1143 INDEX-DIGEST For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 42 (Mo.) Effect of dismissal, in prosecution of similar suit, stated.-State ex rel. Burns v. Shain, 591. II. INVOLUNTARY. 36(3) (Ky.) Evidence held to show passway through uninclosed woodland was used as a matter of right.-Starks v. Hobdy, 867. II. EXTENT OF RIGHT, USE, AND OB- 60(1) (Tex.Civ.App.) Dismissal for want44(1) (Ky.) Title by adverse use is good of prosecution proper on refusal to proceed for all purposes.-Haffner v. Bittell, 223. against defendants remaining after death of one44(2) (Ky.) Adverse possession of fenced of them.-Chaffin v. Wm. J. Lemp Brewing Co., lane is not limited to wagon tracks. Haffner v. Bittell, 223. 715. 60(9) (Tex.Civ.App.) Dismissal of intervention proper, where intervener failed to appear on date set for trial.-Chaffin v. Wm. J. Lemp Brewing Co., 715. DISTRICT AND PROSECUTING (Tex.) "Organization" of criminal district court includes district attorney.-Harris County v. Crooker, 652. 5(1) (Tex.) District attorney of Harris county not limited to fees earned in criminal district court.-Harris County v. Crooker, 652. DIVORCE. 61(8) (Ky.) Uncontroverted allegation detitle plaintiff to injunction.-Mustain v. Vinfendant's title was champertous does not encent, 867. 69 (Ky.) Evidence not confining damages to appurtenant land held incompetent.-Harp v. Brookshire, 177. EJECTMENT. on I. RIGHT OF ACTION AND DEFENSES. must recover 9(3) (Ky.) Plaintiffs strength of their own title.-Baker v. Campbell, 1028. Title bond from one without title cannot authorize recovery from persons having similar claim.-Id. V. ALIMONY, ALLOWANCES, AND DISPO-9(4) (Ark.) Plaintiff in possession of land SITION OF PROPERTY. 240(4) (Ky.) Allowance of $50 per month to wife, in addition to other property, held sufficient. Duke v. Duke, 500. 240 (5) (Ky.) Allowance of $50 per month as alimony held not too much.-Duke v. Duke, 500. 249(3) (Tex.) Real estate of parties may be divided in the discretion of the court as seems equitable.-Hedtke v. Hedtke, 21. under color of title can maintain ejectment against mere trespassers.-Webb v. Spann, 285. III. PLEADING AND EVIDENCE. 95(1) (Ky.) Evidence held insufficient to show title of party under whom plaintiffs claimed.-Baker v. Campbell, 1028. ELECTRICITY. Commission cannot 4 (Ark.) Railroad Court may adjudicate property rights in grant certificate of convenience and necessity whatever manner necessary to do equity.-Id. to public service electric company operating in 249(4) (Ky.) Home purchased with hus- city. De Queen Light & Power Co. v. Curtis, 5. band's earnings properly awarded to him.-16(7) (Ky.) Interurban company furnishDuke v. Duke, 500. 249 (6) (Tex.) Adjudication of husband's homestead to wife proper.-Hedtke v. Hedtke, 21. 253 (Tex.) Adjudication of husband's homestead to wife not a jury question.-Hedtke v. Hedtke, 21. DRAINS. MAINTENANCE. I. ESTABLISHMENT AND by railroads from 14(3) (Ky.) Appeal overruling of demurrers to petition for district held taken in time.-Illinois Cent. R. Co. v. McAdoo, 520. II. ASSESSMENTS AND SPECIAL TAXES. 88 (Ky.) Sheriff is entitled to commissions for collecting drainage assessments.-Board of Drainage Com'rs of McCracken County v. Alliston, 850. Request by proper authority not to collect estops subsequent claim for failure to collect. -Id. Board has authority to direct sheriff not to collect penalties.-Id. Sheriff is not chargeable with interest on drainage assessment collections.-Id. 30 (Tex.Cr.App.) Indictment held sufficient to show ownership of money.-Connelly v. State, 340. 31 (Tex.Cr.App.) Indictment held sufficient to show receipt of money.-Connelly v. State, 340. 32 (Tex.Cr.App.) Indictment held sufficient to show agency. Connelly v. State. 340. 35 (Ark.) Indictment and proof held not at variance.-Gurley v. State, 902. 36 (Ark.) Intent may be inferred from wrongful conversion.-Gurley v. State, 902. 44(2) (Ark.) Evidence held sufficient to establish felonious intent.-Gurley v. State, 902. Showing of an effort at concealment not necessary to establish intent.-Id. 44(6) (Tex.Cr.App.) Evidence held sufficient to show owner's want of consent to misappropriation of funds.-Connelly v. State, 342. EMINENT DOMAIN. II. COMPENSATION. (C) Measure and Amount. 150 (Ky.) Award of $525 for passway 1.925 feet long held not inadequate.-Moore v. Bentley, 890. III. PROCEEDINGS TO TAKE PROPERTY 195 (Ky.) Evidence of more convenient way is admissible only if issue is raised.-Moore v. Bentley. 890. 1. JUDICIAL NOTICE. 5(2) (Tex. Civ. App.) Common knowledge that market prices of grain and other products are published daily.-Farmers' Mill & Elevator Co. v. Hodges, 72. 221 (Ky.) Question of whether fencing of 13 (Tex.Civ.App.) Common knowledge of passway was necessary properly submitted to effect of exposing cattle to heat immediately jury.-Moore v. Bentley, 890. after dipping.-St. Louis Southwestern Ry. Co. of Texas v. Culberson, 111. EQUAL PROTECTION OF THE LAWS. See Constitutional Law, EQUITY. 229-249. 14 (Tex.Civ.App.) Common knowledge that one must use both eyes.-Davis v. Christmas, 126. 20 (2) (Ky.) Court will take judicial notice of transportation conditions in 1919.-Hogg v. Forsythe, 1008. See Cancellation of Instruments; Conversion;20(2) (Mo.App.) Common knowledge that Injunction; Partition; Quieting Title: Reformation of Instruments; Specific Performance; Subrogation; Trusts. coupling of cars is done in railroad yards.King v. Standard Acc. Ins. Co. of Detroit, Mich., 984. 22(3) (Tex.Civ.App.) Courts will take judicial notice of connecting lines of carriers.-St. Louis, B. & M. Ry. Co. v. Lane, 59. (A) Nature, Grounds, Subjects, and Ex-45 (Ark.) Supreme Court cannot take juditent of Jurisdiction in General. 34 (Mo.) Where recovery of stockholders in suit for accounting trifling, it should be dismissed.-Collins v. Martin, 941. IV. PLEADING. (C) Cross-Bill and Plea and Answer Thereto. 195 (Ark.) Cross-bill to make vendor party upon his covenant to defend held properly denied, where expense of suit was not in issue. -Henry Quellmalz Lumber & Mfg. Co. v. Briney, 290. cial knowledge of time when elections are held under special acts.-Gaster v. Dermott-Collins Road Improvement Dist., 2. II. PRESUMPTIONS. 58 (Ky.) There is conclusive presumption men and women can have children so long as they live.-Brown v. Owsley, 889. 71 (Ky.) Proof of mailing of notice properly stamped and addressed raises presumption that notice was given.-Benge's Adm'r v. Gar rison, 1050. 83 (2) (Ky.) Rate fixed by municipal body 204 (Ark.) Held not error to dismiss cross-presumed just.-Johnson County Gas Co. v. bill, where no showing that party had interest Stafford, 515. in litigation.-Henry Quellmalz Lumber & Mfg. Co. v. Briney, 290. ERROR, WRIT OF. See Appeal and Error. ESTATES. See Descent and Distribution; Executors and 122(6) (Mo.App.) Statement of foreman to employee, acting within scope of employment, (Ky.) Law favors vested estates.-Well- held admissible.-Noland v. Morris & Co., 627. er v. Dinwiddie, 874. . 155(8) (Tex.Civ.App.) Where part of instrument introduced and relied upon by complaining party, whole instrument admissible by opposing party-Booth v. Crosby, 417. 155(10) (Tex.Civ.App.) Evidence of vile epithets in discussing differences held admissible where punitive damages sought.-Booth v. Crosby, 417. Testimony of vile epithets used between parties to action admissible where plaintiff testified to bad feeling between parties.-Id. V. BEST AND SECONDARY EVIDENCE. 158 (27) (Tex.Civ.App.) Exclusion of evidence of provisions of declaration of trust held not error, where declaration was obtainable and not produced.-Dow v. Leecraft, 1088. For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER VI. DEMONSTRATIVE EVIDENCE. 192 (Tex.Civ.App.) Permitting plaintiff in personal injury action to remove artificial eye and exhibit socket not error.-Davis v. Christmas, 126. VII. ADMISSIONS. eral. (C) Separate or Subsequent Oral Agreement. 441 (1) (Tex.Com.App.) Oral agreements will not be permitted to contradict or vary terms of written instrument, in absence of fraud, accident, or mistake.-White, Ward & Erwin v. Hager, 319. (A) Nature, Form, and Incidents in Gen-441(1) (Tex. Civ. App.) Law cannot be evaded by proof of prior or contemporaneous 210 (Tex.Civ.App.) Petition in federal oral agreements made in regard thereto.court containing itemized statement held ad- Sandoval v. Eagle Pass Lumber Co., 132. missible as declaration against interest.-Lan-441(6) (Mo.App.) Contract of hiring cancaster v. Faskin, 754. not be varied by parol.-Ogden v. Atlas Brewing Co., 644. (C) By Grantors, Former Owners, or Privies. 235 (Tex.Civ.App.) Payee's statements at time of execution of note admissible to show fraud in inception.-Smith v. Word, 734. 441(9) (Ky.) Parol evidence admissible to show sale was made orally, and that written order was never recognized as contract.Stephenson & Co. v. Bradbury, 1055. Written contract 441(9) (Tex.Com.App.) for sale of automobile could not be varied by evidence of parol warranties.-White, Ward & Erwin v. Hager, 319. (D) By Agents or Other Representatives. 246 (Tex.Civ.App.) Statement of defend-441(11) (Tex.Civ.App.) Evidence of payee's ants' counsel held admissible as declaration against interest.-Lancaster v. Faskin, 754. (E) Proof and Effect. 265(3) (Ky.) Admissions as to indebted ness of tenant held not conclusive against him on accounting-Duncan's Ex'rs v. Porch, 526. 265 (12) (Ky.) Admissions as to conduct of tenant held not conclusive against him on accounting.-Duncan's Ex'rs v. Porch, 526. IX. HEARSAY. agreement to procure mortgage securing notes sued on inadmissible in action against indorser. -Polk-Genung-Polk Co. v. McGhee, 155. 442(6) (Ky.) Long contract prepared by distributor held not memorandum explainable by parol.-Commercial Auto Co. v. Brandeis Machinery & Supply Co., 233. to explain reference in instrument to collateral 443 (1) (Ky.). Parol evidence is admissible transaction.-Kirchdorfer v. Watkins, 251. Statement in note proceeds of sale of stock were to be credited renders parol proof of collateral contract admissible.-Id. doc-445(1) (Ark.) Parol evidence of subsequent agreement admissible.-Thompson Short, 263. 314(2) (Tex.Civ,App.) Evidence of tor's statement while sewing up plaintiff's wounds hearsay.-Haverbekken v. Johnson, 102. 317(1) (Mo.App.) Testimony of maker's witness of conversation latter had with unknown person held inadmissible as being hearsay.-American Trust Co. v. Moore, 983. 317(1) (Tex.Civ.App.) Testimony of third party out of hearing and presence of party affected, not shown to be authorized, inadmissible.-Booth v. Crosby, 417. 317(4) (Tex.Civ.App.) Evidence as to statement of third person held subject to objection as hearsay.-Baker v. Pierce, 439. 317(6) (Tex.Civ.App.) Testimony of conversation regarding value of grain held inadmissible hearsay.-Farmers' Mill & Elevator Co. v. Hodges, 72. 323(4) (Tex.Civ.App.) Market reports at distant points not admissible to show value of shipment. St. Louis, B. & M. Ry. Co. v. Lane, 59. V. (D) Construction or Application of Language of Written Instrument. 450(7) (Tex.Civ.App.) Parol proof held admissible to explain intention of party to ambiguous contract.-Galveston, H. & S. A. Ry. Co. v. McSpadden, 454. XII. OPINION EVIDENCE. (A) Conclusions and Opinions of Witnesses in General. 471 (24) (Tex.Civ.App.) Testimony of shipper as to effect of loading on cows not objectionable as conclusions.-St. Louis, B. & M. Ry. Co. v. Lane, 59. 471 (30) (Mo.App.) Conclusion of witness that his agency to sell land did not depend upon unsuccessful deal held admissible.-Tosh v. Kirshner, 994. 471(30) (Tex. Civ. App.) Testimony that one executed contract for himself and others is testimony of fact, not opinion.-Farmers' Mill & Elevator Co. v. Hodges, 72. 489 (Tex.Com.App.) Witness value of mules held competent.-Rogers & Adams v. Lancaster, 660. as to the (B) Subjects of Expert Testimony. 513(1) (Tex.Civ.App.) Testimony of other purchaser of silo held admissible, as to defective erection of silo.-Bell v. Mulkey, 784. (C) Competency of Experts. 543 (4) (Tex.Civ.App.) Qualification of witness testifying to market value stated.-Farmers' Mill & Elevator Co. v. Hodges, 72. 545 (Tex.Civ.App.) Evidence held insufficient to qualify witness to testify of the market value of grain.-Farmers' Mill & Elevator Co. v. Hodges, 72. 545 (Tex.Civ.App.) Testimony of other purchaser of silo held to qualify him as expert as to defective erection of silo and value of ensilage.-Bell v. Mulkey, 784. (F) Effect of Opinion Evidence. X. ACTIONS. 568 (4) (Tex.Com.App.) Weight of opinion 431 (2) (Ky.) Filing of claim for services evidence as to the value of personal property held condition precedent to suing administrator for jury.-Rogers & Adams v. Lancaster, 660. to recover portion of land therefor.-Crain v. 568 (4) (Tex.Civ.App.) Judgment for ship- Crain, 176. per for damages to goods in shipment sustain-451(3) (Ky.) Instruction to find for claimed.-Coulter v. Gulf, C. & S. F. Ry. Co., 788. ant if services were rendered under circumstances raising presumption of expectation to pay therefor, is erroneous.-Lucius' Adm'r v. Owen, 495. XIV. WEIGHT AND SUFFICIENCY. EXEMPTIONS. 589 (Ky.) Uncontradicted evidence of husband and wife establishing resulting trust_cannot be disregarded.-Deboe v. Brown, 855. 589 (Tex.Civ.App.) Party's own testimony See Homestead; Taxation, 194. sufficient.-Davis v. Christmas, 126. 595 (Ark.) Inference of writing not dispos itive instrument, offered to show intrinsic fact, See Brokers. FACTORS. is for jury.-Wynne, Love & Co. v. Bunch, 286.11 (Ark.) Duty of factor to exercise good 598 (1) (Mo.App. Weight not determined faith, diligence, and ordinary discretion in sale by number of witnesses.-Hastings v. Scott, of consigned goods.-Wynne, Love & Co. v. Bunch, 286. 973. EXCEPTIONS, BILL OF. See Appeal and Error, 544–553. II. SETTLEMENT, SIGNING, AND FILING. 43(1) (Tex.Civ.App.) Bills of exception, filed after expiration of extension of time, will not be considered.-Lowry v. Gill, 1096. 59(4) (Mo.App.) Court held entitled to change bill before filing.-Franklin v. Kansas City, 616. EXCHANGE OF PROPERTY. (Tex.Civ.App.) "Exchange of land" differs from "sale."-Liberto v. Sanders, 120. 8(2) (Tex.Civ.App.) Remedy for loss in exchange of land is to recover value of loss for which an equitable lien arises.-Liberto v. Sanders, 120. 30 (Ark.) Guaranty that cotton be sold for sum equaling advance enforceable.-Wynne, Love & Co. v. Bunch, 286. Factor held not liable for guaranty in sale of cotton unless authorized to sell in good faith at best price obtainable.-Id. Material alteration in obligation assumed without assent of guarantor factor discharged him.-Id. FALSE IMPRISONMENT. I. CIVIL LIABILITY. (A) Acts Constituting False Imprisonment and Liability Therefor. 2 (Ky.) Master not liable for false imprisonment because apprenticeship contract was invalid.-Brooks v. Madden, 503. (B) Actions. 8(5) (Tex.Civ.App.) Remedy for loss in exchange of land is to recover value of loss.20(1) (Tex.Civ.App.) Petition should alLiberto v. Sanders, 120. 221 (5) (Ky.) Express promise to pay for care by relative must be proved by clear and convincing evidence.-Lucius' Adm'r v. Owen, 495. lege damages resulting.-Neubert v. Chicago, R. I. & G. Ry. Co., 141. 34 (Tex.Civ.App.) Mental suffering eleinent of damages.-Chicago, R. I. & G. Ry. Co. v. Neubert, 139. 36 (Tex.Civ.App.) $750 excessive damage for mental suffering.-Chicago, R. I. & G. Ry. Co. v. Neubert, 139. verdict justified. 39 (Ky.) Directed Brooks v. Madden, 503. 39 (Tex.Civ.App.) Evidence sufficient to go to jury. Chicago, R. I. & G. Ry. Co. v. Neubert, 139. FALSE PRETENSES. C4 (Tex.Cr.App.) Elements of offense of "swindling" stated.-Cochrain v. State, 43. Corporation's property is protected by stat ute.-Id. 26 (Tex.Cr.App.) Indictment charging offense of obtaining insurance money by false pretense of death held sufficient.-Cochrain v. State. 43. 28 (Tex.Cr.App.) Indictment may allege representations to corporation, if facts justify it.-Cochrain v. State, 43. False representation as to death of insured may be charged as made to corporation.-Id. 29 (Tex.Cr.App.) Indictment must set out written instrument which is basis of swindle. -Cochrain v. State, 43. Indictment need not incorporate proof of death not basis of swindle by false pretense insured was dead.-Id. 38 (Tex.Cr.App.) Indictment need not incorporate proof of death not basis of swindle by false pretense insured was dead, and proof of death was admissible in evidence.-Cochrain v. State, 43. 47 (Tex.Cr.App.) Evidence as to circumstances of obtaining money and indorsing draft for proceeds is competent.-Cochrain v. State, 43. Testimony decedent stated he was going to pay for services is insufficient to show express 49(1) (Tex.Cr.App.) Evidence held sufficontract.-Id. cient to sustain conviction for obtaining life For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER insurance money by false pretense of death.Cochrain v. State, 43. FELLOW SERVANTS. See Master and Servant, 180-185. FIXTURES. 15 (Tex.Civ.App.) Casings and machinery held trade fixtures.-Moore v. Carey Bros. Oil Co., 470. 33 (Ky.) Fixtures and machinery left on lease more than reasonable time after termination belong to lessor.-Patton v. Woodrow, 226. 35(3) (Ky.) What is reasonable time within which to remove machinery from oil lease is jury question.-Patton v. Woodrow, 226. 35(4) (Ky.) Instruction allowing recovery for deterioration of machinery left on lease held erroneous under pleadings and evidence.-Patton v. Woodrow, 226. 34(1) (Mo.) Charge of forging entire instrument sustained by proof of forgery of any material part.-State v. Andrews, 967. Specific allegation and proof of forgery of indorsement necessary only where bill of exchange bearing it is genuine.-Id. Evidence of forged indorsement admissible to prove forgery of instrument, although not alleged in the indictment.-Id. (D) Damages. 59(3) (Tex.Civ.App.) Measure of damages stated.-McCrea v. Spruill, 114. FRAUDS, STATUTE OF. III. PROMISES TO ANSWER FOR DEBT, OF ANOTHER. 18(4) (Tex.Civ.App.) Assumption of debts in consideration of transfer of interest in partnership is not promise to pay debt of another.-Dickerson v. Strauss, 833. V. AGREEMENTS NOT TO BE PER- 44 (4) (Tex.Civ.App.),Parol obligation of grantee to pay incumbrance not in violation of statute as to agreements not to be performed within one year.-Holland v. W. C. Belcher Land Mortg. Co., 803. 53 (Tex.Civ.App.) A verbal contract of employment for one year to begin in the future held not to be performed within a year from the making of it as required by the statute.Rease v. Clarksville Cotton Oil Co., 434. VI. REAL PROPERTY AND ESTATES AND 74(1) (Ky.) Contract of agency to sell land need not be in writing: "contract for sale of real_estate."-Oliver v. Morgan, 1020. 76 (Tex.Civ.App.) Oral transfer of interest in partnership not shown to own real estate is valid.-Dickerson v. Strauss, 833. IX. OPERATION AND EFFECT OF 125(1) (Ky.) Equitable rights cannot be relied on to enforce oral contract.-Pullum v. Rhea, 858. 129 (2) (Tex.Civ.App.) Rule where one side of contract to be performed within one year is performed stated.-Holland v. W. C. Belcher Land Mortg. Co., 803. 34 (7) (Mo.) No variance between proof and information setting out forged note according to "tenor" and also unnecessarily alleging its "purport."-State v. Collins, 599. 44(1/2) (Mo.) Possession of forged instru-129(4) (Ky.) Possession under oral lease ment and attempt to sell it not evidence that cannot be relied on to defeat recovery by ownpossessor forged it.-State v. Andrews, 967. er.-Pullum v. Rhea, 858. 47 (Mo.) Submission to jury of charge of passing, uttering, and publishing forged check with intent to defraud held justified by evidence. State v. Andrews, 967. 48 (Mo.) Instruction as to evidence of forgery held not responsive to charge of passing, uttering, and publishing forged check with intent to defraud-State v. Andrews, 967. 49 (Mo.) Verdict finding defendant guilty as charged in first count in information held sufficient.-State v. Todd, 939. FRAUD. 131 (1) (Mo.App.) Oral modification of written contract for sale of real estate, void.Roburt v. Holmes, 646. Oral agreement held modification within statute.-Id. 138(5) (Ky.) Grantor cannot recover land transferred under verbal contract without paying for grantee's improvements.-Crain Crain, 176. FRAUDULENT CONVEYANCES. I. TRANSFERS AND TRANSACTIONS (E) Consideration. V. See Frauds, Statute of: Fraudulent Convey-87(1) (Tex.Com.App.) Surrender of unse ances. I. DECEPTION CONSTITUTING FRAUD, AND LIABILITY THEREFOR. 13(2) (Mo.App.) Knowledge of fraud by defendant unnecessary.-Jourdan V. Sheets, 641. 23 (Mo.App.) Representation as to value may be fraudulent.-Jourdan v. Sheets, 641. II. ACTIONS. (B) Parties and Pleading. 41 (Mo.App.) Petition held to show deceit. -Jourdan v. Sheets, 641. 44 (Mo.App.) Petition held based on fraud, and not on guaranty.-Jourdan v. Sheets, 641. 49 (Tex. Civ.App.) Proof of value not admissible in absence of allegation.-McCrea v. Spruill, 114. (C) Evidence. cured note in consideration of transfer of vendor's lien notes constituted "consideration deemed valuable" within statute.-Adams v. Williams, 673. (H) Preferences to Creditors. 121 (Tex.Com.App.) Creditor, though knowing of intent to prefer him, may receive payment of debt.-Adams v. Williams, 673. GAMING. I. GAMBLING CONTRACTS AND TRANS- (A) Nature and Validity. 12 (Tex.Civ.App.) Contract to deliver at future date not invalid.-Kennedy v. McCauley, 423. (B) Rights and Remedies of Parties. 49(1) (Tex.Civ.App.) Contract for future Kennedy v. McCauley, 423. 52 (Mo.App.) Evidence held admissible.- delivery not presumed gambling transaction.Jourdan v. Sheets, 641. |