252(6) (Ala.App.) Charge not justified by evidence properly refused.-Cheek v. Odom, 782.
252(11) (Ala.) Instruction as to custom of switching cars without connecting air brakes held properly refused as abstract.-Southern Ry. Co. v. Dickson, 665.
IV. MANAGEMENT AND DISPOSAL OF TRUST PROPERTY.
247 (Ala.) Cestui que trust is real party in interest in equity.-Agee v. Agee's Cash Store No. 2, 809. UNIONS.
253(1) (Ala.) Charges ignoring part of See Trade Unions. case are misleading.-Mobile Light & R. Co. v. Gadik, 837.
253 (3) (Ala.) Instructions ignoring issue as to proper recordation of mortgage of prop- erty involved, held properly refused.-Gay & Bruce v. W. B. Smith & Sons, 633.
253(6) (Ala.) Requested instruction held properly refused as omitting consideration of evidence. Nashville Broom & Supply Co. v. Alabama Broom & Mattress Co., 132,
(E) Requests or Prayers.
256 (6) (Ala.) One complaining of charge misleading should request explanatory charge.-Farrell V. Anderson-Dulin-Varnell Co., 205.
260(1) (Ala.) Refusal of requested charg- es covered by oral charge not error.-Eggleston v. Wilson, 89; Alabama Great Southern R. Co. v. Ensley. Transfer & Supply Co., 342.
USE AND OCCUPATION.
ol (La.) Good faith holder not liable for or damages for occupancy.-Davis v. Moore, 691.
8 (Ala.) Count of complaint in action for use and occupation held demurrable.-Davis v. 9 (Ala.) Exclusion of evidence showing du- Reed, 226. ration of occupation under lease and after it expired held error.-Davis v. Reed, 226.
Evidence of title as a basis of action or de- fense improper.-Id.
Evidence affecting plaintiff's title held prop- erly excluded.-Id.
Deed to plaintiff of land held admissible to show assignment of right to sue.-Id.
Deeds to plaintiff showing title held properly excluded.-Id.
Letter by plaintiff's grantor's daughter claim- 260(1) (Ala.) Requested instruction sub-ing of defendant interest in rents held properly stantially covered properly refused.-Nashville excluded.-Id. Broom & Supply Co. v. Alabama Broom & Mattress Co., 132.
260(1) (Ala.) Refusal of charge substan- I. USURIOUS CONTRACTS AND TRANSAC- tially and fairly given by court's oral charge not error.-Cooledge v. Collum, 143.
260(1) (Ala.) No reversal for refusal of 15 (Ala.) Contract to pay interest at legal general charges covered by oral charge.-Far-rate held not rendered usurious by ex parte rell v. Anderson-Dulin-Varnell Co., 205.
260(1) (Ala.) Refusal of charges covered entries on mortgagee's books.-Driver v. John- by charges given not error.-Burge v. Scar-47 (Miss.) Note bearing highest contract brough, 653. rate, interest payable semiannually, and de- faulting interest becoming principal, usurious.- Rogers v. Rivers, 385.
260(1) (Ala.App.) Refusal of charge cov ered by general charge not error.-Cheek v. Odom, 782.
260(10) (Ala.) Refusal to instruct further that no damages were claimed for death held proper.-Southern Ry. Co. v. Cates, 356.
261 (Ala.) Requested instruction requiring proof of geographical fact not existing held properly refused.-B. F. Kay & Son v. Ala- bama Cotton & Grain Co., 863.
262 (Ala.) Giving of requested charge held not to estop defendant from requesting others.-Gray v. Pankey, 880.
(G) Construction and Operation. 295 (5) (Ala.) Charge as to invalidity of usurious contract held sufficient.-Cooledge v. Collum, 143.
295(5) (Ala.) Instruction as to notice from recordation of mortgage given under name by which mortgagor generally known held not er- roneous.-Ingram v Watson, 557
296(2) (Ala.) Defects in charge cured by other charge.-John R. Thompson & Co. v. Vil- dibill, 139.
VIII. CUSTODY, CONDUCT, AND DELIBER-
(B) Rights and Remedies of Parties.
102(1) (Ala.) Rule as to right to recover back usurious payments stated.-Cooledge v. Collum, 143.
VENDOR AND PURCHASER.
1. REQUISITES AND VALIDITY OF CON- TRACT.
3(4) (Ala.) Contracts held agreements to convey lands, and not options.-Erswell v. Ford, 96.
31 (Ala.) Surrender of possession to ven- dor's grantor held to entitle purchaser to re- scind for mistake.-Bain v. Guntersville Realty Co., 128.
44 (Ala.) Evidence of fraudulent misrepre- sentation to entitle to rescission must be clear and convincing.-Bain v. Guntersville Realty Co., 128.
Evidence held not sufficient to show fraudu- lent misrepresentation entitling purchaser to rescission. Id.
Evidence held to justify rescission of land contract because of mistake as to boundary.
44 (La.) Sales; fraud of broker releasing agency and subsequently purchasing property held not shown.-Fassbender v. Ghergich, 436. II. CONSTRUCTION AND OPERATION OF CONTRACT.
78 (Ala.) Time not generally regarded as of essence in equity.-Forrester v. Granberry, 551. III. MODIFICATION OR RESCISSION OF CONTRACT.
(B) Rescission by Vendor. 95(1) (La.) Sales; installment purchaser's failure to insure as agreed held waived by ven-
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
(C) Rescission by Purchaser. 107 (Ala.) Purchaser of land held not enti- tled to rescission of vendor's contract with ven-
dor's grantor.-Bain v. Guntersville Realty Co.,
123 (Ala.) Actual tender of rents collected held not essential to bill for rescission by buy- er.-Bain v. Guntersville Realty Co., 128.
(A) As to Each Other.
191 (Ala.) Purchaser under executory con- tract entitled to possession before payment of price.-Forrester v. Granberry, 551,
191 (La.) Sales; petition for recovery of possession by purchasers after repair of prop- erty by vendor held not subject to exception. -Cavell v. Trichell, 249.
196 (Ala.) Grantee of land entitled to re- cover of occupant rent subsequently accruing or compensation for use and occupancy.-Davis v. Reed, 226.
200 (La.) Sales; vendor must repair after damage by fire, if installment purchaser has not agreed to do so.-Cavell v. Trichell, 249.
(C) Bona Fide Purchasers. 227 (Ala.) Purchaser held to have pur- chased lot with notice of dedication.-Manning v. House, 772.
231(1) (La.) Sales; purchasers on faith of public records not bound by knowledge, ex- cept that disclosed therein.-Cole v. Richmond, 419.
239 (9) (La.) Sales; bona fide purchaser for value acting on recorded title not affected by fraud, want of consideration, or secret equi- ties. Cole v. Richmond, 419.
VI. REMEDIES OF VENDOR. (A) Lien and Recovery of Land.
254(2) (Ala.) Lien on land for unpaid pur- chase money.-Posey v. Dodson, 488.
254(4) (Miss.) Deed conveying land in con- sideration of third party's note held to give vendor equitable or implied lien.-Green Rule. 380.
II. DOMICILE OR RESIDENCE OF PAR-
31 (La.) Exception to venue_rule, stated.— John A. Wogan, Inc., v. Folse, 540. Defendant held entitled to be sued in parish where he had his principal residence.-Id. VERDICT.
See Criminal Law, 875-878.
2 (Ala.) Warehouseman's bond, executed by individuals rather than surety company, held properly rejected.-Faircloth-Segrest Mercan- tile Co. v. Roach, 908.
WATERS AND WATER COURSES. See Drains.
II. NATURAL WATER COURSES. (C) Pollution.
77 (Ala.) Complaint for pollution of stream held not demurrable.-Tennessee Coal, Iron & R. Co. v. Wilhite, 135.
Testimony and instruction as to damages from overflow held not within complaint for pollution.-Id.
Evidence as to dying of trees on other prop- erty and overflow held inadmissible in action for pollution of stream.-Id.
VIII. ARTIFICIAL PONDS, RESERVOIRS, AND CHANNELS, DAMS, AND FLOWAGE.
171(1) (Ala.) Railroad constructing cul- vert must use ordinary care-Atlanta & St. A. B. Ry. Co. v. Knight, 233.
171(1) (Miss.) Railroad's failure to pro- vide passageway for water held not proximate cause of injury.-Illinois Cent. R. Co. v. Wright, 1.
179(3) (Ala.) Evidence of conditions be- fore and after construction of railroad culvert held competent.-Atlanta & St. A. B. Ry. Co. v. Knight, 233.
Evidence held competent on question of dam- ages to land by flowage.-Id.
Evidence held admissible as showing knowl- edge of defects in railroad culvert.-Id. Evidence of injuries to stock from flowage held competent.-Id.
179(6) (Ala.) Cause of loss of stock held for jury.-Atlanta & St. A. B. Ry. Co. v. Knight, 233.
IX. PUBLIC WATER SUPPLY. (A) Domestic and Municipal Purposes.
201 (Ala.) Citizen or taxpayer may sue to enjoin water company's violation of public duty, though city might sue.-Alabama Water Co. v. City of Jasper, 486.
Citizen may maintain action against water company to compel performance of duty owing him under franchise.-1d.
266 (7) (Ala.) Right to foreclose vendor's lien not barred by suit and judgment at law.-203 (6) (Ala.) Charter and statutes held not Posey v. Dodson, 488.
281 (1) (Ala.) Burden on vendee to show lien has been waived.-Posey v. Dodson, 488. 284 (Miss.) Whether vendor waived ven- dor's lien held question of fact for trial court. -Green v. Rule, 380.
VII. REMEDIES OF PURCHASER. (A) Recovery of Purchase Money Paid. 334 (5) (La.) Sales; deposit held recover- able by purchaser where property encroached on adjoining owner. Jacobs v. Freyhan, 726. 341(5) (La.) Sales; 1 per cent. of pur- chase price held recoverable as attorney's fees for examining title.-Jacobs v. Freyhan, 726. Sales; outlay for certificates held recoverable by purchaser on rejecting title.-Id.
to invest city with absolute power to suspend Public Service Commission's power to regulate water rates.-Alabama Water Co. v. City of Attalla, 490.
Public Service Commission held empowered to fix water rates, notwithstanding lease be- tween city and water company fixing rates.-Id.
203 (6) (La.) City of Baton Rouge held au- thorized to establish rates to exclusion of Public Service Commission.-Baton Rouge Wa- terworks Co. v. Louisiana Public Service Com- mission, 710.
Municipality prior to Constitution had im- plied power to fix rates.-Id.
Municipality authorized to fix rates by com- pulsion.-Id.
(Ala.) Injunction suit held col- 203 (12) lateral attack on Public Service Commission's
rate order.-Alabama Water Co. v. City of At- VII. RIGHTS AND LIABILITIES OF DEV- talla, 490.
18(1) (Ala.) Firearms "dangerous instru- mentalities."-American Ry. Express Co. v. Tait, 328.
ISEES AND LEGATEES.
(H) Void, Lapsed, and Forfeited Devises and Bequests, and Property and In- terests Undisposed of.
865(4) (La.) Share of community proper- ty not disposed of by will held to descend to of testator's surviving widow.-Succession
See Descent and Distribution; Executors and Pujol, 677. Administrators.
II. TESTAMENTARY CAPACITY.
WITNESSES.
See Depositions; Evidence.
52(3) (La.) No presumption of execution of nuncupative will during lucid interval where not prepared personally by testatrix.-Rodri- (C) guez v. Succession of McFettridge, 68.
Burden of showing that will was not execut- ed during lucid interval stated.-Id.
55(1)(La.) Evidence held to require find- ing that testatrix was wanting in testamentary capacity.-Rodriguez v. Succession of McFett- ridge, 68.
III. CONTRACTS TO DEVISE OR BE- QUEATH.
58(1) (Ala.) Agreement to bequeath in consideration of care during life not contrary to public policy.-Taylor v. Cathey, 834.
Testimony of Parties or Persons In- terested, for or against Representa- tives, Survivors, or Successors in Ti- tle or Interest of Persons Deceased or Incompetent.
128 (Miss.) Claimant policy by assignment and delivery from de- ceased father, whose estate not interested, held competent; "claim against estate of deceased person."-Garner v. Townes, 20.
159(4) (Ala.) Question prima facie objec- tionable as calling for statement by deceased person whose estate was interested.-Earnest v. Fite, 637.
Testimony of conversation between defend- 63 (Ala.) Letters containing contract must ant and deceased father properly excluded.-Id. be construed together.-Taylor v. Cathey, 834.159 (7) (Ala.) Defendant could not state 68 (Ala.) Action maintainable on contract deceased father gave him property claimed by to bequeath in consideration of care.-Taylor v. adverse possession.-Earnest v. Fite, 637. Cathey, 834.
General affirmative charge for defendant im- proper if under certain aspects of evidence plaintiff could recover.-Id.
IV. REQUISITES AND VALIDITY. (G) Revocation and Revival.
186 (Ala.) Fact that writing declared will revoked, instead of revoking in præsenti, imma- terial.-Luther v. Luther, 497.
Will held revoked by writing.-Id.
V. PROBATE, ESTABLISHMENT, AND AN- NULMENT.
290 (Ala.) Burden showing revocation on contestants.-Luther v. Luther, 497.
370 (Ala.) Court required to search plead
(A) Taking Testimony in General. 240 (2) (Ala.App.) Permission of leading questions in sound discretion of judge.-Young- blood v. State, 87.
255 (2) (Ala.) Permitting witness to re- fresh memory from memorandum of articles sold to defendant held without error.-Bailey v. Griffin, 242.
255(4) (La.) Use of certificate of baptism held prejudicial, through certificate excluded. -State v. Larocca, 720.
Certificate of baptism held not properly used to refresh memory.-Id.
(B) Cross-Examination and Re-Examina.
267 (Ala.App.) Much latitude allowed in discretion of court as to cross-examination.— Webster v. State, 201.
ing for sufficient ground of demurrer to ground268(1) (Ala.) Witness held properly cross- of contest of will.-Luther v. Luther, 497.
VI. CONSTRUCTION. (A) General Rules. 439 (Ala.) Not purpose of construction to substitute will of another for that of testator. -Naugher v. Hinson, 221.
examined as to employment.-Boyette v. Brad- ley, 647.
268(1) (Ala.App.) Cross-examination injured party in prosecution for assault as to brooding over difficulty with defendant evening before held improper.-Sampson v. State, 305. 268(1) (Ala.App.) Cross-examination of defendant's witnesses held not improper.—Hasty v. State, 561.
478 (La.) Devise by implication held not permissible where testator did not dispose of his entire property.-Succession of Pujol, 677.270(1) (Ala.) Injection of collateral mat- ter by defendant held to warrant question on cross-examination.-Alabama Great Southern R. Co. v. Ensley, Transfer & Supply Co., 342. Character and extent of cross-examination as to collateral matters discretionary.-Id.
(F) Vested or Contingent Estates and In- terests.
634 (8) (Ala.) Remainder interests of ben- eficiaries held to vest on testator's death.- Hughuley v. Burney, 817.
(H) Estates in Trust and Powers. 691 (Ala.) Powers to be defined not re- stricted. Naugher v. Hinson, 221.
(I) Actions to Construe Wills. 695 (3) (Miss.) Equity will not exercise jurisdiction merely to interpret will, without request for further relief.-Kendrick v. Ken- drick, 181.
702 (Ala.) Bill held to make proper case for construction of will.-Naugher v. Hinson,
270(2) (Ala.) Refusing cross-question amounting to self-serving declaration of irrel- evant matter not error.-Hill v. Hill, 340. 275 (2) (Ala.) Sustaining objection to cross-examination of plaintiff as to former business practice held not error.-Richardson v. Stinson, 209.
277(1) (Ala.App.). Cross-examination of defendant in murder prosecution securing repe- tition of statement made on direct examination held not erroneous.-Erwin v. State, 79.
277(2) (Ala.App.) Cross-question whether defendant deputy sheriff had reported deceas- ed's violation of prohibition law testified to heid proper.-Savage v. State, 919.
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
280 (Ala.) Objection to question on cross- examination held properly sustained as argu- mentative.-Stout v. Limestone County, 352. IV. CREDIBILITY, IMPEACHMENT, CON- TRADICTION, AND CORROBORATION.
317(1) (Ala.App.) When jury may reject all testimony of witness.-Grisby v. State, 82. 317(2) (Ala.) Rule stated for considera- tion of witness' testimony found to be willfully and corruptly false on a material issue.-Scott v. State, 211. state's witness 317(4) (Ala.App.) That was gambling elsewhere at time of shooting was material to discredit him.-Savage v. State,
(B) Character and Conduct
as to 337 (2) (Ala.App.) Impeachment character of accused limited to purpose of af- fecting credibility unless he puts character in issue.-Brown v. State, 616.
344(1) (Ala.App.) Proof that witness ran from still when raided held admissible.-Carter v. State, 199.
345 (2) (Ala.App.) Conviction of manufac- turing whisky cannot be used to impeach repu- tation.-Webster v. State, 201.
357 (Ala.App.) Question to character wit- ness properly sustained.-McGimpsey v. State,
(C) Interest and Bias of Witness.
363(1) (Ala.App.) Evidence of law viola- tion by witness and similar charges pending against him would not show bias or interest. -Webster v. State, 201.
367(1) (Ala.App.) Evidence that witness was surety on defendant's appearance bond ad- missible to show interest.-Dawkins v. State,
374(1) (Ala.App.) Testimony held admissi- ble as affecting credibility of witness.-Hasty v. State, 561.
(D) Inconsistent Statements by Witness.
379(1) (Ala.) Conductor's admissions ad- missible to impeach him.-Bradley v. Lewis, 324.
380 (2) (Miss.) Testimony of accused may be impeached by showing his contradictory tes- timony in committing court.-Shaw v. State, 519.
388(10) (Miss.) Testimony in contradic- tion of witness, denying making of inconsistent statements, held admissible, though variant in some respects from predicate laid.-Cain v. State, 578.
391 (Ala.) Question to impeaching witness held improper as substantial departure from preliminary question propounded to witness sought to be impeached.-Southern Ry. Co. v. Dickson, 665.
(E) Contradiction and Corroboration of Witness.
414(1) (Ala.) Expressions "habitual drunk- enness" and "habit of getting drunk" held ob- jectionable as conclusion on whole issue, but corroborating evidence.-O'Byrne v. O'Byrne,
414(2) (Ala.App.) Testimony trial not admissible to corroborate witnesses. -Bush v. State, 307. Witness not corroborated by proving that he made similar statements prior to time of tes- tifying.-Id.
WORDS AND PHRASES. "Absence."-Van Deren v. Lory (Fla.) 794. communication.". "Absolutely privileged Grantham v. Wilkes (Miss.) 673. First Nat. "Alteration."-Moore
"Arising out of employment."-Ex parte Ter- ry (Ala.) 768.
"Belief."-Ex parte State ex rel. Attorney Gen- eral (Ala.) 312.
"Blind corner."-Mobile Light & R. Co. v. Gadik (Ala.) 837.
"Brothers-in-law."-Cruce v. State (Fla.) 264. "Building site."-Myevre v. Liberty Realty & Securities Co. (La.) 694. "Caption of indictment."-Williams v. State (Ala. App.) 573.
"Cashier's check."-Anderson v. Bank of Tu- pelo (Miss.) 179. "Charged."-Chappell v. State (Ala. App.) 75. "Claim against estate of deceased person."- Garner v. Townes (Miss.) 20.
"Collision."-St. Paul Fire & Marine Ins. Co. v. American Compounding Co. (Ala.) 904; Etna Casualty & Surety Co. v. Cartmel (Fla.) 802.
"Conjecture."-Southern Ry. Co. v. Dickson (Ala.) 665. "Contract of sale or return."-G. A. Soden & Co. v. T. J. Wilkinson & Son (Miss.) 182. "Conviction."-Youngblood v. State (Ala. App.)
First Nat. Bank of Brooksville (Fla.) 362. "Creditors' bill."-Armour Fertilizer Works v. "Cruel or unusual punishment."-State v. Par- ker (Fla.) 260. "Dangerous instrumentality."-American Ry. Express Co. v. Tait (Ala.) 328. "Dedication."-Manning v. House (Ala.) 772. "Domicile."-Lucky v. Roberts (Ala.) 878. "Entered of record in minutes of court."-State v. Ellis (Ala.) 866.
"Fee-simple title."-Campbell v. Richmond Ins. Co. (La.) 679. "Final order."-Theo. Hirsch Co. v. Scott (Fla.) 157.
"Fixed."-Youngblood v. State (Ala. App.) 87. "Fixed conviction of guilt arising out of evi- dence."-Youngblood v. State (Ala. App.)
87. "Flight."-Gilbert v. State (Ala. App.) 566. "F. O. b. cars."-J. H. Hamlen & Son v. Ro- sengrant (Ala.) 217.
"Fortuitous event."-Thompson v. Commercial Nat. Bank (La.) 688. "Further."-Bouchelle v. State Highway Com- mission (Ala.) 884.
"Good will."-Collas v. Brown (Ala.) 769. "Grandchildren."-Jenkins v. Harris (Miss.) V. Harris
"Great-grandchildren."-Jenkins (Miss.) 280.
"Habeas corpus."-State v. Logan (Fla.) 173. "Habitual drunkenness."-O'Byrne v. O'Byrne (Ala.) 781. "Honest."-American Cigar Co. v. Fabacher (La.) 299.
"Impact."-St. Paul Fire & Marine Ins. Co. v. American Compounding Co. (Ala.) 904. V. State "Indirectly interested."-Bouchelle Highway Commission (Ala.) 884. "Intentional injury."-Alabama Great Southern R. Co. v. Ensley Transfer & Supply Co., (Ala.) 342. orders or decrees."-Theo. "Interlocutory Hirsch Co. v. Scott (Fla.) 157. "Land."-Dominion Land Co. v. Stark (La.)
"Larceny."-Economu v. State (Ala. App.) 85. "Log."-Ladnier v. Ingram Day Lumber Co. (Miss.) 369.
"Manslaughter in first degree."-Savage v. State (Ala. App.) 919.
"Murder in second degree."-Cruce v. State (Fla.) 264.
"Niece."-Capps v. State (Fla.) 172. "Nonresident."-Lucky v. Roberts (Ala.) 878. "Object."-St. Paul Fire & Marine Ins. Co. v. American Compounding Co. (Ala.) 904. "Outlaw strike."-American Ry. Express Co. v. Johnson (Fla.) 743.
"Owner."-Robinson-Slagle Lumber Co. v. Ru- dy (La.) 296.
"Permanent employment."-Rape v. Mobile & O. R. Co. (Miss.) 585. "Possession."-Bridgeforth v. State (Ala. App.) "Premises."-Matthews v. State (Miss.) 18. "Presentation."-Southern Ry. Co. v. Williams (Ala.) 203.
"Privileged communication."-Grantham v. Wil- kes (Miss.) 673.
"Property."-Garner v. Townes (Miss.) 20. "Proximate cause."-Illinois Cent. R. Co. v. Wright (Miss.) 1.
"Qualifiedly privileged communication."— Grantham v. Wilkes (Miss.) 673.
"Reasonable doubt."-Youngblood V. State (Ala. App.) 87.
"Reckoning."-Husch v. State (Ala.) 321. "Return to the state."-Van Deren v. Lory (Fla.) 794.
"Saw log."-Ladnier v. Ingram Day Lumber Co. (Miss.) 369.
"Saw log timber."-Ladnier v. Ingram Day Lumber Co. (Miss.) 369.
"Sober."-American Cigar Co. v. Fabacher (La.) 299.
"Stated."-Chappell v. State (Ala. App.) 75. "Strike."-American Ry. Express Co. v. John- son (Fla.) 743.
"Sufficient means."-Young V. State (Ala. App.) 200.
"Timber."-Ladnier v. Ingram Day Lumber Co. (Miss.) 369.
"To any person."-Strickland v. State (Miss.) 184. "Transaction of business in state."-Houston Canning Co. v. Virginia Can Co. (Ala.) 104. "Uncle."-Capps v. State (Fla.) 172. "Wanton injury."-Alabama Great Southern R. Co. v. Ensley Transfer & Supply Co. (Ala.) 342.
"Written contract."-Solomon v. David Roths- child & Co. (Ala.) 230.
WORKMEN'S COMPENSATION ACTS. See Master and Servant, 351-419.
WRIT OF ERROR.
See Appeal and Error.
See Assistance, Writ of; Attachment; Certio- rari; Execution; Habeas Corpus Injune- tion; Mandamus; Process; Prohibition; Quo Warranto; Replevin; Sequestration.
« 이전계속 » |