thing pledged until payment of his debt, con- | Right to obstruct navigable river, see Navi ferred on the pledgee by Rev. Civil Code La. art. 3164, is not affected by the cession of the pledgeor. Following Renshaw v. Creditors, 3 So. 403.-Haynes v. Their Creditors, (La.) 68. Prior liens.
4. The fact that the thing pledged is subject to a lien for the purchase money under Civil Code La. art. 3227, does not preclude another
On appeal, see Appeal, 23-25.
creditor from acquiring possession as holder Action for, see Sale, 7–10.
of bills of lading of the same property. In such case he takes the pledge subject to prior liens, under Code, art. 3142.-Id.
PRINCIPAL AND AGENT.
See, also, Factors and Brokers.
Husband as wife's agent, see Husband and Wife, 10-12.
To maintain action to quiet title, see Quieting Insurance agents, see Insurance, 12, 14. Title, 6, 7.
Validity of sale under, see Mortgages, 18.
Evidence of agency.
1. Where it is sought to affect one with the acts of an alleged agent, the declarations of the latter are not admissible to prove such
PRACTICE IN CIVIL CASES.agency, in the absence of independent evi-
See, also, Appeal; Costs; Deposition; Judq- ment: Jury; New Trial; Parties; Plead ing; Prohibition, Writ of; Trial; Wit- ness; Writs.
In equity, see Equity, 20-23.
Rule to tax costs, interlocutory order, see Costs, 2.
1. A discontinuance of an action for negli- gence as to one of several defendants does not operate to discontinue it as to the others, and the rule is not changed by Code Ala. 1876, §2911, authorizing a discontinuance as to defendants not served.-Montgomery Gas-Light Co. v. Montgomery & E. Ry. Co., (Ala.) 735. Review of nonsuit.
dence of it.-Tanner & Delaney Engine Co. v. Hall, (Ala.) 584.
Authority of agent-Ratification.
2. An agent placed in charge of a retail store, with money deposited to his credit, which, together with proceeds of sales, he is to use to replenish the stock, but with instruc- tions not to purchase on credit, cannot bind his principal by a purchase on credit, though made from persons ignorant of the limitation of his authority, unless they show that the principal, by ratification or former acquies- cence, had extended his authority, and led them to believe that the agent was acting within his powers. Wheeler v. McGuire, (Ala.) 190.*
Liability of principal to agent.
3. By the terms of a contract between a 2. A judgment of nonsuit, properly ren- machinery firm and its agent for the sale of ma dered, will not be disturbed on appeal.-Rich-chines no commissions were to be paid to the ard v. Bergeron, (La.) 15. Filing pleading.
3. Where an answer is sworn to on the day of filing, the fact that an additional and more formal jurat is filed on a subsequent day does not have the effect to change the date of filing the answer. Hart v. Bloomfield, (Miss.) 620. Order of trial.
4. Under Acts Ala. 1886-87, p. 161, (Code 1886, p. 225, note,) providing that the first week of the term of the circuit court of Cal- houn county shall be devoted to civil, and the second and so much of the third as is neces- sary to criminal, business, and that a civil case "may be set down for trial" during the third week, if not sooner disposed of, judg ment by nii dicit may be rendered during the third week in an action in which the defend- ant withdraws his pleas, though no order set- ting the case for trial has been made, as the withdrawal of the pleas is a waiver of the ob- jection. Mount v. Stewart, (Ala.) 582.
agent "on any article taken back, on machinery not settled for, or on any sale to irresponsible persons." The principals were were not authorized to take back any machin- ery without the agent's consent, unless there A sale of machinery was a necessity for it. was made by the agent to a person who, at the time, was solvent, and his notes were taken. After the maturity of the notes, the principals extended the time, and took sufficient securi- ty from the vendee to cover it. Afterwards the principals settled by releasing a portion of the security, and taking back the machinery. Held, that the agent could recover his com- missions.-Taylor Manuf'g Co. v. Key, (Ala.) 303.
4. Under a provision that commissions shall be paid to the agent on each sale proportion- ately out of the cash and proceeds of notes when collected, the agent cannot recover commissions on any portion of the purchase money of machinery sold for which notes were taken and which remains uncollected.→ Id.
5. The agent was entitled to recover under a special agreement made with the general
See Adverse Possession; Limitation of Ac-agent of the firm, by which the latter was to tions.
sell certain articles in the territory of the
al limit of said court.-State v. Judges of Court of Appeals, (La.) 114.
2. A prohibition cannot issue to a district judge to prevent him from doing an act which he denies having done, which he refuses to do, and which is not shown to have been done by him.-State v. Ellis, (La.) 530.
Promissory Notes.
See Negotiable Instruments.
Proximate and Remote Cause.
7. Where a principal conferred authority on his agent to purchase goods, and immediately left home for a few months, and there is evi- dence that on his return the authority was re- See Damages, 1. voked, it is for the jury to determine whether persons who made their first sale to the agent several months after the principal's return
were justified in believing the authority con- See Municipal Corporations, 11–23. tinued.-Wheeler v. McGuire, (Ala.) 190.
8. Neglect of the principal to inform him- self as to the manner in which the agent con- ducts his business, and to see that his instruc- tions are obeyed, does not constitute ground of liability, unless it induced those dealing with the agent to believe he had authority.
9. Knowledge of an agent is not constructive notice to his principal, unless acquired after the agency was created.-Id.*
PUBLIC PRINTER.
For agricultural department.
Code Ala. 1876, § 115, provides that "all of the public printing and binding authorized by law shall be given to such person, company, or firm, by the officer now authorized, to be executed in the manner now required by law, and he shall receive his compensation there- for under the contract, on the same evidence,
PRINCIPAL AND SURETY. and in the same manner, as now provided by
See, also, Bail; Bonds.
Liability on appeal-bonds, see Appeal, 32. Liability of surety-Evidence.
1. Evidence that one H. acted as county treasurer after the treasurer's death, until his successor's appointment, and that on set- tlement with the county H. paid a certain sum received by him while so acting, is irrelevant, and does not tend to disprove the liability of the sureties.-Coleman v. Pike County, (Ala.) 481.
Remedies of surety.
2. A surety has no ground for relief in equity under a contract with the creditor to transfer to the surety the collaterals received from his principal on payment of the sum for which he is surety, where it appears that the principal has himself paid the debt.-Dilburne v. Youngblood, (Ala.) 175.
Probate.
Of wills, see Wills, 4-6.
PROHIBITION, WRIT OF. When lies.
law." The agricultural department was first established in 1883, and by Acts 1884-85, p. 168, all money arising from its operations is re- quired to be kept in a separate fund for its exclusive use, all sums necessary for its sup- port to be paid therefrom under such rules as ing these and other statutes, that the contract the governor shall prescribe. Held, constru- for public printing does not include printing required for the use of the agricultural de- partment.-Brown v. Seay, (AÏa.) 216.
Charges against vessels, see Health, 1, 2
1. The chancery court in Mississippi has ju- risdiction of a bill to remove a cloud from title arising from a mistake in description in a partition agreement by which defendant oc- cupies a portion of complainant's allotment; and in such proceeding the court should grant complete relief by taking an account of the rents and profits and improvements.-Robin- son v. Jones, (Miss.) 102.
What constitutes cloud upon title. 2. Where the instrument or proceeding com- plained of as constituting a cloud upon title is void on its face, or where the instrument is not void upon its face, but the party claiming 1. Prohibition will lie to prevent the court under it must, in order to recover on it, nec- of appeals of Louisiana from exercising juris-essarily offer evidence that will inevitably diction over a controversy involving a right to servitude of light and view, valued at more than $1,000, and a claim for $1,000 damages, both exceeding $2,000, the upper jurisdiction-
show its invalidity and destroy its effect, such instrument is not a "cloud upon title, "within the legal definition of the term.-Sloan v. Sloan, (Fla.) 603.
3. An administrator's deed purporting to | Regulation of charges convey lands sold by him under an order of a court which, as to its power to make such an order, is a court of special and limited juris- diction, is not, nor are such deed and order and other sale proceedings, a cloud upon title, when the facts or fact essential to the court's jurisdiction to make the order do not appear on the order, or the proceedings upon which such order is based.-Id.
4. A tax-deed regular on its face, and which a statute has made prima facie evidence of the regularity of all the proceedings con-
nected with the assessment and sale, but
which is founded on a void assessment, is a
Title and possession, to maintain.
5. A complainant seeking to obtain a can- cellation of defendant's title must show him- self to be the owner, in law or equity; and if, the burden of proof being on him, he fails to establish his title, it is immaterial whether defendant's title is good or bad. -Hart v. Bloomfield, (Miss.) 620.
6. One whose title to land is legal in its character must have possession of the land to entitle him to equitable relief against a cloud upon his title, but possession is not essential where the title is equitable.-Sloan v. Sloan, (Fla.) 603.
7. Possession by a duly-authorized agent, having charge of all the land and engaged in keeping off trespassers, is sufficient to sustain the equitable jurisdiction to remove a cloud on the title in favor of owners of legal title who are themselves non-residents.-Id.
1. Under act Fla. June 7, 1887, (railroad commission act,) authorizing the railroad com- missioners to prescribe reasonable and just the enforcement of a tariff of rates which will rates of freight and passenger transportation, not pay the expenses of operating the rail- road is an abuse of the discretion given to the commissioners, and amounts to taking the company's property without just compensa- tion.-Pensacola & A. R. Co. v. State, (Fla.)
sion act,) provides that the schedule of rates 2. Act Fla. June 7, 1887, (railroad commis- prescribed by the commissioners shall, in any suit brought against a railroad corpora- tion, "wherein is involved the charges of any such railroad corporation for the transporta- tion of any passengers, or freight, or cars, or unjust discrimination in relation thereto, be deemed and taken, in all courts of this state, as sufficient evidence that the rates fixed therein are just and reasonable rates of charges," etc. Held, that the effect of this provision is not to make such schedules con- clusive as against judicial inquiry, but is to provide a new mode of proving the reason- ableness and just character of the rates fixed, and make the schedules competent and ade- quate evidence of the correctness of the action of the commissioners, in the absence of coun- tervailing proof that they have exceeded their powers, or abused their discretion, and in- vaded some right of the railroad company. -Id.
3. Where a tariff has been established by the commissioners, and the company and com- missioners differ as to whether such rates
Against officers-Pleading and evi- will prove remunerative to the company, dence.
1. The question of the sufficiency of a rele- vant defense presented by an answer to an information filed in quo warranto proceed- ings cannot be raised by a motion to strike out. The question should be raised by de- murrer.-State v. Saxon, (Fla.) 801.
2. Non usurpavit is not a relevant plea in quo warranto brought by the attorney gen- eral to oust a party from public office, but an allegation of the party that he was elected to the office is relevant, though it may not be sufficient of itself to prevent ouster.-Id.
3. In such quo warranto, whether brought on the relation of one claiming the office or not, the burden is on the defendant to show that he holds the office rightfully; and it is not enough to show due appointment or elec- tion, but for full and complete title he must also show that all the requisites required to qualify him to take possession of the office have been complied with.-Id.
RAILROAD COMPANIES.
See, also, Carriers; Horse and Street Rail- roads.
Delegation of legislative power to railroad commissioners, see Constitutional Law, 2. Venue of action against, see Venue in Civil Cases, 1.
and there is room for a difference of opinion, the courts cannot interfere or substitute their judgment for that of the commissioners, but the tariffs, as fixed by the commissioners, must be left to the test of experiment.-Id.
4. The courts have no power to make freight or passenger tariffs.-Id.
5. The courts will not interfere or grant re- lief to a railroad company on a complaint made as to one or several rates only, or where the freight and passenger rates established by the commissioners are not assailed as an entirety.-Id. Consolidation.
6. Under act Ala. Aug. 5, 1868, authorizing a consolidation of a railroad company, which is the grantee of a right of way, with another company, section 6, providing that the con- solidation shall not affect the rights of the creditors of the companies, the new company is not protected, as an innocent purchaser, against the enforcement of covenants entered into by the grantee of the right of way, and which run with the land.-Mobile & M. Ry. Co. v. Gilmer, (Ala.) 138.
7. Under section 8 of the charter of the Y. & M. V. R. Co., which exempts the property of the company from taxation "for a term of twenty years from the completion of said rail- road to the Mississippi river, but not to ex-
tend beyond 25 years from the date of the ap- stock was injured at a crossing near a station, proval of this act," the exemption was intend to charge that, if the locomotive was running ed to commence from the completion of the at a very rapid rate of speed at the time the road to the Mississippi river, and not during stock was struck, and the injury occurred be- its construction; and the road, not having cause of this fact, the defendant would be lia been completed, is subject to a subsequent ble, as the statute does not regulate the speed statute making all railroads liable to taxation, of trains when passing stations or crossings, though at the date of the charter railroads except when entering a curve crossed by a were not liable to taxation during construc-public road, where the engineer cannot see at tion, under the general laws.-Yazoo & M. V. | least one-fourth of a mile ahead.-Id. R. Co. v. Thomas, (Miss.) 108. Negligence-Accidents to trains.
S. When it is shown that after the accident it was found that a rail only 10 feet long was out of place, and the track was very bad, the rails much worn, and of all lengths, while usually they are 30 feet long, the ver- dict of the jury finding negligence should not be disturbed.-Florida Ry. & Nav. Co. v. Web- ster, (Fla.) 714.
9. A recovery cannot be had under the "employers' act" (Code Ala, 1886, $82590-2592,) for injuries received by plaintiff's intestate while in defendant's employ as a locomotive engineer, by the fall of a trestle, the founda- tion of which was washed out by an unusual- ly great and destructive flood, where it ap- pears that the trestle was constructed in the manner usual with the best managed rail- roads, and that it had afforded a safe passage for trains for 15 years.-Columbus & W. Ry. Co. v. Bridges, (Ala.) 864.
- Accidents at crossings.
10. To recover damages for injuries received at a railroad crossing, plaintiff must prove that the accident was caused by the negli- gence of the railroad company, and that the plaintiff was not guilty of any negligence which aided in the accident.-Deikman Morgan's L. & T. R. & S. S. Co., (La.) 76,
15. Under Code Ala. 1876, § 1711, requiring the petition in an action against a railroad company for injuries to stock to aver the time that it occurred "on or about September 20, and place of the alleged injury, an allegation 1887," and "at a place on said railroad about 75 or 100 yards distant from Cowles Station, Macon county," is sufficient.-Id.
16. Under an allegation that it occurred on or about September 20, 1887," and "at a place on said railroad about 75 or 100 yards distant from Cowles Station, Macon county, "it is not curred "on or about September 18th," or "be- error to admit evidence showing that it oc tween the 16th and 20th of September," with- in 150 yards of the station on the line of the
17 Where the engineer, after he sees stock upon the track, does everything that is possi- ble, though the engineer might have seen the ble to avoid collision, the company is not lia- cattle near the track in time to have stopped his train before they came upon it.-New Or- leans & N. E. R. Co. v. Bourgeois, (Miss.) 629.
18. In an action against a railroad company for killing stock in an open field, 300 or 400 yards from a public crossing, it is error to in- struct the, jury that it was defendant's duty to slacken the speed of its train when ap v.proaching the crossing; as, under Code Ala. 1876, § 1699, such slackening is required only in case of crossings in "a curve or cut, where the engineer cannot see at least one-fourth of a mile ahead. "-Nashville, C. & St. L. R. Co. v. Hembree, (Ala.) 173.
- Injury to person on track. 11. Plaintiff's intestate was lying drunk out- side of defendant's track, at right angles therewith, and with his head between the ends of two ties in a depression, so that an approaching engineer could only see part of the body, and could not tell that it was a hu- man being till he should lift his head. When defendant's train was so near that it could not stop before striking him, he raised his head and was killed. Had he not raised his head, he would not have been injured. Held, that plaintiff could not recover.-Columbus & W. Ry. Co. v. Wood, (Ala.) 463.
Stock-killing cases.
12. Code Ala. 1876, §§ 1699-1702, which ren- der a railroad company liable for injuries to stock where such injuries result from its fail- ure to comply with the statutory require- ments, or other negligence of the company, do not require such negligence to be the sole cause. It is sufficient if it materially contrib- utes to the injury.-Western Railway v. Sis. trunk, (Ala.) 79.
bell when approaching a public crossing or 19. Failure to blow the whistle or ring the depot cannot affect the liability of the com- pany for killing stock at large in an open field near a depot and crossing.-id.
if it "was guilty of negligence in killing the 20. An instruction that defendant is liable mare" is erroneous, as only such negligence as causes or contributes to the injury is ac-
21. The company is not liable where the en- gineer was keeping a diligent lookout, and did not see the mare until his fireman said that horses were running towards the track, at which time one horse jumped across the track, and the mare was struck and killed, the engi- neer testifying that he put on the air-brakes and reversed the engine, but that it was im- possible to avoid the injury.-Id.
22. The fact that a train was running in an incorporated town at a greater speed than 13. It is sufficient, also, if the failure of the six miles an hour when it struck and killed company to comply with the statutory re- cattle, though such speed is negligence, does quirements, such as ringing the bell or blow-not render the company liable therefor under ing the whistle, reasonably contributes to the injury, there being no question of plaintiff's contributory negligence.-Id.
14. But it is error in such case, where the
Code Miss. § 1047, unless the accident resulted therefrom, and whether it did so result is for the jury to determine.-Louisville, N. O. & T. Ry. Co. v. Caster, (Miss.) 888.
23. An instruction that, unless defendant's alleged errors, or supply alleged omissions in servants "in charge of its train did all in their their minutes.-State v. Simmons, (La.) 29. power which they could reasonably do to avoid the killing, it is liable, " is erroneous, as they are not required to do anything when they cannot avert the injury.-Nashville, C. & St. L. R. Co. v. Hembree, (Ala.) 173.*
24. Damage to property by fire escaping from a railroad engine raises an inference of negligence, consisting in a defect in the con-
From foreclosure, see Mortgages, 12-17. sheriff's sale, see Execution, 4, 5. tax-sale, see Taxation, 8, 9.
struction of the engine, or in the appliances Of deed, see Equity, 2-7. used, or in want of care in its management.- Louisville & N. R. Co. v. Reese, (Ala.) 283.
Real-Estate Agents.
Right to commissions, see Factors and Bro- kers, 3-5.
RECEIVERS.
Of mortgaged property.
Rehearing.
On appeal, see Appeal, 16, 17.
Release and Discharge.
See Compromise; Payment.
Remedy at Law.
Lands included in a mortgage, which cov-|See Creditors' Bill.
ered also crops and other personalty, were in- cumbered by a prior mortgage to the extent of
their value. The debt secured was past due,
the mortgagor insolvent, and he refused to Of excessive damages, see Damages, 6, 7. deliver the crops and other personalty to the mortgagee, alleging the existence of prior liens on the crops, and appropriated a por-
tion of them to purposes other than payment See Landlord and Tenant, 2. of the mortgage debt. The crops were in danger of loss unless promptly taken into cus- tody of the court, and the security without them was inadequate. Held, that a bill by mortgagee against mortgagor, averring those facts, showed a prima facie case for the ap- pointment of a receiver, and good reason for failure to give notice of application therefor. -Ashurst v. Lehman, (Ala.) 731.
Verdict-Damages.
1. In replevin it is error to direct the jury, if they find for defendant, to fix the value of the property seized at a sum different from that stated in the pleadings of both parties.— Houston v. Smythe, (Miss.) 520. Bonds.
2. A forthcoming bond, reciting the sheriff's seizure of certain property under the writ of Idetinue in the case, and conditioned for the In a prosecution under Code Ala. § 3794, pro- delivery of it with other property if the suit viding for the punishment of any person who fails, estops plaintiff from showing that such buys, receives, or conceals any personal prop-property was not so seized, or that it did not erty, knowing it to have been stolen, and not go into his possession under the bond.-Hill having the intent to restore it to the owner, v. Nelms, (Ala.) 796. an indictment is insufficient which fails to al- lege the "intent not to restore the property," though it is alleged that the defendant "felo- niously" bought, etc., property, knowing it to have been stolen.-Holt v. State, (Ala.) 793.
3. Acts Ala. 1886-87, p. 131, provide that in detinue, when the property is in plaintiff's possession at the termination of the cause, and the cause is dismissed, the court, on mo- tion or plea in abatement, shall impanel a jury to assess the value of the property and value of its use, and shall render judgment for such property or value and damages. Held, that on dismissal the summary judgment is not requisite to the right of defendant to sue on
Mortgage, see Chattel Mortgages, 6-8; Mort the replevin bond.- Ernst v. Hogue, (Ala.) gages, 2.
Impeachment by parol, see Evidence, 11. Jury minutes.
The secretary of a police jury cannot, in a collateral proceeding, be required to correct
4. Under Code Ala. 1886, § 2721, no execu- tion can issue on the replevin bond unless the value and damages have been assessed, and judgment rendered therefor, and the sheriff has returned on the bond a failure to deliver the property. In an action on a replevin bond, conditioned that plaintiffs in the deti-
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