peared therefrom that the danger was as apparent to plaintiff as to defendant's foreman, through whose failure to give notice of the danger the accident happened.-Postal Tel. Cable Co. v. Hulsey (Ala.) 527. In an action for the death of a railroad employé, who was run down by a yard engine, a rule of the company as to duties of employés when a train is being pushed by an engine held inadmissible.-Louisville & N. R. Co. v. Banks (Ala.) 573. The mere act of starting to move a tenant is not a violation of Code, § 1068, if the tenant wishes to be moved.-Triplet v. State (Miss.) 743. MATERIALITY. Of alteration of written instrument, see “Al- teration of Instruments." MEASURE OF DAMAGES. In an action for the death of a railroad employé, who was run down by a yard engine, a rule of the company defining the proper posi- See "Damages," § 2. tion for at least one switchman when riding on such an engine held admissible.-Louisville & N. R. Co. v. Banks (Ala.) 573. Negligence of an engineer in causing the death of a railroad employé, who was run down by a yard engine, held for the jury.-Louisville & N. R. Co. v. Banks (Ala.) 573. MECHANICS' LIENS. § 1. Proceedings to perfect. An instruction in an action for the death of 573. Complaint by an employé, alleging injuries from the negligence of one who was in charge and control and superintendence of an engine, held not indefinite as to whether it was under Code, § 1749, subd. 2, for the negligence of a superintendent, or under subdivision 5, for the negligence of one in charge of an engine.-Birmingham S. R. Co. v. Cuzzart (Ala.) 979. In an action against a master for personal injuries, a special plea that plaintiff's own neg ligence proximately contributed to his injuries was bad for generality.-Southern Ry. Co. v. Jackson (Ala.) 988. Complaint in an action for injuries to an employé held to state a cause of action under Code, § 1749, subd. 5, giving an action for the negligence of an employé in charge of an engine. Southern Ry. Co. v. Jackson (Ala.) 988. A complaint in an action by a servant for personal injuries held to impute no fault to the master and disclose no cause of action.-Bell v. Globe Lumber Co. (La.) 994. A general allegation that damage was caused by an employé is not sufficient notice to defendant that he knew of the incompetency of the employé.-Bell v. Globe Lumber Co. (La.) 994. Allowing plaintiff, in an action for injuries received in defendant's service, to show that defendant held liability insurance against the judgment, if rendered, held reversible error.Herrin v. Daly (Miss.) 790. § 6. Liabilities for injuries to third persons. Driver of beer wagon colliding with street car held at fault, and the motorman entitled to recover from the driver's employer for the personal injuries suffered.-McCorkle v. AnheuserBusch Brewing Ass'n (La.) 762. 7. It is no objection to enforcement of mechanic's lien on buildings on leased premises under a contract with the lessee, and on unexpired term, that the lease prohibited removal of improvements unless rent was paid. Alabama State Fair & Agricultural Ass'n v. Alabama Gas Fixture & Plumbing Co. (Ala.) 26. § 3. Enforcement. lien is not described in the complaint held insuffi- filed is not a true account held demurrable.- Where parties to two contracts are the same. a lien for amounts due on a building may be enAgricultural Ass'n v. Alabama Gas Fixture & forced in one action.-Alabama State Fair & Plumbing Co. (Ala.) 26. con In action by material mau against a tractor and owner, verdict held too indefinite to sustain judgment against latter.-Tisdale v. Alabama & G. Lumber Co. (Ala.) 729. Complaint to enforce material man's lien held to sufficiently aver notice to the owner of the claim. Tisdale v. Alabama & G. Lumber Co. (Ala.) 729. § 4. Indemnity against liens. Building contractor's bond, not falling within the operation of Acts 1894, No. 180, held not to bind the surety for the obligations of contractor to laborers and material men.-Salmen Brick & Lumber Co. v. Le Sassier (La.) 7; In re Fidelity & Deposit Co. of Maryland, Id. MEMORANDA. Required by statute of frauds, see "Frauds, MENTAL SUFFERING. From nondelivery of telegram, see "Telegraphs and Telephones," § 1. Interference with the relation by See "Infants." An information charging a violation of Code 1892, § 1068, making it criminal to interfere with tenants, held insufficient.-Triplet v. State (Miss.) 743. MINORS. MISJOINDER. Of parties, see "Equity," § 3. MISREPRESENTATION. See "False Pretenses." MISTAKE. Affecting will, see "Wills," § 2. MONEY RECEIVED. Recovery of payment in general, see "Payment," Recovery of price paid for land, see "Vendor and Evidence held to justify a judgment for defendant in an action for money had and received.-Reese v. Fuller (Ala.) 601. In an action for money had and received. an instruction that money voluntarily applied on an existing indebtedness could not be recovered was properly refused, where the instruction did not except a payment by mistake or in ignorance of a material fact.-Hunt v. Matthews, (Ala.) 613. MONOPOLIES. § 1. Trusts and other combinations in restraint of trade. The anti-trust laws of Mississippi do not apply to the state, or any of its statutory agencies, in letting a contract for school books or in making contracts of a similar nature.-B. F. Johnson Pub. Co. v. Mills (Miss.) 101. Cove oysters, packed and sold as merchandise, held to be a commodity, within Code 1892. c. 140, § 4437, prohibiting combinations or agreements to increase or reduce the price of a commodity. Barataria Canning Co. V. Joulian (Miss.) 961. An agreement by which defendant agreed to sell to plaintiff all of his oysters, except a certain part retained, and not to sell such part for less than plaintiff's price to the trade, held void as an unlawful combination, within Code, 1892, c. 140, §§ 4437, 4438.-Barataria Cauning Co. v. Joulian (Miss.) 961. The words, "and is inimical to the public welfare, unlawful, and a criminal conspiracy," in Code 1892, c. 140, § 4437, held mere declaration of the effect of the combinations prohibited, and not an added element of definition of the contracts and acts prohibited.-Barataria Canning Co. v. Joulian (Miss.) 961. MORTGAGES. Of personal property, see "Chattel Mortgages." Of separate property of married woman, see "Husband and Wife," § 2. Rights of mortgagee to proceeds of insurance policy, see "Insurance," § 5. § 1. Requisites and validity. A note reciting a consideration of money, material, and labor on a building, and also a mechanic's lien on the building to secure the note, held not to create an equitable mortgage or lien of any sort.-Loyd v. Guthrie (Ala.) 506. Code 1892, § 4233, excludes parol evidence to show that an absolute deed is a mortgage, when the grantee continues in possession or when he surrenders possession, if there is an issue of fraud.-Culp v. Wooten (Miss.) 1. The temporary leaving of a homestead held not a surrender of possession, within Code 1892, § 4233, prohibiting the owner from showing that a deed thereon was a mortgage.—Culp v. Wooten (Miss.) 1. Evidence, in an unlawful entry and detainer, of fraud in procuring a deed, held to render fail ure to submit the issue of fraud erroneous.Culp v. Wooten (Miss.) 1. § 2. Construction and operation. A deed executed by a mortgagee individually and as attorney in fact of the mortgagor held admissible, without evidence to show the exist ence of the power of attorney.-Hayes v. Banks (Ala.) 464. Where a debt secured by a mortgage is tainted with usury, the mortgagee is precluded from being a bona fide purchaser without notice of equities in third parties.-Clark v. Johnson (Ala.) 960. § 3. Foreclosure by exercise of power of sale. Under Laws 1896, c. 96, a sale of land by a substitute trustee, made before his appointment was recorded in the chancery clerk's office, held void.-Hyde v. Hoffman (Miss.) 415. A mortgagee cannot purchase the property at a sale under a power in the mortgage, unless such right is conferred by the mortgage or the mortgagor consents, and mortgagor's successors may avoid the sale without showing fraud or unfairness.-Houston v. National Mut. Building & Loan Ass'n (Miss.) 540. § 4. Foreclosure by action. The assignors of a mortgage, in whom is the legal title, the assignment not having been acknowledged or attested, are necessary parties in foreclosure by the assignees.-Langley v. Andrews (Ala.) 469. Objection that, in foreclosure, complainants have only an equitable title, and that the holders of the legal title are not parties, may be made at the hearing, on error, or by the court ex mero motu.-Langley v. Andrews (Ala.) 469. Failure to make a junior mortgagee of land a party to proceedings to foreclose a senior mortgage does not prevent the legal title from vesting in the purchaser at the foreclosure sale, but only leaves an equity of redemption in the junior mortgagee.-Capehart v. McGahey (Ala.) 503. Where a bill seeks a foreclosure as to an interest derived by defendant as heir of the mortgagor, it cannot be dismissed because defendant asserts title by adverse possession.-Equitable Mortg. Co. v. Finley (Ala.) 985; Finley v. Equitable Mortg. Co., Id. A decree of foreclosure of the interest of defendant as prayed for in the bill, and excepting from its operation any determination as to a paramount title pleaded by defendant, held proper.-Equitable Mortg. Co. v. Finley (Ala.) 985; Finley v. Equitable Mortg. Co., Id. In a proceeding against an adjudicatee to set aside the adjudication because of nonpayment of the amount of the bid the sheriff has a standing in court.-Ash v. Southern Chemical & Fertilizing Co. (La.) 656. A proceeding to set aside an adjudication be cause of nonpayment of the amount of the bid may be by rule.--Ash v. Southern Chemical & Fertilizing Co. (La.) 656. outstanding special mortgages, the adjudicatee. Where at mortgage sale there appeared to be after paying to the sheriff the amount of the writ and costs, may retain the surplus to satisfy said outstanding mortgages.-Ash v. Southern Chemical & Fertilizing Co. (La.) 656. The sheriff held without interest to invoke the nullity arising from his failure to announce that the adjudicatee at the mortgage sale will have the right to retain in his hands the surplus of the purchase price to pay outstanding mortgages. -Ash v. Southern Chemical & Fertilizing Co. (La.) 656. A prior mortgagee, who intervenes by third opposition under a sale by a junior creditor, and claims the proceeds of sale by preference, thereby consents to a transfer of his mortgage MULTIFARIOUSNESS. rights from the property to the proceeds, and Of bill in equity, see "Equity," § 3. cannot claim, under Code Prac. art. 684, that the price bid was insufficient to make the sale valid and entitle the purchaser to a deed.Walmsley v. Theus (La.) 869; Same v. Thompson, Id.; Armistead v. Brice, Id. The owner of property has an interest that his property be sold by the seizing creditor for an amount sufficient to pay mortgages in rank superior to the mortgages of the seizing creditor, and a sale for less than the amount of the mortgage first in rank is void.-Walmsley v. Theus (La.) 869: Same v. Thompson, Id.; Armistead v. Brice, Id. § 5. Redemption. Though a bill to enforce redemption from a mortgage sale does not allege delivery of possession on the first demand of the purchaser, where the demurrer does not point out the -objection, it will not be considered.-Baker v. Burdeshaw (Ala.) 497. Bill to enforce the statutory redemption from mortgage sale must allege either delivery of possession to the purchaser or excuse the same, as by absence of demand.-Baker v. Burdeshaw (Ala.) 497. Where a bill seeks redemption from a mortgage sale, and avers that nothing was due on the mortgage at the time of the sale, it is defective, as, if true, there is nothing to redeem from.-Baker v. Burdeshaw (Ala.) 497. Bill to enforce the statutory redemption from a mortgage sale held to sufficiently excuse failure to include amount due for taxes and improvements.-Baker v. Burdeshaw (Ala.) 497. Where plaintiffs purchased land subject to a mortgagor's right to redeem, a lease of the land to the mortgagee was extinguished by redemption, and plaintiffs could not claim rents thereunder by virtue of junior mortgages, under which they had never claimed possession.-Tatum v. Hollis (Ala.) 798. Exception of no cause of action held properly sustained to a demand that the vendor be decreed the owner of certain land on payment of the money received on a loan, with interest. -Bagley v. Bourque (La.) 860. The purchaser at an illegal mortgage foreclosure sale may be required in a redemption decree to pay the sum received from an innocent purchaser of a part of the premises, and the innocent purchaser may be compelled to pay the deferred payments to the mortgagor's successors.-Houston v. National Mut. Building & Loan Ass'n (Miss.) 540. A suit to redeem from an illegal mortgage foreclosure sale is not barred by laches, but only by the running of limitations, under Code, § 2731.-Houston v. National Mut. Building & Loan Ass'n (Miss.) 540. The grantor in a quitclaim deed to mortgaged premises executed by the mortgagor after an illegal mortgage foreclosure sale may maintain a suit to redeem.-Houston v. National Mut. Building & Loan Ass'n (Miss.) 540. MOTIONS. Arrest of judgment in criminal prosecutions, see Opening or setting aside default judgment, see "Judgment," § 2. Presentation of objections for review, see "Appeal and Error.' § 2. Relating to pleadings, see "Pleading." § 9. Striking out evidence, see "Criminal Law," § 14; "Trial," § 2. MUNICIPAL CORPORATIONS. See "Counties"; "Schools and School Districts," § 1. Injunctions affecting, see "Injunction," §§ 2, 4. Judicial notice of charter, see "Evidence," § 1. Ordinances regulating inspection of laundries, see "Health," 1. Street railroads, see "Street Railroads." Validity of ordinance authorizing inspection of laundries as taking of property without due process of law, see "Constitutional Law," § 4. Water supply, see "Waters and Water Courses," § 4. 2. Legislative control of municipal acts, rights, and liabilities. Acts 1898, No. 136, § 33, providing for the inscription of the ordinances adopted by municipalities in a book kept for that purpose, is directory merely.-Town of Crowley v. Rucker (La.) 629. § 3. Officers, agents, and employés. Policemen are officers, within an ordinance declaring that "all city officers" must be residents and qualified electors of the city.-Johnson v. State (Ala.) 493. Act Feb. 18, 1895, held not to have repealed an ordinance defining the qualifications of police officers.-Johnson v. State (Ala.) 493. Under Const. art. 296, and Acts 1898, No. 192, the general assembly, in requiring that three out of five members of a municipal board of health shall be licensed physicians, did not prohibit the organization of any municipal boards with more than three physicians.State ex rel. Weber v. Kohnke (La.) 45. the use of the board of metropolitan police Taxes imposed in the years 1869 to 1876 for held a fund out of which the debts of such board should be paid.-State ex rel. Brittin v. City of New Orleans (La.) 55. § 4. Contracts in general. Under Acts 1898-99, p. 108, § 9, purchase of spirituous liquors by a city on credit_held illegal and ultra vires.-Bluthenthal v. Town of Headland (Ala.) 87. § 5. Public improvements. Charter held to authorize city to compel abutting owner not to raise sidewalk, but only to pay therefor.-Arndt v. City of Cullman (Ala.) 478. Under Const. 1879, arts. 209, 242, certain public improvements are confined within the taxing district on which the special tax is to be imposed, and other improvements are not so confined.-Clifton v. Hobgood (La.) 46. Abutting property cannot be assessed under a resolution to construct sidewalks, adopted pursuant to Ann. Code 1892, § 3011, where the resolution states that the council will cause the walks to be constructed, but says nothing as to how they are to be paid for.-City of Greenville v. Harvie (Miss.) 425. The terms "special improvements," in a stat- | 1892, § 3014,-Kemp v. Town of Hazlehurst ute or city ordinance, do not of themselves im- (Miss.) 908. port that the owners of abutting lots shall bear the whole expense of such improvements.-City of Greenville v. Harvie (Miss.) 425. Under Code 1892, § 3014, municipal bonds were not invalid, because issued for the double purpose of erecting light and water works.Kemp v. Town of Hazlehurst (Miss.) 908. § 6. Police power and regulations. Ordinance authorizing arrest without warrant Notice of election for the issuance of municiregardless of charges being made by citizens pal bonds, under Code 1892, § 3016, held suffiheld unauthorized by charter. Gambill V. cient.-Kemp v. Town of Hazlehurst (Miss.) Schmuck (Ala.) 604. 908. An affidavit held to sufficiently charge a violation of a city ordinance providing that whoever shall exhibit, with intent to commit a crime, any pistol or other dangerous weapon, within the corporate limits, shall be fined.-State ex rel. Thomas v. Hall (La.) 1002. Municipal bonds, maturing through a series of 20 years, held not invalid as ignoring Code 1892, § 3017.-Kemp v. Town of Hazlehurst (Miss.) 908. Municipal bonds, maturing annually through a series of 20 years, held not invalid, as igpla-noring Code 1892, § 3015, giving a city right to make payment after five years.-Kemp v. Town of Hazlehurst (Miss.) 908. § 7. Use and regulation of public § 8. Torts. § 10. Actions. A municipal corporation, unless so subjected by statute, is not liable to suit, by garnishment or otherwise, for debts arising from the exercise of its governmental functions.-Clarksdale Compress & Storage Co. v. W. R. Caldwell Co. (Miss.) 790. is A city, for the efficiency of its sewers, bound to make provision for such floods as may be reasonably expected.-Arndt v. City of Cullman (Ala.) 478. A city is bound to protect a lot owner from overflow from a street of waters diverted by it from their natural channel.-Arndt v. City of Cullman (Ala.) 478. A charter having devolved on a city the power to establish sewers and keep them in repair, a complaint against the city may aver generally that it was the duty of the city to keep a sewer in repair.-Arndt v. City of Cullman (Ala.) 478. § 9. Fiscal management, public debt, securities, and taxation. MURDER. See "Homicide," § 1. MUTUAL BENEFIT INSURANCE. See "Insurance," § 7. NAMES. Difference in spelling of a name in an indictment for forgery of warrants and that appearing on a warrant introduced in evidence held immaterial, as idem sonans.-Leath v. State (Ala.) 108.' NATURALIZATION. An increase in the assessment of a railroad company's property within the limits of the city of Bessemer held within the authority con- See "Aliens," § 1. ferred by its charter.-City of Bessemer v. Tennessee Coal, Iron & R. Co. (Ala.) 492 Legislation as to railroad aid held to provide for the imposition at one time of the tax to be levied for the entire time, and the levy and collection of such tax annually during the term.-Clifton v. Hobgood (La.) 46. A special tax in aid of a railroad, which neither passed through nor terminated in the municipality, held valid under Const. 1879, arts. 208, 242.-Clifton v. Hobgood (La.) 46. City taxes are imprescriptible, but the privileges securing them are prescribed by three years.-People's Homestead Ass'n, v. Garland (La.) 892. NAVIGABLE WATERS. See "Ferries"; "Waters and Water Courses." 1. Rights of public. Bayou La Chute is not a navigable stream in any sense that places it beyond the dominion and control of the state of Louisiana.-Bendich v. Scobel (La.) 703. Where a schooner was lost, owing to the failure of a bridge tender to open a draw, and the evidence as to signals is conflicting, the ques tions as to whether signals were given. and could be heard in the storm theu raging, are for the jury.-Louisville & N. R. Co. v. MeDonald (Miss.) 418. NAVIGATION. A provision in a municipal bond, issued under Code, § 3017, reserving the right to pay off the bond after 10 years, though void, will not affect the validity of the bond.-Board of Mayor, etc., of Town of Pontotoc v. Fulton See "Navigable Waters," § 1. (Miss.) 102. A sale of real estate for municipal taxes prior to the passage of Laws 1900, p. 79, under a city charter amended in pursuance of Code, § 3039, but which amendment was invalid as fixing the date of the sale at February 4th instead of March 1st, in violation of section 3039, held void.-O'Flinn v. McInnis (Miss.) 584. Tax sales by a municipal corporation, which had amended its charter under Code 1892. c. 93, § 3039, but without regard to section 3022 of said chapter, requiring such sales to be at a certain time, held void.-Brown v. Sharp (Miss.) 712. Ballots for election on the question of issuing municipal bonds held sufficient, under Code NE EXEAT. A writ of ne exeat may be issued by a court of equity in a suit by a wife for maintenance before a decree is rendered fixing the amount to be paid.-Bronk v. State (Fla.) 245. NEGLIGENCE. Causing death, see "Death." § 1. By particular classes of parties. Employers, see "Master and Servant," § 2. Physicians, see "Physicians and Surgeons.' Railroad companies, see "Railroads," § 3. Telegraph or telephone companies, see "Telegraphs and Telephones," § 1. Condition or use of particular species of property, works, or machinery. See "Railroads," § 3; "Street Railroads," § 1. Contributory negligence. Of passenger, see "Carriers," § 5. Of servant, see "Master and Servant," § 2. § 1. Acts ог omissions constituting negligence. A water company held not liable for injury to a pedestrian, who stepped into an open box which a former customer had set in the ground near the sidewalk to hold a meter furnished to him.-Bridgeport Water Co. v. Goodwin (Ala.) 490. A railroad company cannot maintain a turntable, even on its own premises, which by reason of its construction and situation is liable to attract and injure children, without making itself liable for the injuries.-Alabama G. S. R. Co. v. Crocker (Ala.) 561. 2. Contributory negligence. The negligence of the driver of a hose cart, which collided with a street car, held not to preclude a recovery against the street car company by a fireman on the cart, who was injured in the collision.-Birmingham Ry. & Electric Co. v. Baker (Ala.) 618. NOTES. Promissory notes, see "Bills and Notes." NOTICE. Of particular facts, acts, or proceedings. Action or process, see "Process," § 1. Conveyance of lands, see "Vendor and Purchaser," § 4. Election for issuance of municipal bonds, see "Municipal Corporations," § 9. Probate proceedings, see "Wills," § 3. To enter satisfaction of mortgage, see "Chattel Mortgages," § 5. NUISANCE. Violation of liquor laws, see "Intoxicating Liquors," § 6. 1. Public nuisances. nuisance, where it materially contributes to a A party may have a mill pond abated as a condition productive of malaria, notwithstanding that other and natural ponds in the same vicinity contribute to that result.-Richards v. Daugherty (Ala.) 934. The erection of a dam across a stream constitutes not a mere public nuisance, but is a private nuisance as to a particular party, whose health and the health of whose family is endangered by the malaria produced therefrom, and he is entitled to proceed himself to have it abated.-Richards v. Daugherty (Ala.) 934. The question whether a dam constitutes a nuisance may be decided by the court without submitting the issue to the jury.-Richards v. Daugherty (Ala.) 934. |
