124 (L.) Proof of sale to de facto corpo- ration held admissible under answer denying See Adverse Possession; Limitation of Ac- sale to defendant individually.-John Lucas & Co. v. Bernhardt's Estate, 399.
(E) Set-Off, Counterclaim, and Cross- Complaint.
146 (Ala.) Plea of set-off subject to same tests as complaint.-Ex parte Steverson, 912.
See Attorney and Client; Brokers.
I. THE RELATION.
(A) Creation and Existence.
IV. REPLICATION OR REPLY AND SUBSE-10(2) (Ala.) Execution of power of attor-
V. DEMURRER OR EXCEPΡΤΙΟΝ. 193(8) (Ala.App.) Claim of damages not maintainable in trespass not reached by de- murrer.-Cheek v. Odom, 782.
204(2) (Ala.) Demurrer to bill as whole not sustained because of insufficiency of allega- tions relating to accountability for rents. -For- rester v. Granberry, 551.
207 (Ala.) Special demurrer showing de- fect in plea of agreement between obligors for
conditional delivery, necessary.-McConnon & Co. v. Kirby, 764.
228 (La.) Exception of no cause of action
ney held binding. -Cornelius v. Moore, 895.
22(1) (Ala.App.) Declarations of agent not received to establish agency. -American Lumber & Export Co. v. Love, 623.
22(2) (Ala.) When acts and declarations of alleged agent are admissible to show agency stated.-Langham v. Jackson, 757.
41 (L.) Mandate; allegations insuffi- cient to warrant recovery of profits for trac- tors not delivered.-Van Ness v. Louisiana
Farm Machinery Co., 48.
Mandate; petition for commissions and re- covery of advances on tractors not shipped held good.-Id.
III. RIGHTS AND LIABILITIES AS TO THIRD PERSONS.
(A) Powers of Agent.
99 (Ala.) When rule of apparent author- ity can be invoked by one misled to his detri- ment stated.-Langham v. Jackson, 757.
103(10) (Ala.) Power of attorney to broth-
er to sell land held to authorize acceptance of part cash and balance in notes. -Cornelius v. Moore, 895.
insufficient as exception of vagueness. - Dron-124(1) (Ala.App.) Refusal of charges that ette v. Meaux Bros., 411.
228 (L.) When peremptory exception founded on law may be sustained as to part of demand stated. -Succession of Curtis, 412.
agent had no authority to make alleged repre- sentations held error.-American Lumber & Ex- port Co. v. Love, 623.
228 (La) In determining sufficiency of pe- tition, allegations taken as true.-Labourdette 171(4) (Ala.) Principal bound by agent's v. Doullut & Williams Shipbuilding Co., 547.
(D) Ratification. representations when availing himself of con- tract made by agent.-Langham v. Jackson, 757.
352 (Ala.App.) Claim of damages not maintainable in trespass reached by motion to 189(1) (Miss.) Essentials of bill for spe- strike. Cheek v. Odom, 782.
cific performance of contract made by undis- closed agent stated.-Young v. Clark, 180.
362 (1) (Ala.App.) Method of reaching averments in cross-action claiming damages194(2) (Miss.) Instruction as to custom
not recoverable stated. -Robinson v. Stever- son, 910.
XII. ISSUES, PROOF, AND VARIANCE.
and usages held improper to show agent's au- thority to draw draft.-Allen v. Gaddis, 29.
391 (Ala.) Time alleged under videlicet See Guaranty: Indemnity. need not be proved exactly as alleged.-Ray v. Summerlin, 482.
III. DISCHARGE OF SURETY.
'XIII. DEFECTS AND OBJECTIONS, WAIV-108(5) (Ala.) Partial payment before ma-
turity is consideration for extension, and if made without surety's consent, he is discharg-
428 (2) (Ala.App.) Method of reaching ed.-Ray v. Summerlin, 482. averments in cross-action claiming damages V. RIGHTS AND REMEDIES OF SURETY. not recoverable stated. -Robinson v. Steverson, 910.
For practice in particular actions and proceed - 84 (Ala.) Service by publication must be
969 For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
(E) Return and Proof of Service.
134 (Ala.) Personal service of copy of summons held not shown by constable's return. -Morrison v. Covington, 124.
146 (Ala.) Parol proof of service or waiv. er by appearance inadmissible. Morrison v. Covington, 124.
PROHIBITION.
See Intoxicating Liquors,
I. NATURE AND GROUNDS.
5(3) (Ala) Jurisdiction of bill by next friend not destroyed by motion to dismiss on ex parte affidavits of complainant.-Ex parte Minchener, 98.
10(2) (Ala.) Determination of motion for new trial not pre preventable by prohibition.-Ex parte Webster, 909.
PUBLIC IMPROVEMENTS.
See Municipal Corporations, 266-516.
PUBLIC SERVICE COMMISSIONS. 7 (L.) Rate-making power within police power of state.-Baton Rouge Waterworks Co. v. Louisiana Public Service Commission, 710. State may delegate to municipal corporation or commission rate-making powers.-Id.
Power to make rates to govern local utilities placed by law under control of municipality, ex- cluded from Public Service Commission.-Id.
19(2) (Ala) Order sustained on collateral attack unless void.-Alabama Water Co. v. City of Attalla, 490.
PUBLIC SERVICE CORPORATIONS. See Carriers; Electricity; Railroads; Street Railroads; Telegraphs and Telephones.
I. RIGHT OF ACTION AND DEFENSES.
(2) (Ala.) Conditions enabling one to sue to remove recorded deed as cloud on title stated.-Frazier v. Frazier, 118.
Deed delivered to grantee before death of both grantors in violation of agreement held cloud on title.-Id.
II. PROCEEDINGS AND RELIEF. 27 (Ala.) Court of equity has original ju- risdiction to cancel recorded conveyances as cloud on title. Frazier v. Frazier, 118.
39 (Ala.) Cross-bill to quiet title held with- out equity.-Scott v. Scott, 755,
QUO WARRANTO.
I. NATURE AND GROUNDS.
(Ala.) Proceeding in nature of quo war- ranto to test title to office held appropriate.- State v. Thompson, 756.
(C) Companies and Persons Liable for In-
260 (Ala.App.) Company liable for negli- gence of another permitted to use tracks.- Dolcito Quarry Co. v. Cruse-Crawford Mfg. Co., 72.
Company held liable for negligence of em- ployee of quarry company permitted to use tracks.-Id.
266 (Ala.) Railroad and truck owner held jointly and severally liable for injuries to pe- destrian.-Hall v. Seaboard Air Line R. Co., 890.
272 (Ala.App.) Finding quarry company was by permission of rail- road held warranted.-Dolcito Quarry Co. v. Cruse-Crawford Mfg. Co., 72.
(D) Injuries to Licensees or Trespassers in General. 274(2) (Ala.) White man in colored wait- ing room held not trespasser.-American Ry. Express Co. v. Tait, 328.
(F) Accidents at Crossings. 327 (1) (La.) Automobile driver held negli- gent in failing to keep lookout.-Jeansonne v. Teves & Pac. Ry. Co., 410.
327 (3) (Ala.) Care required to pedestrian at crossing.-Southern Ry. Co. v. Cates, 356.
44(1) (Ala.) Counts for injuries at cross- ing by joint wrongdoers held to plead duty and breach with sufficient certainty.-Hall v. Sea- board Air Line R. Co., 890.
346(2) (Ala.) Burden on plaintiff to show facts making statute applicable.-Southern Ry. Co. v Cates, 356.
Evidence held to make prima facie case of negligence, shifting burden of proof. Id.
346(4) (Ala.App.) Burden on company to acquit itself of negligence. Dolcito Quarry Co. v. Cruse-Crawford Mfg. Co., 72.
346(5) (Ala.) Burden of proving contribu- tory negligence on defense.-Southern Ry. Co. v. Cates, 356.
347 (5) (Ala.) Evidence of changes after collision held inadmissible.-Alabama Great Southern R. Co. v. Ensley Transfer & Supply Co., 342.
348(1) (Ala.App.) Finding of negligence in operating car by gravity warranted.-Dol- cito Quarry Co. v. Cruse-Crawford Mfg. Co.,
350(1) (Ala.) Negligence at crossing held for jury. Southern Ry. Co. v. Cates, 356. 350(29) (Ala.) Contributory negligence at guarded crossing held for jury.-Southern Ry. Co. v. Cates, 356.
(H) Injuries to Animals on or near Tracks. 439(2) (Ala.) Averment of place of injury to dog held insufficient.--Alabama Great South- ern R. Co. v Sheffield, 125.
443(1) (Ala.) Finding of no negligence in killing hog sustained.-Smith v. Bugg, 503.
478(1) (Ala.) Complaint for negligent fire held sufficient on demurrer.-Atlanta & St. A. B. R. Co. v. Spivey, 759.
481(1) (Ala.) Exclusion of proof property burned was insured held proper.-Atlanta & St. A. B. R. Co. v. Spivey, 759.
481(2) (Ala.) Evidence sparks from en- gine set other fire held competent.-Atlanta & St. A. B. R. Co. v. Spivey, 759.
engine emitted 481(8) (Ala.) Evidence sparks and cinders competent.-Atlanta & St. A. B. R. Co. v. Spivey, 759.
II. PROSECUTION AND PUNISHMENT. (A) Indictment and Information.
22 (Ala.App.) Indictment held sufficient to show that assaulted party was woman.-Show- ers v. State, 569.
REVIEW. See Ejectment; Forcible Entry and Detainer; See Appeal and Error; Certiorari. Partition; Quieting Title.
1. NATURE AND GROUNDS OF RECEIVER- SHIP.
(A) Nature and Subjects of Remedy. 3(Fla.) Receiver not usually appointed in action instituted alone for such purpose. Armour Fertilizer Works v. First Nat. Bank, 362.
(Fla.) Appointment of receiver discre- tionary.-Armour Fertilizer Works v. First Nat. Bank, 362.
(B) Grounds of Appointment of Receiver.
19 (Fla.) Mere insolvency does not war- rant appointment.--Armour Fertilizer Works v. First Nat. Bank, 362.
II. APPOINTMENT, QUALIFICATION, AND
29(1) (Fla) Power to appoint inherent in court of equity.-Armour Fertilizer Works v. First Nat. Bank, 362.
31 (Fla.) Cannot be appointed by consent of parties, where pleadings do not state cause therefor.-Armour Fertilizer Works v. First Nat. Bank, 362.
IV. MANAGEMENT AND DISPOSITION OF PROPERTY.
(A) Administration in General.
90 (L.) Receiver must take or reject in- separable contract by insolvent as whole.- Jacob v. Roussel, 295.
91 (L.) When receiver of lessee planting
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See Taxation, 623; Vendor and Purchaser.
I. REQUISITES AND VALIDITY OF CON- TRACT.
4 (2) (Miss.) Contract of sale or return" defined.-G. A. Soden & Co. v. T. J. Wilkin- son & Son, 182.
Transaction held to constitute contract of sale and return.-Id.
22(3) (Ala.) Buyer repudiating contract, but receiving, using, or selling goods, liable in assumpsit.-Tuscaloosa Lumber Co. v. Tropi- cal Paint & Oil Co., 236.
22(3) (La.) Evidence held to show con-
tract for sale of aluminum sets. - Illinois Pure Aluminum Co. v. Blancand, 537.
38(8) (Ala.App.) Acts amounting to fraud
in execution of contract entitling buyer to set it aside stated.-Bureau of National Litera- ture v. Griffin, 77.
4834 [New, vol. 16A Key-No. Series] (La.) Illegality of consideration held to affect whole agreement.-J. & G. Lippman v. Rice Millers' Distributing Co., 685.
Seller of rice held bound by food administra- tion's ruling, regardless of correctness.-Id.
52(7) (Ala.App.) Evidence held to show fraud.-Bureau of National Literaturę v. Grif- fin, 77.
company liable for rent stated.-Jacob v. Rous-53(3) (Ala.) Seller's fraud inducing pur-
Lease for term held entire contract, which must be rejected or accepted by receiver as whole.-Id.
RECEIVING STOLEN GOODS.
chaser not to rescind held not established.-
Fribush v. Friedman, 100.
II. CONSTRUCTION OF CONTRACT.
71(5) (Miss.) Manufacturer of railroad ties receiving order may deliver maximum or 8(3) (Fla.) Evidence held sufficient to sus- minimum number.-Ingram Day Lumber Co. v. tain conviction.-Davis v. State, 739. Germain Co., 281.
81(3) (Miss.) Term "as soon as possible" affecting delivery held to be reasonable time.- Ingram Day Lumber Co. v. Germain Co., 281. 83 (Ala.) Seller held under no duty to ship unless buyer furnished shipping instructions and cars.-J. H. Hamlen & Son v. Rosengrant, 217.
III. MODIFICATION OR RESCISSION OF CONTRACT.
(C) Rescission by Buyer.
124 (L.) No rescission without restora- tion of status quo. City Sav. Bank & Trust Co. v. Goodman, 66.
79(1)(Ala.) Elimination of resident de- fendant by affirmative charge, given at his re-172 (La) Commandeering of rice before
quest, held not to entitle nonresident defend- ant to removal.-Southern Ry Co. v. Williams,
IV. PERFORMANCE OF CONTRACT. (C) Delivery and Acceptance of Goods. shipment held to relieve seller from liability for nonshipment.-J. & G. Lippman v. Rice Millers' Distributing Co., 685.
172 (Miss.) Seller prevented from ship- ping to purchaser because of subsequent car service orders excused from performance.- Stoner & Co. v. Blocton Export Coal Co., 5. where plaintiff himself in default.-J. H. Gar- rison & Son v. Sherill Hardwood Lumber Co.,
torney's fees and expenses in absence of show-174 (La) No damages for nonperformance
80 (Miss.) Defendant not entitled to at- ing of willfulness, malice or fraud.-Mars v. Germany, 23.
RETROSPECTIVE LAWS, See Statutes, 267
176(1) (La) Performance of sales con- tract cannot be demanded after unreasonable delay and on advancing market.-J. H. Garri- son & Son v. Sherill Hardwood Lumber Co., 253.
181(9) (Ala.) Refusal to permit seller to prove efforts to procure cars held error.-Way
For cases in Dec.Dig. & Am. Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER Exclusion of buyer's letter demanding ship-at time of breach.-Illinois Pure Aluminum Co. ment after numerous extensions of time held error.-Id.
181(11) (La.) Evidence held to show that neither party deemed contract breached until government commandeered goods.-J. & G. Lippman v. Rice Millers' Distributing Co., 685.
(D) Payment of Price.
191 (L.) Credit on purchaser's note on exchange of motor cars determined. Gulf Mo- tor Co. v. Avery, 396.
263 (Ala.) Implied warranty of title,
418(2) (Miss.) Measure of damages for failure to deliver stated. - Stoner & Co. v. Blocton Export Coal Co., 5.
418 (3) (La.). Measure of damages for breach by seller of contract of sale stated.-Illi- nois Pure Aluminum Co. v. Blancand, 537.
418(4) (Ala.) Buyer held entitled to nomi- nal damages only where goods have no market value.-J. H. Hamlen & Son v. Rosengrant,
418(7) (Miss.) Purchaser not required_to buy elsewhere. -Stoner & Co. v. Blocton Ex- port Coal Co., 5.
where seller in possession. -Edwards v. Beard,420 (Ala.) Evidence of plaintiff's ability
Implied warranty of title, where seller in apparent possession.-Id.
Implied warranty of title in sale by agent. -Id.
267 (La) Warranty of tractor held not to exclude responsibility for negligence.-Elfant v. Trahan, 404.
288(2) (Ala.) Purchaser may retain goods and sue for breach of warranty.-Nashville Broom & Supply Co. v. Alabama Broom & Mattress Co., 132.
288(4) (La.) Purchaser of tractor held precluded from alleging defects therein, by de- lay in making complaint.-Elfant v. Trahan, 404.
288 (4) (Miss.) Breach of warranty held not available to buyer because of failure to notify seller of defects within time specified in contract.-McPherson v. Gullett Gin Co., 16. 288(6) (La.) Purchaser of tractor held es- topped to resist payment of price because guar- anteed horse power not developed.-Elfant v. Trahan, 404.
VII. REMEDIES OF SELLER. (D) Resale.
334 (Miss.) Rule as to place for resale of refused goods, stated.-J. Lischkoff, Inc., v. Cincinnati Bargain House, 278.
339 (Miss.) Evidence of market for refus- ed goods at place of delivery admissible in suit for difference between contract and resale price.-J. Lischkoff, Inc., v. Cincinnati Bargain House, 278.
VIII. REMEDIES OF BUYER. (C) Actions for Breach of Contract. 404 (Ala.App.) Buyer may accept or re- fuse goods, but if he accepts cannot claim breach of contract.-Robinson v. Steverson, 910.
to carry out contract held sufficient to go to jury.-B. F. Kay & Son v. Alabama Cotton & Grain Co., 863.
(D) Actions and Counterclaims for Breach of Warranty.
428 (Ala.App.) Plea held to set up breach of warranty, and hence to allege proper set-off. -Robinson v. Steverson, 910. 434 (Ala.) Complaint against seller warranty of title held to show claim litigated by buyer with third person was title superior to seller's. Edwards v. Beard, 101.
435(1) (Ala.App.) Plea held to set up breach of warranty.-Robinson v. Steverson, 910.
435(4) (Ala.) Plea of set-off held defec- tive.-Ex parte Steverson, 912.
442 (2) (Ala.) Measure of damages for breach of warranty stated.-Nashville Broom & Supply Co. v. Alabama Broom & Mattress Co., 132.
442 (2) (Ala.App.) Measure of damages for breach of warranty stated. --Robinson v. Ste- verson, 910.
442 (67) (Ala.App.) Inconvenience and ex- pense in connection with lumber not recover- able for breach of warranty. -Robinson v. Ste- verson, 910.
442 (12) (Ala.) Costs and attorney's fees of buyer, in action against third person tak- ing possession under claim of superior title, elements of damage for breach of warranty of title.-Edwards v. Beard, 101.
446(3) (Ala.) Instruction on damages for breach of warranty held properly refused.- Nashville Broom & Supply Co. v. Alabama Broom & Mattress Co., 132.
SCHOOLS AND SCHOOL DISTRICTS.
11. PUBLIC SCHOOLS.
411 (Ala.) Pleadings held to indicate con- (E) District Debt, Securities, and Tax- tract was for specific cotton rather than for specific amount.-B. F. Kay & Son v. Alabama 103(2) (Al) Failure to ascertain exist- Cotton & Grain Co., 863.
413 (Ala.) Proof of actual weight of cot- ton to be delivered admissible where estimated weight alleged.-B. F. Kay & Son v. Alabama Cotton & Grain Co., 863.
417 (Ala.) Plaintiff's compliance with con- tract as to place of delivery held sufficiently shown.-B. F. Kay & Son v. Alabama Cotton & Grain Co., 863.
418(2) (Ala.) In absence of shipping in- structions from buyer, etc., seller held not in default.-J. H. Hamlen & Son v. Rosengrant,
418(2) (Ala.) Measure of buyer's damages stated.-Way v. Waters-Tonge Lumber Co.,
Buyer's damages fixed at expiration of rea- sonable time after buyer's last demand for de- livery.-Id.
418(2)(La.) Measure of damages for fail- ure to deliver railroad ties sold stated.-J. H. Garrison & Son v. Sherill Hardwood Lumber Co., 253.
418(2) (La.) Damages for failure to de- liver determinable by market value prevailing
ence of jurisdictional fact held to validate or- der for special tax election.-Wall-Hay-Wall Lumber Co. v. Mathews, 824.
Curative statute held not to reach failure to ascertain fact on which power to order elec- tion for tax levy depended.-Id.
105 (Ala.) School taxes, if illegally collect- ed, may be recovered back under statute.- Wall-Hay-Wall Lumber Co. v. Mathews, 824. 107 (Ala) Complainants in suit to enjoin collection of special school tax held to have ade- quate remedy at law.-Wall-Hay-Wall Lumber Co. v. Mathews, 824.
(F) Claims Against District, and Actions.
114 (Miss.) Consolidated school district cannot be sued.-Nabors v. Holly Bluff Consol. School Dist., 177.
Reasonable ground to believe that debtor in- tends to conceal or part with property unneces- sary under statute.-Id.
12(La) Putting debtor in default unneces- sary where contract violated.-Gueydan v. Т. P. Ranch Co., 541.
SPECIFIC PERFORMANCE. II. CONTRACTS ENFORCEABLE.
75 (Ala.) Not maintainable to regulate du- ties extending over series of years and involv- ing personal skill.-Alabama Water Co. v. City of Jasper, 486.
80 (L.) Courts will not enforce or re- quire specific performance of contract preclud- ing resort to courts. Myevre v. Liberty Realty & Securities Co., 694.
III. GOOD FAITH AND DILIGENCE. 96 (Ala.) Purchaser need not tender per- formance before filing bill, where time is not of essence.-Forrester v. Granberry, 551.
IV. PROCEEDINGS AND RELIEF. 121(11) (La.) Evidence held to show that title offered vendee good by prescription.- Moseley v. Gilham, 403.
127(1)(La.) One enforcing specific per- formance entitled to accounting for fruits and revenues received by defendant.-Fassbender v. Ghergich, 436.
II. GOVERNMENT AND OFFICERS.
48 (Miss.) Authority of Governor as to ap- proval of bonds of state officials stated.-Broom v. Henry, 602.
State officer, whose bond insufficient, requir- ed to be notified to give new bond.-Id.
51 (Miss.) Governor cannot fill alleged va- cancies for insufficiency of bond until notice for new bond has been given.-Broom v. Henry, 602.
III. POWERS, DUTIES, AND LIABILITIES. 111 (Ala.App.) Immunity of sheriffs, where claim interposed for trial of right of property, does not apply to constables.-Cheek v. Odom, See Frauds, Statute of.
134 (Ala.App.) All parties assisting in wrongful levy held proper parties defendant.- Cheek v. Odom, 782.
IV. LIABILITIES ON OFFICIAL BONDS.
154 (Ala.) Surety on official bond of deputy sheriff not liable for individual act. Burge v. Scarbrough, 653.
168(1) (Ala.) Count for assault and bat- tery must allege official responsibility to im- pose liability on bond.-Burge v. Scarbrough, 653.
Count for wrongful arrest held to state cause of action on official bond.-Id.
Count for malicious prosecution held not to state cause of action on official bond.-Id. Count held to state cause of action for as- sault and battery on official bond.-Id.
171 (Ala.) Undisputed evidence that wrongful act alleged as breach of bond was done individually required direction of verdict for surety.-Burge v. Scarbrough, 653.
39 (Ala.) Charter parties construed ac- cording to intent of parties as manifested by whole instrument. - Wye Shipping Co. v. Hun- ter, Benn & Co., 475.
STATUTE OF LIMITATIONS.
See Limitation of Actions.
For statutes relating to particular subjects, see the various specific topics.
II. GENERAL AND SPECIAL OR LOCAL
97(2) (Fla.) Statute relating to special road and bridge district in certain county held not invalid as a special and local law. State v. Fearnside, 256.
III. SUBJECTS AND TITLES OF ACTS.
109 (Ala.) Purpose of constitutional pro- vision as to expression of subject in title stated. -Board of Revenue v. Ikner, 827.
110/2(1) (Ala) Section exempting certain beats of county from act for establishment, etc., of stock law districts held not unconstitutional as contrary to title.-Board of Revenue v. Ik- ner, 827.
114(1)(Ala.) Title of act held sufficiently broad to include regulations affecting public warehouseman's bonds. Faircloth-Segrest
Mercantile Co. v. Roach, 908.
118(1) (Fla.) Statute denouncing volun- tary drunkenness and section providing pun- ishment therefor held void.-Frazier v. State, 155.
148 (Ala.) Dispatch money and address 120(5) (L.) Omission of part of title in commission held advancements and not payable amendatory act held not to invalidate it.-Vil- on loading at par value of pounds sterling.- lage of South Highlands v. Lagier, 287.
Wye Shipping Co. v. Hunter, Benn & Co. 475.121(1) (Miss.) Law levying privilege tax Charterer held liable for amount wrongfully on motor vehicles held not violative of consti- receipted for as advancement, notwithstanding tutional provision as to titles.-Roseberry v. cesser clause.-Id.
123 (4) (Fla.) Statute relative to special road and bridge district not violative of provi- sion requiring act to deal with one subject to be expressed in title. State v. Fearnside, 256.
125 (7) (Ala.) Title of act changing num- ber of state highway commissioners held not
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