Page images
PDF
EPUB

After an inferior court has, on application in
aid of its appellate jurisdiction for writs of
mandamus and prohibition, passed upon its
jurisdiction correctly, the supreme court will
not compel it by the exercise of its supervisory
jurisdiction to pass a second time on said ques-
tion. (La.) 118.

The allegations of the alternative writ can
only be considered on a motion to quash, and
should show a clear prima facie case in favor
of relator. (Fla.) 834.

Manslaughter.

See "Homicide."

MARRIAGE.

See, also, "Divorce;" "Homestead;" "Husband
and Wife."

Sufficiency of evidence to establish validity
of marriage. (La.) 293.

MASTER AND SERVANT.

If employe breaks contract before end of
agreed time, he cannot recover for services ren-
dered. (Miss.) 446.

A contract of hiring, by which the employe
guaranties to give "satisfaction," vests the mas-
ter with power to determine whether the work
is satisfactory. (Ala.) 362. ·

Contracts for the hire of labor, skill, or in-
dustry, unless there is some special agreement
to the contrary, are provisional on the part of
the obligor, but heritable on the part of the
obligee. (La.) 241.

A clerk is a "laborer," within Rev. Civil
Code, art. 2749, and, if dismissed without
cause, can claim the salary due had the full
term of service arrived. (La.) 241.

A person employed "as a sugar broker," at a
fixed salary, to effect sales of sugar, write let-
ters, and make out account sales, is a clerk.
(La.) 241.

Master's liability for servant's torts.

A railroad is not liable for personal injuries,
by the willful misconduct of a servant, to a
trespasser on its trains. (Miss.) 263.

Independent contractors.

An independent contractor, and not his em-
ployer, is liable for the negligence of the con-
tractor's servants. (Fla.) 890.

Laborers grading a roadbed, subject to the
direction of the chief engineer of a railroad
company, are not independent contractors.
(Fla.) 890.

Where a railroad yields possession of its
premises to a company which contracts to build
the road, and the latter company lets a contract
to a third person, the railroad is not liable for
trespasses committed by the last contractor on
adjacent lands. (Ala.) 401.

Negligence of master.

A brakeman thrown from a car while re-
leasing a brake cannot recover in the absence
of evidence of any defect in the brake. (Ala.)
619.

A complaint which alleges that defendant,
through its agents, buried dynamite where plain-
tiff was at work, without notice to him, and
that it exploded while he was so at work, injur-
ing him, states a cause of action. (Ala.) 357.

Pleading in action by employe for personal in-
juries. (Ala.) 175.

When employe is killed by supervening neg-
ligence of another or unaccountable accident,
master not liable. (Ala.) 10.

employes were in the habit of violating a rule
In action for injury to employe, evidence that
of the master is admissible. (Ala.) 209.

In an action for injuries received by a brake-
of a car, evidence that a man had once been
man from contact with a bridge while on top
knocked off by such bridge while climbing up
the side of a car, and that the bridge had the
reputation of being too low, is inadmissible.
(Ala.) 105.

Defective appliances and places.
Whether the machinery was defective is a
question for the jury. (Ála.) 287.

Injury to employe-Failure to provide safe
place for work." (Ala.) 10.

Negligence of vice principal or fellow

servant.

An engineer operating engine with his own
hands, with the aid of helper, under direction
of another, is not a vice principal. (Ala.) 10.

Liability of employer for negligence of fellow
servant, not "in charge or control" of locomo-
tive causing the injury. (Ala.) 209.

A railroad company is liable for the death of
a brakeman, caused by the negligence of the
conductor of the train. (Ala.) 366.

Assumption of risks.

It is necessary for a servant to consider the
perils attending the work which are obvious on
exercise of due care by him. (Ala.) 175.

There can be no recovery for the death of a
brakeman resulting from contact with a low
bridge, which would not have occurred if de-
ceased had not, with knowledge of the danger
of so doing, taken a seat on the edge of the
car. (Ala.) 105.

Contributory negligence.

negligence. (Ala.) 287.
Sufficiency of evidence to show contributory

Sufficiency of evidence to show contributory
negligence of servant. (Ala.) 175.

Measure of Damages.

See "Damages."

MECHANICS' LIENS.

Material men furnishing materials to con-
tractors need not give written notice to owner
of their claim in order to enforce lien. (Fla.)
840.

The overruling of a demurrer to the com-
plaint which sought a money judgment was
declared a lien. (Ala.) 849.
harmless error, where the judgment merely

Where the owner has told a subcontractor
that he would have money enough of the prin-
cipal contractor to pay him, and allows him to
complete the contract, he is estopped to deny
such fact. (Ala.) 849.

One furnishing material to a contractor is
not entitled to a judgment against the building
until he has obtained a judgment against the
contractor. (Ala.) 768.

There is no lien for lumber purchased by a
husband in his own name, and used to improve
his wife's property, when the credit is given
solely to him. (Ala.) 110.

Minor.

See "Guardian and Ward;" "Infancy."

MORTGAGES.

See, also, "Chattel Mortgages."
Acknowledgment by justice outside county, see
"Acknowledgment."

By infant, ratification, see "Infancy."
Effect of delivery of deed in escrow, see "Es-

crow."

Foreclosure, coverture as defense, see "Hus-
band and Wife."

- sufficiency of plea of usury, see "Usury."
An exception in a mortgage of "41 acres off
of the N. and W. side of the N. 1⁄2 of S. W. 4
of section 2" is void for uncertainty. (Ala.)
406.

The fact that a second mortgagee, to induce
the first to waive the priority of his mortgage
as against a third mortgage, became surety for
the debt secured by the first mortgage, gives
subsequent creditors of the mortgagor no right
to demand that the first mortgagee shall first
endeavor to collect his demand out of such
surety. (Ala.) 412.

A mortgagor is not an essential party to a
third opposition by a mortgagee contesting the
validity of other mortgages. (La.) 68.

A mortgage for future advances is valid.
(La.) 139.

Transfer of property mortgaged.

When the property of a tutrix is sold at judi-
cial sale, and adjudicated to the heir holding a
ranking mortgage, the proceeds must be at-
tributed thereto, and any other imputation with
the consent of the adjudicatee will not bind a
third possessor on another portion of the prop-
erty mortgaged, not proceeded against in an
hypothecary action. (La.) 221.

Where such judgment creditor intervenes in
an act of sale, and renounces his right of mort-
gage thereon, it furnishes no ground of com-
plaint to a prior purchaser, who has acquired
another portion of the property mortgaged with-
out such renunciation. (La.) 221.

Assignment of debt and mortgage.

A bona fide purchaser of a note secured by
mortgage on land is entitled to enforce it
against the land, in preference to a prior un-
recorded mortgage, of which he had no notice.
(Ala.) 321.

One to whom a mortgage note is delivered
as security for an antecedent debt without in-
dorsement is not a bona fide holder, as against
the mortgagor paying the mortgage to the orig-
inal mortgagee. (Ala.) 273.

Payment to a mortgagee without notice of
the transfer of the mortgage note, where the
mortgage has not been assigned, releases the
lien thereof. (Ala.) 273.

Sufficiency of notice of assignment of mort-
gage note to put mortgagor on inquiry. (Ala.)
273.

Payment.

Consideration of conflicting evidence as to
whether a payment by the mortgagors to the
mortgagees was on the mortgage, and whether
the mortgage was surrendered by mistake.
(Ala.) 472.

Foreclosure.

Rights of creditors of mortgagor on sale un-
der foreclosure. (La.) 504.

One holding a judicial mortgage has no claim
to the surplus arising upon sale under fore-
closure of a first mortgage. (La.) 348.

Power of sale.

A grantor in a trust deed may authorize the
trustee to name place of sale. (Miss.) 146.

[blocks in formation]

The reasonableness of an ordinance within the
powers of the city is a question for the court.
(La.) 298.

Ordinances to maintain the cleanliness of
market places are not unjust or unreasonable.
(La.) 298.

The unreasonableness of an ordinance for the
regulation of private markets will not be pre-
sumed, in the absence of evidence to the con-
trary. (La.) 298.

A city having the right, by its charter, to
provide for the punishment of violations of or-
dinances by fine and imprisonment, is author-
ized to provide such punishment for violation
of an ordinance with reference to obstructions
in public streets. (La.) 215.

An alley that has by user become dedicated
to the public is within the terms of an ordi-
nance providing for punishment for obstructing
public streets or alleys. (La.) 215.

An ordinance requiring a labor agent to give
bond to the city for the faithful discharge of
his business, and to answer in damages to any
one injured thereby, is unconstitutional. (La.)
249.

An ordinance prohibiting the sale of lottery
tickets is a police regulation, and constitutional.
(La.) 253.

Police department.

A sergeant of police is not entitled to draw
salary after the abolition of the office by mayor
and city council. (Ala.) 793.

Power of the mayor and aldermen of Bir-
mingham to abolish the office of sergeant of
police. (Ala.) 793.

The police board can modify and repeal the
regulations for general discipline. (La.) 304.

The police board of New Orleans can appoint
officers of the police force, and promulgate
rules through the superintendent, with the sanc-
tion of the mayor. (La.) 304.

See "Homicide."

Murder.

NAME.

The proper names "Mulette" and "Merlette"
are not idem sonans. (Ala.) 562.

[blocks in formation]

Ordinance.

A purchaser of county certificates for juror's
services takes them subject to all the defenses See "Municipal Corporations."
which the county has against the vendor.
(Ala.) 320.

In action on note of S. Co., to which defend-
ants belonged, plaintiffs' failure to take issue
on plea denying partnership is immaterial.
(Miss.) 460.

PARENT AND CHILD.

See, also, "Guardian and Ward."

Actions may be maintained by both parent
Sufficiency of evidence to show title and own- and child for personal injuries received by the
ership of note. (Miss.) 458.
child. (Ala.) 175.

An indorser is not liable to his indorsee if the
latter contracted with the maker to take up the
note in consideration of services to be rendered.
(Miss.) 446.

A note payable to order of the maker, and
indorsed, is not subject to a defense existing
between the original parties against a bona fide
holder. (Miss.) 262.

The mother has the superior, but not the ab-
solute, right to the custody and control of her
minor illegitimate children, and can transfer
such rights; but, where the children have
reached the age of discretion, they will often
be allowed to make their own choice of custo-
(Fla.) 95.

dian.

An indorser is not liable to payee taking it
without knowledge of violation of conditions See "Counties."
on which signature was obtained. (Ala.) 16.

Parish,

Parol Evidence.

Where a note payable in cotton is transferred
by payee as a pledge, and cotton in payment is See "Evidence."
delivered by the maker to a third person to be
used in payment, and is levied on in execution
against the payee, and sold, it does not consti-
tute payment of the note. (Miss.) 530.

NEW TRIAL.

The fact that a juror was offered a bribe by
one not connected with the prevailing party is
no ground for new trial where he was not in-
fluenced thereby. (Ala.) 646.

Affidavits by a juror as to what transpired in
the jury room will not be considered." (Ala.)
646.

Where there are good counts, the facts that
issue is joined on an insufficient plea, and ver-
dict is rendered for defendant upon such plea,
are not ground for new trial. (Ala.) 105.

The burden is on one applying for new trial
to show that the bailiff told the jury that the
judge said he would keep them until they re-
turned a verdict. (Ala.) 646.

PARTIES.

See, also, "Equity."

In a suit by creditors of an insolvent to en-
join sales under fraudulent attachments, an in-
solvent debtor is a necessary party. (Ala.) 776.

PARTITION.

Sale of infant's land by father, see "Infancy."

The chancery court has no jurisdiction to de
cree partition of lands where a legal title of
plaintiff is denied. (Ala.) 277.

PARTNERSHIP.

The fact that one is to receive share of profits
of business, to be carried on in house belong-
ing to him, as rent therefor, does not make him
partner in such business. (Ala.) 488.

Evidence considered as to whether certain PHYSICIANS AND SURGEONS.
persons were partners. (Miss.) 89.

Where an agreement provides that the part-
ner furnishing the capital shall receive interest
until final settlement, his subsequent withdraw-
als of capital will not affect his right to inter-
est on the original amount invested. (Ala.) 640.
A bill to set aside a partnership settlement
must clearly show the mistakes made, which
must be sustained by clear proof. (Ala.) 640.

There is no such trust relation between part-
ners as to make a settlement between them less
binding than those of other persons. (Ala.) 640.
An action is properly brought against the late
firm of S. & Co., where the pleadings show
that S. and B. were proceeded against as late
partners under the firm name of S. & Co., and
the court summons was served on B. (Ala.)
849.

A judgment by a default in favor of a firm
is erroneous, where the names of the members
do not appear. (Ala.) 786.

In an action by one as surviving partner, a
judgment in favor of the firm is irregular.
(Ala.) 630.

PAYMENT.

Of mortgage, see "Mortgages."
Of taxes, see "Taxation."

A debt secured thereby is not satisfied by the
creditor's breach of agreement to take certain
notes in satisfaction thereof. (Miss.) 267.

Where surety on bond makes payment under
mistake in law as to the scope of the bond, he
cannot recover such payment. (Miss.) 447.

In the absence of fraud, a third person can-
not require an imputation of payment between
creditors and a debtor to be changed, some
time after it was made, in compliance with u
pre-existing agreement. (La.) 139.

PERJURY.

A conviction of perjury before a grand jury
is unauthorized, where it does not affirmatively
appear that defendant was sworn. (Miss.) 262.
An indictment is sufficient which charges
that, on a trial of W. for selling or giving liq-
uors to defendant, defendant falsely swore that
W. did not sell or give him whisky, and that
he had no understanding with W. where whisky
could be found, and, in another count, that he
falsely swore that he did not give W. any
money for whisky. (Ala.) 98.

Personal Injuries.

See "Carriers;" "Damages;" "Master and Serv-
ant;" "Negligence;" "Railroad Companies."

PETITORY ACTION.

In a possessory action, where plaintiff annexes
a deed to his petition to show the nature of his

Validity of certificate of qualification au-
thorizing one to practice as a dentist. (Ala.) 746.
Where services rendered by a physician are
unusual, the time, in addition to the regular
visits, taken in attending the patient, were
properly allowed. (La.) 184.

PLEADING.

See, also, "Equity."

In action for price of land, see "Vendor and
Purchaser."
Necessity of pleading statute of frauds, see
"Frauds, Statute of."
Presumption of waiver of demurrer, see "Ap-
peal."

A plea of no cause of action is not a waiver
of the right to a trial on the merits. (La.) 501.
The failure to join issue on a plea of the gen-
eral issue is waived, where a trial is bad with-

out objection. (Fla.) 890.

Where issue is joined on a plea, defendant
has the right to trial thereon, regardless of
its sufficiency. (Ala.) 331.

In an action against two railroad companies
for injuries, if no objection to misjoinder is
raised on pleadings, a verdict against one is
permissible. (Ala.) 495.

In an action against a sheriff for trespass, it
need not be shown that defendant was sheriff,
when his plea of justification states such fact.
(Ala.) 111.

In action on a note, a judgment for plaintiff
on sufficient proof will not be refused because
of a variance where no objection was raised
below. (Miss.) 455.

Complaint.

Though the only requisite for a petition is that
it be a written or printed document, prepared
in accordance with Code Pr. arts. 171, 172, the
omission of the caption in the copy served on
defendant is fatal. (La.) 186.

Each alternative averment in a disjunctive
complaint must state a sufficient cause of ac-
tion. (Ala.) 398.

A complaint is not demurrable because it fails

to show that defendant was served with pro-
cess. (Ala.) 849.

Where part of the claim sued on is good, a
demurrer to the claim will not lie. (Miss.) 445.

Amendment.

Plaintiff may amend the summons and com-
plaint by making a correction therein of part
of defendant's corporate name. (Ala.) 109.

Complaint claiming amount due on coupons
may be amended by setting out one of the
coupons, and claiming on each collectively.
(Ala.) 763.

Police Power.

possession, it does not make the action a peti- See "Municipal Corporations."
tory one. (La.) 919.

Possession.

Plaintiff is not forced to cumulate a direct
action of nullity, to set aside judicial proceed-
ings under which his title has been divested, if See "Adverse Possession."
he alleges that they are nullities. (La.) 843,
845.

If the deed offered to show nature of pos-
session has a resolutory condition, defendant
has no right to show the happening of the con-
dition which destroys the deed. (La.) 919.

In a possessory action, only the fact of pos-
session, and the nature thereof, can be con-
sidered. (La.) 919.

PRACTICE IN CIVIL CASES.

See, also, "Abatement and Revival;" "Appeal;"
"Certiorari:" "Costs;" "Courts;" "Deposi-
tion;" "Evidence;" "Exceptions, Bill of;"
"Judgment;" "Jury;" "New Trial;" "Parties;"
"Pleading;" "Trial;" "Witness;" "Writs."

Where an action is not within the jurisdiction
of a court, it can dismiss the suit at any time
it is brought to its notice. (La.) 232.

Where a petition by an assignee to have the
trust administered by the chancery court is
dismissed because the assignment was only par-
tial, a cross petition by creditors should also be
dismissed. (Miss.) 531.

Where a true copy of the petition is not an-
nexed to the citation, it must be remedied by
another service. (La.) 186.

Agreements of counsel affecting cases before
the appellate court must be filed with record.
(Fla.) 841.

Plaintiff, a nonresident, should not be re-
quired to appear for cross-examination and in-
spection of his injuries, when the motion for
such appearance is so late as to involve a post-
ponement of the trial. (Ala.) 495.

Prescription.

A decision of the interior department cancel
ing homestead entry is prima facie correct.
(Ala.) 51.

QUIETING TITLE.

Code 1892, § 499, authorizes an owner in pos-
session to file bill to have title confirmed.
(Miss.) 457.

Code 1892, § 4147, does not authorize a suit
to establish title of the sixteenth section lands

by a person claiming as owner. (Miss.) 457.

One who owned land sold for taxes may
maintain an action against the grantee in the
tax deed, to cancel such deed as a cloud upon
the title. (Fla.) 796.

Equity will quiet a title based on adverse pos-
session. (Ala.) 557.

One who holds the legal title to wild lands
may maintain action to remove a cloud upon
such title. (Fla.) 796.

Laches is no defense to a suit to quiet title

See "Adverse Possession;" "Limitation of Ac- based on adverse possession. (Ala.) 557.
tions."

[blocks in formation]

PUBLIC LANDS.

Construction of Spanish grant of water-front
privileges. (Fla.) 692.

The selection of school lands in lieu of lost
school lands by the state, with the approval of
the United States, cannot be questioned in ac-
tion by state to enjoin mining of coal thereon.
(Ala.) 51.

A railroad is a highway, within Rev. St. U.
S. § 2477, providing that the right of way for
the construction of highways over public lands
is granted. (Ala.) 379.

The land department may investigate the
bona fides of a homestead claim, and cancel the
same if insufficient. (Ala.) 51.

In action to remove cloud from the title to
wild lands, the bill must allege, and the evi-
dence must show, that the lands are wild.
(Fla.) 796.

RAILROAD COMPANIES.
See, also, "Carriers."

Question of abandonment by railroad of right
of way is for the jury. (Ala.) 379.

Company authorized to change its route is not
bound to bridge or fill up a cut in its first loca
tion. (Miss.) 438.

A railroad company must use such care as to
accumulated combustible matter on its right of
way as is ordinarily sufficient, under similar
circumstances, to avoid danger. (Fla.) 892.

Instruction as to duties of employes of rail-
road company crossing another road. (Ala.)
495.

It is the duty of the railroad company to re-
move combustible matter from its roadbed,
where it is liable to be fired by sparks from the
locomotive. (Fla.) 892.

Injuries to persons on tracks.

Where a person familiar with the tracks,
and momentarily expecting a train, steps back-
ward on a track, in front of an engine, he can-
not recover for injuries received. (Ala.) 204.

Sufficiency of evidence, in action for injuries
to persons on track, to show wanton negligence.
(Ala.) 282.

Contributory negligence of person injured on
track. (La.) 513.

[blocks in formation]

Sufficiency of evidence introduced by railroad
company to overcome presumption of negli-
gence in killing stock on track. (Ala.) 643.

Sufficiency of notice of killing of animal
through failure to fence track. (Fla.) 726.

In an action for killing stock, it is for the jury
to determine whether cattle came on the track
so suddenly that the train men could not, by
reasonable care, prevent the injury. (Ala.) 639.

Evidence that horse was drawn under car
by starting of train does not charge company
with its death. (Miss.) 462.

« PreviousContinue »