For cases in Dec.Dig. & Am. Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
XVII. DETERMINATION AND DISPOSI-
(A) Decision in General.
1106(4) (L.) Motion to remand to take new evidence held unreasonable because of de- lay. Givens v. De Soto Bldg. Co., 534.
22 (Ala.App.) Ownership of property burned of no moment. -Cobb v. State, 463.
34 (Ala.App.) Competent to prove unusual solicitousness with reference to insurance on adjoining building.-Cobb v. State, 463.
ASSAULT AND BATTERY.
1123 (Fla.) Judgment affirmed when appel- late court equally divided.-Muller & Auerback See Homicide. v. Cowart, 156.
1123 (Fla.) Judgment affirmed where ap- pellate court equally divided.-James v. Mach, 271.
(A) Acts Constituting Assault or Battery and Liability Therefor.
1123 (Fla.) Judgment affirmed where court equally divided.-Colman v. Macha, 796; State (Ala.) Pointing pistol may constitute as- v. Hamwey, 796.
1149 (Ala.) Appellate court, if having proper data, could amend judgment to allow costs to party struck out.-Richardson v. Stin- son, 209.
sault.-John R. Thompson & Co. v. Vildibill, 139.
2 (Ala.) Licensee wrongfully ejected may recover for an assault committed upon him.- Brookside-Pratt Mining Co. v. Booth, 240. 15 (Ala) Merchant may withdraw invita- tion to trade and thereafter eject person from whom invitation withdrawn. - Brookside-Pratt Mining Co. v. Booth, 240.
24(1) (Ala.) Complaint held to state cause of action. Harris v. Harris, 333.
1173(1) (Miss.) Judgment against all part-24 (2) (Ala.) Replication held sufficient as ners when evidence authorizes judgment against only one reversed in part and affirmed 26 (Ala.) Physical pain, mental pain, or in part. Wise v. Cobb, 189.
against demurrer. Harris v. Harris, 333. anguish inferred from fright from assault with pistol. John R. Thompson & Co. v. Vildibill, 139.
1175 (7) (Ala.) Decree overruling demurrer improperly sustained below entered by, Supreme Court. Thompson v. Menefee, 107; Frazier v. 31 (Ala.) Answer of defendant, "I knew Frazier, 118.
1178(6) (Miss.) Case remanded for trial merely as to damages. where Supreme Court has determined that defendant is liable.-F. W. Woolworth Co. v. Volking, 3.
(F) Mandate and Proceedings in Lower
I had not hurt her," held admissible as within probable knowledge.-Harris v. Harris, 333. 38 (Ala.) Refusal of charge denying recov- ery for abusive or profane language held prop- er.-John R. Thompson & Co. v. Vildibill, 139.
39 (Ala) Punitive damages may be award- ed for assault, accompanied by insulting words. -John R. Thompson & Co. v. Vildibill, 139. 1203(5) (Ala.) On remand bill held prop-43(6) (Ala.) Refusal of charge as to plain- erly dismissed for failure of complainant to tiff's physical or mental pain or mental anguish observe directions of Supreme Court as to held without error.-John R. Thompson & Co. amendment. Crowson v. Cody, 821.
XVIII. LIABILITIES ON BONDS AND
1232 (Miss.) Rule as to liability on super-
II. CRIMINAL RESPONSIBILITY. (B) Prosecution and Punishment.
sedeas bond on affirmance as to one and rever-85 (Ala.App.) Injured party in prosecu- sal as to other principal stated.-Wise v. Cobb, tion for assault may testify as to his age.-
1236 (Miss.) When judgment for damages86 (Fla) Exclusion of evidence that of-
in action for possession of life policy will be rendered on appeal stated.-Garner v. Townes, 20.
(3) (Ala.) Filing of demurrer and pro- ceeding to hearing thereon held appearance.- Forrester v. Granberry, 551.
ficer charged with assault had reasonable ground to believe that prosecuting witness ar- rested without warrant had committed felony held erroneous.-Osborne v. State, 365.
96(3) (Ala.) Charge on self-defense held properly refused for failure to define degree of force permissible.-Burge v. Scarbrough, 653.
24(5) (Ala.) Filing of demurrer and pro- ceeding to hearing thereon held_appearance, waiving objection to service. Forrester v. See Drains, 91; Municipal Corporations, Granberry, 551.
365(1) (La.) Defenses available against original payee cannot be urged against bona fide holder for value. City Sav. Bank & Trust
43 (Ala.App.) Granting automobilist in- Co. v. Goodman, 66. dicted for murder in first degree bail held not365(2) (Miss.) Maker of note bearing date error.-State v. Massey, 625.
363 (Ala.) Proof and filing of claim
of secular day estopped as against innocent holder to show execution on Sunday. Currie- McGraw Co. v. H. & J. Friedman, 273.
369 (Miss.) Payee's negotiation of instru- ment in violation of agreement with payer no defense as against innocent purchaser for val- ue without notice. - Currie-McGraw Co. v. H. & J. Friedman, 273.
370 (a.) Absence or failure of considera- tion not defense against bona fide holder in due course. City Sav. Bank & Trust Co. v. Good- man, 66.
452 (2) (La.) Defendant held not entitled to contest title of holder of notes. Quick v. Littlejohn, 531.
476(1) (Fla.) Plea of want of considera- tion, merely averring that note was without consideration, insufficient. Davis v. American Agr. Chemical Co., 741.
against bankrupt estate and acceptance of div-489(3) (Ala.) Facts entering into and in-
idend held not novation or payment as to orig- inal debtor. Tuscaloosa Lumber Co. v. Trop- ical Paint & Oil Co., 236.
BANKS AND BANKING.
I. CONTROL AND REGULATION IN GENERAL.
15 (Miss.) Cashier's check guaranteed.- Anderson v. Bank of Tupelo, 179.
15 (Miss.) State funds deposited in bank which has not qualified as depository protected by guaranty fund.-Love v. Murry, 277.
III. FUNCTIONS AND DEALINGS. (F) Exchange, Money, Securities, and In-
189 (Miss.) "Cashier's check" defined.- Anderson v. Bank of Tupelo, 179. Instrument held cashier's check.-Id.
BENEFICIAL ASSOCIATIONS.
See Insurance,690-817.
BILL OF EXCEPTIONS.
See Exceptions, Bill of.
BILL OF REVIEW.
See Equity, 445-460.
BILLS AND NOTES.
I. REQUISITES AND VALIDITY,
(C) Execution and Delivery.
54 (Ala.App.) Failure of execution of note to constitute waiver of exemptions, or mort- gage, held not to affect liability on promise to pay.-Planters' Chemical & Oil Co. v. Mor - ris, 200.
Execution of notes by mark held sufficient as promise to pay.-Id.
III. MODIFICATION, RENEWAL, AND
ducing indorsements of notes held relevant un- der defense of conditional indorsement.-Lang- ham v. Jackson, 757.
489(3) (La.) Maker must challenge hold- er's good faith before proving fraud or want or failure of consideration.- City Sav. Bank & Trust Co. v. Goodman, 66.
Answer held insufficient to admit evidence of defects in property for which note sued on given.-Id.
504 (Ala.) Interest in bank of persons se- curing defendants' indorsement on notes and its affairs held provable.-Langham v. Jackson, 757.
537 (1) (Ala.) Manner of perpetration of fraud on indorsers of draft held for jury.- Moore v. First Nat. Bank, 349.
Negligence of indorsers of draft, to which draft for smaller amount was pasted, held for jury.-Id.
BOUNDARIES.
I. DESCRIPTION.
37 (1) (La.) Evidence held to show good faith of party to boundary dispute. Davis v. Moore, 691.
54(1) (Fla.) Corners marked in surveys returned by Surveyor General established as proper corners of sections or subdivisions.- Kirch v. Persinger, 166. Kirch v. Florida High- lands Co., 169.
Boundary lines run and marked in surveys re- turned by Surveyor General established as 139(1) (Ala.) Partial payment before matu- boundary lines of sections or subdivisions.-Id. rity is consideration for extension.-Ray v. 54 (4) (Fla.) Grantee in patent from gov- Summerlin, 482. ernment takes according to original survey.-
For cases in Dec.Dig. & Am. Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER Kirch v. Persinger, 166; Kirch v. Florida High- | VI. RIGHTS, POWERS, AND LIABILITIES lands Co., 169.
Description and plat filed in General Land Office made by Surveyor General conclusive as to section lines and corners.-Id.
IV. COMPENSATION AND LIEN.
40(L) Claim that stock was purchased at unauthorized price could not be made after acquiescence.-Interstate Trust & Banking Co. v. Laplace, 544.
46 (L.) Principal's right to sell without agent's intervention, stated.-Grace Realty Co. v. Peytavin Planting Co., 62.
AS TO THIRD PERSONS.
(La.) Power held to authorize broker's acceptance for principal of offer to purchase. -Fassbender v. Ghergich, 436.
That offer to purchase made subject to lease held not to affect vendor's liability after ac- ceptance.-Id.
Stipulation as to notary public before whom sale to be passed held not to affect vendor's lia- bility to convey.-Id.
105 (L.) Knowledge of broker as to il- legality of price held imputable to both buyer and seller.-J. & G. Lippman v. Rice Millers' Distributing Co., 685.
II. PROSECUTION AND PUNISHΜΕΝΤ.
31 (Ala.App.) Acts of vandalism on porch of burglarized house held admissible.-Hasty v. State, 561.
38 (Ala. App.) That stolen chickens were seen in defendant's yard held admissible in burglary prosecution.-Hasty v. State, 561.
CANCELLATION OF INSTRUMENTS. II. PROCEEDINGS AND RELIEF.
37(4) (Ala.) Bill to cancel contract held not demurrable for failure to offer to place de- fendants in statu quo.-Frazier v. Frazier, 118.
I. CONTROL AND REGULATION OF
COMMON CARRIERS.
(A) In General.
(L.) Penal statute
to adjusting claim strictly construed.-Daniel v. Louisiana Ry. & Nav. Co., 684.
48 (Ala.) Broker producing customer ready, 20(1) (La.) Failure to file claim at place.
able, and willing to buy within time allowed entitled to commissions. Wheelock v. Dillard, 840.
55(1) (La.) Principal may deny agent ex- clusive right of sale.--Grace Realty Co. v. Pey- tavin Planting Co., 62.
56(3) (a.) Purchaser could not terminate relations and protect vendor.-Grace Realty Co. v. Peytavin Planting Co., 62.
Principal held not entitled to sell to pur- chaser produced by agent so as to deprive him
57(2) (L.) Brokers held entitled to full commissions on sale consummated by princi- pal.-Grace Realty Co. v. Noel, 51.
57(2) (L.) Broker entitled to proportion of agreed commission where principal himself has consummated transaction for less than price fixed.-Grace Realty Co. v. Peytavin Planting Co., 62.
ing both vendor and purchaser held to defeat
prescribed in statute precludes recovery of statutory penalty for delay in payment.-Dan- iel v. Louisiana Ry, & Nav. Co., 684.
II. CARRIAGE OF GOODS. (H) Limitation of Liability.
147 (Fla.) May contract to diminish com- mon-law liability.-American Ry. Express Co. v. Johnson, 743.
May by contract protect themselves from hardships of rules of law requiring impossible
1492 (Fla) Contractual provision, limit- ing liability for delays in interstate shipments due to strikes, binding on shipper.-American Ry. Express Co. v. Johnson, 743.
156(1) (Fla.) Word "strike" in contract, limiting carrier's liability for interstate ship-
ment, held to include "outlaw" strikes.-Amer- ican Ry. Express Co. v. Johnson, 743.
65(4) (Ala.) Broker's fraud in represent-162 (Fla) Carrier's plea alleging impos- action for commissions. Gray v. Pankey, 880. sibility of expeditious delivery due to strike
Broker or agent cannot represent vendor and Vendee.-Id.
Duty of broker authorized to sell to disclose to principal he is acting for purchaser.-Id.
held sufficient.-American Ry. Express Co. v. Johnson, 743.
IV. CARRIAGE OF PASSENGERS.
(B) Fares, Tickets, and Special Contracts. 256 (Ala.) Carrier may exact extra charge for passenger's failure to purchase ticket.- Southern Ry. Co. v. Blackwell, 215.
72 (L.) Agreement to purchase stock to support price thereof construed.-Interstate Trust & Banking Co. v. Laplace, 544. Directors of defunct bank held personally lia- ble under agreement for commissions and in- terest on purchase of stock of such bank.-Id. Liability for interest under agreement for 300 (La.) Negligence of chauffeur in fail-
purchase of bank stock held to terminate when bank ceased to be going concern.-Id.
ing to see automobile coming out of alley held to make owner of taxicab liable for injuries to passenger.-Wilkins v. Featherstone Trans- fer Co., 732.
V. ACTIONS FOR COMPENSATION. 78 (Ala.) Bill for commissions held not of car inspectors as to condition of car step prematurely filed.-Erswell v. Ford, 96.
317(5) (Ala.) Excluding irrelevant report not error.-Bradley v. Lewis, 324.
84(1) (La.) Burden on principal to estab-318(7) (La.) Finding that taxicab com-
lish termination of agency by limitation. Grace Realty Co. v. Noel, 51.
86(1) (La.) Evidence held to support judg- ment. Gerth's Realty Experts v. Kracke, 41.
pany and owner of colliding automobile were both at fault sustained in passenger's action for injuries.-Brook V. Interurban Motor Transp. Co., 428.
319(3) (Miss.) Liable in substantial dam-gage given under name other than mortgagor's
ages for conductor's enforcement of separate own held properly denied.-Id. coach law in offensive manner.-Illinois Cent. 150(1)(Ala.) Must be recorded in county R. Co. v. Cox, 520.
Courts will limit damages for insulting pas- senger in enforcement of separate coach law; verdict in excess of $1,000 for offensive and in- sulting manner of enforcement of separate coach law by conductor held excessive.-Id.
of mortgagor's residence to constitute con- structive notice in another county.-Gay & Bruce v. W. B. Smith & Sons, 633.
155 (Ala.) Purchaser of cotton with knowledge of mortgage takes no title which will defeat action by mortgagee.-Gay & Bruce v. W. B. Smith & Sons, 633.
(F) Ejection of Passengers and Intruders.157(2) (Ala.) Evidence held to warrant
357 (Ala.) Demand of excess fare held not justified by conductor's ignorance of lack of opportunity to purchase ticket.-Southern Ry. Co. v. Blackwell, 215.
381(1) (Ala.) Carrier has burden of show- ing that it afforded passenger reasonable op- portunity to purchase ticket to justify extra charge. Southern Ry. Co. v. Blackwell, 215.
381(4) (Ala.) Evidence held not to show reasonable opportunity afforded passenger to buy ticket. Southern Ry. Co. v. Blackwell, 215
CERTIORARI.
I. NATURE AND GROUNDS.
12(Fla.) Lies only to review actions of courts, boards, or officers exercising judicial or quasi judicial functions. Sirmans v. Owen, 734.
Exercise of judgment not only criterion in determining whether proceeding judicial.-Id.
21 (Fla) Lies only to review actions of courts, boards, or officers exercising judicial or quasi judicial functions.-Sirmans v. Owen, 734.
finding defendant became claimant's tenant aft- er chattel mortgage lien was created.-Gilles- pie v. Bartlett & Byers, 858.
157 (3) (Ala.) Whether name in mortgage was mortgagor's own, and whether he was so generally known, held for jury.-Ingram v. Wat- son, 557.
IV. RIGHTS AND LIABILITIES OF PARTIES.
159 (Ala) Mortgagee of crop has legal ti- tle and is entitled to possession after crop gathered.-Gay & Bruce v. W. B. Smith & Sons, 633.
172(8) (Ala.) Instruction as to applica- tion of money paid held erroneous. -Monroe Stock & Exchange Co. v. Thames, 348.
VII. REMOVAL OR TRANSFER OF PROP- ERTY BY MORTGAGOR.
(A) Rights and Liabilities of Parties.
229(1) (Ala.) Instruction as to recording of mortgage and sale by mortgagor without landlord's consent held improperly denied.- Gay & Bruce v. W. B. Smith & Sons, 633.
23 (Miss.) Order of Railroad Commission229(3) (Ala.) Burden of showing recorda-
fixing rates not reviewable on certiorari. Cum- berland Telephone & Telegraph Co. v. State, 378.
25(Fla.) Appointment of municipal offi- cers not judicial proceeding.--Sirmans v. Ow- en, 734.
II. PROCEEDINGS AND DETERMINATION.
tion in county of mortgagor's residence on plaintiff mortgagee. -Gay & Bruce v. W. B. Smith & Sons, 633.
Evidence held admissible to show good title of defendant purchaser from mortgagor.-Id.
VIII. PAYMENT OR PERFORMANCE OF CONDITION, RELEASE, AND SATISFACTION.
40 (Ala.) Petition not filed within 15 days 235 (Ala.) Proceeds of mortgaged prop- too late. Ex parte Taylor, 331.
42(6) (La.) Affidavit to petition for cer-
tiorari held sufficient.-Kinchen v. Redmond,
CHATTEL MORTGAGES.
I. REQUISITES AND VALIDITY. (C) Execution and Delivery.
erty or that charged with lien applied to debt secured, in absence of contrary agreement.-
Monroe Stock & Exchange Co. v. Thames, 348.
CHILDREN. See Infants; Parent and Child. CITIES.
See Municipal Corporations.
CLASS LEGISLATION.
68 (Ala.) Admission by one joint and sev- eral mortgagor held sufficient to charge him, See Constitutional Law, 212-253. without producing or accounting for attesting witness.-Gillespie v. Bartlett & Byers, 858.
III. CONSTRUCTION AND OPERATION. (D) Lien and Priority.
138(3) (Ala.) Lien crops held superior to landlord's lien, where relation of landlord and tenant was subsequently created.-Gillespie v. Bartlett & Byers, 858.
150(1) (Ala.) Recording of mortgage given under name other than mortgagor's own not notice to subsequent mortgages.-Ingram v. Watson, 557.
Instruction as to effect of recordation of mortgage under name other than mortgagor's own held proper.-Id.
Instruction as to effect of use by mortgagor of name not his own held proper.-Id.
Instruction as to mortgagor's use of name not his own as constituting notice to subse- quent mortgagee held proper.-Id.
CLERKS OF COURTS.
65 (L.) Statute authorizing clerks to or- der family meetings and homologate their pro- ceedings held valid. Cole v. Richmond, 419.
66 (La.) Clerk held authorized to appoint members of family meeting. -Cole v. Richmond, 419.
I. POWER TO REGULATE IN GENERAL. (1) (Miss.) Statutes and regulations of Interstate Commerce Commission binding on both federal and state courts. Stoner & Co, v. Blocton Export Coal Co., 5.
8(13) (Fla.) Carrier's contractual rela- tions to shipper in interstate shipments fed- eral question.-American Ry. Express Co. v. Johnson, 743.
II. SUBJECTS OF REGULATION.
Instruction as to effect of recording mortgage27(2) (Ala.) Under federal Employers' under nickname held proper.-Id.
Instruction as to rights of mortgagee dealing with mortgagor under name different than used in prior mortgage, held properly refused.-Id.
Liability Act plaintiff must show defendant en- gaged in interstate commerce.-Southern Ry. Co. v. Dickson, 665.
27(6) (Miss.) Action governed by federal
Instruction as to effect of recording of mort-Employers' Liability Act where employee and
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER railroad were engaged in interstate commerce. III. DISTRIBUTION OF GOVERNMENTAL -New Orleans & N. E. R. Co. v. Penton, 521.
40(1) (Ala.App.) Foreign corporation's (A) Legislative Powers and Delegation sale to retailer interstate commerce, but as-
sisting retailer to resell goods domestic com-56 (La.) Statute authorizing clerks to or- merce. -City of Birmingham v. Hoover Suction der family meetings and homologate their pro- Sweeper Co., 83.
88 (Miss.) Preferential car service order
ceedings held valid. Cole v. Richmond, 419. 56 (La) When Legislature may add to ju risdiction of Supreme Court and decrease ju- risdiction of courts of appeal stated.-Perez v. Cognevich, 444.
60 (Fla.) Lawmaking function of Legisla- ture may not be abdicated.-Pursley v. City of Ft. Myers, 366.
63(1)(La.) State may delegate to munic- ipal corporation or commission rate-making powers. Baton Rouge Waterworks Co. v. Lou- isiana Public Service Commission, 710.
of Interstate Commerce Commission, con- 63(2) (Fla.) Delegation of legislative pow- strued.-Stoner & Co. v. Blocton Export Coal Co., 5.
COMMISSIONERS.
See Public Service Commissions.
er to municipality in matters forming appro- priate subjects of municipal regulation valid.- Pursley v. City of Ft. Myers, 366.
(B) Judicial Powers and Functions. 70(1) (Ala.App.) Courts without author- ity to vary written statutory law. Wilson v. State, 914.
70(1) (Fla.) Legislative determination as to whether notice of application for local or special legislation has been given is conclusive. -State v. Fearnside, 256.
14(Fla) Common law may be changed by 70(3) (Ala.) Court cannot question wis- statute.-State v. Parker, 260.
dom of legislation or limit legislative power.- Bouchelle v. State Highway Commission, 884.
IV. POLICE POWER IN GENERAL. 81 (Ala) Power to regulate rates of pub- lic utilities is within police power.-Alabama Water Co. v. City of Attalla, 490.
Police power cannot be abridged or suspend- ed by contract between citizens of state or mu- nicipality and citizen.-Id.
81 (Ala.) Police power as to nuisances limited to prohibition or regulation of acts in- terfering with another's rights. -Alabama Great Southern R. Co. v. Cummings, 553.
X. EQUAL PROTECTION OF LAWS.
212 (Fla) When principles of nonliability and damnum absque injuria inapplicable.-Max- well v. City of Miami, 147.
XI. DUE PROCESS OF LAW..
(La) Life insurance companies held not253 (Fla.) Unreasonable or unnecessary
liable for refusing to have business dealings with plaintiff insurance solicitor.-McGee v. Collins, 430.
II. CRIMINAL RESPONSIBILITY. (B) Prosecution and Punishment. 47 (Ala.App.) Provable by circumstantial evidence.-Dawkins y. State, 619.
CONSTITUTIONAL LAW.
For validity of statutes relating to particular subjects, see also the various specific topics.
II. CONSTRUCTION, OPERATION, AND EN- FORCEMENT OF CONSTITUTIONAL PROVISIONS.
12(Ala) Principles of constitutional con- struction stated.-Bouchelle v. State Highway Commission, 884.
15 (Ala.) Interpreted in light of laws ex- isting at time of its formulation.-Bouchelle v. State Highway Commission, 884.
exertion of municipal authority or police pow- er impairing private rights unconstitutional.- Maxwell v. City of Miami, 147.
When principles of nonliability and damnum absque injuria inapplicable.-Id.
277(1) (Ala.) Right to use property not arbitrarily taken.-Alabama Great Southern R. Co. v. Cummings, 553.
Abandoned well held property enjoyment of which protected.-Id.
292 (Fla.) Ordinance prohibiting operation of motor vehicles while intoxicated held not violative of due process clause.-State v. Par- ker, 260.
CONTINUANCE.
See Criminal Law, 586-600
See Bills and Notes; Compromise and Settle- ment; Covenants; Frauds, Statute of; Guar- anty; Indemnity; Novation; Sales; Spe- cific Performance; Vendor and Purchaser.
I. REQUISITES AND VALIDITY. 16(Ala.) Extraneous representations by (A) Nature and Essentials in General. newspapers, public officials, etc., not considered 10(2) (Miss.) Contract for permanent em- in construing constitutional amendment author-ployment held terminable at pleasure of either izing road construction.-Bouchelle v. State Highway Commission, 884.
party. Rape v. Mobile & O. R. Co., 585.
(C) Formal Requisites.
17 (Fla.) Adoption of organic law relates to statutes changing common law. -State v. 42 (Ala.) Nonnegotiable instrument to be Parker, 260.
delivered to obligee only on securing signature,
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