2. Evidence of declarations by the purchas-
er to the agent before delivery that he did not
want the goods, there being no evidence of
the assent of the agent or seller to a rescis-
sion, was irrelevant.-Id.

nue suit should deliver the property to de- | Rescission.
fendant within 30 days after judgment, and
pay damages, etc., in case they failed to re-
cover, held that, the detinue suit having been
dismissed, but no summary judgment on the
bond having been recovered, nominal dam-
ages at least were recoverable for breach of
the condition, and defendants in the action on
the bond could not allege ownership of the
property in bar, but could allege it in mitiga-
tion of damages.-Id.

3. The right to rescind must be exercised
within a reasonable time after discovery of
the fraud.-Young v. Arntze, (Ala.) 253.*

4. In order to rescind a contract of sale de-
fendants must return, or offer to return, the
property to the place where the trade was
consummated by delivery.-Id.*

5. Where plaintiffs induced a sale by mis-
representation of a material fact on which
defendants had the right to and did rely, de-
fendants may rescind, or prove the fraud in
reduction of damages.-Id.

Vendor's lien-Sequestration.

6. In sequestration of movable property,
based on a vendor's privilege, an affidavit to
the debt, to the privilege, and to the fear that
defendant will conceal, part with, or dispose
of the same in his possession during the pend-
Per-ency of the suit, is sufficient, and affiant
need not prove any other grounds of fear than
the simple facts that he has a privilege and
that it lies in the power of defendant to de-
feat or destroy it by doing some of the acts
which he swears he fears he may do.-Low-
den v. Robertson, (La.) 405.

Action for price.

7. In an action for the price of property,
where defendant claims that the property
sold had been taken back by plaintiff, oral
evidence offered by plaintiff that he had taken
such property in attachment proceedings is
not admissible.-Tanner & Delaney Engine
Co. v. Hall, (Ala.) 584.

8. If there was no rescission of a contract of
sale, and the goods purchased were of any
value, an action for the price could not be
wholly defeated on the ground of fraud and
breach of warranty.-Young v. Arntze, (Ala.)

See Navigable Waters; Waters and Water- 253.
Courses.

Salary.

Of judge, see Judge, 1.

SALE.

Conditional, see Mortgages, 1.

When title passes.

1. A contract for the sale of goods was made
by the seller's agent, to whom the bill of lad-
ing, in which the purchaser was named as
consignee, was mailed, together with a bill
for the goods, in which it was stated that the
goods were shipped to the purchaser at a
place named. The purchaser agreed that the
agent should retain the bill of lading until
payment, but the carrier delivered the goods
to the purchaser without presentation of it.
There was evidence that the goods were sold
on credit. In an action between the seller and
one claiming in good faith for value, under a
sale from the purchaser, held, that the title
passed to the purchaser.-Robinson v. Pogue,
(Ala.) 685.

9. B., the plaintiff, sold lumber to S., the de-
fendant, at plaintiff's mill, which was shipped
to the defendant on the L. & N. R. R. At
the trial way-bills of said company were ad-
mitted in evidence, which showed the weight
of lumber shipped by plaintiff to defendant on
different dates, and the evidence showed that
the way-bills were made out and sent by the
company in the due course of their business,
and that the defendant paid the freight on the
not error.-Sullivan v. Boley, (Fla.) 244.
lumber so sent by said way-bills. This was

10. One who has given a note in part pay-
ment of certain timber cannot, after he has
received all that he is entitled to under the
contract, defend against the note on the ground
that such timber at the time of the sale was
on land belonging to the wife of the vendor,
and that he had no right to sell it.-McKenzie
v. Wimberly, (Ala.) 468.
Conditional sale.

11. Where the buyer takes possession of the
goods, giving his notes for the price, payable
unconditionally, the fact that the goods are
afterwards destroyed by fire is no defense to
an action on the unpaid notes, though they

2. Where an order given for a debt and ac-
cepted by the drawee is not paid, and is sur-
6. An attachment was issued October 17th,
rendered to the maker, who gives his notes in claim for exemption was filed November 19th,
lieu thereof, the drawee cannot set off such and an additional bond, the one in suit, was
order in an action against him by the maker.-given by the constable, and approved Novem-
Taylor Manuf'g Co. v. Key, (Ala.) 303.

approval, as the first official bond, the plain-
tiff cannot recover on such bond damages
arising from the acts of the constable prior to
its approval.-Id.

Held, that as the defendant had been mis-
taken as to a material fact by the omission of
plaintiff to point out the lines, specific per-
formance would be denied, whether the omis-
sion was intentional or unintentional.-Camp-
bell v. Durham, (Ala.) 507.

Spirituous Liquors.

7. The attachment was issued generally
against the estate of defendant therein, and
failed to state that the amount alleged to be
due was for rent and advances, or any statu-
tory grounds for the enforcement of a land-
lord's lien, against which the goods levied on See Intoxicating Liquors.
would not be exempt, nor did it describe or
recite the substantive averments of the affi-
davit. Held, that the affidavit was not ad-
missible to show that the nature of the debt
was such as authorized the constable to disre-
gard the claim for exemption, as it was not
sufficiently described in the attachment to au-
thorize him to look to it.-Id.

STATES AND STATE OFFI-
CERS.

Mandamus to state comptroller, see Man-
damus, 4-6.

Actions against state.

8. Code Ala. § 273, requiring plaintiff, before
entitled to recover, to show that he had been
injured by the act of the constable, the affida-
vit was admissible to show that plaintiff had
not been injured by showing that the attach
ment was in fact issued for the enforcement
of a valid and subsisting landlord's lien, and
that the claim of exemption was frivolous.-costs shall be rendered as is provided in arti-
Id.

9. The disregard of a claim for exemption,
by selling the property in satisfaction of a
lien which prevails against it, when the claim
for exemption is in law and fact frivolous,
is not such a breach of the official bond as will
entitle the owner to recover nominal damages,
in the absence of proof of actual damages. -Id.

Shipping.

See Marine Insurance.

Slander.

See Libel and Slander.

Similiter.

Joinder of issues, see Pleading, 14.

SPECIFIC PERFORMANCE.
Contracts enforceable.

1. A purchaser of immovable property can-
not be judicially coerced to a doubtful title.-
Beer v. Leonard, (La.) 257.

2. An oral agreement to rescind a contract
of sale of land is a good ground for refusing
to specifically enforce the original contract.-
Perry v. McLain, (Miss.) 518.

3. On a bill for specific performance of a
contract for the conveyance of land, it ap-
peared that when the contract was made the
land was inclosed by a fence, which, in front
of the dwelling-house, extended beyond the
southern line, inclosing a strip of one and one-
half acres, belonging to a railroad company,
on which were trees, and through which was
the only passage from the dwelling to the
public road. There was no visible boundary
other than the fence, and a person looking at
the premises would naturally assume that it
was the boundary. Defendant purchased the
tract for his residence. No information was
sought or given as to the location of the lines.

1. In proceedings on the relation of the at-
torney general to remove a judge from office,
it is provided by Acts La. 1880, No. 122, § 7,
that "the defendant judge shall be con-
demned to pay the costs, if judgment be ren-
dered against him; otherwise judgment for
cle 200 of the state constitution." The latter
article provides "that in all cases when the
officer sued * ** shall be acquitted, judg-
ment shall be rendered against the citizen
signing the request for all costs." Held that,
when the respondent was removed, and con-
demned to pay all the costs, the court had no
jurisdiction to render a direct judgment
against the state for the costs of taking testi-
mony.-State v. Lazarus, (La.) 289.

2. A state cannot be sued in a state court
without its consent: and no direct judgment
can be rendered against the state for costs,
except in the manner, and on the conditions,
it prescribes.-Id.

3. When a state submits itself to the juris-
diction of a court in a particular case, either
by the institution of suit or permitting itself
to be sued, that jurisdiction may be used to
give full effect to what the state has, by its
act of submission, allowed to be done.-Id.

4. Railroad commissioners being authorized
by statute to make reasonable regulations for
all railroads in the state as to charges for
transportation of passengers and freight, and
to furnish each company with a schedule of
charges, and having fixed certain rates for
one of the companies which it deems not rea-
sonable and just, said company filed a bill
against the commissioners to enjoin them
from promulgating said rates, or any other
rates substantially the same. Held, that this
is not, in effect, a suit against the state; but
the statute having prescribed a penalty for
violation of the rates fixed, and authorized the
commissioners to institute action in the name
of the state to recover the penalty, in so far
as the bill seeks to enjoin them from doing
this, it is in effect a suit against the state.-
McWhorter v. Pensacola & A. R. Co., (Fla.)
129.

Comptroller and superintendent of
public instruction.

5. Const. Fla. art. 4, § 23, (McClel. Dig. p.
196, § 4.) imposes on the comptroller the duty
of auditing the accounts of all officers, and

SURFACE WATER.

provides that no funds can be disbursed by the
treasurer, except on the order of the comp-
troller, countersigned by the governor. Held, Diversion-Injunction.
that where the constitution prescribes the
amount of an officer's salary, and the legisla-
ture has appropriated a sum more than suffi-
cient to pay it and other salaries of the same
class, the comptroller neither errs in judgment
nor transcends his authority in refusing to al-
low such officer a different amount than that
prescribed by the constitution. Franklin Co.
v. State, 24 Fla. 55, 3 South. Rep. 471, distin-
guished.-State v. Barnes, (Fla.) 698.

6. Const. Fla. 1887, art. 4, § 29, fixes the sal-
ary of superintendent of public instruction at
$1,500 instead of $2,000, as prescribed by Const.
1868. Held, that such change took effect Jan-
uary 1, 1887, the day on which the constitu-
tion went into effect, as there is nothing in
the constitution which defers the operation
of said section to the first Tuesday after the
first Monday in January, 1889, the day fixed
for the installation of officers elected in No
vember, 1888.-Id.

7. Const. Fla. 1887, art. 4,8 23, (McClel. Dig.
p.196, § 4,) imposes on the comptroller the duty
of auditing the accounts of all officers, and
provides that no funds can be disbursed by the
treasurer except on the comptroller's order
countersigned by the governor. By Const.
1887, art. 4, § 29, the salary of superintendent
of public instruction was fixed at $1,500 in-
stead of $2,000 as prescribed by Const. 1868.
Acts 1887, c. 3687, § 1, appropriated a sum suf-
ficient to pay the superintendent's salary at
$2,000, but did not specifically declare that he
should be paid that amount. Held, that the
comptroller neither erred in his judgment nor
transcended his authority in refusing to allow
a different amount than that prescribed by the

constitution.-Id.

State's Evidence.

See Criminal Law, 2.

Statutes.

Construction, see License.

Equity will restrain the owner of land
from draining a body of surface water collect-
ing naturally in a depression, principally on
complainant's land, but covering also a small
part of defendant's land, situated higher than
complainant's, and which is used by com-
plainant to float logs to his mill, though the
water comes from defendant's land, and com-
plainant has increased the size of the body by
ural collection of the water will be prevented
constructing a dam on his own land, if the nat-
thereby.-Alcorn v. Sadler, (Miss.) 694.

Syndic.

Appointment of provisional, see Insolvency.

TAXATION.

Assessment for public improvements, see Mu-
nicipal Corporations, 22, 23.

Exemption from, see Railroad Companies, 7.
Liability of tax collector for money collected,
Of shares of bank, see Banks and Banking.
see Counties, 1, 2.
Tax deed as cloud upor title, see Quieting

Title, 4.

paid on bringing suit, see Costs, 3, 4.
title acquired by life tenant, rights of re-
mainder-man, see Estates.

Assessments.

at which they accepted and approved the as-
1. The meeting of the board of supervisors
sessment roll, though not held at a time au-
thorized by the law of Alabama for a regular
meeting, will be presumed to have been legal,
in the absence of proof that it was not a spe-
cial meeting such as might have been legally
called and held at that time. - Tierney v.
Brown, (Miss.) 104.

2. In the act La. 1888, No. 81, § 54, providing
that the police jurors of the several parishes
may levy, for the support of the common
schools, not less than 1% mills of the 10 mills
on the dollar of assessed valuation of the

Validity in part, see Constitutional Law, 10. property thereof, the word "may" is not man-

Stock.

Liability of railroad company for killing, see
Railroad Companies, 12-23.

Stockholders.

Liability of, see Corporations, 6-12.
Street.

datory but permissive, and such levy cannot
be enforced by mandamus.-Parish Board
School Directors v. Police Jury, (La.) 23.

3. Neither the general revenue law of 1869,
c. 1713, as amended in 1872 by chapter 1857,
providing that the assessor should, in making
up his role, assess for omitted years for as
much as two previous years, nor that of 1874,
c. 1976, providing the same for as much as
three years, authorized a collector of revenue
to assess lands for taxes, and a sale made by
him under the act of 1874, and a deed executed
pursuant to such sale, conveyed no title to
the purchaser, and the deed is not within the
protection of the sixty-third section of the
and Impaneling. and the time within which, an action to set it
said act, limiting the grounds upon which,
aside may be commenced.--Sloan v. Sloan,
(Fla.) 603.

See Dedication; Municipal Corporations.

Summoning

Of jury, see Jury, 3, 5.

Tax-title-Description in deed.

4. A description in a tax-deed from the
state: "House & Lot, W. side Union St., No.

|

TELEGRAPH COMPANIES.
5. Where, in a suit for wrongfully destroy
Action for negligence - Complaint. alleges that the papers belong to him, and the
ing papers belonging to plaintiff, defendant
1. In an action for damages for delay in de- jury find for defendant, it is conclusive of the
livering a telegram, a declaration alleging fact that plaintiff is not entitled even to nom-
that, if the message had been promptly de-inal damages.-Lunsford v. Deitrick, (Ala.)
livered, plaintiff would have obtained the pur-
chase of a lot worth $5,000, which was offered
for sale for $3,000, and that by the delay they
lost the purchase, and were damaged the dif-
ference between the price at which the lot
was offered to them and its market value

7. Damages for injury to one's farming op-
when the message should have been deliv-erations, by seizing and carrying away his
ered, is good on demurrer.-Alexander v.
Western Union Tel. Co., (Miss.) 397.