the losses
appropriation of a certain year until the de- covered by the policy; that the policy provid-
termination of a pending action to try rela- ed that it should not inure to the benefit of a
tor's right to have certain demands paid out carrier; that a stipulation permitting cancel-
of it. Code Prac. La. art. 303, providing that lation excepted “pending risks;” that the car,
injunctions may be granted when necessary rier could insure third persons by entries and
to preserve the property in dispute, and to notices thereof to the defendant; that losses
prevent any act by one party injurious to the on goods shipped by other owners, and insured
other, during the pendency of the action, vests under the same circumstances, had been paid
a discretion in the judge. -State v. Rightor, without question; and that cancellation of the
(La.) 416.

insurance on plaintiff's goods was sought to be
To state officers.

effected only when it was learned that he had

other insurance. Held, that the general own-
4. The authority conferred on the state ership of the plaintiff was insured, and the
comptroller by Const. Fla., to approve the contention of the insurance company that only
bonds of county officers, vests him with dis, the steam-ship company's interest in goods
cretionary judgment, not subject to control
by nuindamus, unless he abuses his discre-ated. – Iusurance Co. of North America v.

was intended to be insured, was unsubstanti-
tion.-State v. Barnes, (Fla.) 7.22.
5. While mandamus is a proper remedy

Forcheimer, (Ala.) 870.
where an officer, in the performance of dis-
cretionary duty involving a right given by

MARRIAGE.
law, bases his refusal of the right on a matter
or ground outside of his discretion, it is not See, also, Husband and Wife.
available where said matter or ground is with-
in the discretion to be exercised by him.-Id. Within prohibited degrees.

6. A sheriff elect presented his bond to the 1. Although a marriage between uncle and
state comptroller, who refused his approval niece may have been a nullity, as contracted
because one of the sureties had withdrawn, in violation of a prohibitory law, yet it will
and the circumstances in reference to the as- produce legal effects as to the wife and her
sent of the others to the withdrawal were child, when she acted in good faith believ-
such that in his opinion there was serious ing that the marriage was valid.-Succession
doubt as to the validity of the bond. Held, of Buissiese, (La.) 668.*
that the question of the legality of the bond 2. An error of law, as well as an error of
was one directly within his discretion, and his fact, may be pleaded and established to prove
determination in regard to it, even if wrong, such good faith, and may secure protection.
cannot be controlled by mandamus.-Id. -Id.*
Manslaughter.

MASTER AND SERVANT.
See Homicide, 3, 4.

Enticing away servant.

1. Code Ala. $$ 3757, 3758, provide that
MARINE INSURANCE. where a laborer has entered into a written

contract of service for a period not exceeding
Application.

one year it shall be a criminal offense know-
1. The application was as follows: "To nav- ingly to induce such laborer to leave his em-
igate the Gulf of Mexico, the Caribbean sea, ployer before the expiration of his time of

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service, without the consent of the employer; 1

Minor.
and that the fact that such laborer, having so
contracted, is afterwards found in the service See Guardian and Ward; Infancy.
of another before the termination of the con-
tract shall be prima facie evidence of such

Misnomer.
offense. Held, that it was a defense to a
prosecution under such statute that the de- Description of person, see Indictment and
fendant had, prior to the written contract be- Information, 3.
tween the prosecuting witness and the la-
borer, verbally employed the latter for a pe-

MORTGAGES.
riod which had not expired, if the contract
with the defendant was treated by the parties Foreclosure by distributees, see Descent and
as valid, though it was voidable under the

Distribution.
statute of frauds.-Tartt v. State, (Ala.) 577. Proof of execution, see Notary Public.
Negligence of master.

Receivers of property, see Receivers.
2. The complaint alleged that plaintiff, in Rights of mortgagee, see Warehousemen.

purchaser of property, application of pay.
attempting to apply one of the brakes, by rea-

ments, see Payment, 3.
son of its weak condition, was violently
thrown down on one of the cars, and severely What constitutes.
bruised; “that the injury

was (1)

1. A married woman executed a deed of her
caused by the negligence of defendant in fail- statutory separate estate, absolute on its face,
ing to provide good

and safe brakes, and ap; and the grantee agreed that the grantor might
pliances connected and used therewith; and “redeem” on paying the amount of the consid-
(2) by the defendant negligently and careless-eration and interest, and that thereupon be
ly omitting to keep its brakes on said train in would " reconvey.” The grantee had been ad-
good repair, and knowingly allowing the same vised that a mortgage on such estate would
to remain out of repair. Held, that the be void, but that a conveyance with a reserva-
word “knowingly" qualified only the second tion of the right to repurchase would be good,
clause; that each of the numbered averments and declined to lend money to the grantor on
was sufficient in itself; and that the second, a mortgage. On a bill to cancel the couver-
instead of being a qualification of the first, ance as a mortgage, and therefore void, held,
was a substantive, cumulative ground of in that the transaction was a conditional sale,
jury.-Louisville & N. R. Co. v. Coulton, and that such construction of it was not af-
(Ala.) 458.

fected by an addendum to the agreement,
3. The burden is not on plaintiff to prove written by a third person without the gran-
that defendant had knowledge of the imper- tee's knowledge or special authority, reciting
fection of brakes on a train, whose defects, the amount the grantor "owes. "-Vincent v.
he alleges, caused his accident.-Id.

Walker, (Ala.) 465.
Negligence of vice principal.

When entitled to record.
4. Plaintiff's intestate was injured while in 2. McClell. Dig. Fla. $ 6, p. 215, provides
defendant's employ as locomotive engineer, by that in order to procure the recording of a
the fall of a trestle, the foundation of which mortgage, the execution of the mortgage must
was washed out by an unusual flood. Held, be acknowledged by the mortgagor, or it must
that negligence could not be imputed to de- be proved by at least one of the subscribing
fendant under Code Ala. & 2590, subd. 4, which witnesses thereto, before an officer authorized
provides that the employer shall be liable for by law to take such acknowledgment or proof.
injuries to an employé, caused by the negli- Held, that proof by a subscribing witness be-
gence of any person in the employer's service fore a notary public that he saw the mort-
who has charge of any signal, etc., from the gayor sign the mortgage, and acknowledge
fact that plaintiff's intestate attempted to that he did so, was not sufficient proof of its
cross the trestle after the safety signal was execution, to authorize its admission to rec-
given, where it appears that the signal was ord. There must be proof of delivery, as well
not given froin the end of the trestle being as of signing.--Edwards v. Thom, (Fla) 707.
approached by the train, as required by de-

Extinguishment of lien.
fendant's rules relating to signals.-Colum-

3. Where one holding a first mortgage sur-
bus & W. Ry. Co. v. Bridges, (Ala.) 864.

renders it, and the note, to a subsequent own-
Contributory negligence.

er of the land, and takes from such owner a
5. Where it appears that plaintiff's intes- mortgage securing both the sum he paid for
tate examined the trestle on the day of the an assignment of the first mortgage and note
accident, and knew that the water was rap- and sums of money which he has advanced to
idly rising, and that the trestle was rendered such subsequent owner, and the latter has the
dangerous the overflow, and yet attempted record of the mortgage canceled, and delivers
to cross with his train without any orders to the note to the party making it and the first
that effect or necessity therefor, defendant is mortgage, such first mortgage will be held to
not liable, though the watchman gave the be satisfied as to a subsequent mortgagee for
safety signal.-Id.

value, and without notice, actual or construc-

tive, of the second mortgage.--Id.
Measure of Damages.

Assignment of debt and mortgage.

4. In Alabama, an assignment of a mort-
See Damages.

gage, to be effectual to convey the mortgagee's

legal title and enable the assignee to maintain | lute in form, and complainant's right of re-
ejectment, must be by such a conveyance indemption not being expressly reserved, the
form and words as is required to convey the settlement whereby the right of redemption
legal title to land in ordinary cases.-Sanders was released is effectual, though by parol.
v. Cassady, (Ala.) 503.

Id.
5. By the mere assignment of a debt and a 14. In an action by heirs of a deceased mort-
mortgage by which the debt is secured, the gagor to redeem from foreclosure, where all
assignee does not acquire the right to sue for payments on the debt were made by the heirs,
an injury to or the conversion of the mort-and no effort is made to charge the personal
gaged property happening before the assign- assets of the mortgagor's estate with the
ment.-Gobbert v. Wallace, (Miss.) 394. debt, the personal representative of the es-

6. In ejectment by a mortgagee or his as- tate is not a necessary party.--Jones v. Rich-
signee it is only the amount of the mortgage ardson, (Ala.) 194.*
debt which can be put in issue under Code 15. A decree giving a right of redemption
Ala. 1886, $ 2707, and there is no error in re- to a person alleged to be a subsequent incum-
fusing to allow defendants to put in issue the branver, but who is shown by the pleading
amount of debt from the mortgagee to the as- and testimony to have parted with his lien on
signee plaintiff.-Sanders v. Cassady, (Ala.) the property covered by the bill before he was
503.

made a party is erroneous.—Bigelow v. String-
Foreclosure.

fellow, (Fla.) 816.
7. The trustee in whom is the legal title is

16. On a bill to redeem land mortgaged, the
an indispensable party, and the objection that timber cut by the mortgagee in preparing the

register improperly disallowed damages for
be has been omitted is available at any time land for cultivation, on the ground that on ac-
and in any form.-Hambrick v. Russell, (Ala.) count of remoteness from market, and the ex-
298. *

8. The court has no jurisdiction to try the istence of a stock law, it had no value, and
relative
merits of legal titles held by adverse by rendering the land fit for cultivation; the

that the damage was more than compensated
parties. Hence one who claims title from a
rior to the mortgage, should not be brought fore and after destruction of the timber.-Per-
stranger, or even from the mortgagor, ante- proper measure of damages being the differ-

ence between the market value of the land be-
in as a defendant.-Id.
9. The objection goes to the jurisdiction,

due v. Brooks, (Ala.) 126.
and may be raised at any time, or enforced by though it offers to pay whatever may be due

17. When a bill to redeem land mortgaged,
the court sua sponte.-id.
10. A decree of foreclosure against a person vious attempt or offer to pay, and the mort-

on the mortgage, has been filed without a pre-
alleged to be a subsequent incumbrancer, and
who is shown by the pleadings and testimony absolute, and that the land was their own, the

gagees have

claimed that the conveyance was
to have parted with his lien

on the property costs should be divided between the adverse
covered by the bill before he was made a par-
ty, and who does not appear to have had any

parties.-Id.
other interest in the property, is erroneous. – Sale under power.
Bigelow v. Stringfellow, (Fla.) 816.

18. A deed made in the name of the auc-
11. A bona fide mortgagee who is a party de- tioneer at a sale under a power in a mortgage,
fendant with the mortgagor on foreclosure of instead of in the name of the doneo of the
a prior mortgage, and has become the pur- power, does not convey the legal title.-San-
chaser at the sale is entitled to priority of ders v. Cassady, (Ála.) 503.
payment out of the excess of the proceeds of
sale, as against a mortgage executed before

Motion.
his, but not legally recorded, and of which he
had no notice when he took his own mortgage. To strike out, see Pleading, 5, 6.
-Edwards y. Thom, (Fla.) 707.
Redemption.

Multifariousness.
12. On a bill to declare a deed, absolute in In pleading, see Equity, 18.
form, a mortgage, it appeared that the deed
was executed to secure an indebtedness, and
future advances, and that afterwards a settle- MUNICIPAL CORPORA-
ment was had by a transfer of the land, com-

TIONS.
plainant reacknowledging the deed. At the
same time separate leases were executed to See, also, Counties.
complainant by defendants, to the land in
question, and other tracts, for one year, with Incorporation-Notice.
privilege of renewal for ten years, and of pur- 1. McClel. Dig. Fla. p. 245, $ 2, requiring the
chasing at a specified price. One of the leases notice for the incorporation of cities and
was for a lot which complainant had not towns to be published for a period of not less
before owned. In the settlement the proper-than thirty days” is complied with if 30 days'
ty was put at a fair valuation, and there was notice has been given by excluding the first
no evidence of oppression or fraud. Held, and including the last day, nor does the stat-
that complainant's right of redemption was ute mean 30 clear days.-State v, Town of
extinguished by the settlement; the deed Winter Park, (Fla.) 818.
thereby becoming absolute. McMillan v. 2. Where such notice has been given, the
Jewett, (Ala.) 145.

proceedings for incorporation may be had on
13. The deed having been originally abso. I the last day of the notice.-Id.

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Territorial limits.

mode of proceeding on the part of prop-
3. There cannot be two municipal corpora- erty holders desiriog to have street paving
tions at the same time over the same terri- done, and also on the part of the city council,
tory; but this means two legal and effective is impliedly repealed by act No. 20, 1882, 39
corporations, and does not apply where there which covers the same ground, under section
is a de facto corporation without right, and a 78, repealing “all laws in conflict, inconsis.
corporation legally organized, but not in act- tent with or contrary” thereto. But section
ual government till the former is ousted. % of act 73, 1876, prescribing the proportion
The functions of the legal corporation are in of expense of paving to be borne by owners
abeyance until the ouster, and then come into on streets having a neutral ground, and sec-
full activity.-Id.

tion 3, prescribing the mode of payment on

certificate of the administrator of improve-
Consolidation Contracts.

ments and city surveyor, etc., and making the
4. Where a gas-light company has contracts cost of pavement a real charge on real proper.
with two different cities for lighting, on the ty, were not repealed by act 20, 1882, there be
consolidation of these cities with a third the ing no provision in the latter act, on the same
latter is burdened with the contracts.-Jeffer- subject matter.-Barber Asphalt Paving Co.
son City Gas-Light Co. v. City of New Orleans, v. Gogreve, (La.) 843.
(La.) 262.

12. A vote of the property tax-payers is un-
Ordinances.

necessary to authorize a street improvement
5. A city charter authorized the city" to pre in the city of New Orleans. It is matter
vent stock of any kind from running at large within legislative discretion, under Const.
in the public streets,” in pursuance of which La. $ 46, reserving to the general assembly
an ordinance provided that animals running plenary power to deal with the corporation of
at large in the city should be impounded and the city of New Orleans at will.-IN.
sold after due notice, on a certain day in each

13. The majority of owners, within the
week, unless claimed by the owners, in which meaning of act 20, 1882, 88 32-34, are construed
event they should be delivered to the owners by section 35 to be the owner or owners of a
on payment of certain costs, and that no ani- majority of running feet of property fronting
mal should be sold within 48 hours after it on the street, or portion of the street, to be
was impounded. Held a valid exercise of po- paved, and this interpretation applies with
lice power.-Folmar v. Curtis, (Ala.) 678.

equal force to the petitioning property own-
6. Such ordinance is operative as to all ani-ers as to opposing memorialists.-Id.
mals coming within the corporate limits,

14. The statute provides that a street shall
whether owned by persons residing within be a unit, for the purposes of all computations.
the same or not.--Id.

-Id.
Contracts.

Contracts for street paving.
7. A contract made by a municipal corpo- 15. Although there can be no effective com-
ration with one of its officers, for the collec- petition at public auction for the award of a
tion of arreared taxes during an indefinite paving contract, if the specifications of the
period, for an eventual remuneration, is not a city surveyor call for a patented pavement:
contract of hiring of labor, but of mandate, specifications which call for a pavement of
which terminates with the term of office of "an uniform thickness of two and one half
the contractee, and which is otherwise revo- inches of sheet asphaltum when compressed
cable at will, the more so when the same is in laid on a base of hydraulic cement concrete,
violation of act La. 1886, No. 98, providing for of an uniform depth of six inches, " and which
the collection of taxes by the corporation stipulate that “parties desirous of bidding,
treasurer, and there is no stipulation of liabil. but whose process of asphalting differs from
ity for compensation.-Gurley v. City of New these specifications, * * are requested to
Orleans, (La.) 659.

forward bids with the difference well ex.
S. Such contract is ultra vires when the plained," do not call for a patented pavement.
municipal corporation relieves one of its ofti- -Id.
cers from the duty of collection, which forms 16. In an action against a front proprietor
part of his functions, without additional pay, for his share of the expense of laying a pare-
and intrusts it to another officer, or even to wou: in front of defendant's premises, plain-
an individual, under terms which are onerous, tiff alleged that his contract was made, and
and may be repudiated by the corporation. said paving done in accordance with, and in
Id.
9. In such case the contractee is not entitled No. 73, 1876. 'Defendant excepted that plain-

pursuance of, act La. No. 20, 1832, and act
to any compensation after the time of revoca- tiff's reference to said acts, without specify.
tion or repudiation.-Id.

ing on which it relied as authority for its con.
Control of streets.

tract, made its petition vague, and that, as
10. The charter of the town of Biloxi (Acts the provisions of those acts were inconsist-
Miss. 1888, p. 206, $$ 27, 28) expressly confers ent, it should be ordered to elect between
upon the board of mayor and aldermen exclu- them. Before trial, plaintiff's counsel stated
sive jurisdiction to order the removal of en of record that the plaintiff relied on act No
croachments on any street, sidewalk, or pub-20, 1989, as far as the validity of its contract
lic alley within the corporate limits.--Nixon in matter of form was concerned, and as for
v. Town of Biloxi, (Miss.) 621.

the proportion of payments and the remedies,

it relied on act No: 73, 1976. Held that, as
Public improvements.

plaintiff believed the acts were not inconsist-
11. Act La. No. 73, 1876, § 1, designating the lent, it had a right to urge them alternatively

1

in pleading, and the right to do so could not not enjoin a sale on those grounds.-Strenna
be vested by dilatory exception, but was a v. City Council of Montgomery, (Ala.) 115.
matter for the merits.--Id.
17. Act No. 73, La. 1876, § 3, makes the cer-

Murder.
tificates of the administrator of improvements
and city surveyor prima facie proof of the See Homicide, 1, 2.
contractor's compliance with his contract,
and of his performance of its obligations; and Mutual Benefit Insurance.
such contract, when evidenced by a notarial
act, is prima facie proof of the due obsery. See Insurance, 19.
ance of antecedent forms and requirements
of law, hence the onus probandi is on the re-
sisting front proprietor to disprove the same.

NAVIGABLE WATERS.
-Id.

18. The law fixes the proportionate share of What constitutes.
the cost of paving to be borne by the abutting

1. Where a stream is suitable for purposes
property owners and the city, in case the of navigation only at certain periods of vary.
work is done on a neutral ground street, and ing duration, and it appears that it was in-
there was no necessity of a provision to that cluded in the surveys of the country, and is
effect in the specifications or the contract, not connected with tide-water, evidence that
and the same are not void for the want of it. the river was sufficient for the floatage of
-Id.

logs and flat-boats during the winter seasons"
19. The right of the city to stipulate, in a does not show the stream to be per se a public
paving contract, for the payment of $ per highway.-Olive v. State, (Ala.) 653.
cent. per annum interest by a defaulting 2. The question as to whether such use of
front proprietor on the amount due by him on the stream makes it a public highway is one
his proportionate share of the cost of its con- of fact for the consideration of the jury.-Id.
struction is implied from the power to adju. Burden of proof.
dicate the work, and to make a contract there.

3. Where the whole of a river is above tide-
for. The stipulation of any rate of interest water it is prima facie unnavigable, and the
not exceeding 8 per cent. is an incident of the burden of proving that it was impressed with
property owner's obligation, and is as bind the character of a public highway is on the
ing as any part thereof.-Id.
20. In case the contractor for paving relies

one asserting it.-Id.
for his remedies in the enforcement of his Obstruction.
contract and for the ascertainment of the pro- 4. The fact that a dam has been in exist-
portionate share of the cost of the work due ence across a navigable river for 38 years
by the abutting proprietors on one statute, gives no prescriptive right to continue the ob.
and on another as to all matter of form only, struction.-Id.
it is expedient and proper that the latter
alone should have been mentioned in the pro-
ceedings.-10.

Necessary Parties.
21. Citizens and tax-payers cannot sue to See Parties, 1.
enforce contracts for the paving of streets
upon which they are property owners, when
the contracts contain no stipulation pour au-

NEGLIGENCE.
trui.-Loeber v. New Orleans & C. R. Co., Contributory, see Logs and Logging, 2; Mas-
(La.) 60.

ter and Servant, 5.
Assessments.

Ejection of passengers, see Horse and Street
22. Const. La. $ 209, providing that “the

Railroads, 4-6.
state tax on property for all purposes what-Injuries to passengers, see Horse and Street
shall not exceed in any one

Railroads, 2, 3.
year six mills on the dollar of its assessed of master, see Master and Servant, 2, 3.
valuation,
and no parish or munici-

railroad company, see Railroad Compa-
pal tax for all purposes whatsoever shall ex-

nies, 8-24.
ceed ten mills on the dollar of valuation,” re: What constitutes.
fers to ad valorem taxation for revenue, and
does not apply to special assessments for ing lawfully in possession of plaintiff's side

1. A complaint alleging that defendant, be-
street improvement. "And a forced contribu. track, negligently placed a freight-car so near
tion sought of a front proprietor for his share plaintiff's main track that plaintiff's train col-
of the expense of paving the street, is neither lided with it, whereby its cars were damaged,
illegal, ultra vires, nor unconstitutional.
Barber Asphalt Paving Co. v. Gogreve, (La.) to third persons

shows a cause of action. Plaintiff's duty as

remove the obstruction
848.
23. Under act Ala. Feb. 17, 1885, providing Montgomery Gas-Light Co. v. Montgomery &

cannot relieve defendant from liability.
for the sale of land in the city of Montgomery E. Ry. Co., (Ala.) 735.
for unpaid municipal taxes by decree of the
recorder after notice to the owner, objections Contributory negligence.
that an assessment for sidewalk repairs was 2. It is not error to charge that contributory
illegal, being made by the clerk instead of the negligence must have been of a character to
council, and for purposes not municipal, must have essentially contributed to the injury com-
be made before the recorder, and equity will plained of.-Id.

ever

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