38 (Ark.) Variance between indictment for ( 33 (Ark.) The leasehold estate of defendant false pretenses and evidence held fatal.-Lawson who attaches fixtures to the land merges in v. State, 179 S. W. 818. the fee he afterwards acquires by purchase, so 49 (Tex.Cr.App.) In a prosecution for that fixtures attached prior to purchase are swindling against the operator of an employ- thereafter irremovable.-W. B. Thompson & Co. ment agency, evidence held sufficient to support v. Lewis, 179 S. W. 343.

a conviction.-Arnold v. State, 179 S. W. 1183.35 (Ark.) Evidence held sufficient to show intention of owner that trade fixtures attached" to the land should become a part of the realty. -W. B. Thompson & Co. v. Lewis, 179 S. W. 343.

FEDERAL EMPLOYERS' LIABILITY

ACT.

8, 27; Limitation of AcMaster and Servant,

Negligence, 101; Pleading, 369.

FEES.

See Attorney and Client, 133-189.

FEE SIMPLE.

See Deeds, 124.

FELLOW SERVANTS.

See Master and Servant, 177-202, 216.

FELONY.

See Criminal Law, 27.

FENCES.

270;

28 (Tex.Cr.App.) Offer of accused in prosetion for pulling down fence to show prosecuting witness' possession to be that of agent for own er, who authorized accused to destroy fence, held improperly excluded.-Hughitt v. State, 179 S. W. 703.

FILING.

See Appeal and Error, 627, 770, 773.
FINAL JUDGMENT.

See Appeal and Error, 76-80.

FINDINGS.

See Appeal and Error, 931, 1009-1015.

FIRE INSURANCE.

See Insurance.

FIRES.

See Railroads, 460-484.

FISH.

9 (Tenn.) Acts 1897, c. 57, is impliedly repealed by Acts 1907, c. 489, forbidding killing of fish with dynamite, so that conviction under the former cannot be sustained.-Bivens V. State, 179 S. W. 384.

FIXTURES.

m4 (Ark.) It will be presumed that the owner of land attaching chattels thereto intends that they shall become a part of the realty, and his intention is the test as to whether they are irremovable fixtures.-W. B. Thompson & Co. v. Lewis, 179 S. W. 343.

21 (Tex.Civ.App.) Stationary engine, bolted to concrete bed prepared therefor and attached by its shaft to the building, held a fixture, title to which passed to the purchaser.-Phillips v. Newsome, 179 S. W. 1123.

FLOWAGE.

See Waters and Water Courses, 171.

FOOD.

See Statutes, 20, 1102.

25 (Tenn.) The duty of one who prepares and markets in bottles or sealed packages foods, drugs, or beverages to exercise ordinary care that nothing unwholesome or injurious is contained therein is based upon negligence.-Crigger v. Coca-Cola Bottling Co., 179 S. W. 155. One who prepares and puts on the market in bottles or sealed packages foods or beverages is liable for breach of a duty to the public in the preparation thereof, regardless of the privity of contract to any one injured.-Id.

In an action for damages for illness caused by swallowing a decomposed mouse in a bottle of coca-cola purchased from a local dealer to whom it had been sold by a bottling company, evidence held to sustain a finding that the bottling company was not at fault.-Id.

FORCIBLE ENTRY AND DETAINER.
See Landlord and Tenant, 291.

FORECLOSURE.

See Mortgages, 356-559.

FOREIGN CORPORATIONS.

See Corporations, 642, 657.

FOREIGN JUDGMENTS.

See Judgment, 822, 944.

FORFEITURES.

See Contracts, 317; Insurance, 310349, 744.

FORGERY.

12 (Ark.) Where a forged order for an express package, not addressed to any particular person, was yet addressed to "Express Agt.," directing him to "let the bearer have my package," its uttering was forgery.-Stith v. State, 179 S. W. 178.

28 (Tex.Cr.App.) An indictment for forgery need not state in the purport clause the names to the instrument forged.-Bethany v. State, 179 S. W. 1166.

29 (Ark.) Indictment for forgery, not alleging any person, firm, or corporation to whom a forged order for an express package was passed. held bad upon demurrer.-Stith v. State, 179 S. W. 178.

Purchaser of real estate with mortgaged fix-34 (Tex.Cr.App.) Variance between the purture held not bound with notice of chattel mort- port clause in indictment for forgery and instrugage record.-Id. ment forged held fatal.-Bethany v. State, 179 S. W. 1166.

27 (Tex.Civ.App.) Contract between mortgagor and mortgagee of personal property that same shall not become fixture upon attachment to realty held valid between parties.-Phillips v. Newsome, 179 S. W. 1123.

FORMER JEOPARDY.
See Criminal Law, 170-200.

9 (Tex. Cr.App.) In a prosecution for fornication, evidence held insufficient to show accused's common-law marriage to the woman.-158 (Ky.) It will be presumed that a conNye v. State, 179 S. W. 100.

110 (Ky.) Where a vendor who owned a large tract entered into a written contract to sell a farm of 210 acres, parol evidence was inadmissible to show what part was to be sold;208 (Ky.) Under Ky. St. 1915, § 1906, dehence the contract was unenforceable under claring that every gift, conveyance, or transfer the statute of frauds.-Roberts v. Bennett, 179 of land made with intent to delay, hinder, or deS. W. 605. fraud creditors shall be void, a conveyance made with intent to hinder subsequent creditors is void and may be set aside.-Williamson v. Morris, 179 S. W. 45. (B) Remedies

119 (Tex. Civ.App.) Where defendant released its lien upon plaintiff's property, relying upon his oral promise to give substitute security,229 (Tex.) Under Bulk Sales Law, § 1, that plaintiff claimed other land acquired as homestead as against a trust deed subsequently executed under the agreement held to take the case out of the statute of frauds, since to apply the statute would permit the perpetration of a fraud.-Pipkin v. Bank of Miami, 179 S. W.

143 (Mo.App.) Under the statute of frauds (Rev. St. 1909, § 2783), an oral contract for the sale of land is not absolutely void, and if the vendor is able and willing to fulfill his agreement, the vendee cannot, on the ground of in-271 (Ky.) In action in equity to subject validity of the contract, recover money paid on property to judgment, defendant, who had re

GARNISHMENT.

ceived two jacks from the judgment debtor, had the burden of showing that one of them had died before the commencement of the action.-See Attachment; Fraudulent Conveyances, Commonwealth v. Filiatreau, 179 S. W. 20.

229.

295 (Ky.) Evidence in an action in equity XI. WRONGFUL GARNISHMENT. by a judgment creditor to reach several jacks belonging to the judgment debtor and fraudulent-248 (Mo.App.) That return of writ by sumly turned over to the defendant held insufficient to show that two of the jacks had died before the commencement of the action.-Commonwealth v. Filiatreau, 179 S. W. 20.

295 (Tex. Civ.App.) Evidence held sufficient to justify jury's finding that the conveyance of the premises to defendant was fraudulent as to the grantor's creditors. McGough v. Finley, 179 S. W. 918.

299 (Ky.) Evidence held to show that a conveyance by a husband of his land to his wife was in fraud of creditors.-Williamson v. Morris, 179 S. W. 45.

moning garnishee was so defective as not to show a valid garnishment held not to conclude the attachment debtor on the question of damages from the attachment.-State ex rel. Williams v. Stipp, 179 S. W. 723.

GAS.

16 (Ky.) Turnpike company licensing gas company to use its road for a main cannot, by contract, lessen the latter's obligation to maintain such main consistently with public safety.-McWilliams v. Kentucky Heating Co., 179 S. W. 24.

300 (Ark.) In a creditors' suit to uncover a parcel of realty in the hands of the judg-17 (Ky.) Gas company, contracting with ment debtor's wife, evidence held sufficient turnpike company for laying of mains, held to to show that the land which the debtor convey- undertake to exercise ordinary care to mained was originally purchased with the wife's tain mains so that the road would be kept in money. Scott v. McCraw, Perkins & Webber reasonably safe condition.-McWilliams v. KenCo., 179 S. W. 329. tucky Heating Co., 179 S. W. 24.

ordering plaintiff operator of steam roller to pass over gas main held not to excuse gas company from liability for plaintiff's injuries in explosion. McWilliams v. Kentucky Heating Co.. 179 S. W. 24.

Evidence held to support the chancellor's find-18 (Ky.) Negligence of county officers, in ing that the conveyance was voluntary, and to put the property beyond plaintiff's reach.-Id. The statement of a wife, asserting her insolvent husband's conveyance to her in preference to other creditors was in payment of a prior loan made without written evidence of an agreement to repay, should be corroborated by other evidence.-Id.

(J) Judgment or Decree and Execution. 313 (Ark.) Action of the court in a creditors' suit to uncover realty, in decreeing its sale to satisfy the judgment, held proper.-Scott v. McCraw, Perkins & Webber Co., 179 S. W.

Where a gas company occupies a highway or turnpike with its main, whether under contract or by obligation of law it must maintain the main in such condition that the road will be reasonably safe.-Id.

To render a gas company liable for an explosion of gas from a broken main, the injury must have been the natural and probable consequence of the negligent act, such that an ordinarily 329. prudent man might have anticipated.-Id. Where, in a judgment creditor's suit to un-20 (Ky.) In an action against a gas comcover realty, the order of sale gave the debtor pany for injuries to plaintiff operator of a only five days to pay the judgment, such de- steam roller in road repairing when the spikes cree allowed an unreasonably short time.-Id. of the machine's wheels pierced a main, result✨m314 (Ky.) A purchaser who had not coming in an explosion, question of company's negplied with the Sales in Bulk Act, § 4, held lia-ligence held for the jury.-McWilliams v. Kenble to the extent of the entire stock to the sat- tucky Heating Co., 179 S. W. 24.

isfaction of a claim of the seller's creditor.Dwiggins Wire Fence Co. v. Patterson, 179 S. W. 224.

GIFTS.

See Fraudulent Conveyances, 137.

GRANTS.

9 (Tex.Cr.App.) In prosecution under Act March 13, 1911 (Acts 32d Leg. c. 60) § 5, for having in his possession for the purpose of sale and for offering to sell the hide of a wild deer, See Municipal Corporations, 680–684.

held, that the court's refusal to instruct an acquittal if there was reasonable doubt as to defendant's possession and offer for sale was reversible error.-Cohen v. State, 179 S. W. 1193.

GUARANTY.

See Frauds, Statute of, 23; Limitation of
Actions, 46.

III. DISCHARGE OF GUARANTOR.

57 (Ky.) The extension of time for payment of a note which, when extended by the holder to the maker, will discharge a guarantor, must be based on a valid contract, founded on consideration, and for a definite time.-Marshall v. Hollingsworth, 179 S. W. 34.

67 (Ky.) Negotiator of note indorsing and guarantying it unconditionally held not discharged, under hy. St. § 3.20b, by holder's failure to notify him of maker's default.-Marshall v. Hollingsworth, 179 S. W. 34.

IV. REMEDIES OF CREDITORS.

a statement of facts, cannot be considered as such.-Ex parte Long, 179 S. W. 567.

91 (Ky.) In an action against a guarantor of notes, evidence held insufficient to support 113 (Tex.Cr.App.) The Court of Criminal defense that defendant's guaranty was written above his indorsement in blank without his knowledge or consent.-Marshall v. Hollingsworth, 179 S. W. 34.

In an action against the guarantor of a note,

evidence held insufficient to sustain defendant's allegations that at maturity plaintiff agreed with the maker for an extension of one year.

-Id.

GUARDIAN AND WARD.

Appeals has no jurisdiction of an appeal from the judgment in a habeas corpus proceeding remanding the petitioner to custody, where he is admitted to bail pending the appeal.-Ex parte Hengy, 179 S. W. 716.

HARMLESS ERROR.

See Appeal and Error, 1027-1070, 1170; Criminal Law, 1163-1172; Homicide, 340, 341.

HEALTH.

HEARSAY.

IV. SALES AND CONVEYANCES UN- See Food; Insurance, 291.
DER ORDER OF COURT.

77 (Mo.App.) Probate courts have no power to authorize the sale or incumbrance of property of minor wards, except for their education or support, or for investment; so that a deed of trust from guardian to secure attorney engaged in litigation, involving their property, was void.-Eaker v. Harvey, 179 S. W. 985.

90 (Ky.) Errors in proceedings upon guardian's action for sale of land of his minor wards held not to render the judgment and sale voidable, so that until appeal under Civ. Code Prac. $745, or vacation under sections 391, 518, it was binding on all parties.-Harris v. Hopkins, 179 S. W. 14.

See Criminal Law, 374, 419, 420; Evidence, 314–323.

HIGHWAYS.

See Municipal Corporations, 269-567, 680706; Officers, 19, 43, 54, 101; Private Roads; Railroads, 97.

I. ESTABLISHMENT, ALTERATION,

AND DISCONTINUANCE.

(A) Establishment by Prescription, User,

or Recognition.

6 (Ky.) The peaceable, continuous, and open public use of a fenced way for 15 years will constitute the way a public highway.-Rose v. Nolen, 179 S. W. 229.

105 (Ky.) Under the express provision of Civ. Code Prac. § 391, the setting aside of a voidable sale of lands of infant wards does not affect the title of the guardian as purchaser, or of purchasers from him, if they were bona fide purchasers.-Harris v. Hopkins, 179 S. W. 14. 107 (Ky.) It is only in cases where there is an entire want of jursidiction that a judg-64 (Tex.Civ.App.) Injunction is the proper ment and sale of a minor ward's land can be collaterally attacked.-Harris v. Hopkins, 179 S. W. 14.

VI. ACCOUNTING AND SETTLEMENT. 162 (Tex. Civ.App.) The commissions allowed the county judge by Rev. St. 1911, art. 3850, are payable on all cash receipts shown by any annual account of the guardian when such account is approved by the judge to whom it is presented, rather than of approval of the guardian's final account.-Grice v. Cooley, 179 S. W. 1098.

The word "exhibits," as used in Rev. St. 1911, art. 3850, providing that a commission shall be allowed the county judge on cash receipts of guardians on approval of exhibits, refers to annual accounts.-Id.

GUARDS.

See Prisons, 10.

HABEAS CORPUS.

II. JURISDICTION, PROCEEDINGS,
AND RELIEF.

85 (Tex.Cr.App.) No evidence being offered to sustain the allegations of applicant for writ of habeas corpus, it must be presumed that the judgment committing him for contempt was correct.-Ex parte Long, 179 S. W. 567.

113 (Tex.Cr.App.) On appeal from an order in habeas corpus denying admission to bail, the Court of Criminal Appeals will not discuss the evidence.-Ex parte Sapp, 179 S. W. 109. Where, in habeas corpus, there was evidence warranting the conclusion of the court, in denying bail, that proof of guilt of a capital offense was strong, its order will be upheld on appeal. -Id.

113 (Tex.Cr.App.) A transcript of the stenographer's notes attached to an application for writ of habeas corpus, not being agreed to

(B) Establishment by Statute or Statutory Proceedings.

remedy where the commissioners' court is proceeding without authority to open a first-class 60-foot road; Vernon's Sayles' Ann. Civ. St. 1914, art. 6866, giving appeal only as to adequacy of damages.-Currie v. Glasscock County, 179 S. W. 1095.

If the commissioners' court in laying out a first-class 60-foot road is acting in substantial compliance with Rev. St. 1911, art. 6863, it cannot be enjoined, though the road would irreparably injure one's land.-Id.

The commissioners' court can be enjoined if in laying out a 60-foot road under Rev. St. 1911, art. 6863, it has transcended its authority or grossly abused its discretion.-Id. sioners' court fraudulently laid out a first-class Petition for injunction alleging the commis60-foot road several miles to the side of the route required by Rev. St. 1911, art. 6863, so as to pass through plaintiff's lands, states ground for relief.-Id.

68 (Mo.App.) In an action for encroachment upon a public highway, evidence held not sufficient to show that a sufficient amount of money and labor had been expended on the road so as to vest title thereto in the county under Rev. St. 1909, § 10446.-Copeland v. Pyrtle, 179 S. W. 992.

(C) Alteration, Vacation, or Abandonment.

72 (Ky.) Under Ky. St. 1909, § 4303, where, on remonstrant's appeal to the circuit court in a proceeding to alter a highway, trial de novo is had and no error occurs, the objection that the court ignored remonstrant's exceptions to the commissioner's report is unavailing.-Carrick v. Garth, 179 S. W. 609.

It is not error for the court on appeal to correct a patent clerical error in the record of the proceedings before the board of commissioners from whom the case is appealed.-Id.

Where a judgment changing the location of a highway requires the erection of an obstruction across the old highway, the inclusion of such matter, though not essential to the decision, is

II. HIGHWAY DISTRICTS AND

OFFICERS.

90 (Ark.) A special statute creating a road district for the improvement of a road running through an incorporated town held not void because it included property in such town without the consent of a majority in value of the property owners first obtained.-Nall v. Kelley, 179 S. W. 486.

A special statute creating a district to improve a road running through an incorporated town held not invalid as invading the jurisdiction of the town by authorizing the improvement of a highway constituting one of the streets thereof.-Id.

A special statute creating a road district held not invalid as not sufficiently describing the route of the road to be improved.-Id.

See Criminal Law, 1932, 368, 478, 510, 720, 762, 778, 782, 829, 854.

III. MANSLAUGHTER.

Proceedings under a statute creating a road improvement district held not invalid because one of the commissioners named was not a property owner within the district.-Id. A special statute creating a highway improve-47 (Tex.Cr.App.) Adultery of the deceased ment district held not invalid, under Const. art. with the wife of appellant was "adequate cause 19, § 20, as failing to require the board of com- which might reduce the homicide to manslaughmissioners to take an oath of office.-Id. ter.-Vollintine v. State, 179 S. W. 108. 90 (Ark.) Acts 1915 held not to authorize 47 (Tex.Cr.App.) To reduce a killing to the Miller county highway and bridge district manslaughter, and upon defendant's belief of to construct a system of highway improvements adultery between his wife and deceased, the killwithout also constructing the contemplated bridge over the Red river.-Conway v. Miller ing must take place at the first meeting of the County Highway and Bridge Dist., 179 S. W. parties after he has become aware of the facts. Mitchell v. State, 179 S. W. 116.

1009.

95 (Ark.) The Legislature has power to confer upon a board of a road improvement district plenary power in the matter of selecting the materials as well as forming the plans for the improvement.-Nall v. Kelley, 179 S. W. 486.

95 (Ark.) Statute requiring road overseers to keep roads in good condition held not to authorize incurring of indebtedness exceeding revenues of district.-Weaver v. King, 179 S. W. 507.

Adultery of defendant's wife and deceased in which she was equally at fault, if such as to be an outrage against defendant, would afford adequate cause reducing the killing to manslaughter.-Id.

Defendant, who had reason to believe that his wife had committed adultery with deceased, and that deceased was then endeavoring to have such relations renewed, and whose mind was rendered incapable of cool reflection, would be guilty only of manslaughter.-Id.

Under Kirby's Dig. §§ 7314, 7318, under op: 49 (Tex.Cr.App.) That decedent called actional system of working roads, held that road cused a bastardy son of a bitch was not an inoverseer has no authority to incur an indebted-sult to his mother and did not raise the issue ness for work on his roads in excess of his dis- of manslaughter.-Ahearn v. State, 179 S. W. trict's revenues.-Id.

II. TRANSFER OR INCUMBRANCE.

117 (Tex. Civ.App.) Under Rev. St. 1911, art. 1115, title to lots, occupied by incorporator as a business homestead, agreed by him to be transferred to the company in return for stock, which was issued, neither the application for the charter nor the affidavit being executed by such incorporator's wife, did not pass.-MeGough v. Finley, 179 S. W. 918.

118 (Ark.) Defendant, who received chase price for homestead, sold on executory contract without signature of his wife, cannot avoid repayment of purchase price, where property was destroyed before deed was made, though she joined in the deed after the fire.Waters v. Hanley, 179 S. W. 817.

Under Kirby's Dig. § 3901, a deed purport

1150.

IV. ASSAULT WITH INTENT TO KILL.

89 (Tex.Cr.App.) Where defendant fired into a small room packed with people in reckless disregard of human life, with intent to kill some one, and did shoot some one, his conviction of assault to murder was proper.-Williams v. State, 179 S. W. 710.

95 (Ark.) In prosecution for assault with intent to kill, an instruction that threatening acts, accompanied by opprobrious words, would be a provocation that might reduce the degree of assault held an incorrect statement of the law, in view of Kirby's Dig. § 1587.-Deshazo v. State, 179 S. W. 1012.

V. EXCUSABLE OR JUSTIFIABLE
HOMICIDE.

110 (Tex.Cr.App.) Defendant, charged with manslaughter, who was shot while down and being beaten by decedent and his friends, had the right of self-defense to shoot to protect him

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER