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Reformation of contract.

In a suit to reform a deed, the burden is on of complainant is stale" does not cover defense plaintiff to show the mistake. (Ala.) 760.

A bill will not lie to reform an agreement

without a showing of interest by complainants therein. (Ala.) 635.

Rescission and cancellation of contracts. A sale of land will not be rescinded because the grantor's agent, at the time of the sale, stated that certain improvements would be made by the grantor in the neighborhood, which were not made, where such agent believed his statements to be true, and did not promise to carry out the improvements. (Ala.) 739.

A bill to rescind a contract for fraudulent representations is not bad because complainant could, by diligence, have ascertained their falsity. (Ala.) 468.

A bill to rescind a contract is not bad because it shows contract executed. (Ala.) 468.

A contract will be set aside where plaintiffs conveyed land in consideration of mortgages assigned which were fraudulent. (Ala.) 468. A bill to cancel defendant's security on D.'s land will be dismissed where the only ground alleged is that plaintiff's mortgage is superior to defendant's security. (Miss.) 318.

Sufficiency of grounds for cancellation of trust deed. (Miss.) 318.

Where, on bill to rescind a coutract under which complainant took certain mortgages, alleged to be fraudulent, it appears that he assigned such mortgages without recourse, and afterwards took an assignment thereof back, he is not entitled to relief, in the absence of any obligation to accept such reassignment. (Ala.) 468.

An action to cancel deed of trust on homestead property because not signed by complainant's wife, without offer to pay debt, cannot be maintained. (Miss.) 22.

Evidence as to whether plaintiff had obtained deed for defendant for certain section of land by inserting such deed, in plaintiff's absence, in place of a deed for another section of land which plaintiff intended to sign. (Ala.) 573.

Accounting.

A bill for accounting cannot be maintained where the accounts are neither mutual nor complicated. (Ala.) 565.

Laches.

The fact that a corporation has for six years controlled rival corporation by holding majority of its stock does not bar a suit to enjoin such use in the future. (Ala.) 752.

Pleading.

Cross bill which is foreign to subject-matter of original bill is properly stricken out. (Ala.) 898.

Averment in bill which is merely conclusion is not attacked by motion to dismiss for want of equity. (Ala.) 552.

A bill to reach property fraudulently conveyed is not multifarious if it joins as defendants the debtor and all persons through whom his title has passed. (Ala.) 653.

If a bill taken as confessed affords no ground for entering a decree granting relief, a demurrer to it should be sustained. (Miss.) 318.

Where a bill alleges that a pre-emption claim was canceled by the interior department, an answer which avers that the claim was never legally canceled admits the allegation of the bill. (Ala.) 51.

A demurrer to the whole bill cannot be sustained if, for any reason apparent therein, plaintiffs are entitled to relief. (Ala.) 752.

Averment in demurrer that the "alleged right based on acquiescence in conditions rendering it inequitable to enforce demands. (Ala.) 541. that it did not show that plaintiff had done Sufficiency of demurrer to bill to point out what he could to learn particulars of transaction in question. (Ala.) 541.

A bill to enjoin a foreclosure sale, alleging that the mortgagee concealed the existence of the mortgage from plaintiff when he purchased, is not departed from by an amendment averring that the mortgage had been satisfied. (Ala.) 321.

A bill for specific performance may be amended to make it a bill for the enforcement of a resulting trust. (Ala.) 644.

A bill is multifarious when some of the complainants might be entitled to a decree different from that to which the others are entitled. (Ala.) 765.

Bill is not multifarious because it seeks to redeem lands covered by several mortgages, and to cancel a deed made under one mortgage by sheriff to defendant. (Ala.) 564. Parties.

Persons representing antagonistic interests cannot be joined as complainants. (Ala.) 765. A wife is not a necessary party to bill by husband to cancel mortgage on homestead. (Miss.) 22.

ERROR, WRIT OF.

See "Appeal;" "Exceptions, Bill of;" "New Trial.'

Issued by the clerk of the circuit court to a judgment of a circuit judge in habeas corpus, is a nullity. (Fla.) 43.

A writ of error must be lodged in the court rendering the judgment. Issuance and service of writ after lapse of the statutory time for bringing suits in error is invalid, when the default is that of a party. (Fla.) 91.

ESCROW.

A deed may be delivered to the attorney of the grantee in escrow, the delivery being accompanied by a written explanation of the conditions on which delivery to grantee is to be made. (Ala.) 663.

Effect of delivery of deed held in escrow. (Ala.) 663.

Where conveyance is placed in hands of third person until payment of price, the incidents of a mortgage attach. (Ala.) 475.

ESTATES.

provements has no claim for reimbursement on A life tenant who has made permanent imthe remainder-men. (Miss.) 264.

ESTOPPEL.

One who introduces a tax deed in evidence admits that the recitals contained therein are true. (Fla.) 822.

Where one sells his interest in a firm, alleging that his partner's interest was unincumbered, he is estopped to set up any claim on such interest against the purchaser or the creditors. (Ala.) 637.

Does not arise where statement was not made to induce action by other party, and did not have that result. (Miss.) 460.

Railroad company is not bound to maintain | sale of another parcel are incompetent. (Ala.) bridge over cut on abandoned location because 321. it did so a long time after the abandonment. (Miss.) 438.

Where a mortgagor delivers a mortgage, apparently executed in the presence of two witnesses, and acquires a consideration from the mortgagee, he is estopped to deny the presence of the witnesses whose names appear on the instrument. (Fla.) 886.

EVIDENCE.

see

See, also, "Deposition;" "Witness." In particular actions and proceedings, "Ejectment;" "Fraudulent Conveyances;" "Libel and Slander;" "Trover and Conversion."

In criminal cases, see "Burglary:" "Carrying Weapons;" "Criminal Law" "Gaming;' "Homicide:" "Intoxicating Liquors;" "Perjury."

Of testator's capacity, see "Wills."
Recitals in deed, see "Vendor and Purchaser."

Entries made by a public officer in performance of a duty are prima facie evidence of facts stated. (La.) 184.

The presumption from evidence of a notice by mail, properly addressed, is overcome by a denial of its receipt. (Ala.) 273.

In action against a bank to recover a deposit paid out on forged checks, plaintiff may be asked to point out, in package of forged and genuine checks, the genuine from the forged. (Ala.) 335.

On appeal from a conviction for illegal sale

of liquor, the court may go outside the record to see whether the report of the commissioners of a local option election was verified so as to make it legal evidence of the election. (Miss.)

452.

An instruction that defendant's failure to testify should not be considered to his detriment was properly refused. (Ala.) 854.

Hearsay.

Evidence that predecessor in title stated that a former owner, while in possession, told him that he took possession under arrangement with plaintiff, is inadmissible as hearsay. (Ala.) 744. The unsworn statement of an unknown person as to the account of sales made of certain cattle is hearsay. (Miss.) 452.

Declarations and admissions.

Declarations of former owners, in derogation of their title, made after they had ceased to be owners, are not admissible against subsequent vendees. (La.) 845.

Evidence of declarations of a deceased grantor, while in possession of the land, as to its boundaries, is admissible in ejectment. (Ala.) 854.

A party to action in ejectment cannot be asked if he had ever admitted that the land did not belong to him. (Fla.) 805.

A party to action in ejectment cannot be asked if he had been in actual possession of the locus in quo. (Fla.) 805.

Evidence that a former owner under whom defendant claims stated, while in possession, that the land was plaintiff's, is admissible. (Ala.) 744.

Declarations of one as to the ownership of horses while in his possession were admissible against those claiming under him. (Miss.) 537. In action to enjoin foreclosure sale, on the ground that the mortgagee concealed the existence of the mortgage from plaintiff when he purchased, declarations of the mortgagee at a

The declarations of person injured at time of accident are admissible. (La.) 61.

Expert testimony.

Competency of expert witness. (Ala.) 175. Witnesses familiar with a brakeman's duties may testify as to the proper position of a freight brakeman on top of a car. (Ala.) 105. Documents.

The execution docket is admissible to identify a judgment, and connect it with the execution. (Ala.) 777.

Copy of patent certified by commissioner of general land office under seal is admissible. (Ala.) 744.

Admissibility of original Spanish grant as ancient instrument. (Fla.) 692.

Parol evidence.

Parol evidence is admissible to explain any immaterial variance between the execution and a judgment. (Ala.) 777.

In action for obstruction of an alley, where the deed was indefinite, but the location after the grant was made by the parties, evidence of oral statements, prior to the grant, indicating a purpose to change the location,' is inadmissible. (Ala.) 630.

A vendor who has agreed to make title in 30 days may show that same day purchaser orally agreed to accept bond for title instead. (Ala.)

171.

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See, also, "Attachment;" "Exemptions;" "Garnishment."

An execution issued 10 years after the last execution is voidable only. (Ala.) 777.

A judgment creditor of a partner cannot levy on any specific article of the partnership property. (Miss.) 442.

An execution should be received to support a sale, though it varies from the judgment, where it appears that it was enforced as an execution on such judgment. (Ala.) 777.

A sheriff's sale under two executions, both of which are valid, will transfer the title. (Ala.) 777.

A sale of land subject to a mortgage will not be vacated for inadequacy of price without showing value of the equity of redemption. (Miss.) 451.

Where land is sold under execution, the title of the purchaser is good as against one holding contract from the judgment debtor, with the terms of which he has refused to comply. (Fla.) 160.

Sheriff's deed will not be canceled for insufficient notice of sale unless the purchaser was the judgment creditor. (Miss.) 23.

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Cancellation of sheriff's deed because of filure to serve judgment debtor-Sufficiency of evidence of nonservice. (Miss.) 23.

On trial of a claimant's issue, the measure of damages of plaintiff in execution, if he has judgment, is the value of the property converted at the time of the trial, with interest from that date. (Miss.) 533.

On claim for horses levied on as belonging to claimant's husband, evidence of entry by express agent of price of horses in the husband's name was inadmissible, when made without directions. (Miss.) 537.

On trial of claim to horses, evidence that they were entered in defendant's name in books of a fair association was properly excluded, when he had nothing to do with the entry. (Miss.) 537.

EXECUTORS AND ADMINIS-
TRATORS.

See, also, "Descent and Distribution;" "Wills."

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An unmarried man, occupying a house as an grandfather living at another house, has no exoffice and sleeping apartment, and supporting a emption as (Miss.) 731. a householder having a family.

The exemption of $100 of the wages of a to the laborer at all times. (Miss.) 454. laborer having a family secures that amount

The claim of exemption, and the inventory attached thereto, must be verified at the very time when filed. (Ala.) 569.

Where the debtor's claim of exemption fails to show that the debt, against which it was asserted, had been contracted since the passage of the law giving the exemption claim, it was insufficient. (Ala.) 569.

Expert Testimony.

A succession sale on application of one acting as administrator is not a nullity because See "Evidence." such person had not the necessary qualifications, or because there was no direct evidence of an appointment by the clerk. (La.) 845.

The court may direct a remission of the residue of the assets under an ancillary administration to the primary administrator in ánother state. (La.) 602.

Express Companies.

Taxation of, see "Constitutional Law."

Factors and Brokers.

An ancillary succession having been opened See "Principal and Agent." in Louisiana, before property can be withdrawn from the administrator, proceedings contradictorily with him will have to be taken. (La.) 233.

Application to require executor to give bond -Sufficiency of answer. (Ala.) 14.

Prescription as to collation of debts of heirs does not date from a day anterior to the opening of the succession. (La.) 907.

False Representations.

As ground for rescission of contract, see "Equity."

False Swearing.

See "Perjury."

Foreclosure.

Sale of realty to pay debts cannot be collaterally attacked by mere proof that the evidence Of mortgages, see "Mortgages." was not sufficient to support the sale, when the order of sale is not set out. (Ala.) 489.

Where suit is brought by an administrator in good faith without malice for the protection of a succession, and he fails, no damages can be claimed from the succession for expenses of defendant. (La.) 255.

Claims against estate.

FORGERY.

dorsement, evidence of utterance of other notes about the same time with forged indorsements On trial for uttering a note with a forged inis competent. (Fla.) 815.

Where the instrument forged does not on its Sufficiency of evidence to sustain claim for face appear to be valuable, extrinsic matter services in managing business. (La.) 184.

A demand, unsupported by written proof, for services rendered more than 10 years before making the demand, will be rejected. (La.) 251.

Priority of claims against decedent's estate. (Miss.) 269.

In action for services rendered intestate, in computing running of limitations, six months during which no action could be brought must be deducted. (Ala.) 572.

Settlement and accounting.

Evidence admissible on restatement of executor's account. (Miss.) 454.

Administration of estate in two states-Accounting by administrator as to partnership assets. (Miss.) 25.

An executor who is required to obtain security from a usufruct is entitled to a commission on the property so bequeathed. (La.) 922.

Services for probating olographic will after regular administration must be paid by the legatee under the will. (La.) 922.

must be averred. (La.) 920.

The altering an account, without reference to any receipt, or without intent to use it as a receipt, is not within the statute. (La.) 920.

Fraud,

As cause for rescission, see "Equity."
See "Fraudulent Conveyances."
Representations by broker on sale of land, see

"Vendor and Purchaser."

FRAUDS, STATUTE OF. Promise to pay another's debt-What constitutes. (Ala.) 407.

Is no defense to an action on an executed contract. (Ala.) 281.

ed. (Ala.) 281.
To be available as a defense, must be plead-

murrable unless it affirmatively shows that
A bill to enforce a vendor's lien is not de-
the contract of sale was not in writing. (Ala.)
650.

The statute, if not pleaded, is no defense to a bill to enforce a vendor's lien, though the contract of sale was verbal. (Ala.) 650.

FRAUDULENT CONVEY

ANCES.

Sufficiency of allegations in bill to set aside conveyance as fraudulent. (Ala.) 653.

Conveyance by an insolvent of goods in payment of a pre-existing debt is valid, though the creditors knew it would prevent other creditors collecting their debts. (Ala.) 631.

A trust deed of its timber lands by a company manufacturing it into timber, which permits the company to continue its business, is fraudulent. (Miss.) 464.

Assignee of judgment takes precedence of subsequent garnishment, though judgment debtor is not notified of assignment. (Miss.) 528.

A bond to dissolve an injunction releases the garnishee's debt and dissolves the attachment pro tanto. (Ala.) 53.

A debtor may proceed to judgment against to the amount for which the garnishing credthe garnishee, but execution should be stayed itor seeks to charge the garnishee. (Miss.) 271

to an action by the debtor, where the judgment A judgment against a garnisee is no defense has not been paid. (Miss.) 271.

A judgment against a garnishee must recite the fact and amount of a judgment against defendant. (Ala.) 773.

Under Code 1886, § 2981, a contest of a garnishee's answer cannot be based on an unver

Sufficiency of evidence to show that attach-ified traverse thereof. (Ala.) 773. ment of insolvent debtor's property was fraudulent. (Ala.) 477.

Transfer of stock at its fair value to satisfy previous debt is not fraudulent, if debtor secured no benefit except release from debt. (Ala.) 398.

That a conveyance in payment of a debt is caused by other creditors pressing their claims does not make it fraudulent. (Miss.) 264.

A mere averment that a sale by defendant was made with intent to defraud creditors, and that vendee participated therein, does not state cause of action. (Ala.) 398.

One who buys property at fair value is not chargeable with notice of claim against seller. (Ala.) 764.

Where there is testimony that, when one purchased goods from an insolvent debtor, he examined bills for them, which showed that the debts incurred in their purchase were not due, it is for the jury to say whether there was sufficient to put him on inquiry as to the seller's insolvency. (Ala.) 111.

FREEDMAN'S SAVINGS

TRUST COMPANY.

The time allowed to contest an answer does swer is made. (Ala.) 773. not extend beyond the term at which the an

GAS COMPANIES.

Construction of contract for furnishing gas to city. (Fla.) 826.

GRAND JURY.

Under Code, §§ 4299, 4338, where there is a deficiency of two in the grand jury, it is error for the court to order only two persons summoned, they to be householders "and" freeholders. (Ala.) 860.

Parties visiting grand jury on business before them, when nothing is said or done in regard to defendant's case, cannot prejudice defendant. (La.) 143.

Ore knowing of a crime has the right to go before the grand jury without being summoned. AND (La.) 143.

The comptroller of the currency became invested with title and possession of the property of said company, under Act Cong. 1881 (21 St. c. 64). (Fla.) 160.

The comptroller thereby became the successor of the corporation, and not a mere trustee of the legal title. (Fla.) 160.

GAMING.

There can be no conviction for gaming in a "public place," where the evidence shows defendant plays dice at a residence near a saloon, but unconnected therewith. (Ala.) 672.

In the section of the Code forbidding an adult to "bet" with a minor, the word "bet" implies the wager of money, or thing of value. (Miss.) 530.

Sufficiency of evidence to show participation in game of cards for money. (Fla.) 586.

Contracts in relation to "futures" made without the state are not enforceable in Mississippi. though valid where made. (Miss.) 33.

GARNISHMENT.

See, also, "Attachment;" "Execution."

Cannot be maintained in the city court on judgment of the circuit court. (Ala.) 559.

GUARDIAN AND WARD.

See, also, "Infancy."

Where an account of a natural tutrix is homologated by a specific money judgment, its registry constitutes a mortgage on the property of the tutrix. (La.) 221.

When a minor's property has been advertised without an order of court, and a family meeting recommends the sale on the terms as advertised, and the judgment of homologation is rendered just before the sale, such sale is not a private sale under the judgment rendered. (La.) 238.

The adjudicatee at the sale of minor's property without an order of court cannot be compelled to accept the same on the ratification of a family meeting. (La.) 238.

A sale of minor's property without order of court, and on the recommendation of a family meeting, is null and void. (La.) 238.

An order for the private sale of minor's property does not authorize a public sale thereof. (La.) 238.

Where a curator, after the death of his interdict, paid debts incurred for him, the payments will not be canceled, and the curator required to pay the amounts to the executor of the interdict's succession, that he may pay a them to the creditors. (La.) 299.

Where payments by an interdict's curator

Service of writ two days before return day exonerate the estate if they are just, they will is insufficient. (Miss.) 22.

be allowed on the curator's account. (La.) 299.

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Self-defense.

Where defendant makes out a case of self-
defense, the burden of proving that he was at
fault in bringing on the difficulty is on the state.
(Ala.) 864.

If there be a safe way of retreat for the slay-
er, a homicide is not justifiable. (Ala.) 864.
If defendant was at fault in bringing on the
difficulty, it is no defense that he killed to save
his life. (Ala.) 864.

No person can bring about a necessity to kill
another to save his own life, and then plead
justification. (Ala.) 865.

An instruction as to self-defense is properly
refused where it ignores the duty to retreat.
(Ala.) 865.

The fact that deceased had threatened ac-
cused, and was of a violent temper, does not

justify an immediate resort to deadly weapons
on suspicion that life is in danger. (Ala.) 851.

If deceased was a violent and dangerous man,
more prompt measures of defense are justifiable
than if he were peaceful. (Ala.) 851.
Assault with intent to kill.

Sufficiency of evidence to support conviction
of assault with intent to murder. (Fla.) 821.
Sufficiency of evidence to convict a husband
of assault with intent to kill his wife. (Miss.)
266.

The offense of cutting and stabbing with in-
tent to kill, under Act No. 44 of 1890, is con-
tained in a similar offense under Act No. 43 of
1890. (La.) 213.

The offense of inflicting a wound less than
mayhem is not contained in the offense of cut-
ting and stabbing with intent to kill. (La.)
213.

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Evidence as to whether a hoe was of sufficient
weight and strength to have killed a man is
incompetent, the fact being within the knowl-
edge of the jury. (Ala.) 864.

Evidence of bad feeling between defendant
and deceased is competent to show malice.
(Ala.) 864.

Where deceased assaulted defendant, with
the remark that "he would teach him to abuse
the Catholic Church," the prior conversation in
regard to the church is admissible. (Ala.) 766.

Defendant cannot show dangerous character
of deceased, nor threats, unless hostile demon-
strations by deceased have first been shown.
(La.) 30.

Evidence of uncommunicated threats of de-
ceased properly excluded. (La.) 77.

It is within the discretion of the trial judge
to decide whether an overt act of hostility by
deceased against defendant has been proved,
preparatory to the admission of evidence as to
communicated threats or the dangerous char-
acter of deceased. (La.) 143.

Defendant's statement under oath as to overt
act is not ground for admission of evidence of
previous threats by deceased, or of latter's dan-
gerous character. (Fla.) 841.

Evidence of previous threats by deceased not
part of res gestae, and of dangerous character
of deceased, are not admissible when defendant
began the difficulty. (Fla.) 841.

Evidence of a threatening anonymous letter
received by deceased is inadmissible, when de-
fendant is in no way connected therewith.
(Ala.) 851.

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