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Statute of; Guaranty; Husband and Wife,, Om 182(1) (Ark.) Where a Chamber of ComOm 85; Indemnity; Insane Persons, 74, merce solicits subscriptions from prospective al75; Interest; Landlord and Tenant; Liens; lottees of lands donated by others to promote Limitation of Actions, em21; Logs and Log- the welfare of the community, the separate conging, m3, 8; Mechanics' Liens; Mortgages; tracts of the respective subscribers constitute a Partnership; Payment; Reformation of In- joint contract on their part.-Byington v. Little struments; Release; Sales; Specific Per- Rock Chamber of Commerce, 201 S. W. 122. formance; Stipulations; Subrogation; Telegraphs and Telephones; United States,

(D) Place and Time. 67; Use and Occupation; Work and Labor. em 212(1) (Mo.App.) Where one person depos

ited money with bank, to be paid over to anI. REQUISITES AND VALIDITY. other when latter should complete ditches ac(A) Nuture and Essentials in General.

cording to specifications, such other had rea

sonable time in which to finish ditches, which 10(4) (Mo.App.) Contract signed by both expired before six years.-Youngs v. People's seller and buyer reciting sale of feed to buyer, Sav. Bank, 201 S. W. 632. and containing formula for feed and minute shipping directions, is not lacking in mutuality,

(F) Compensation. though not reciting in express words that buy.am228 (Mo.App.) Where one person deposited er agreed to accept and pay for the feed.-Hef

money with bank to be paid to another on fernan v. Neumond, 201 S. W. 645. Where buyer, when informed of assignment forth in written receipt given, such other had

completion of ditches, specifications being set of contract for sale of feed, replied to assignees that he would look to them for delivery, and pleted according to specifications.-Youngs v.

no claim to money unless ditches were comthat portion of feed delivered was accepted and People's Sav. Bank, 201 S. W. 632. paid for, contract is not bad for want of mutuality, though it did not in specific terms obli

V. PERFORMANCE OR BREACH. gate buyer to accept and pay for feed sold. Id. am 279(1) (Ark.) A suit to recover on a subC10(4) (Tex.Civ.App.) Where buyer prom scription contract for the price of lands to be ises to purchase certain amount of corporate allotted defendant, held to present a complete stock at certain price per share, and seller furnishes such amount under agreement, con- form, although contract was too indefinite to

cause of action when plaintiff offered to pertract is not invalid for lack of mutuality, on ground that at time of making offer seller did require specific performance if treated as connot bind himself to furnish said amount of tract for sale of land.-Byington v. Little Rock stock.--International Life Ins. Co. v. Stuart, Chamber of Commerce, 201 S. W. 122. 201 S. W. 1088.

ww280(1) (Tenn.) Under contract for con

struction of logging road to be put in general (D) Consideration.

operation by June 1, 1913, road half tied on the ww71(2) (Mo.App.) Promise to grant debtor straight parts thereof, sufficient for construccorporation extension of time, though indefi- tion trains and for any traffic offered by logging nite, will, if for reasonable time, support company, held constructed within meaning of agreement by third persons to secure debt by contract.-Carolina Spruce Co. v. Black Mounexecuting deed of trust.- Mandle v. Horspool, tain R. Co., 201 S. W. 154. 201 S. W. 638.

Contract to construct logging road and place

it in operation, not expressly requiring the rail(F) Legality of Object and Consid- road contractor to purchase rolling stock, held

complied with, though contractor depended upOmw 138(1) (Ky.) In a popularity contest, where on its connecting carriers for its freight car company sells dealer the prizes and plans, supplies.-Id. with book of instructions telling that fictitious Own 300 (1) (Tenn.) Under contract

to votes should be given candidates to keep up struct logging road by a certain date, "unless interest, the transaction is vicious, and the prevented by weather conditions or other causcourt will not help either the contest company es beyond its control,” unanticipated trouble or the dealer.-Commercial Sec. Co. v. Arch- and delay in a cut by reason of a peculiar mud er, 201 S. W. 479.

or clay held to entitle contractor to an exten

sion of 30 days.--Carolina Spruce Co. v. Black II. CONSTRUCTION AND OPERATION. Mountain R. Co., 201 S. W. 154.

(A) General Rules of Construction. Ons 313(2) (Tex.Civ.App.) Where contract Omw 147(1) (Tex.Civ.App.) To ascertain the

is actually being performed, mere notice of inintention of the parties, the contract alone is tention to breach it is not itself a breach. to be considered in the absence of fraud, ac

Turner-Cummings Hardwood Co. v. Phillip A. cident, or mistake.-Crawford v. El Paso Land Ryan Lumber Co., 201 S. W. 431. Improvement Co., 201 S. W. 233.

VI. ACTIONS FOR BREACH. eww 153 (Tenn.) Where a contract may fairly be construed not to violate the law, courtma 328(1) (Tex.Civ.App.) Gross negligence in should incline to give it that construction, and seller's mistake in making amount of bis draft thus maintain its validity.-Carolina Spruce Co. on buyer too small is no defense to action on v. Black Mountain R. Co., 201 S. W. 154. buyer's promise to make good mistake.-Intercm 153 (Tex.Civ.App.) Where contract is sus

national Life Ins. Co. v. Stuart, 201 S. W. reptible of two reasonable constructions, court

10SS. will adopt that construction which will prevent fuw 337(2). (Ark.) Allegations that contractor, forfeiture. --Adams v. Fidelity Lumber Co., clearing right of way; threw logs on adjoining 201 S. W. 1031.

lands, causing plaintiff to pay damages, was de(B) Parties.

murrable, in not stating where contractor was

supposed to place logs. -Northern Const. Co. v. em 177 (Mo.App.) Where one person deposited Johnson, 201 S. W. 510. money in bank, to be paid over to another when latter should complete ditches according

CONTRADICTION. to specifications, reference, in receipt given by bank, to such other person's contract with See Witnesses, Cmw 405. landowners to construct ditches, did not make depositor party to contract or adopter there

CONTRIBUTORY NEGLIGENCE. of.-Youngs v. People's Sav. Bank, 201 S. W. 632

See Negligence, www 66–83.
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER









been redeemed and retired by company in its

settlement with certain preferred stockholders. See Trover and Conversion.

-F. T. Gunther Grocery Co. v. Hazel, 201 S.

W. 336.
Emw 320 (2) (Ark.) Where the

officers See Assignments; Chattel Mortgages; Deeds; whom plaintiff stockholders alleged were neg

Execution, 307; Fraudulent Conveyanc- ligent, continued in control, plaintiffs could sue es; Mortgages; Vendor and Purchaser, to recover moneys lost by such negligence with158.

out first demanding that the bank bring the suit. CORAM NOBIS:

-Magale v. Fomby, 201 S. W. 278. See Judgment, cm334.



(B) Representation of Corporation by 0f.

ficers and Agents. See Banks and Banking; Carriers; Limitation

of Actions, E21; Municipal Corporations; Cm 401 (Ky.) In making settlement of differPublic Service Commissions; Quo Warranto; ences between preferred stockholders and corRailroads; Street Railroads; Telegraphs and poration, and also differences between stockTelephones.

holders and himself, president of corporation

could not represent both himself and corporaII. CORPORATE EXISTENCE AND tion.-F. T. Gunther Grocery Co. v. Hazel, 201 FRANCHISE.

S. W. 336. cm 34(3) Mo. App.) Rule that who has Cw429 (Ark.) A general rental agent of a cordealt with another as a corporation is estopped poration with authority to rent the corporato deny corporation's existence in proceedings tion's lands had the apparent authority to wherein such dealings are an issue does not ex

fix the terms of rental contracts, and those tend to case where no charter has been received who dealt with him were not bound to take and there has never been intention to obtain notice of specific instructions given him to one.-Talbert v. Grist, 201 S. W. 906.

make only crop-sharing leases.---Three States

Lumber Co. v. Moore, 201 S. W. 508. IV. CAPITAL, STOCK, AND DIVI. cwn432(4) (Mo.) Instrument signed by corporDENDS.

ate officers and attested by corporate seal (A) Nature

and Amount of Capital and ordinarily raises presumption that officers Shares.

acted within their authority.-Coleman v. 68 (Ky.) Division of stock into common

Northwestern Mut. Life Ins. Co., 201 S. W. 541, and preferred, being authorized by Ky. St. Scww 432(12) (Mo.) Document signed by presi564, înced that, as against corporation and own

dent and secretary and attested by seal of ers of common stock, matured redeemable pre

corporate beneficiary of life policy is not conferred stock of grocery company was merely clusive evidence of officers' power to execute indebtedness against company, which it

instrument.-Coleman v. Northwestern Mut. bound to redeem, despite section 544.-F. T.

Life Ins. Co., 201 S. W. 544. Gunther Grocery Co. v. Hazel, 201 S. W. 336. C-433(2) (Mo.) The facts upon which ratifica

tion by a corporation of the acts of its officers VI. OFFICERS AND AGENTS. are based must be conclusively established, in (B) Authority and Functions.

order to permit the court to declare as a matter

of law that there was a ratification.--Coleman 298(1) (Mo.) Separate consent of directors

v. Northwestern Mut. Life Ins. Co., 201 S. W. of corporate beneficiary of life policy change of beneficiaries is not equivalent to formal action of board.-Coleman v. North XII. FOREIGN CORPORATIONS. western Mut. Life Ins, Co., 201 S. W. 544.

666 (Tenn.) Under Thompson's Shannon's (C) Rights, Duties, and Liabilities as to Code, 884515, 4539-4541, 5211, and Acts Corporation and Its Members.

1859-60, c. 89, embodied in Thompson's ShanCm314(2) (Ky.) Participation of manager of non's Code, § 4542, and sections 2549, 4516. corporation with president in compromise with 1543–546, foreign corporation may be served preferred stockholders, and execution by him by attaching its property in any county in state, of corporation's note to bank for amount of though directors and officers reside in another money, had no binding force upon corporation, county.-Brewer v. De Camp Glass Casket Co., where, in settlement in which president of cor

201 S. W. 145. poration was interested, manager was bene

COSTS. ficially interested with him adversely to corporation.-F. T. Gunther Grocery Co. v. Hazel, See Appeal and Error, 389, 1226; Judg201 S. W. 336.

ment, Omw 59. Corporation's settlement with preferred stockholders is binding upon corporation and I. NATURE, GROUNDS, AND EXTENT president as settlement of differences with

OF RIGHT IN GENERAL. stockholders and redemption by corporation of ww13 (Ark.) The rule that the chancellor has matured preferred stock, but is without force as between corporation and president, who, in ties does not apply where one party has equi

a discretion to impose costs according to equisettlement, represented hostile interests of ties superior to the other, and in such case the corporation and himself.--Id.

chancellor has no discretion.-Fry v. White, 201 316(1) (Ky.) Where corporation's settle-s. W. 1105. ment with preferred stockholders holding matured stock, effected by company's president, 2273, 2.274, and 4:244, Ky. St. § 2271, making

Cum 32(1) (Ky.) In view of Ky. St. $$ 1743, was mutually advantageous to corporation and

the successful party primarily liable for jury president, in adjustment of their ditferences fees, is consistent with section 2260, making growing out of settlement, it is equitable that losing party ultimately liable.-Louisville Ry. each should contribute in proportion to benefits Co. v. Dugan, 201 S. W. 324. received.-F. T. Gunther Grocery Co. v. Hazel, In view of Ky. St. 8 4214, the clause in Ky. 201 S, W. 336.

St. $ 2271, providing that a jury fee shall be Cun319(7) (Ky.) In suit between corporation paid to the clerk by the successful party before and former president for settlement, evidence execution shall issue on the judgment does not held to show that $10,000 of preferred stock relieve the successful party of paying the same, reissued to president for his common stock had I though he failed to issue execution.-Id.

to | 514.

em56 (Ark.) Costs are not necessarily ad at K.-State ex rel. Chick v. Davis, 201 S. judged against the losing party in chancery cas W. 529. es, but the chancellor may, in the exercise of sound discretion, apportion costs according to

(D) Rules of Decision, Adjudications, equitable principles.-Fry v. White, 201 s. w.

Opinions, and Records. 1105.

Cm90(6) (Tenn.) An unreported opinion affirm

ing an erroneous decision of chancellor withV. AMOUNT, RATE, AND ITEMS. out opinion will not be followed under rule of Om 172 (Tex.Civ.App.) Under sale contract

stare decisis.-Kobbe v. Harriman Land Co., providing that if claim arising from buyer's

201 S. W. 762. failure to accept goods should be placed with C 91(1) (Tex.Civ.App.) The Court of Civil attorneys for collection the buyer should pay Appeals is bound to follow the latest ruling 10 per cent. on contract price of goods as at

of the Supreme Court upon the same propositorney's fees, held, that such fees should be tion.--Camp v. Gourley, 201 S. W. 671. computed on the actual amount sought for the m95(2) (Tex.Civ.App.) Court of Civil Appeals breach.--Early-Foster Co. v. M. M. Graves Co., of Texas is not at liberty to place interpretation Inc., 201 S. W. 214.

upon laws of New Mexico different from that

adopted by courts of that state.-Clay v. AtchiCOTENANCY.

son, T. & S. F. Ry. Co., 201 S. W. 1072.

Where Legislature of another state has carSee Tenancy in Common; Joint Tenancy. ried forward in every compilation of laws since

its original enactment a section of an act, and COUNTERFEITING.

subsequent acts relied on as repealing it were See Forgery.

all in force and before Supreme Court of other

state when it decided case against repeal, secCOUNTIES.

tion is still in force.-Id. See Judges, m4.



0169(1) (Tex.Civ.App.) County court has TAXATION.

no jurisdiction to issue writ of injunction, exOmw 173(3) (Tenn.) Priv. Acts 1917, cc. 295, 479, cept where amount in controversy, exceeds authorizing Shelby county to aid Bolton' Cola | $200, and does not exceed $1,000, in value, lege hy issuing bonds and levying tax to pay exclusive of interest.--Luhning v. Scott, 201 therefor, violates Const. 1870, art. 2, § 29, pro- S. W. 663. viding that county's credit shall not be given an 170 (Tex.Civ.App.) Where petition is in aid of any person, etc., unless such action be doubtful as to when interest sought is to beauthorized by a three-fourths vote at election gin, it will be construed to begin when the held for that purpose.—Berry v. Shelby Coun- judgment was rendered, where, if it began bety, 201 S. W. 748.

fore such time, the court would not have had

jurisdiction on account of amount involved.COUNTS.

Magnolia Cotton Oil Co. v. Martin, 201 S. W.

190. See Criminal Law, 878.

Om 170 (Tex.Civ.App.) Petition in suit on notes

and for foreclosure of chattel mortgage disclosCOURTS.

ing sum sued for is less than $200, and containSee Appeal and Error, Caw 156, 493, 840; Con- ing no allegation of value of mortgaged properstitutional Law, n70; Criminal Law,

ty, does not affirmatively allege facts showing 83-91; Death, Caws 34, 35; Judges; Judg- county court has jurisdiction.-Watts v. Stewment, Co 489; Justices of the Peace; Land- art, 201 S. W. 1061. lord and Tenant, C291; Nandamus, 142; New Trial, 'cm 13; Removal of Causes. V. COURTS OF PROBATE JURISDIC

I. NATURE, EXTENT, AND EXERCISE 202(2) (Mo.App.) Though

arises in OF JURISDICTION IN GENERAL. probate court, when defendant does file answer, Owl (Tex.Cr.App.) It is the court's duty to it should contain all defenses relied on.-Sutobserve, and not disregard, statutory provisions. ton v. Libby, 201 S. W. 615. -Dodd v. State, 201 S. W. 1014.

VI. COURTS OF APPELLATE JURIS. Cm8 (Mo.) Kansas Reciprocal Demurrage Act

DICTION. (Gen. St. Kan. 1909, $3 7201-7203), subjecting railroad to penalty to shipper for delay in fur- (A) Grounds of Jurisdiction in General. nisbing cars ordered, is not penal in sense ww2073) (Tex.Civ.App.) In view of orders of forhidding enforcement in Missouri.-Coryell v. county court, for Court of Civil Appeals to reAtchison, T. & S. F. Ry. Co., 201 S. W. 77. strain unauthorized depredation, pending apwww33 (Mo.) All facts necessary to confer ju- peal in proceedings to probate a will, upon tesrisdiction and make valid an act of the county tatrix's property by temporary administratris court when acting in its judicial capacity must appointed by county court, held not encroachaffirmatively appear upon the face of its rec ment on jurisdiction of county court to adıninord. --State, on Inf. of Killam, v. Colbert, 201 ister estates of deceased persons.-Stewart v. S. W. 52.

Poinbeouf, 201 S. W. 1025.

ww207 (4) (Tex.) Where relator, seeking to II. ESTABLISHMENT, ORGANIZA.

compel issuance of prospecting permit, alleged TION, AND PROCEDURE IN

the land had been surveyed, which the defendGENERAL.

ant denied, there was an issue of fact necessary (B) Terms, Vacations, Place and Time of to be determined as determining rights of the Holding Court, Courthouses, and parties, beyond the jurisdiction of the Supreme ccommodations.

Court, on original application for mandamus.67 (Mo.) Under Rev. St. 1909, $$ 4203, Wagner v. Robison, 201 S. W. 171. 4214, 4218-4:220, 4226, 4230, 4231, Jackson w207(5) (Ky.) Jurisdiction of Court of Apcounty criminal court may be held at K. and peals, conferred by Const. $ 110, will not be I. at the same time; and terms at the two exercised by writ of prohibition unless court places are not terms of the same court in sought to be prohibited is proceeding in matter such sense that arrival of time for terms at over which it has no jurisdiction.-Western I. automatically terminates next preceding term / Oil Refining Co. v. Wells, 201 S. W. 473.

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



(B) Courts of Particular States.

supervision of action of juvenile court.-State C231(1) (Mo.) Fact that matter involved is

v. Bockman, 201 S. W. 741. determinable by Supreme Court of United

Under Thompson's Shannon's Code, $$ 6063, States on appeal from highest state court is 6072, providing that jurisdiction of all matters not determinative of jurisdiction of state Su- not otherwise provided for is intrusted to cirpreme Court.--Mitchell v. Joplin Nat. Bank, cuit court, one adjudged to be juvenile delin201 S. W. 903.

quent by juvenile court of county may obtain Com 231(4) (Mo.) Decision of Court of Appeals, review by certiorari in circuit court.-id. relating to liability of levee district to one who ww247(11) (Tex.Civ.App.) Where it appears has performed work and furnished materials from face of petition for injunction in county in repairing levee of district's predecessor, court that such court had no jurisdiction over held not in conflict with other decisions on sub- subject-matter of suit, Court of Civil Appeals ject to confer jurisdiction on Supreme Court. has no jurisdiction over appeal from judgrient - Voss v. Des Moines & Mississippi Levee of county court.-Luhning v. Scott, 201 S. W. Dist. No. 1, 201 S. W. 538.

663. Ow231(5) (Mo.) Supreme Court has no jurisdiction of appeal from suit against power com

VII. UNITED STATES COURTS. pany and city to restrain erection of poles by (A) Jurisdiction and Powers in General. power company under permit from city, city having no real interest, as required by Rev. St. Cur 264(3) (Tex.Civ.App.) Federal court whose 1909, § 1729.--Frolichstein v. Cupples' Station receiver has taken possession of railroad comLight, Heat & Power Co., 201 S. W. 897. pany's property held to have exclusive jurism231(19) (Mo.) Where appeal was taken aft- diction, and to be entitled to retain jurisdicer validity of Rev. St. 1909, $ 7012, relating tion over property after it has been sold and to service of process en foreign corporations, delivered by receiver.- International & G. N. had been established, the Supreme Court has Ry. Co. v. Concrete Inv. Co., 201 S. W. 718. no appellate jurisdiction upon constitutional grounds.-Lewis v. New York Life Ius. Co., 201 VIII. CONCURRENT AND CONFLICT. S. W. 851.

ING JURISDICTION, AND COMITY. C231(19) (Mo.) Where appeal was taken aft. (A) Courts of Same State, and Transfer of er validity of Rev. St. 1909, $ 7042, relating to service of process on foreign corporations. ww480 (3) (Tex.Civ.App.) District court has had been established, the Supreme Court had no jurisdiction to enjoin sale of nonresident's no appellate jurisdiction upon constitutional property pursuant to valid justice court judg. grounds.-Lewis v. New York Life Ins. Co., 201 ment upon ground that property was exempt S. W. 852.

from execution.-Mann v. Brown, 201 S. W. Om 231(21) (Mo.) Where federal statutes under 438. which recovery was sought were not alleged to be invalid, Springfield vourt of Appeals had

(B) State Courts and United States jurisdiction, in view of Const. 1875, art. 6, § 12,

and Amendment 1884, § 5, since Court of Ap- cm 489(1) (Tex.Civ.App.) Reservation of jur.
peals was highest court where decisions could isdiction in decree of federal court, wherein
have been had and its judgment was reviewable validity and priority of claims on principles
by the United States Supreme Court under Rev. of equity were determined, held not to pre-
St. U. S. 8 709 (U. S. Comp. St. 1916, § 1214). clude state court from passing on claim unde:
--Mitchell v. Joplin Nat. Bank, 201 S. W. 903. Rev. St. 1911, art. 6625, against property sold

Const. 1875, art. 6, § 12, and Amendment by receiver.-International & G. N. Ry. Co. y.
1884, § 5, confers on Supreme Court jurisdic- Concrete Inv. Co., 201 S. W. 718.
tion only where validity of a federal statute is Cw489 (10) (Tex. Civ. App.) Federal court
involved and not merely where federal question which appointed receiver held not to have ex;
is involved.--Id.

clusive jurisdiction over suit to enjoin railroad
Cm 231(23) (Mo.) In prosecution for violation company from removing division headquarters
of city ordinance, defendant's motion to quash from a town at which they were established
complaint because ordinance on which it was pursuant to contract made by receiver.-Hous.
based was unconstitutional and void, without ton & T. Ç. R. Co. v. City of Ennis, 201 S. W.
pointing out provision of the Constitution 256.
claimed to have been violated, did not give
Supreme Court jurisdiction of his appeal.--City

COVENANTS. of Lancaster v. Reed, 201 S. W. 95.

See Infants, m105; Landlord and Tenant, Com 231(35) (Mo.) Where plaintiff alleged that Om 14. her attorney had obtained a quitclaim deed for certain land in his own name, and satisfied a II. CONSTRUCTION AND OPERAdeed of trust to plaintiff, and the answer aver

TION. red absolute ownership of the land to be in de- (D) Covenants Running with the Land. fendant, the title to real estate is involved, w80 (Mo.App.) That deed from defendant's conferring jurisdiction upon the Supreme Court. grantee to unincorporated company, and from -Thorn v. Poynor, 201 S. W. 850.

it to plaintiff's grantor were void, held not to 231(44) (Mo. App.) Title to realty held in- deprive plaintiff of right to sue on defendant's volved in suit by purchaser at foreclosure sale covenant of seisin, where in a suit by heirs of to compel trustee to execute and deliver deed, defendant's grantee against the company and

that appellate jurisdiction, under Const. plaintiff's grantor a final decree was rendered art. 6, § 12 and Const. Amend. 1881, § 5, was that the land was owned by plaintiff's grantor, in Supreme Court.-Wright v. Cobb, 201 S. W. in view of Rev. St. 1909, 8 2793.—Talbert v. 912.

Grist, 201 S. W. 906. 231(18) (Mo.) Const. art. 6, § 12, giving Supreme Court appellate jurisdiction in cases in

III. PERFORMANCE OR BREACH. volving construction of revenue laws, does not ww89 (Mo.App.) Where notice to defendant authorize appeals in proceedings to enforce who conveyed land by warranty deed to plaindrainage benefit assessments, although such as- tiff's predecessor was that suits had been comsessments are collected as are other taxes.- menced to try title to land, that is, suits as State ex rel. Broughton v. Oliver, 201 S. W. provided by Rev. St. $$ 2535, 2536, defendant 868.

cannot complain in suit by plaintiff on 246 (Tenn.) Under Thompson's Shannon's ranty in defendant's deed that notices did not Code, $s 6321a, 6329, neither Supreme Court state that court would be asked to allow plain. nor Court of Civil Appeals can have immediate i tiffs in those cases improvements, in view of

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sections 2100, 2401-2405.-Talbert V. Grist, / ors, and section 15 not giving circuit court 201 S. W. 906.

exclusive jurisdiction.-Gans v. State, 201 S.

W. 823.

Om94 (Ky.) Under Cr. Code Prac. $ 13, subsec. em 121(3) (Mo. App.) Where defendant who con- 5, 6, county court had jurisdiction to try ofreyed land by warranty deed to plaintiff's pred-fense of selling oil without first having, oil ecessor did not appear after notice of suit to inspected and barrels branded or marked, determine title, he is estopped in a suit by penalty therefor, prescribed by Ky. St. $ plaintiff on warranty in deed to say that case 2208, being fine of $20 for each barrel illegalwas not properly tried and is bound by judg- ly sold.-Western Oil Refining Co. y. Wells, ment awarding the improvements to defendants 201 S. W. 473. therein in view of Rev. St. 1909, § 2535.-Talbert v. Grist, 201 S. W. 906.

X. EVIDENCE. In suit against defendant on warranty in (A) Judicial Notice, Presumptions, his deed by plaintiffs who had defended title

Burden of Proof. after notice to defendant, defendant could not ca 304(17) (Tex.Cr.App.) Under Tick Eradicomplain of action of court in awarding im- cation and Quarantine Law, court and jury provements to defendants in such suits; deci- will take judicial notice of rules and regulations sion being to defendant's advantage.-Id.

of live stock sanitary commission proclaimw 130(4) (Tex.Civ.App.) Measure of damages ed by Governor, but judicial notice cannot be in suit upon general warranty of title to land taken of rules and regulations not so proclaimis purchase money, with interest at legal rate ed.--Mulkey v. State, 201 S. W. 991. from date of payment.-Fidelity Lumber Co. v. Proof of violation of proclamation of GoverEwing, 201 S. W. 1163.

nor defining quarantine areas, etc., which did w 130(7) (Tex.Civ.App.) Where title to only not purport to show that regulations had been part of land sold under general warranty of ti- prescribed by live stock sanitary commission. ile fails, vendor is liable upon his warranty for held not sufficient to support conviction of damages bearing same proportion to whole violation of rules and regulations of commispurchase money as value of the part as to sivn; for court cannot take judicial notice that which title fails bears to the whole premises, rules proclaimed were those of commission. estimated at prices paid.-Fidelity Lumber Co. -Id. v. Ewing, 201 S. W. 1163.

Where warrantors, by payment of $5,000, ob- (B) Facts in Issue and Relevant to Issues, tained for their warrantees good title to only

and Res Geste. 132 out of 320 acres of land warranted, they 351 (3) (Tex.Cr.App.) Testimony of witwere entitled to release from only 132/320 of nesses who claimed that when they went to their warranty liability, and not to the extent arrest defendant they saw him at distance and of $5,000 absolutely.-Id.

called to him is not subject to objection that

there was no proof that defendant heard them; COVERTURE.

there being evidence that defendant was within

hearing distance, and that he was aware that See Husband and Wife.

burglary had been discovered.-Burnett

State, 201 S. W. 409.

351 (3) (Tex.Cr.App.) In prosecution for See Criminal Law. 944; Trial, ew140; for bail in a homicide case, evidence as to de

perjury committed on writ of habeas corpus Witnesses, 393.

fendant's evasion of process to bring him in as

witness on trial for homicide was not admisCREDITORS.

sible against him on theory he was fugitive.-See Bankruptcy; Fraudulent Conveyances;

Roberts v. State, 201 S. W. 998. Subrogation.

Cum 359 (Tex.Cr.App.) Where identity of of

fender is in issue or his connection with ofCRIMINAL LAW.

fense controverted, it is generally permis

sible to introduce evidence of acts and declaraSee Adultery; Bail, em 43-70; Banks and tions of third parties which tend to show that

Banking, ein 84, 85; Disorderly House; For- they and not accused committed offense.gery; Grand Jury; Homicide, 169; In- Chenault v. State, 201 S. W. 657; Jackson v. dictment and Information; Intoxicating Liq. Same, Id. 658. nors, C219-238; Larceny; Perjury; Pros.m363 (Tex.Cr.App.) In prosecution for astitution; Rape: Receiving Stolen Goods; sault to murder, where defendant denied he was Witnesses, 337.

shooting at the alleged assaulted party, what II. CAPACITY TO COMMIT AND RE- | tween the two was admissible as a part of the

was said immediately after the shooting beSPONSIBILITY FOR CRIME.

res gestae.-Covington v. State, 201 S. W. 179. 52 (Tex.Cr.App.) In prosecution for rape, no365(1). (Tex.Cr.App.) In prosecution for where defendant set up temporary insanity on burglary of store, where upon same trip and account of drunkenness in mitigation of pen- at about same time defendant entered another alty, the court in instructions properly limit- store, it was competent for state to trace de. ed defense to a state of mind rendering accused fendant to develop as part of res gestæ things incapable of distinguishing between right and done while on expedition, although it disclosed wrong.-Dodd v. State, 201 S. W. 1014. another offense.-Burnett v. State, 201 S. W.


366 (1) (Mo.) In prosecution for assault www83 (Ark.) Jurisdiction when conferred up with intent to kill, declarations made by wound

one court does not operate to oust other ed party at time she was shot of spontaneous courts otherwise possessing it because con- character relating to offense were admissible. current jurisdiction is not inconsistent.-Gans -State v. Kester, 201 S. W. 62. v. State, 201 S. W. 823.

368 (1) (Tex.Cr.App.) In a prosecution for E93 (Ark.) Municipal court of Little Rock murder, testimony of a witness as to what deunder Acts 1915, p. 347. $ 10, held, in view of ceased's father said, about 60 yards from the Kirby's Dig. $$ 1547-1549, to have jurisdic- killing, while a fight was going on, to the eftion of prosecution for violation of Acts 1917, fect that they were killing his boy, was admisp. 41. known as "hone dry” act; section 19 of sible as res gesta.--Lowe v. State, 201 S. W. act disclosing that violations are misdemean-| 980.

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


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