a universal custom, and that the builder was entitled to them only during the time of con- struction; and that defendant had erected buildings by such plans.—Id.
MANDAMUS.
To courts and judicial officers.
1. In Louisiana, mandamus does not lie to compel a district judge to give his approba- tion to the appointment of a deputy-sheriff whose name is submitted for confirmation by the sheriff, where he has refused to sanction it. His action is final, and cannot be reviewed by the supreme court.-State v. District Judge, (La.) 648.
and the Atlantic coast as far as Boston. *This application is made and accepted subject to all other clauses and conditions in the policies of the company." The policy con- tained a condition, "warranted by the assured not to use port or ports in Eastern Mexico, Texas, nor Yucatan, nor anchorage thereof, etc. The vessel was damaged on a voyage from Galveston to Vera Cruz, and was con- demned and sold. Held, that as the applica- tion formed part of the policy, the insured could not plead ignorance of the conditions of the policy as an excuse for violating its terms, and the insurance company was not liable on the policy.-Wemberger v. Merchants' Mut. Ins. Co., (La.) 728.
2. A mandamus does not lie against a dis- 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. The evidence showed that the bill of lading issued to plaintiff exempted the steam-ship company from liability for nearly all the losses covered by the policy; that the policy provid-
3. Mandamus will not lie to compel the issuance of an injunction restraining the city of New Orleans from disposing of the general appropriation of a certain year until the de- 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 of it. Code Prac. La. art. 303, providing that injunctions may be granted when necessary to preserve the property in dispute, and to prevent any act by one party injurious to the other, during the pendency of the action, vests a discretion in the judge.-State v. Rightor, (La.) 416.
4. The authority conferred on the state comptroller by Const. Fla., to approve the bonds of county officers, vests him with dis- cretionary judgment, not subject to control by mandamus, unless he abuses his discre- tion.-State v. Barnes, (Fla.) 722.
5. While mandamus is a proper remedy where an officer, in the performance of dis- cretionary duty involving a right given by law, bases his refusal of the right on a matter or ground outside of his discretion, it is not available where said matter or ground is with- in the discretion to be exercised by him.-Id. 6. A sheriff elect presented his bond to the state comptroller, who refused his approval because one of the sureties had withdrawn, and the circumstances in reference to the as- sent of the others to the withdrawal were such that in his opinion there was serious doubt as to the validity of the bond. Held, that the question of the legality of the bond was one directly within his discretion, and his determination in regard to it, even if wrong, cannot be controlled by mandamus.-Id.
carrier; that a stipulation permitting cancel- lation excepted "pending risks; " that the car- rier could insure third persons by entries and notices thereof to the defendant; that losses on goods shipped by other owners, and insured under the same circumstances, had been paid without question; and that cancellation of the insurance on plaintiff's goods was sought to be effected only when it was learned that he had other insurance. Held, that the general own- ership of the plaintiff was insured, and the contention of the insurance company that only the steam-ship company's interest in goods was intended to be insured, was unsubstanti- ated. - Insurance Co. of North America v. Forcheimer, (Ala.) 870.
MARRIAGE.
See, also, Husband and Wife. Within prohibited degrees.
1. Although a marriage between uncle and niece may have been a nullity, as contracted in violation of a prohibitory law, yet it will produce legal effects as to the wife and her child, when she acted in good faith believ- ing that the marriage was valid.-Succession of Buissiese, (La.) 668.*
2. An error of law, as well as an error of fact, may be pleaded and established to prove such good faith, and may secure protection. -Id.*
MASTER AND SERVANT. Enticing away servant.
1. Code Ala. $$ 3757, 3758, provide that where a laborer has entered into a written contract of service for a period not exceeding 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
service, without the consent of the employer; | 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 offense. Held, that it was a defense to a prosecution under such statute that the de- fendant had, prior to the written contract be- tween the prosecuting witness and the la- borer, verbally employed the latter for a pe- riod which had not expired, if the contract with the defendant was treated by the parties as valid, though it was voidable under the statute of frauds.-Tartt v. State, (Ala.) 577. Negligence of master.
Description of person, see Indictment and Information, 3.
Foreclosure by distributees, see Descent and
Proof of execution, see Notary Public. Receivers of property, see Receivers.
Rights of mortgagee, see Warehousemen. purchaser of property, application of pay- ments, see Payment, 3.
What constitutes.
1. A married woman executed a deed of her
2. The complaint alleged that plaintiff, in attempting to apply one of the brakes, by rea- son of its weak condition, was violently thrown down on one of the cars, and severely bruised; "that the injury was (1) 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 tre 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 he 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 convey- 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, written by a third person without the gran- tee's knowledge or special authority, reciting the amount the grantor "owes. "-Vincent v. Walker, (Ala.) 465.
3. The burden is not on plaintiff to prove that defendant had knowledge of the imper- fection of brakes on a train, whose defects, he alleges, caused his accident.-Id. Negligence of vice principal.
4. Plaintiff's intestate was injured while in defendant's employ as locomotive engineer, by the fall of a trestle, the foundation of which was washed out by an unusual flood. Held, that negligence could not be imputed to de- fendant under Code Ala. § 2590, subd. 4, which provides that the employer shall be liable for injuries to an employé, caused by the negli- gence of any person in the employer's service who has charge of any signal, etc., from the fact that plaintiff's intestate attempted to cross the trestle after the safety signal was given, where it appears that the signal was not given from the end of the trestle being approached by the train, as required by de- fendant's rules relating to signals.-Colum- bus & W. Ry. Co. v. Bridges, (Ala.) 864. Contributory negligence.
5. Where it appears that plaintiff's intes- tate examined the trestle on the day of the accident, and knew that the water was rap- idly rising, and that the trestle was rendered dangerous by the overflow, and yet attempted to cross with his train without any orders to that effect or necessity therefor, defendant is not liable, though the watchman gave the safety signal.-Id.
Measure of Damages. See Damages.
When entitled to record.
2. McClell. Dig. Fla. § 6, p. 215, provides that in order to procure the recording of a mortgage, the execution of the mortgage must be acknowledged by the mortgagor, or it must be proved by at least one of the subscribing witnesses thereto, before an officer authorized by law to take such acknowledgment or proof. Held, that proof by a subscribing witness be- fore a notary public that he saw the mort- gagor sign the mortgage, and acknowledge that he did so, was not sufficient proof of its execution, to authorize its admission to rec- ord. There must be proof of delivery, as well as of signing.-Edwards v. Thom, (Fla.) 707. Extinguishment of lien.
3. Where one holding a first mortgage sur- renders it, and the note, to a subsequent own- er of the land, and takes from such owner a mortgage securing both the sum he paid for an assignment of the first mortgage and note and sums of money which he has advanced to such subsequent owner, and the latter has the record of the mortgage canceled, and delivers the note to the party making it and the first mortgage, such first mortgage will be held to be satisfied as to a subsequent mortgagee for value, and without notice, actual or construc- tive, of the second mortgage. -Id. Assignment of debt and mortgage.
4. In Alabama, an assignment of a mort- 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 in demption 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 mortgage by which the debt is secured, the assignee does not acquire the right to sue for an injury to or the conversion of the mort- gaged property happening before the assign- ment.-Gobbert v. Wallace, (Miss.) 394.
6. In ejectment by a mortgagee or his as- signee it is only the amount of the mortgage debt which can be put in issue under Code Ala. 1886, § 2707, and there is no error in re- fusing to allow defendants to put in issue the amount of debt from the mortgagee to the as- signee plaintiff.-Sanders v. Cassady, (Ala.) 503.
7. The trustee in whom is the legal title is an indispensable party, and the objection that he has been omitted is available at any time and in any form.-Hambrick v. Russeli, (Ala.) 298.* 8. The court has no jurisdiction to try the relative merits of legal titles held by adverse parties. Hence one who claims title from a stranger, or even from the mortgagor, ante- rior to the mortgage, should not be brought in as a defendant.-Id.
9. The objection goes to the jurisdiction, and may be raised at any time, or enforced by the court sua sponte.—Ïd.
10. A decree of foreclosure against a person alleged to be a subsequent incumbrancer, and who is shown by the pleadings and testimony to have parted with his lien on the property covered by the bill before he was made a par- ty, and who does not appear to have had any other interest in the property, is erroneous. Bigelow v. Stringfellow, (Fla.) 816.
14. In an action by heirs of a deceased mort- gagor to redeem from foreclosure, where all payments on the debt were made by the heirs, and no effort is made to charge the personal assets of the mortgagor's estate with the debt, the personal representative of the es- tate is not a necessary party.-Jones v. Rich- ardson, (Ala.) 194.*
15. A decree giving a right of redemption to a person alleged to be a subsequent incum- brancer, but who is shown by the pleading and testimony to have parted with his lien on the property covered by the bill before he was made a party is erroneous.-Bigelow v. String- fellow, (Fla.) 816.
16. On a bill to redeem land mortgaged, the timber cut by the mortgagee in preparing the register improperly disallowed damages for land for cultivation, on the ground that on ac- count of remoteness from market, and the ex- istence of a stock law, it had no value, and by rendering the land fit for cultivation; the that the damage was more than compensated proper measure of damages being the differ- fore and after destruction of the timber.-Per- due v. Brooks, (Ala.) 126.
ence between the market value of the land be-
though it offers to pay whatever may be due 17. When a bill to redeem land mortgaged, vious attempt or offer to pay, and the mort- on the mortgage, has been filed without a pre- absolute, and that the land was their own, the gagees have claimed that the conveyance was costs should be divided between the adverse parties.-Id.
Sale under power.
18. A deed made in the name of the auc- tioneer at a sale under a power in a mortgage, instead of in the name of the donee of the power, does not convey the legal title.-San- ders v. Cassady, (Ala.) 503.
11. A bona fide mortgagee who is a party de- fendant with the mortgagor on foreclosure of a prior mortgage, and has become the pur- chaser at the sale is entitled to priority of payment out of the excess of the proceeds of sale, as against a mortgage executed before 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 v. Thom, (Fla.) 707.
See, also, Counties. Incorporation-Notice.
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- ment was had by a transfer of the land, com- plainant reacknowledging the deed. At the same time separate leases were executed to complainant by defendants, to the land in question, and other tracts, for one year, with privilege of renewal for ten years, and of pur- chasing at a specified price. One of the leases was for a lot which complainant had not before owned. In the settlement the proper- ty was put at a fair valuation, and there was no evidence of oppression or fraud. Held, that complainant's right of redemption was extinguished by the settlement: the deed thereby becoming absolute. McMillan v. Jewett, (Ala.) 145.
13. The deed having been originally abso-
1. McClel. Dig. Fla. p. 245, § 2, requiring the notice for the incorporation of cities and towns to be published "for a period of not less than thirty days" is complied with if 30 days' notice has been given by excluding the first and including the last day, nor does the stat ute mean 30 clear days.-State v. Town of Winter Park. (Fla.) 818.
2. Where such notice has been given, the proceedings for incorporation may be had on the last day of the notice.-Id.
mode of proceeding on the part of prop- 3. There cannot be two municipal corpora erty holders desiring 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, $ 32, 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 tent with or contrary" thereto. But section corporation legally organized, but not in act- ual government till the former is ousted.2, of act 73, 1876, prescribing the proportion The functions of the legal corporation are in abeyance until the ouster, and then come into full activity.-Id.
Consolidation-Contracts.
4. Where a gas-light company has contracts with two different cities for lighting, on the consolidation of these cities with a third the latter is burdened with the contracts.-Jeffer- son City Gas-Light Co. v. City of New Orleans, (La.) 262. Ordinances.
of expense of paving to be borne by owners on streets having a neutral ground, and sec- tion 3, prescribing the mode of payment on certificate of the administrator of improve- ments and city surveyor, etc., and making the cost of pavement a real charge on real proper- ty, were not repealed by act 20, 1882, there be ing no provision in the latter act, on the same subject-matter.-Barber Asphalt Paving Co. v. Gogreve, (La.) 848.
12. A vote of the property tax-payers is un- necessary to authorize a street improvement
within legislative discretion, under Const. La. § 46, reserving to the general assembly plenary power to deal with the corporation of the city of New Orleans at will.—Id.
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 in the public streets," in pursuance of which an ordinance provided that animals running at large in the city should be impounded and 13. The majority of owners, within the sold after due notice, on a certain day in each week, unless claimed by the owners, in which meaning of act 20, 1882, §§ 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 equal force to the petitioning property own- lice power.-Folmar v. Curtis, (Ala.) 678. 6. Such ordinance is operative as to all ani-ers as to opposing memorialists.-Id. mals coming within the corporate limits, whether owned by persons residing within the same or not.-Id. Contracts.
7. A contract made by a municipal corpo- ration with one of its officers, for the collec- tion of arreared taxes during an indefinite period, for an eventual remuneration, is not a contract of hiring of labor, but of mandate, which terminates with the term of office of the contractee, and which is otherwise revo- cable at will, the more so when the same is in violation of act La. 1886, No. 98, providing for the collection of taxes by the corporation treasurer, and there is no stipulation of liabil- ity for compensation.-Gurley v. City of New Orleans, (La.) 659.
14. The statute provides that a street shall be a unit, for the purposes of all computations. -Id.
Contracts for street paving.
15. Although there can be no effective com- petition at public auction for the award of a paving contract, if the specifications of the city surveyor call for a patented pavement: specifications which call for a pavement of "an uniform thickness of two and one half inches of sheet asphaltum when compressed laid on a base of hydraulic cement concrete, of an uniform depth of six inches," and which stipulate that "parties desirous of bidding, but whose process of asphalting differs from these specifications, * * are requested to forward bids with the difference well ex- plained, "do not call for a patented pavement.
8. Such contract is ultra vires when the municipal corporation relieves one of its offi-Id. cers from the duty of collection, which forms part of his functions, without additional pay, and intrusts it to another officer, or even to an individual, under terms which are onerous, and may be repudiated by the corporation. Id.
9. In such case the contractee is not entitled to any compensation after the time of revoca- tion or repudiation.-Id. Control of streets.
16. In an action against a front proprietor for his share of the expense of laying a pave- me in front of defendant's premises, plain- tiff alleged that his contract was made, and said paving done in accordance with, and in pursuance of, act La. No. 20, 1882, and act No. 73, 1876. Defendant excepted that plain- tiff's reference to said acts, without specify- ing on which it relied as authority for its con- 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 them. Before trial, plaintiff's counsel stated upon the board of mayor and aldermen exclu- of record that the plaintiff relied on act No sive jurisdiction to order the removal of en- 20, 1882, as far as the validity of its contract croachments on any street, sidewalk, or pub-n' matter of form was concerned, and as for lic alley within the corporate limits.-Nixon the proportion of payments and the remedies, it relied on act No. 73, 1876. Held that, as plaintiff believed the acts were not inconsist-
v. Town of Biloxi, (Miss.) 621. Public improvements.
11. Act La. No. 73, 1876, § 1, designating theent, it had a right to urge them alternatively
in pleading, and the right to do so could not be vested by dilatory exception, but was a matter for the merits.--Id.
not enjoin a sale on those grounds.-Strenna v. City Council of Montgomery, (Ala.) 115.
17. Act No. 73, La. 1876, § 3, makes the cer- 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 such contract, when evidenced by a notarial act, is prima facie proof of the due observ- ance of antecedent forms and requirements of law, hence the onus probandi is on the re- sisting front proprietor to disprove the same. -Id.
Mutual Benefit Insurance. See Insurance, 19.
NAVIGABLE WATERS. What constitutes.
18. The law fixes the proportionate share of 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 does not show the stream to be per se a public highway.-Olive v. State, (Ala.) 653.
19. The right of the city to stipulate, in a paving contract, for the payment of 8 per cent. per annum interest by a defaulting front proprietor on the amount due by him on his proportionate share of the cost of its con- struction is implied from the power to adju- dicate the work, and to make a contract there- for. The stipulation of any rate of interest not exceeding 8 per cent. is an incident of the property owner's obligation, and is as bind- ing as any part thereof.-Id.
20. In case the contractor for paving relies for his remedies in the enforcement of his contract and for the ascertainment of the pro- portionate share of the cost of the work due by the abutting proprietors on one statute, and on another as to all matter of form only, it is expedient and proper that the latter alone should have been mentioned in the pro- ceedings.-Id.
2. The question as to whether such use of the stream makes it a public highway is one of fact for the consideration of the jury.-Id. Burden of proof.
3. Where the whole of a river is above tide- water it is prima facie unnavigable, and the burden of proving that it was impressed with the character of a public highway is on the one asserting it.-Id. Obstruction.
4. The fact that a dam has been in exist- ence across a navigable river for 38 years gives no prescriptive right to continue the ob- struction.—Id.
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- trui.-Loeber v. New Orleans & C. R. Co., (La.) 60.
22. Const. La. § 209, providing that "the state tax on property for all purposes what- shall not exceed in any one year six mills on the dollar of its assessed valuation, and no parish or munici- pal tax for all purposes whatsoever shall ex- ceed ten mills on the dollar of valuation," re- fers to ad valorem taxation for revenue, and does not apply to special assessments for street improvement. And a forced contribu- tion sought of a front proprietor for his share of the expense of paving the street, is neither illegal, ultra vires, nor unconstitutional. Barber Asphalt Paving Co. v. Gogreve, (La.)
23. Under act Ala. Feb. 17, 1885, providing for the sale of land in the city of Montgomery for unpaid municipal taxes by decree of the recorder after notice to the owner, objections that an assessment for sidewalk repairs was illegal, being made by the clerk instead of the council, and for purposes not municipal, must be made before the recorder, and equity will |
NEGLIGENCE.
Contributory, see Logs and Logging, 2; Mas- ter and Servant, 5.
Ejection of passengers, see Horse and Street Railroads, 4-6.
Injuries to passengers, see Horse and Street Railroads, 2, 3.
Of master, see Master and Servant, 2, 3, railroad company, see Railroad Compa- nies, 8-24.
ing lawfully in possession of plaintiff's side 1. A complaint alleging that defendant, be- track, negligently placed a freight-car so near lided with it, whereby its cars were damaged, plaintiff's main track that plaintiff's train col- shows a cause of action. Plaintiff's duty as to third persons to remove the obstruction Montgomery Gas-Light Co. v. Montgomery & cannot relieve defendant from liability. E. Ry. Co., (Ala.) 735.
Contributory negligence.
2. It is not error to charge that contributory negligence must have been of a character to have essentially contributed to the injury com- plained of.-Id.
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