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unable to complete the contract he might re

scind, such clause was admissible in plaintiff's See Bills and Notes, Ow106; Contracts, action for the alleged balance due, since the 138.

contracts were duplicate originals.--BonnettPOSSESSION.

Brown Sales Service Co. v. Denison Morning

Gazette, 201 S. W. 1044. See Adverse Possession; Bills and Notes, 496.

1 15(2) (Tex.Civ.App.) Jobber who handled

for manufacturer of water-closets order of POWERS.

contractors to erect school building had right See Chattel Mortgages, w255–262; Execu- to rely on promise of manufacturer's agents tors and Administrators, wiw 138; Mortgages, contractors that latter had agreed to take.

that same type of closets would be shipped to m338. PRACTICE.

Sanitary Mfg. Co. v. Gamer, 201 S. W. 1068.

m 1 16(1) (Ark.) An agent acting within the For practice in particular actions and proceed- apparent scope of his authority, though in violaings, see the various specific topics.

tion of specific instructions, may bind his prin

cipal in dealing with one who has no notice of PREFERRED STOCK.

the restrictions upon the agent's authority.-

Three States Lumber Co. y. Moore, 201 S. W. See Corporations, en 68.


(C) Unauthorized and Wrongful Acts. See Insurance, m137.

Em 147(3) (Ark.) One dealing with an agent

whose authority is limited to a single transacPRESCRIPTION.

tion must ascertain at his peril the extent of

such authority.-Three States Lumber Co. v. See Adverse Possession; Easements, w7; Moore, 201 S. W. 508. Limitation of Actions.

Om 148(2) (Tex.Civ.App.) Where purchaser

secretly agreed with vendor's agent that agent PRESENTMENT.

should become partner in purchase and that

contract should be signed by which security of See Bills and Notes, Cw396, 537.

vendor would be greatly impaired, purchaser

was estopped to assert misrepresentations of PRESUMPTIONS.

agent being charged with knowledge that agent See Appeal and Error, Om901-934, 1031; 1 201 S. W. 239.

must not become a partner.-Binder v. Millikin, Criminal Law, ew1141; Evidence, evo 63- 148(3) (Ark.) Where the agent's authority . 89.

is confined to a single transaction, there is no PRINCIPAL AND ACCESSORY.

presumption as to general authority.-Three

States Lumber Co. v. Moore, 201 S. W. 508. See Homicide, C30, 281; Rape, m19. One dealing with an admitted agent has the

right to presume, in the absence of notice to PRINCIPAL AND AGENT.

the contrary, that he is a general agent clothed

with authority coextensive with its apparent See Attorney and Client; Banks and Banking, scope.-Id.

Cw54, 55; Brokers; Deeds, no 58; Evi- 149(2) (Tex.Civ.App.) Recovery cannot be dence, 249, 471.

had against one assuming to be an agent, for I. THE RELATION.

liquidated damages stipulated in a contract, but

can be had for damages, or the value of serv(A) Creation and Existence.

ices rendered.-White v. Roughton, 201 S. W. | (Tex.Civ.App.) Neither architect of school | 679. building nor superintendent of schools could be Where one falsely represents that he is agent held to be agent of jobber who took order for for another and enters into a contract, the other water-closets of contractors to build school and party can sue him on his warranty without tenhandled it with manufacturer.-Sanitary Mfg. dering performance to the supposed principal. Co. v. Gamer, 201 S. W. 1068.


158 (Mo.) One party to an exchange of (B) Termination,

properties could not defeat recovery by the Om42 (Tex.Civ.App.) Where jobber handled other on the ground of fraud by the contention for manufacturer order for water-closets of that he had no personal knowledge of the fraud contractors to erect schoolhouse, contractors accomplished by false representations of his were not agents of plumber after they had filed agents.-Laird v. Keithley, 201 S. W. 1138. voluntary petition in bankruptcy.-Sanitary Mfg. Co. v. Gamer, 201 S. W. 1068.

PRINCIPAL AND SURETY. eww 45 (Tex.Civ.App.) When agent seeks indiyidual advantage inconsistent with rights of See Appeal and Error, Cw1226, 1234; Bail; his principal, bis authority is automatically de Guaranty; Guardian and Ward, em 182; Instroyed and agency revoked.-Binder v. Millikin, demnity; Intoxicating Liquors, cm301. 201 S. W. 239. III. RIGHTS AND LIABILITIES AS TO


See Chattel Mortgages, Emm 138; Executors and (A) Powers of Agent.

Administrators, Omw 182; Landlord and TenOnw92(1) (Tex.Civ.App.) Persons dealing with

ant, 248; Mortgages, em 149; Municipal agent must act in good faith and not seek un. Corporations, w519, conscionable advantage over his principal.-Binder v. Millikin, 201 S. W. 239.

PRIVATE ROADS. Om 103(12) (Tex.Civ.App.) Where plaintiff's agent took defendant's order on blank, which See Easements. provided that salesmen were not authorized to alter the sales offer by verbal agreement, and PRIVILEGED COMMUNICATIONS. wrote on the back of the carbon copy left with defendant that if defendant became financially I See Witnesses, Eww199, 211.

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



ed within meaning of the law, those terms

should be defined in charge.-Johnson v. State, See Commerce, Om64.

201 S. W. 990. PRIVITY.


See Criminal Law, Om740–764; Trial, 194. PROBATE COURTS.

PROXIMATE CAUSE. See Courts, em 202.

See Carriers, 320; Master and Servant,

On 247; Negligence, m56, 59.
See Appeal and Error, con 107; Attachment; PUBLIC IMPROVEMENTS.

Divorce, C328; Execution: Garnishment; See Municipal Corporations, w292-581.
Injunction; Judgment, w17; Mandamus;
Quo Warranto; Searches and Seizures; Se-


See Mines and Minerals, Om6; Navigable WaAND VALIDITY.

ters, 44. Cw33 (Tex.Civ.App.) Under Vernon's Sayles' II. SURVEY AND DISPOSAL OF LANDS Ann. Civ. St. 1914, art. 1852, requiring cita

OF UNITED STATES. tion to state date of filing of plaintiff's peti- (E) School and University Lands. tion, citation stating petition was filed on certain day and month, "A. D. 191." is insufficient. Emo 54 (3) (Tex.) Under Acts 34th Leg. c. 150, -Sypert v. Rogers Lumber Co., 201 s. w. $ 3. (Vernon's Ann. Civ. St. Supp. 1918, art. 1102.

5420c), providing that school land situated II. SERVICE.

in Jeff Davis county may be sold in quantities

not to exceed eight sections of 640 acres each, (E) Return and Proof of Service.

or less, to one person, and in whole On 134 (Mo.App.) Under Rev. St. 1909, $ 1763, tracts only, and without condition of settlement requiring return to recite place of service, re- and residence, the quantum of land which may turn of writ served on Sunday, reciting, to bring be purchased by a single individual is deter service within section 1785, as to Sunday serv- mined by the number of sections regardless of ice, that person served was nonresident, and acreage.--Ford v. Robison, 201 S. W. 401. was about leaving county and state, but not re- Under Rev. St. 1911, art. 5420; Acts 2901 ferring to place of service, was insufficient. Leg. c. 103, 8 6; Acts 30th Leg. (1st Called Taylor v. Helter, 201 S. W. 618.

Sess.) c. 20, § 6, as to quantities in which Om 147 (Mo.App.) Under Rev. St. 1909, $ 1763, school land may be purchased, purchaser unrequiring return to recite place of service, re- der Acts 34th Leg. c. 150, $ 1 (Vernon's Ann. turn, not referring to place of service, is' not Civ. St. Supp. 1918, art. 5120a), held chargeaided by presumption from caption 'prefixed able with land previously purchased under thereto, "State of Missouri, County of

prior statutes in same county, although such S. S.”—Taylor v. Helter, 201 S. W. 618.

act does not specifically so charge him.-Id. Recitals of return, prescribed by Rev. St. 1909, 8 1763, cannot be aided by extrinsic evi



170(3) (Tenn.) Under compact between III. DEFECTS, OBJECTIONS, AND Kentucky and Tennessee in 1820, held that a AMENDMENT.

Kentucky grant in 1880 was valid, though the mw 164(1) (Mo.App.) Where recitals of return land was in Tennessee.-Russell v. American do not comply with requirements of Rev. St. Ass'n, 201 S. W. 151. 1909, 8 1763, trial court may allow amend

Since a state in granting lands conveys withment of return.- Taylor v. Helter, 201 S. W. out covenant, the doctrine of estoppel does not 618.

apply to a grant from the state so as to pass

an after-acquired title, and such grant passes PROHIBITION.

only the title the state then had.-Id. See Intoxicating Liquors.

Com 172(3) (Tex.) Intending purchasers of

public lands, having made application to purPROMISSORY NOTES.

chase as required by Vernon's Sayles' Ann.

Civ. St. 1914, art. 5410, held to have perfected See Bills and Notes.

rights to lands, though affidavit antedated offi

cial declaration that lands were for sale,-PROPERTY.

Stockwell v. Robison, 201 S. W. 1156.

cm 172(8) (Tex.) Purchasers of public lands, See Fixtures, Omm15; Good Will.

against whom forfeiture has been declared for

failure to pay interest, may be relieved of PROSTITUTION.

the forfeiture only in the absence of intervenSee Disorderly House, Cw19; Lewdness.

ing rights of other persons.-Stockwell F.

Robison, 201 S. W. 1156. mwl (Tex.Cr.App.) Assisting prostitute to ply The commissioner of public lands may, unher vocation in woods held not within pander- der Vernon's Sayles' Ann. Civ. St. 1914, art. ing statute (Vernon's Ann. Pen. Code 1916, \ 5407, when a second forfeiture has been deart. 506a), which is directed against offense in clared, reappraise land at less than the amount connection with house of prostitution, but was at which it was once appraised, under Acts 33d within article 498.—Johnson v. State, 201 S. Leg. c. 160 (Vernon's Sayles' Ann. Civ. St. W. 990.

1914, arts. 5423a-5423f), permitting repurchase (Tex.Cr.App.) Evidence held insufficient by former purchasers whose purchase was deto sustain conviction of pandering under Ver- clared forfeited.-Id. non's Ann. Pen. Code 1916, art. 506a.-John-C 175(7) (Tex.Civ.App.) In trespass to try tison v. State, 201 S. W. 990.

tle, where evidence suggests a conflict between Em 5 (Tex.Cr. App.) In prosecution for pan- surveys, the burden is upon the party claimiug dering in violation of Vernon's Ann. Pen. Code under a junior patent to show that his land 1916. art. 506a, where it was doubtful wheth- does not conflict with that beld under a senior er houses involveil were houses of prostitution grant; but it is not incumbent upon one holdor where prostitution was encouraged or allow- l ing under a junior grant well defined and lo


cated on the ground to locate surrounding

RAILROADS. grants or uncertain description. Howell v. ElJis, 201 S. W. 1022.

See Carriers; Commerce, em 27; Eminent Do

main; Master and Servant; Street Railroads; PUBLIC NUISANCE.

Venue, 22. See Nuisance.


ww30 (Tex.Civ. App.) Debts represented PUBLIC SCHOOLS,

notes were not "subsisting liabilities and claims" See Schools and School Districts.

within Rev. St. 1911, art. 6625, where debts

and claims within such statute had been paid PUBLIC SERVICE COMMISSIONS. with money procured by giving the notes with

out any assignment of the claims or agreement C5 (Mo.) Public Service Commission Act, 8 that the lender should be subrogated to the 21, authorizing the assessment of fees against rights of the creditors whose claims were paid public service corporations, with certain excep- with the borrowed money.- International & G. tions, imposes a tax payable to the state, and N. Ry. Co. v. Concrete Inv. Co., 201 S. W. 718. the exception is not to be construed strictly Evidence, in a suit to enforce against railroad against the assessment of fees, but is to be con- property purchased from receiver a claim under strued strictly in favor of the state.-Kansas | Rev. St. *1911, art. 6025, held to show that City Rys. Co. v. Public Service Commission of stockholders of old company received stock in Missouri, 201 S. W. 74.

or control over new company in consideration

of their holdings in the old company.-Id. PUBLIC SERVICE CORPORATIONS.

IV. LOCATION OF ROAD, TERMINI, See Carriers; Railroads; Street Railroads;

AND STATIONS. Telegraphs and Telephones.

Om46 (Tex.Civ.App.) Contract made by receivPUBLIC USE.

er of railroad and complied with by receiver and

company for over 20 years to establish headSee Dedication; Eminent Domain.

quarters for division at particular town held

perpetual contract which railroad company PUBLIC UTILITIES.

could not terminate without showing that it

could not by reasonable effort discharge duties See Public Service Commissions.

while complying with contract.--Houston & T.

C, R, Co. v. City of Ennis, 201 S. W. 256. PUNISHMENT.

In view of Rev. St. 1911, art. 6423, a contract

of receiver of railroad to establish division headSee Penalties.

quarters with necessary roundhouses and maPUPILS.

chine shops at particular town based on valuable

consideration and which was adopted by comSee Schools and School Districts, no 150, 158. pany is valid and enforceable.-Id.

Contract of railroad company to maintain its QUALIFICATIONS.

division headquarters at particular town enter

ed into by receiver for valuable consideration See Judges, m4.

and complicd with for many years may be en

forced by injunction.-Id. QUANTUM MERUIT.

57 (Tex.Civ.App.) Decree enjoining a rail

road company from removing division headquarSee Work and Labor, 29.

ters from a particular town held not erroneous

as prescribing company's train schedules, etc. QUESTIONS OF LAW AND FACT. Houston & T. C. Ř. Co. v. City of Ennis, 201

S. W. 256. See Criminal Law, C740-764; Trial, Cm139– Decree enjoining railroad company from re143.

moving division headquarters from town held QUIETING TITLE.

not erroneous as uncertain or indefinite.--Id.

Decree enjoining removal by railroad compaI. RIGHT OF ACTION AND DEFENSES. ny of division headquarters from town held not em 12(10) (Ky.) Plaintiff's possession by a ten-intendent and train dispatchers, etc., from such

erroneous though it enjoined removal of superant is sufficient for action to quiet title.-Sas

town.-Id, seen v. Farmer, 201 S. W. 39. II. PROCEEDINGS AND RELIEF.


AND EQUIPMENT. 37(1) (Ky.) Under Civ. Code Prac. $ 125, answer in action to quiet title which described C 99(11) (Mo.) Railway held not entitled, on certain land was sufficient to warrant judgment its attempted appeal, to review of proceedings for defendant for land forming only part there- | City, under its charter (articles 6, 7) to abate

to assess damages in proceedings by Kansas of.-Foster v. Roberts, 201 S. W. 334. Cw50 (Ark.) Although suit was brought to Kansas City v. Kansas City Terminal Ry. Co.,

grade crossing where railway crossed street.-quiet title, where the answer alleged that the 201 S. W. 511. deed under which plaintiff claimed was a mortgage, and the evidence proved such claim, a VII. SALES, LEASES, TRAFFIC CON. judgment of foreclosure was authorized, under TRACTS, AND CONSOLIDATION, the rule that, where equity acquires jurisdiction for one purpose, it acquires it for all purposes. Em 13! (Ark.) Railroad company may tempo-Estes v. Lucky, 201 S. W. 815.

rarily lease portions of right of way where such lease does not interfere with its functions.

Clark v. St. Louis. I. M. & S. Ry. Co., 201 S. QUO WARRANTO.


Cm 1335) (Ark.) Where lease of portion of rail

road right of way for lumber mill provided for 8 (Mo.) A quo warranto proceeding is the termination on 30 days' notice by either party, appropriate direct attack upon the validity of it will be presumed to continue in existence the county court's order incorporating a road though mill had ceased and was no longer dedistrict..State, on Inf. of Killam, v. Colbert, veloping freight for railroad. --Clark v. St. Louis. 201 S. W. 52.

I. M. & S. Ry. Co., 201 S. W. 111.
For cases in De.. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER


start until the boy had been removed.-Louis

ville & N. R. Co. v. Steele, 201 S. W. 43. (A) Duty to Operate.

276(4) (Ky.) Habitual practice of boys to 218 (Mo.) Facts held to show other train ride on moving trains without invitation or perservice at county seat reasonable and adequate, mission, held not to render company liable, unso as to make improper commission's order for less danger was discovered; but if they rode interstate mail train to stop on flag:-State .ex with conductor's permission, the company was rel. Missouri Pac. Ry. Co. v. Public Service bound to exercise ordinary care to protect them Commission of Missouri, 201 S. W. 1143. from injury:-Louisville & N. R. Co. v. Steele,

Fact, standing alone, that interstate mail 201 S. W. 43. train did not stop at county seat but stopped 278(1) (Ky.) Ky. St. & 805, prohibiting perat smaller places on flag, is of slight weight

sons getting on moving trains, held not to prein determining county seat's claim of discrimi- vent recovery by eight year old boy who got on nation in train service.--Id.

standing train and was injured in attempting to

alight after it started.-Louisville & N. R. Co. (B) Statutory, Municipal,


v. Steele, 201 S. W. 43.

On 281(2) (Ky.) A railroad company was reww226 (Tenn.) The statute of Arkansas (Kir- sponsible for the acts of its conductor in inby's Dig. $$ 6622-6625), requiring separate ac- viting, permitting, or encouraging boys to get commodations in certain cars for the use of on or ride on his train, though in violation of white and African passengers, does not require the company's rules.-Louisville & N. R. Co. v. a dining car to be partitioned with wood, nor Steele, 201 S. W. 43. that two separate dining cars be provided. - 282(4) (Ky.) In action for injuries to boy Shelton v. Chicago, R. I. & P. R. Co., 201 S. in alighting from train, evidence as to custom W. 521.

of boys to ride on and jump on and off of the Arkansas Statutes (Kirby's Dig. $$ 6622- train and of the conductor's practice in permit6625), as to separate accommodations for white ting them to do so, held competent.-Louisville and Agrican passengers, do not prohibit a rail- & N. R. Co. v. Steele, 201 S. W. 43. road from adopting a rule by which it serves Evidence that father of boy injured in jumpwhite persons at one hour and negroes at an- ing from moving train had requested conductor other, without providing separate dining coach- not to permit him to go on or ride on the train es.--Id.

or go about it, held competent.-Id. Ow229 (Tex.Civ.App.) Const. N. M. art. 20, 8 Cm 282(10) (Ky.) Conflicting evidence held to 16, and article 22, § 2, providing it shall be make question for jury as to whether conductor unlawful for railroad to use defective car or when he signaled train to start saw a boy who locomotive, and that railroad shall be liable to was stealing a ride.--Louisville & N, R. Co. y. employé injured through defect, relate exclu- Steele, 201 S. W. 43. sively to employés of railroads, and have no Whether boy was negligent in jumping from application in case of other persons injured or train, held a question for the jury, though he killed.-Clay v. Atchison, T. & S. F. Ry. Co., testified he knew it was dangerous, and had 201 S. W. 1072.

been warned not to do it, and whipped for doww253 (Tenn.) A railroad which maintained a ing it.-Id. dining car, intending to serve white and negro C282(15) (Ky.) Instructions as to duties of passengers at different hours, was liable to a trainmen towards boy stealing a ride and as to white passenger for its negligence in making a contributory negligence, hold not erroneous.call to the dining car for white persons at the Louisville & N. R. Co. v. Steele, 201 S. W. 43. time when negroes were about to be served.Shelton y. Chicago, R. I. & P. R. Co., 201 S.

(F) Accidents at Crossings. W. 521. Where a railroad permitted negroes to be

Cm325(1) (Tex.Civ.App.) If boy of 10 years, served while white passengers were in the din- injured at railroad crossing, acted with prudence ing car, on perceiving which plaintiff arose and that child of his age, intelligence, and experileft the car, and the steward insisted in the

ence would use under same circumstances, he hearing of others that she pay for the meal or

was not guilty of contributory negligence.dered, a verdict of $750 was excessive, and Houston & T. C. Ry. Co. v. Roberts, 201 S. W.

674. should be reduced to $250.-Id.

Cuma 337(1) (Tex.Civ.App.) Negligence of rail(C) Companies and Persons Liable for In

road in failing to keep fagman at crossing was juries.

proximate cause of injuries to boy when he

backed into passing freight train, in endeavor, 260 (Tex.Civ.App.) A railroad is liable for as he claimed, to avoid another engine apnegligence of other roads using its tracks, proaching on another track.-Houston & T. C. whether licensees or lessees.-Texas & N. 0. | Ry. Co. v. Roberts, 201 S. W. 674. R. Co. v. Jones, 201 S. W. 1085.

action 348(2) (Tex.Civ.App.) In

against 261 (Ark.) Under provision in a contract railroad for injuries to boy, evidence held to for joint use with plaintiff of defendant's tracks show boy must have known freight train was that in the event of collision caused by negli passing behind him when he stepped backgence of a joint employé, each shall bear its ward into it, as he claimed, to avoid another own property loss, the plaintiff cannot recover engine, so that railroad's failure to keep bell for destruction of a motorcar caused by negligence of a joint operator.-Kansas City South

at crossing could not have been proximate ern Ry. Co. v. Wade, 201 S. W. 787.

cause of injury.-Houston & T. 0. Ry. Co. v. Roberts, 201 S. W. 674.

In action for injuries to boy at railroad (D) Injuries to Licensees or Trespassers crossing, evidence held to show boy stopped in General.

and stood between two tracks to let switch On 273/2 (Ky.) Railroad company held no more engine go by, and, in attempting to get out bound to keep tracks, crossings, and premises of its way, backed into freight train behind. safe for infants than for adults, unless by-Id. course of conduct it establishes a status for w34817) (Tex.Civ.App.) In action for injuries children imposing greater care.-Louisville & to 10 year old boy at railroad crossing when N. R. Co. v. Steele, 201 S. W. 43.

he stepped back into passing freight train, as C27613) (Ky.) If boy was trespasser, conduc- he claimed, to avoid switch engine on other tor held to owe him no duty except to exercise track, in view of age of boy, evidence held ordinary care to prevent injury after discovery sufficient to support finding acquitting him of of his peril; but if conductor saw him on step contributory negligence.-Houston & T. C. Ry. before starting train, it was his duty not to Co. y. Roberts, 201 S. W. 674.





(G) Injuries to Persons on or near Tracks.

were equal was proper.-Clark v. St. Louis, I Oww390 (Mo.) That intoxication of trespasser M. & S. Ry. Co., 201 s. W. 111. on suburban railroad's trestle contributed to www485(8) (Ark.) In action against railroad his injury did not relieve railroad company company for injuries to property from fire, in: from liability under humanitarian doctrine.-- struction on contributory negligence of plain. Owens v. Kansas City, C. C. & St. J. Ry. Co., tiff's agent held proper. ---Clark v. St. Louis, I. 201 S. W. 518.

M. & S. Ry. Co., 201 S. W. 111. 396 (1) (Tex.Civ.App.) One into whose eye hot cinder is thrown by railroad engine 174 feet

RAPE. distant has burden of proving negligence.--- Mis See Criminal Law, Ow419, 420, 678, 864. souri, K. & T. Ry. Co. of Texas v. Langford, 201 S. W. 1087.

I. OFFENSES AND RESPONSIBILITY ww398(2) (Tenn.) The statement of a witness

THEREFOR. that the whistle was not sounded until it blew 6 (Ark.) Guilt of rape of a girl slightly inside the corporation here," and of another over 12 does not depend on fear of danger to that he lives 11 miles from Rogersville and life or safety or failure to make an outcry, but 1 mile from the spring, without giving relative on force.-Crawford v. State, 201 S. W. 784. location of each and the depot, is insufficient to establish city limit or defendant's noncompli- !3 (Ark.) Physical development of a child ance with Thomp. Shan. Code, 8 1574, subsec. of 12 years must be considered as well as men3.

Alexander v. Virginia & S. W. Ry. "Co., 201 tal development on the question of consent in S. W. 134.

a rape case.-Crawford v. State, 201 S. W. 784. Ca 400(14) (Mo.) In suit for death of tres. m.! 9 (Tex.Cr.App.) Where accused held the passer on suburban railroad's trestle, based victim while another raped her, accused was on humanitarian doctrine, evidence of negli-guilty of rape, under the law of principals, ungence after discovered peril held to make case

less insane, in view of Pen. Code 1911, arts. one for the jury.-Owens v. Kansas City, c. 74, 75, defining principals.---Dodd v. State, 201

S. W. 1014. C. & St. J. Ry. (0., 201 S. W. 518.



(A) Indictment and Information. Our 407 (Tenn.) Since the statutes do not cov- no 20 (Tex.Cr.App.) To convict one of rape er injuries to animals by railroads other than under law of principals, the indictment need by collision, an action for injuries to mules not allege the acts making accused a princifrightened by a train and injured in a trestle pal, but may directly charge the crime of rape. is a common-law action.--Nashville, C. & St. L. ---Dodd v. State, 201 S. W. 1014. Ry. v. Ford, 201 S. W. 755. After those in charge of the train observe

(B) Evidence. frightened animals on the track or near by, w 36 (Ark.) The burden is on the state in a it is incumbent on them to use ordinary care rape case to prove that a child of 12 had no in operating the train, and if they approach capacity to give consent, but it was proper to negligently and further frighten the animals instruct to consider the physical and mental and cause injury, the railroad is liable.--Id. development of the child.--Crawford v. State,

411(15) (Tex.Civ.App.) Where plaintiff's 201 S. W. 784. horse was running at large within limits of m53(2) (Ark.) Evidence held to sustain a town, contrary to ordinance, defendant, not conviction of assault with intent to rape, albeing required to fence its tracks, would not though the evidence would have warranted a be liable, unless horse was killed because of conviction of rape.-Crawford v. State, 201 S. negligence of its servants operating motor W. 784. car.-Texas City Terminal Co. v. McGee, 201

(C) Trial and Review. S. W. 673.

Om 59 (24) (Tex.Cr.App.) Where evidence Ow417 (Tex.Civ.App.) Where plaintiff's cattle showed that accused raped the victim and held while in city were run down by defendant's her while another raped her, accused's instructrain, which was proceeding in excess of speed tion that conviction could be had only for actual allowed by ordinance, and there was testimony rape by personal intercourse, on theory that that had train not been proceeding so fast cat- indictment would not support a conviction on tle could have been driven from tracks, recov the law of principals, was properly refused.ery cannot be denied on theory railroad com Dodd v. State, 201 S. W. 1014. pany's violation of municipal ordinance was not proximate cause.-Galveston. H. & S. A. Ry.

RATIFICATION, Co. v. Liuzza, 201 S. W. 1043. Om443(1) (Tenn.) Evidence held insufficient See Marriage, w37. to show negligence in operation of a train by which mules on the track were frightened and

REAL ACTIONS. caused to be injured on a trestle.- Nashville, C. See Ejectment; Forcible Entry and Detainer; & St. L. Ry. v. Ford, 201 S. W. 755.

Partition; Quieting Title; Trespass to Try (1) Fires.

Title. Onw 453 (Ark.) Under Acts 1907, p. 336. $ 1,

REAL EVIDENCE. railroad company, while absolutely liable for fires set out by it, is not liable for fires which See Criminal Law, w 404. may be set out by third persons on its right of way or spread thereto, and in such case proof

REBUTTAL. of negligence is essential to recovery. -Clark v. See Criminal Law, Cm683; Evidence, E89. St. Louis, I. M. & S. Ry. Co., 201 S. W. 111.

481(1) (Ark.) In action against railroad company for destruction of plaintiff's property,

RECEIVERS, evidence of forest fire in vicinity which might have caused destruction is admissible.-Clark v.

IV. MANAGEMENT AND DISPOSI. St. Louis, I. M. & S. Ry. Co., 201 S. W. 111.

TION OF PROPERTY. Cw485(1) (Ark.) Where there was evidence that (D) Sale and Conveyance or Redelivery fire might have resulted from some cause other

of Property. than that of railroad company, instruction that cm 142 (Tex.Civ.App.) Purchaser of railroad verdiet should be for company if probabilities property and corporation organized to operate

For cases in Dec. D.8. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

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