thing pledged until payment of his debt, con- | Right to obstruct navigable river, see Navi
ferred on the pledgee by Rev. Civil Code La.
art. 3164, is not affected by the cession of the
pledgeor. Following Renshaw v. Creditors,
3 So. 403.-Haynes v. Their Creditors, (La.) 68.
Prior liens.

creditor from acquiring possession as holder Action for, see Sale, 7–10.

of bills of lading of the same property. In
such case he takes the pledge subject to prior
liens, under Code, art. 3142.-Id.

PRINCIPAL AND AGENT.

See, also, Factors and Brokers.

Husband as wife's agent, see Husband and
Wife, 10-12.

To maintain action to quiet title, see Quieting Insurance agents, see Insurance, 12, 14.
Title, 6, 7.

PRACTICE IN CIVIL CASES.agency, in the absence of independent evi-

3. By the terms of a contract between a
2. A judgment of nonsuit, properly ren- machinery firm and its agent for the sale of ma
dered, will not be disturbed on appeal.-Rich-chines no commissions were to be paid to the
ard v. Bergeron, (La.) 15.
Filing pleading.

See Adverse Possession; Limitation of Ac-agent of the firm, by which the latter was to
tions.

al limit of said court.-State v. Judges of
Court of Appeals, (La.) 114.

2. A prohibition cannot issue to a district
judge to prevent him from doing an act which
he denies having done, which he refuses to
do, and which is not shown to have been done
by him.-State v. Ellis, (La.) 530.

Promissory Notes.

See Negotiable Instruments.

Proximate and Remote Cause.

7. Where a principal conferred authority on
his agent to purchase goods, and immediately
left home for a few months, and there is evi-
dence that on his return the authority was re- See Damages, 1.
voked, it is for the jury to determine whether
persons who made their first sale to the agent
several months after the principal's return

Public Improvements.

were justified in believing the authority con- See Municipal Corporations, 11–23.
tinued.-Wheeler v. McGuire, (Ala.) 190.

8. Neglect of the principal to inform him-
self as to the manner in which the agent con-
ducts his business, and to see that his instruc-
tions are obeyed, does not constitute ground
of liability, unless it induced those dealing
with the agent to believe he had authority.

Id.

9. Knowledge of an agent is not constructive
notice to his principal, unless acquired after
the agency was created.-Id.*

PUBLIC PRINTER.

For agricultural department.

Code Ala. 1876, § 115, provides that "all of
the public printing and binding authorized by
law shall be given to such person, company,
or firm, by the officer now authorized, to be
executed in the manner now required by law,
and he shall receive his compensation there-
for under the contract, on the same evidence,

PRINCIPAL AND SURETY. and in the same manner, as now provided by

See, also, Bail; Bonds.

Liability on appeal-bonds, see Appeal, 32.
Liability of surety-Evidence.

1. Evidence that one H. acted as county
treasurer after the treasurer's death, until
his successor's appointment, and that on set-
tlement with the county H. paid a certain sum
received by him while so acting, is irrelevant,
and does not tend to disprove the liability of
the sureties.-Coleman v. Pike County, (Ala.)
481.

Remedies of surety.

2. A surety has no ground for relief in
equity under a contract with the creditor to
transfer to the surety the collaterals received
from his principal on payment of the sum for
which he is surety, where it appears that the
principal has himself paid the debt.-Dilburne
v. Youngblood, (Ala.) 175.

Probate.

Of wills, see Wills, 4-6.

See Writs.

Process.

PROHIBITION, WRIT OF.
When lies.

law." The agricultural department was first
established in 1883, and by Acts 1884-85, p. 168,
all money arising from its operations is re-
quired to be kept in a separate fund for its
exclusive use, all sums necessary for its sup-
port to be paid therefrom under such rules as
ing these and other statutes, that the contract
the governor shall prescribe. Held, constru-
for public printing does not include printing
required for the use of the agricultural de-
partment.-Brown v. Seay, (AÏa.) 216.

Quarantine.

Charges against vessels, see Health, 1, 2

QUIETING TITLE.

Jurisdiction.

1. The chancery court in Mississippi has ju-
risdiction of a bill to remove a cloud from
title arising from a mistake in description in
a partition agreement by which defendant oc-
cupies a portion of complainant's allotment;
and in such proceeding the court should grant
complete relief by taking an account of the
rents and profits and improvements.-Robin-
son v. Jones, (Miss.) 102.

What constitutes cloud upon title.
2. Where the instrument or proceeding com-
plained of as constituting a cloud upon title is
void on its face, or where the instrument is
not void upon its face, but the party claiming
1. Prohibition will lie to prevent the court under it must, in order to recover on it, nec-
of appeals of Louisiana from exercising juris-essarily offer evidence that will inevitably
diction over a controversy involving a right to
servitude of light and view, valued at more
than $1,000, and a claim for $1,000 damages,
both exceeding $2,000, the upper jurisdiction-

show its invalidity and destroy its effect, such
instrument is not a "cloud upon title, "within
the legal definition of the term.-Sloan v.
Sloan, (Fla.) 603.

commissoner.

3. An administrator's deed purporting to | Regulation of charges
convey lands sold by him under an order of a
court which, as to its power to make such an
order, is a court of special and limited juris-
diction, is not, nor are such deed and order
and other sale proceedings, a cloud upon title,
when the facts or fact essential to the court's
jurisdiction to make the order do not appear
on the order, or the proceedings upon which
such order is based.-Id.

4. A tax-deed regular on its face, and which
a statute has made prima facie evidence of
the regularity of all the proceedings con-

nected with the assessment and sale, but

which is founded on a void assessment, is a

cloud upon title.-Id.

Title and possession, to maintain.

5. A complainant seeking to obtain a can-
cellation of defendant's title must show him-
self to be the owner, in law or equity; and if,
the burden of proof being on him, he fails to
establish his title, it is immaterial whether
defendant's title is good or bad. -Hart v.
Bloomfield, (Miss.) 620.

6. One whose title to land is legal in its
character must have possession of the land to
entitle him to equitable relief against a cloud
upon his title, but possession is not essential
where the title is equitable.-Sloan v. Sloan,
(Fla.) 603.

7. Possession by a duly-authorized agent,
having charge of all the land and engaged in
keeping off trespassers, is sufficient to sustain
the equitable jurisdiction to remove a cloud
on the title in favor of owners of legal title
who are themselves non-residents.-Id.

QUO WARRANTO.

Power of

1. Under act Fla. June 7, 1887, (railroad
commission act,) authorizing the railroad com-
missioners to prescribe reasonable and just
the enforcement of a tariff of rates which will
rates of freight and passenger transportation,
not pay the expenses of operating the rail-
road is an abuse of the discretion given to the
commissioners, and amounts to taking the
company's property without just compensa-
tion.-Pensacola & A. R. Co. v. State, (Fla.)

$33.

sion act,) provides that the schedule of rates
2. Act Fla. June 7, 1887, (railroad commis-
prescribed by the commissioners shall, in
any suit brought against a railroad corpora-
tion, "wherein is involved the charges of any
such railroad corporation for the transporta-
tion of any passengers, or freight, or cars,
or unjust discrimination in relation thereto,
be deemed and taken, in all courts of this
state, as sufficient evidence that the rates
fixed therein are just and reasonable rates of
charges," etc. Held, that the effect of this
provision is not to make such schedules con-
clusive as against judicial inquiry, but is to
provide a new mode of proving the reason-
ableness and just character of the rates fixed,
and make the schedules competent and ade-
quate evidence of the correctness of the action
of the commissioners, in the absence of coun-
tervailing proof that they have exceeded their
powers, or abused their discretion, and in-
vaded some right of the railroad company.
-Id.

3. Where a tariff has been established by
the commissioners, and the company and com-
missioners differ as to whether such rates

Against officers-Pleading and evi- will prove remunerative to the company,
dence.

1. The question of the sufficiency of a rele-
vant defense presented by an answer to an
information filed in quo warranto proceed-
ings cannot be raised by a motion to strike
out. The question should be raised by de-
murrer.-State v. Saxon, (Fla.) 801.

2. Non usurpavit is not a relevant plea in
quo warranto brought by the attorney gen-
eral to oust a party from public office, but an
allegation of the party that he was elected to
the office is relevant, though it may not be
sufficient of itself to prevent ouster.-Id.

3. In such quo warranto, whether brought
on the relation of one claiming the office or
not, the burden is on the defendant to show
that he holds the office rightfully; and it is
not enough to show due appointment or elec-
tion, but for full and complete title he must
also show that all the requisites required to
qualify him to take possession of the office
have been complied with.-Id.

RAILROAD COMPANIES.

See, also, Carriers; Horse and Street Rail-
roads.

Delegation of legislative power to railroad
commissioners, see Constitutional Law, 2.
Venue of action against, see Venue in Civil
Cases, 1.

and there is room for a difference of opinion,
the courts cannot interfere or substitute
their judgment for that of the commissioners,
but the tariffs, as fixed by the commissioners,
must be left to the test of experiment.-Id.

4. The courts have no power to make freight
or passenger tariffs.-Id.

5. The courts will not interfere or grant re-
lief to a railroad company on a complaint
made as to one or several rates only, or where
the freight and passenger rates established
by the commissioners are not assailed as an
entirety.-Id.
Consolidation.

6. Under act Ala. Aug. 5, 1868, authorizing
a consolidation of a railroad company, which
is the grantee of a right of way, with another
company, section 6, providing that the con-
solidation shall not affect the rights of the
creditors of the companies, the new company is
not protected, as an innocent purchaser,
against the enforcement of covenants entered
into by the grantee of the right of way, and
which run with the land.-Mobile & M. Ry.
Co. v. Gilmer, (Ala.) 138.

Taxation.

7. Under section 8 of the charter of the Y.
& M. V. R. Co., which exempts the property
of the company from taxation "for a term of
twenty years from the completion of said rail-
road to the Mississippi river, but not to ex-

tend beyond 25 years from the date of the ap- stock was injured at a crossing near a station,
proval of this act," the exemption was intend to charge that, if the locomotive was running
ed to commence from the completion of the at a very rapid rate of speed at the time the
road to the Mississippi river, and not during stock was struck, and the injury occurred be-
its construction; and the road, not having cause of this fact, the defendant would be lia
been completed, is subject to a subsequent ble, as the statute does not regulate the speed
statute making all railroads liable to taxation, of trains when passing stations or crossings,
though at the date of the charter railroads except when entering a curve crossed by a
were not liable to taxation during construc-public road, where the engineer cannot see at
tion, under the general laws.-Yazoo & M. V. | least one-fourth of a mile ahead.-Id.
R. Co. v. Thomas, (Miss.) 108.
Negligence-Accidents to trains.

S. When it is shown that after the accident
it was found that a rail only 10 feet long was
out of place, and the track was very bad,
the rails much worn, and of all lengths,
while usually they are 30 feet long, the ver-
dict of the jury finding negligence should not
be disturbed.-Florida Ry. & Nav. Co. v. Web-
ster, (Fla.) 714.

9. A recovery cannot be had under the
"employers' act" (Code Ala, 1886, $82590-2592,)
for injuries received by plaintiff's intestate
while in defendant's employ as a locomotive
engineer, by the fall of a trestle, the founda-
tion of which was washed out by an unusual-
ly great and destructive flood, where it ap-
pears that the trestle was constructed in the
manner usual with the best managed rail-
roads, and that it had afforded a safe passage
for trains for 15 years.-Columbus & W. Ry.
Co. v. Bridges, (Ala.) 864.

- Accidents at crossings.

10. To recover damages for injuries received
at a railroad crossing, plaintiff must prove
that the accident was caused by the negli-
gence of the railroad company, and that the
plaintiff was not guilty of any negligence
which aided in the accident.-Deikman
Morgan's L. & T. R. & S. S. Co., (La.) 76,

15. Under Code Ala. 1876, § 1711, requiring
the petition in an action against a railroad
company for injuries to stock to aver the time
that it occurred "on or about September 20,
and place of the alleged injury, an allegation
1887," and "at a place on said railroad about
75 or 100 yards distant from Cowles Station,
Macon county," is sufficient.-Id.

16. Under an allegation that it occurred on
or about September 20, 1887," and "at a place
on said railroad about 75 or 100 yards distant
from Cowles Station, Macon county, "it is not
curred "on or about September 18th," or "be-
error to admit evidence showing that it oc
tween the 16th and 20th of September," with-
in 150 yards of the station on the line of the

railroad.-Id.

17 Where the engineer, after he sees stock
upon the track, does everything that is possi-
ble, though the engineer might have seen the
ble to avoid collision, the company is not lia-
cattle near the track in time to have stopped
his train before they came upon it.-New Or-
leans & N. E. R. Co. v. Bourgeois, (Miss.) 629.

18. In an action against a railroad company
for killing stock in an open field, 300 or 400
yards from a public crossing, it is error to in-
struct the, jury that it was defendant's duty
to slacken the speed of its train when ap
v.proaching the crossing; as, under Code Ala.
1876, § 1699, such slackening is required only
in case of crossings in "a curve or cut, where
the engineer cannot see at least one-fourth of
a mile ahead. "-Nashville, C. & St. L. R. Co.
v. Hembree, (Ala.) 173.

- Injury to person on track.
11. Plaintiff's intestate was lying drunk out-
side of defendant's track, at right angles
therewith, and with his head between the
ends of two ties in a depression, so that an
approaching engineer could only see part of
the body, and could not tell that it was a hu-
man being till he should lift his head. When
defendant's train was so near that it could not
stop before striking him, he raised his head
and was killed. Had he not raised his head,
he would not have been injured. Held, that
plaintiff could not recover.-Columbus & W.
Ry. Co. v. Wood, (Ala.) 463.

Stock-killing cases.

12. Code Ala. 1876, §§ 1699-1702, which ren-
der a railroad company liable for injuries to
stock where such injuries result from its fail-
ure to comply with the statutory require-
ments, or other negligence of the company, do
not require such negligence to be the sole
cause. It is sufficient if it materially contrib-
utes to the injury.-Western Railway v. Sis.
trunk, (Ala.) 79.

bell when approaching a public crossing or
19. Failure to blow the whistle or ring the
depot cannot affect the liability of the com-
pany for killing stock at large in an open field
near a depot and crossing.-id.

if it "was guilty of negligence in killing the
20. An instruction that defendant is liable
mare" is erroneous, as only such negligence
as causes or contributes to the injury is ac-

tionable.-Id.

21. The company is not liable where the en-
gineer was keeping a diligent lookout, and did
not see the mare until his fireman said that
horses were running towards the track, at
which time one horse jumped across the track,
and the mare was struck and killed, the engi-
neer testifying that he put on the air-brakes
and reversed the engine, but that it was im-
possible to avoid the injury.-Id.

22. The fact that a train was running in
an incorporated town at a greater speed than
13. It is sufficient, also, if the failure of the six miles an hour when it struck and killed
company to comply with the statutory re- cattle, though such speed is negligence, does
quirements, such as ringing the bell or blow-not render the company liable therefor under
ing the whistle, reasonably contributes to the
injury, there being no question of plaintiff's
contributory negligence.-Id.

14. But it is error in such case, where the

Code Miss. § 1047, unless the accident resulted
therefrom, and whether it did so result is for
the jury to determine.-Louisville, N. O. & T.
Ry. Co. v. Caster, (Miss.) 888.

23. An instruction that, unless defendant's alleged errors, or supply alleged omissions in
servants "in charge of its train did all in their their minutes.-State v. Simmons, (La.) 29.
power which they could reasonably do to avoid
the killing, it is liable, " is erroneous, as they
are not required to do anything when they
cannot avert the injury.-Nashville, C. & St.
L. R. Co. v. Hembree, (Ala.) 173.*

Fires.

24. Damage to property by fire escaping
from a railroad engine raises an inference of
negligence, consisting in a defect in the con-

Redemption.

From foreclosure, see Mortgages, 12-17.
sheriff's sale, see Execution, 4, 5.
tax-sale, see Taxation, 8, 9.

Reformation.

struction of the engine, or in the appliances Of deed, see Equity, 2-7.
used, or in want of care in its management.-
Louisville & N. R. Co. v. Reese, (Ala.) 283.

Real-Estate Agents.

Right to commissions, see Factors and Bro-
kers, 3-5.

RECEIVERS.

Of mortgaged property.

Rehearing.

On appeal, see Appeal, 16, 17.

Release and Discharge.

See Compromise; Payment.

Remedy at Law.

Lands included in a mortgage, which cov-|See Creditors' Bill.

ered also crops and other personalty, were in-
cumbered by a prior mortgage to the extent of

their value. The debt secured was past due,

Remittitur.

the mortgagor insolvent, and he refused to Of excessive damages, see Damages, 6, 7.
deliver the crops and other personalty to the
mortgagee, alleging the existence of prior
liens on the crops, and appropriated a por-

Rent.

REPLEVIN.

tion of them to purposes other than payment See Landlord and Tenant, 2.
of the mortgage debt. The crops were in
danger of loss unless promptly taken into cus-
tody of the court, and the security without
them was inadequate. Held, that a bill by
mortgagee against mortgagor, averring those
facts, showed a prima facie case for the ap-
pointment of a receiver, and good reason for
failure to give notice of application therefor.
-Ashurst v. Lehman, (Ala.) 731.

RECEIVING STOLEN

Indictment.

GOODS.

Verdict-Damages.

1. In replevin it is error to direct the jury,
if they find for defendant, to fix the value of
the property seized at a sum different from
that stated in the pleadings of both parties.—
Houston v. Smythe, (Miss.) 520.
Bonds.

2. A forthcoming bond, reciting the sheriff's
seizure of certain property under the writ of
Idetinue in the case, and conditioned for the
In a prosecution under Code Ala. § 3794, pro- delivery of it with other property if the suit
viding for the punishment of any person who fails, estops plaintiff from showing that such
buys, receives, or conceals any personal prop-property was not so seized, or that it did not
erty, knowing it to have been stolen, and not
go into his possession under the bond.-Hill
having the intent to restore it to the owner,
v. Nelms, (Ala.) 796.
an indictment is insufficient which fails to al-
lege the "intent not to restore the property,"
though it is alleged that the defendant "felo-
niously" bought, etc., property, knowing it to
have been stolen.-Holt v. State, (Ala.) 793.

Recognizance.

See Bail; Bonds.

Recording.

Actions.

3. Acts Ala. 1886-87, p. 131, provide that in
detinue, when the property is in plaintiff's
possession at the termination of the cause,
and the cause is dismissed, the court, on mo-
tion or plea in abatement, shall impanel a jury
to assess the value of the property and value
of its use, and shall render judgment for such
property or value and damages. Held, that
on dismissal the summary judgment is not
requisite to the right of defendant to sue on

Mortgage, see Chattel Mortgages, 6-8; Mort the replevin bond.- Ernst v. Hogue, (Ala.)
gages, 2.

RECORDS.

Impeachment by parol, see Evidence, 11.
Jury minutes.

The secretary of a police jury cannot, in a
collateral proceeding, be required to correct

738.

4. Under Code Ala. 1886, § 2721, no execu-
tion can issue on the replevin bond unless the
value and damages have been assessed, and
judgment rendered therefor, and the sheriff
has returned on the bond a failure to deliver
the property. In an action on a replevin
bond, conditioned that plaintiffs in the deti-