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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.

Interest insured.

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.

To state officers.

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.

Manslaughter.

See Homicide, 3, 4.

MARINE INSURANCE.

Application.

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

v.5so.-59

Minor.

Misnomer.

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.

*

MORTGAGES.

Foreclosure by distributees, see Descent and

Distribution.

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.

Foreclosure.

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.

Redemption.

Motion.

Multifariousness.

MUNICIPAL CORPORA-

TIONS.

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.

f

Territorial limits.

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.

Murder.

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.

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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.

ever

Assessments.

*

*

#

* * *

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.)

848.

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.

What constitutes.

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.

1

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