§ 1. Grounds and subjects of compensatory damages. Rebreaking of the limb of plaintiff in a personal injury action held not caused by his own negligence, but the proximate result of the original injury.-Postal Tel. Cable Co. v. Hulsey (Ala.) 527. 2. Measure of damages. Where a brakeman lost a leg, a verdict of DECEDENTS. Estates, see “Descent and Distribution"; "Executors and Administrators." Testimony as to transactions with persons since deceased, see "Witnesses," § 2. DECLARATION. $10,000 will be reduced, as excessive, to $6,000. In pleading, see "Pleading," § 2. -Bell v. Globe Lumber Co. (La.) 994. § 3. Pleading, evidence, and assessment. In action on note, where defendant demand. ed a jury trial, but afterwards agreed to judgment by default after a specified time "for the full amount of the claim sued" on, including interest and costs, it was not entitled to a jury to assess the damages.-People's Ice Co. v. People's Nat. Bank (Ala.) 804. Complaint for personal injuries construed, and DECLARATIONS. As evidence in civil actions, see "Evidence." § 7. held to make averments permitting plaintiff to In equity, see "Equity," § 6. edgment.' DEEDS. In an action for personal injuries, it was not Acknowledgment of execution, see "Acknowlerror to refuse to instruct that plaintiff had been able since his injury to earn approximately as much as before, even if the evidence was without conflict to that effect.-Birmingham S. R. Co. v. Cuzzart (Ala.) 979. Violation by a person of the legal rights of another makes such person liable for damages, without proof of actual damage.-Bourdette v. Sieward (La.) 630. DATION EN PAIEMENT. Contract of dation en paiement, see "Accord and Satisfaction." DEATH. Of party, to action ground for abatement, see "Abatement and Revival," § 2. Validity of judgment entered after death of party, see "Judgment," § 1. § 1. Actions for causing death. In an action for a wrongful death, there was no error in allowing the widow of decedent to testify that the size of his family was herself and a child.-Louisville & N. R. Co. v. Banks (Ala.) 573. In a suit by the widow of a man killed, defendant's answer held sufficient to lay the foundation for the introduction of proof of a former marriage.-Albinest v. Yazoo & M. V. Ry. Co. (La.) 675. In an action by the surviving parents of a daughter, who has been drowned, the damages may include expenses in finding the body, loss of service, and also the amount which the daughter was entitled to recover at the moment of her death.-Le Blanc v. Sweet (La.) 766. Acts 1898, c. 65, by its express terms applies to injuries to servants resulting from the neg ligence of the master alone.-Bussey v. Gulf & S. I. R. Co. (Miss.) 212. Acts 1898, c. 66, held to be a mere restatement of Const. § 193, and hence not to impliedly repeal Acts 1898, c. 65.--Bussey v. Gulf & S. I. R. Co. (Miss.) 212. DEBTOR AND CREDITOR. See "Assignments for Benefit of Creditors"; "Bankruptcy"; "Creditors' Suit"; "Fraudujent Conveyances"; "Insolvency." DEBTS. Constitutional prohibition against imprisonment for debt, see "Constitutional Law," § 22. As subject of larceny, see "Larceny," § 1. Cancellation, see "Cancellation of Instruments." Estoppel by deed, see "Estoppel," § 1. In fraud of creditors, see "Fraudulent Conveyances." Reformation, see "Reformation of Instruments." Deeds by or to particular classes of parties. See "Infants," § 2; "Insane Persons," § 1. Married women, see "Husband and Wife," § 2. Deeds of particular species of property. See "Homestead," § 2. Separate property of married "Husband and Wife," § 2. Water rights, see "Waters and Water Courses," § 3. women, see Particular classes of deeds. Of trust, see "Assignments for Benefit of Creditors," § 1; "Mortgages." Tax deeds, see "Taxation," § 6. § 1. Requisites and validity. Certain charge, on issue whether grantor of land intended to deliver deed to grantee when he left it with his (grantor's) attorney, held free from error.--Fitzpatrick v. Brigman (Ala.) 940. In ejectment, where the issue was whether deed of the land to plaintiff's predecessor in title had ever been delivered, certain charge held properly refused as misleading.-Fitzpat rick v. Brigman (Ala.) 940. A question whether a grantor of laud, in leaving with his attorney a deed thereof to liver the deed to such grantee, was one of fact plaintiff's predecessor in title, intended to defor the jury.-Fitzpatrick v. Brigman (Ala.) 910. A deed to a county, executed by the wife of tion, held void as procured by duress.-Allen v. a defaulting treasurer to prevent his prosecuLeflore County (Miss.) 815. Laws 1886, p. 772, held not to preclude a deed to a county, given by the wife of a defaulting treasurer to prevent his prosecution, from being void as procured by duress.-Allen v. Leflore County (Miss.) 815. Evidence held not to show a ratification of a deed procured by duress.-Allen v. Leflore County (Miss.) 815. § 2. Construction and operation. A deed held to have conveyed an estate in fee simple.-Dunbar v. Aldrich (Miss.) 341. § 3. Pleading and evidence. On an issue whether a grantor of land, in leaving a deed thereof with his attorney, intended to deliver it to the grantee, testimony of the attorney that nothing remained to be done by either party, except the delivery of the deed, was admissible.-Fitzpatrick v. Brigman (Ala.) 940. DE FACTO CORPORATIONS. See "Corporations," § 1. DEFAMATION. See "Libel and Slander." DEFAULT. Judgment by, see "Judgment." § 2. DELIVERY. Of deed, see "Deeds," § 1. DEMAND. Condition precedent to action for breach of contract, see "Contracts," § 3. DEMURRER. DESCENT AND DISTRIBUTION. See "Executors and Administrators"; "Wills." Inheritance by, from, or through bastards, see "Bastards," § 2. 1. Persons entitled and their respective shares. Under Code. § 1462, the widow of a decedent held entitled to all his personal estate, though she had abandoned her husband and was living with another man, holding herself out as his wife. Nolan v. Doss (Ala.) 969. The succession under administration and unaccepted by the heirs is a separate entity, and remote, in the sense that it devolves upon them as heirs only the remainder left after payment of the debts.-Wilson v. Wilson (La.) 643. § 2. Rights and liabilities of heirs and distributees. The heirs of a predeceased husband and father, who died without debts, are third persons quoad the succession of the lately deceased widow and mother, which is under administration to pay debts contracted by her. individually, after the death of the husband.Wilson v. Wilson (La.) 643. An heir who asks to be recognized and placed in possession of the succession to the extent of his interest has a right of action.-Duperier v. Berard (La.) 653. Where an heir admits an indebtedness to the In pleading, see "Equity," § 3; "Pleading," § 5. succession growing out of a joint venture, he DEPOSITARIES. See "Deposits in Court." In an action to recover on a receipt, evidence held to show that only one account' with the depositor was kept, and not one with him and also with his daughter.-Moran's Heirs v. Société Catholique d'Education Religieuse et Literaire de la Nouvelle Orleans (La.) 658. In an action to recover on a receipt for money, evidence held to show payment made to the depositor, and that the receipt was without consideration, and remained outstanding through carelessness on the part of the defendant's treasurer.-Moran's Heirs v. Société Catholique d'Education Religieuse et Literaire de la Nouvelle Orleans (La.) 658. Evidence held to show that the name of a depositor was changed at the request of one in whose name the deposits were credited and with the acquiescence of all concerned.-Moran's Heirs v. Société Catholique d'Education Religieuse et Literaire de la Nouvelle Orleans (La.) 658. DEPOSITIONS. See "Witnesses." The proper manner of objecting to the failure of a witness to answer cross-interrogatories in a deposition is by a motion to suppress the entire deposition before entering on the trial. Electric Lighting Co. of Mobile v. Rust (Ala.) 486; Rust v. Electric Lighting Co. of Mobile, Id. Answers of witness to cross-interrogatories in a deposition held evasive, warranting a suppression of the entire deposition.-Electric Lighting Co. of Mobile v. Rust (Ala.) 486; Rust v. Electric Lighting Co. of Mobile, Id. DEPOSITS IN COURT. In contest over fund in court, contestants may urge without pleading any objections they may have to each other's claims.-State v. Alexander (La.) CO. will be charged therewith.-King v. King (La.) 894. An heir, who admits that the amount represented by his note is due as a collation, cannot sustain prescription as a bar to a recovery of interest on a note bearing interest.-King v. King (La.) 894. Heirs cannot exercise the rights of creditors against their co-heirs to benefit themselves by showing an attempt of a co-heir to shield his inheritance from his creditors.-King v. King (La.) 894. A legacy not left to forced heirs as an extra portion must be returned to the mass of the succession, where it is evident that testator intended it in full satisfaction of all claims as heirs.-King v. King (La.) 894. Collation is due by grandchildren to grandparents for care and support, but they are entitled to credit for work done.-King v. King (La.) 894. Grandchildren, who have accepted a succession and the gifts made to their father by their grandfather, cannot claim succession from their grandparents, without regard to the benefit received from the gifts.-King v. King (La.) 894. Grandchildren who elect to take as heirs must return to the mass a legacy given in satisfaction of their portion.-King v. King (La.) 894. An heir by whom collation is due for the amount of a note bearing interest is a debtor for principal and interest for collation.-King v. King (La.) 894. Collation is not due of an amount expended to defend a minor against a criminal charge. -King v. King (La.) 894. An heir cannot be compelled to collate an amount expended to send him to school, though he failed to avail himself of the opportunity offered to go to school.-King v. King (La.) 894. DESCRIPTION. Names of individuals, see "Names." DETENTION. DISMISSAL AND NONSUIT. Right of warehouseman to detain goods for Dismissal of appeal or writ of error, see "Apstorage, see "Warehousemen." See "Replevin." DETINUE. peal and Error," § 9. Dismissal of suit in equity, see "Equity," § 5. § 1. Voluntary. Where plaintiff's right of contest of a gar To recover mortgaged property, see "Chattel nishee's answer is determined against him, he Mortgages," § 3. Where, in an action of detinue, the evidence of plaintiffs shows affirmatively that one not a party to the suit is a joint owner of the property with them, their action must fail.-Bolton v. Cuthbert (Ala.) 358. Where, in an action of detinue by two of three joint owners of the property, defendant interposes the plea of the general issue, plaintiffs' ownership and right of possession are thereby denied, and a plea in abatement is not may take a nonsuit before trial of the issue.Baldwin v. Roman (Ala.) 596. Where defendant sued out a commission, but mission, but did not take the testimony, she failed to return it, and plaintiff obtained a comcould not thereafter, on application to set aside a nonsuit, reassert the failure of defendant to return his commission as ground therefor.Wetta v. New Orleans & C. R. Co. (La.) 775. DISQUALIFICATION. necessary to take advantage of the nonjoinder Of judge, see "Judges," § 2. of the other owner.-Bolton v. Cuthbert (Ala.) Of juror, see "Jury," §§ 3, 5. 358. In creditors' suits, see "Creditors' Suit." 1. Under statutory provisions. Plaintiff is not entitled as a matter of right to an examination of defendant's books to enable him to make sufficient allegations to sustain his action.-Lombard v. Citizens' Bank (La.) 654. Application and showing for an order to compel an examination of defendant's books, under Code, § 927, as amended by Acts 1900, p. 136, held insufficient.-Equitable Life Assur. Soc. v. Clark (Miss.) 964. DISCRETION OF COURT. Review in civil actions, see "Appeal and Error," § 12. DISSOLUTION. Of corporation, see "Corporations," § 8. DISTRIBUTION. Of estate of decedent, see "Descent and Distribution." Of proceeds of foreclosure, see "Mortgages," § 4. DISTRICT AND PROSECUTING ATTORNEYS. Under Rev. St. § 1354, authorizing circuit judges to appoint a prosecuting attorney from among the members of the bar, whenever the official state's attorney is absent, and requiring such appointee to be sworn faithfully to discharge the duties of state's attorney, is not a violation of Const. 1885, art. 3, § 27, requiring the legislature to provide for the election by the people or appointment by the governor of all ed for.-King v. State (Fla.) 254. state and county officers not otherwise provid Rev. St. § 1354, providing for the appointment of temporary acting state's attorneys, prescribes no other qualification than that the prosecutor shall be admitted to the bar. Held, that the fact that he may have been privately retained by the prosecuting witnesses to prosecute the case does not render him ineligible to act as state's attorney.-King v. State (Fla.) 254. Under Const. 1885, art. 5, § 27, and article 4, 7, providing that the governor may fill vacancy in office of prosecuting attorney by an appointment for the unexpired term, where the ollice of prosecuting attorney in a criminal court becomes vacant during the session of the successor to fill such vacancy is properly aplegislature by resignation of an incumbent, the pointed by the governor and confirmed by the senate for the unexpired term, and not for the four years.-Simonton v. State (Fla.) 821. Under Acts 1886, No. 74, a district judge can appoint an attorney to represent the state, necessarily absent from the court, though not when from any cause the district attorney is from the parish.-State v. Smith (La.) 693, 1014. The extreme illness of a grandchild, thought to be on its deathbed, justifies the absence of the district attorney and authorizes the judge to appoint a substitute.-State v. Smith (La.) 693, 1014. Where the district judge has appointed an attorney in the necessary absence of the district attorney, he is not to be retired because of the reappearance in the court on the second day of the trial of the district attorney.State v. Smith (La.) 693, 1014. Where the district attorney is necessarily absent at the beginning of a trial, and reports thereafter to the court, it unobjectionable that he participates in the prosecution, together with the substituted district attorney.-State v. Smith (La.) 693, 1014. See "Drains." DITCHES. DIVORCE. Alimony as debt within constitutional prohibition of imprisonment for debt, see "Constitutional Law," § 22. § 1. Grounds. Light differences between husband and wife will not suffice to warrant a judgment of separation from bed and board.-Connor v. Connor (La.) 766. of New Iberia, controls prior legislation, and vests in the mayor and trustees of the town exclusive authority on that subject.-Town of New Iberia v. New Iberia & B. C. Drainage Dist. (La.) 305; Parish of Iberia v. Same, Id. Coust. art. 281, which contemplates the estab lishment of drainage districts as distinct entities, imposes no restrictions on the general assembly in the matter of the selection of offcers by whom the affairs of such districts are to be administered.-Town of New Iberia v. New Iberia & B. C. Drainage Dist. (La.) 305; Parish of Iberia v. Same, Id. DUE PROCESS OF LAW. DUPLICITY. In indictment, see "Indictment and Information," § 2. DUTIES. Excise duties, see "Internal Revenue." DYING DECLARATIONS. A husband may be guilty of outrages toward his wife, so as to render their living together insupportable, though he may not have used either force or blows.-Olberding v. Gohres See "Homicide," § 6. (La.) 1028. § 2. Jurisdiction, proceedings, and re lief. EASEMENTS. Code, § 1492, providing for three years' res- See "Highways." idence of complainant before filing bill for divorce for voluntary abandonment, held not affected by sections 1485 and 1492.-Davis v. Davis (Ala.) 473. Decree of divorce rendered in another state may be attacked on questions of jurisdiction, among which is good faith as to acquisition of domicile. Succession of Benton (La.) 123. A judgment of divorce rendered in another state held valid in other jurisdictions, without regard to place of marriage.-Succession of Benton (La.) 123. Where the evidence in a suit for divorce for adultery is entirely circumstantial, and is met by the direct testimony of the other party negativing the presumptions invoked, the conclusions of the trial judge in favor of defendant will not be disturbed.-Arceneaux v. Arceneaux (La.) 155. § 3. Alimony, allowances, and disposition of property. In divorce, the court can reserve the right to control the collection of future alimony and modify such allowance as justice may require. -Jones v. Jones (Ala.) 91. A petition for execution to collect alimony held properly dismissed, where defendant was not able to pay.-Jones v. Jones (Ala.) 91. Wife, having brought suit for divorce in bad faith to compel a conveyance by her husband to her, held not entitled to alimony pendente lite, nor to counsel fees.-Bradford v. Bradford (Miss.) 963. DOCUMENTS. As evidence in civil actions, see "Evidence," DRAINS. In cities, see "Municipal Corporations," § 8. EJECTMENT. See "Real Actions." § 1. Right of action and defenses. In actions of ejectment or trespass to try title, the question is one of legal title, so that the doctrine of equitable estoppel has no application.-Van Kirk Land & Construction Co. v. Green (Ala.) 484. as Plaintiff in ejectment cannot recover against one without title, unless he proves title Ry. Co. (Fla.) 265. or prior possession.-Burt v. Florida Southern § 2. Jurisdiction, parties, process, and incidental proceedings. An amendment in a grantee's statutory action against an adverse possessor, making the grantors plaintiffs for the use of the grantee, heid improperly allowed.-Reese v. Reaves (Ala.) 1447. § 3. Pleading and evidence. Plaintiff in ejectment sued a railroad compaDefendant pleaded not guilty, and that it was not in possession of the land, which plea was by leave of court withdrawn. Plaintiff failed to show title or prior possession, and defendant showed that it was in possession of only a small strip as a right of way. The jury found for defendant, who was permitted, over objection, to file an amended plea, alleging that it was in possession only of so much as was covered by its tracks, and disclaiming any other possession. Held, on judgment for defendant, that plaintiff was not injured by the withdrawal of the plea denying possession and the filing of the amended plea.-Burt v. Florida Southern Ry. Co. (Fla.) 265. Where, in ejectment, defendant pleaded not guilty, and that he was not in possession, and thereafter withdrew the second plea, and, after verdict for defendant, amended his answer by disclaiming as to all but a small portion of the land, by filing this plea it voluntarily relinquished its right to a judgment that would be an estoppel on the question of title as to all the lands sued for and disclaimed by defendant. --Burt v. Florida Southern Ry. Co. (Fla.) 265. § 4. Trial, judgment, enforcement of § 3. Proceedings to take property and judgment, and review. Evidence held to show that C. was not in possession of premises till after commencement of ejectment against J., and so was bound by the judgment.-Craig v. King (Ala.) 482. The verdict in ejectment. considered in connection with the plea of disclaimer, held not void for uncertainty.-Southern Iron Works v. Central of Georgia Ry. Co. (Ala.) 723. ELECTIONS. assess compensation. A petition for condemnation for a right of way, alleging the authority of the petitioner to take the property, an accurate description thereof, the names of the occupants and the owners, the purpose of the taking, and that petitioner has located its line in good faith, is a sufficient & P. R. Co. v. Bell (Fla.) 259. compliance with Rev. St. § 1544.-Florida Cent. Where default in payment of compensation, as required by Rev. St. § 1555, is made, a writ of error thereafter sued out by petitioner in condemnation proceedings will be dismissed. Local option elections, see "Intoxicating Liq- Florida Cent. & P. R. Co. v. Bear (Fla.) 287. uors," § 1. § 1. Conduct of election. Code, § 1623, requiring that an illiterate voter shall make an affidavit of his illiteracy on applying for the assistance of an official marker in the preparation of his ballot, does not render votes illegal where they are prepared for an illiterate voter without such affidavit.Patton v. Watkins (Ala.) 93. Where, at an election, an official marker marks the ballots of an illiterate elector, without suggestion or direction from him as to the selection of candidates, the ballot held illegal. under Code, § 1623.-Patton v. Watkins (Ala.) 93. Failure to comply with the provision of the statute relative to elections requiring that the sheriff shall furnish booths for the preparation of ballots held not to render ballots illegal.Patton v. Watkins (Ala.) 93. Proceedings in condemnation are governed and controlled by the statutes authorizing them, and these statutes must be strictly construed and substantially complied with.-Florida Cent. & P. R. Co. v. Bear (Fla.) 287. condemnation proceedings does not within 10 Under Rev. St. § 1555, where petitioner in days after judgment pay into court the compensation allowed, unless further time is given by the court, the judgment is void, though petitioner is seeking to condemn property already in its possession.--Florida Cent. & P. R. Co. v. Bear (Fla.) 287. Action of the court in setting aside a judgment and granting a new trial because of absence of counsel held not error.-Yazoo & M. V. R. Co. v. Adams (Miss.) 427. EMPLOYES. A noncompliance with the provision of the See "Master and Servant." statute relative to elections, and providing an elector shall occupy a booth alone while preparing his ballot, does not render the ballot void.-Patton v. Watkins (Ala.) 93. Failure to keep polls open during the hours provided by statute held not to render ballots illegal.-Patton v. Watkins (Ala.) 93. EMINENT DOMAIN. Public improvements by municipalities, see "Municipal Corporations," § 5. § 1. Nature, extent, and delegation of power. Under Rev. St. § 2241, par. 4, and Id. § 2158, a railroad corporation, organized under the general incorporation laws, has power to condemn land for its right of way along its main line or an extension thereof.-Florida Cent. & P. R. Co. v. Bell (Fla.) 259. Under Rev. St. § 1559, a railroad corporation can proceed under section 1544 et seq. to condemn lands actually used by it for a right of way, where it has not previously acquired the right to such use.-Florida Cent. & P. R. Co. v. Bell (Fla.) 259. § 2. Compensation. Under Const. art. 14, § 7, and Code §§ 17191721, relating to proceedings for condemnation of land, the boud on appeal from the probate court, held not to entitle the applicant to enter the land pending appeal.-Southern Ry. Co. v. Birmingham, S. & N. O. Ry. Co. (Ala.) 509. The owners of land at the time it is taken by a railroad company being entitled to compensation, though they afterwards sell to others, bill by the railroad to prevent interference should offer to make compensation to them.Hood v. Southern Ry. Co. (Ala.) 937. A verdict for $1,987 for the appropriation of about seven acres of land for a right of way across a tract the assessed value of which was only $1,038 was excessive.-Yazoo & M. V. R. Co. v. Adams (Miss.) 427. ENTICEMENT. Of servant, see "Master and Servant," § 7. ENTRY. See "Cancellation of Instruments"; "Creditors' Suit"; "Fraudulent Conveyances"; "Injunction"; "Ne Exeat"; "Partition,' § 1; "Quieting Title"; "Receivers"; "Reformation of Instruments"; "Specific Performance." § 1. Jurisdiction, principles, and maxims. Equity will, as incident to suit to compel issue by a bank of new certificates of stock, construe will as to complainant's power to dispose of the stock.-Evins v. Cawthon (Ala.) 441. A court of equity has jurisdiction of an action to construe a will and settle the account of a deceased executor.-Jordan v. Hardie (Ala.) 504. |