(D) Construction or Application of Language of Written Instrument. $450 (Mo.App.) Where a contract for the transfer of a railroad right of way obligated the railroad company to construct its embankment along a creek above high-water mark, plaintiff was entitled to show high-water mark by the marks on certain trees on which the mark appeared; the term, as used in the contract, not being limited to the point at which high water extended when no freshets occurred. -Coffman v. Saline Valley R. Co., 167 S. W. 1053. XII. OPINION EVIDENCE. (A) Conclusions and Opinions of Witness es in General. § 471 (Tex.Civ.App.) In an action for fraudulent misrepresentations as to the receipts from theaters which plaintiffs leased from defendants, testimony by plaintiffs' manager that he had quit plaintiffs' employ because of the improper management by plaintiff held not a conclusion of the witness.-Loftus v. Sturgis, 167 S. W. 14. Testimony by a witness for the defendant that the statements by defendant as to the expense of conducting such theaters were correct held not conclusions of the witness.-Id. 8471 (Tex.Civ.App.) Statement of a witness that the section whose boundary was involved had never been actually surveyed upon the ground held clearly speculative.-Harkrider v. Gaut, 167 S. W. 164. § 471 (Tex.Civ.App.) Testimony of a hostler's helper that a freight train "was moving pretty fast,' and that it stopped "unusually hard," considered with other testimony as to the fall and death of a brakeman, held a statement of fact.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279. § 481 (Tex.Civ.App.) A nonexpert may testify that the engines of a railroad company throw out more or less sparks.-Texas & N. O. R. Co. v. Cook, 167 S. W. 158. § 483 (Ark.) Experienced brakemen and switchmen held properly permitted to testify that in their opinion it was much safer for brakemen to pass from the top of a high car to the platform of a low car, if the ladders and handholds were on the end of the car.-Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83. § 489 (Tex.Civ.App.) In an action for injuries to cattle, an opinion by the plaintiff as to the reasonable value of the cattle if they had been transported to their destination within a reasonable time and with ordinary handling involves both a question of law and fact and is inadmissible.-Houston & T. C. R. Co. v. Hawkins & Nance, 167 S. W. 190. § 501 (Mo.) The opinion of a nonexpert as to the mental capacity of one to execute a deed is admissible only in connection with the facts on which the opinion is based.-Lee v. Lee, 167 S. W. 1030. as to their condition.-International & G. N. Ry. Co. v. Sharpe, 167 S. W. 814. § 506 (Mo.App.) In an action for injuries received by a woman who was dragged by a street car, testimony by her physician that a subsequent miscarriage resulted from the accident was not inadmissible as an opinion upon the question which the jury was to determine.Veiss v. United Rys. Co. of St. Louis, 167 S. W. 615. § 508 (Mo.) In an action for injuries from an electric shock, an expert electrician was properly permitted to testify as to the distance that a nail would have to be from an iron band other.-Riley v. City of Independence, 167 S. for an electric current to pass from one to the W. 1022. of the contract price for rebuilding a concen§ 513 (Mo.App.) In an action for the balance trating mill, the issue being whether the work was done "in a workmanlike manner," the court properly refused to permit defendant to ask a witness whether the work was so done, because calling for an opinion on a question upon which expert evidence was not proper.-Knost v. Van Hoose. 167 S. W. 596. § 513 (Tex.Civ.App.) Witness being a carpenter familiar with the strength of lumber, and having qualified as an expert thereon, his testiused in the construction of the column, it would mony that, had a good piece of ship-lap been not have broken with a man of plaintiff's weight was admissible.-Corrigan, Lee & Halpin v. Heubler, 167 S. W. 159. XIII. EVIDENCE AT FORMER TRIAL OR IN OTHER PROCEEDING. § 580 (Ky.) Under Ky. St. § 4643, providing the testimony of a witness may be read as evidence on a subsequent trial between the same parties, the benefit of such prior testimony inures to a person in privity, and is admissible for his personal representative.-Kentucky Traction & Terminal Co. v. Downing's Adm'r, 167 S. W. 683. § 581 (Ky.) A stipulation that the action was revived in the name of plaintiff's administrator by consent of parties conceded the death of plaintiff rendering it permissible under Ky. St. 4643, to read as evidence her testimony upon a former trial, without an affidavit showing that her testimony could not be procured.-Kentucky Traction & Terminal Co. v. Downing's Adm'r, 167 S. W. 683. EXAMINATION. 8 501 (Tex.Civ.App.) Where, in an action up- See Evidence, § 553; Witnesses, §§ 255-270. on a benefit certificate, defendant had shown that insured had had an attack of malaria, contradicting her statement to the contrary in her 214. EXCEPTIONS. application, plaintiff, her husband, was prop- See Appeal and Error, § 267; Pleading, §§ 193– erly permitted to testify that, in his opinion, she recovered in a few days; he stating the facts upon which the opinion was based.-Modern Brotherhood of America v. Jordan, 167 S. W. 794. (B) Subjects of Expert Testimony. 505 (Tex.Civ.App.) In an action by a shipper for injuries to two horses due to alleged rough handling, a railroad man who had handled many similar shipments was properly permitted to testify whether the horses were in a condition that horses would be in if properly transported, witness having testified in detail EXCEPTIONS, BILL OF. See Appeal and Error, $ 305; Criminal Law, $$ 695, 1090, 1091, 1092, 1111, 1120; Trial, §§ 84, 279. I. NATURE, FORM, AND CONTENTS IN GENERAL. $8 (Tex.Civ.App.) Bills of exceptions complaining of the admission of testimony, not showing what testimony was objected to, were too indefinite to be considered.-Stone & Web ster Engineering Corporation v. Goodman, 167 | IV. COLLECTION AND MANAGEMENT S. W. 10. § 13 (Tex.Civ.App.) A bill of exception to evidence not separating the inadmissible from the admissible evidence will be overruled.-Lester v. Hutson, 167 S. W. 321. II. SETTLEMENT. SIGNING, AND FILING. OF ESTATE. (A) In General. ment of an administrator, may allow reasonable § 111 (Mo.App.) The court, on final settleattorney's fees for services rendered the estate. -In re Whitlow's Estate, 167 S. W. 463. An administrator cannot, as a general rule, be allowed counsel fees for services in defense of his own personal interest, or where the litigation is in reality between the beneficiaries and not for the benefit of the estate as a whole. § 43 (Mo.App.) Under Laws 1911, p. 139, it was not a valid objection to a bill of exceptions that it was not filed within the time granted by the trial court, where it was filed before ap--Id. pellant was required to serve its abstract of record. Spaulding v. Missouri Lumber & Mining Co., 167 S. W. 663. § 54 (Tex.Civ.App.) Under Rev. St. 1911, art. 2067, relating to the bystanders' bill of exceptions, the bill must be prepared, sworn to, and filed at the time of the occurrence of the matters to which it relates.-Kenedy Mercantile Co. v. Western Union Telegraph Co., 167 S. W. 1094. EXCESSIVE DAMAGES. See Damages, §§ 132, 138. EXCHANGE OF PROPERTY. See Frauds, Statute of, §§ 110, 116. 88 (Tex.Civ.App.) Where an exchange of land was made without reference to the number of acres the land contained, and the value received by each was about equal, a recovery for shortage cannot be had.-Barnum v. Howard, 167 S. W. 745. EXCLAMATIONS. See Evidence, § 127. EXECUTION. The court on final settlement of an administrator should, in determining the question of allowance of counsel fees, distinguish between counsel fees chargeable against the estate and those for which the administrator is personally liable.-Id. (B) Real Property and Interests Therein. § 131 (Ark.) Where a lease by an executor of property devised by a will was ratified by the devisees, the devisees, and not the executor, are entitled to collect the rents if they are not necessary to pay debts.-Phillips v. Grubbs, 167 S. W. 101. § 150 (Ark.) Where an executor assuming to act as agent for the beneficiaries, made a fiveyear lease of property belonging to the estate. the acceptance by the beneficiaries of rents under the lease was a ratification of the lease if it was not previously authorized by them.Phillips v. Grubbs, 167 S. W. 101. VI. ALLOWANCE AND PAYMENT OF (B) Presentation and Allowance. See Courts, § 480; Deeds, & 45; Fraudulent Conveyances, § 237; Judicial Sales; Wills, $120. VII. SALE. (A) Manner, Conduct, Validity, and firming or Vacating. 216 (Ky.) Under Civ. Code Prac. § 667, a jailer has no authority to sell land under an execution issued to the sheriff, and a deed made pursuant thereto is void.-Parsons v. Dills, 167 S. W. 415. § 256 (Mo.) Where an execution debtor was present at the sale, in the hope that, by an arrangement with defendant, the successful bidder, the property could be made to yield nothing for his creditors, and the successful bidder at the sale was there to assist him, equity would not at the debtor's suit set aside the sale. Ferguson v. Robinson, 167 S. W. 447. (B) Title and Rights of Purchaser. EXECUTORS AND ADMINIS- See Courts, §§ 155, 198; Descent and Distribu- $29 (Mo.App.) One acting as administrator under a valid appointment, good until set aside, has a qualified title to the assets, and he holds the property as trustee for those entitled to share therein.-In re Whitlow's Estate, 167 S. VII. DISTRIBUTION OF ESTATE. $314 (Ky.) Where testatrix directed a sale of real estate to pay all indebtedness her son owed her daughter-in-law, and provided for the disposition of the surplus, the daughter-in-law was but a legatee, and she could sue, under Ky. St. § 3860, within 9 months after the adminis trator had qualified, and her cause of action did not depend on a sale of the real estate by the administrator of testatrix.-Baugh's Adm'x v. Baugh's Adm'r, 167 S. W. 124. VIII. SALES AND CONVEYANCES UN- § 333 (Mo.) Where an order for the adminis trator's sale of real property had been duly published and once renewed, the entry of an order of sale at a subsequent term which reI cited that the previous order of publication had been duly published amounted to a second renewal of the order of sale, and no application or order of publication was necessary.-Hicks v. Watson, 167 S. W. 533. § 346 (Mo.) Where a deed to a portion of the premises had been given under a prior order of sale, a subsequent order for the sale of the entire tract which made no reference to the former sale is good as to the land which had not been previously sold.-Hicks v. Watson, 167 S. W. 533. § 349 (Mo.) A recital, in an order for the sale of real property, that the order of publication had been duly published is presumed to be true, in the absence of a showing to the contrary.— (C) Sale. EXPLOSIVES. § 360 (Tex.Civ.App.) Under Acts 12th Leg. c. See Fish; Statutes, § 110%. the facts to the court or judge, who may appoint See Brokers. FACTORS. FALSE IMPRISONMENT. made in vacation.-Vineyard v. Heard, 167 S. See Homicide, § 55; Malicious Prosecution. W. 22. $ 362 (Mo.) An order of publication for an administrator's sale of real property, published in 1864, which notified all persons interested in the estate of the facts required by Rev. St. 1855, c. 22, art. 3, § 25, was sufficient notification to the heirs under the law then existing.Hicks v. Watson, 167 S. W. 533. 8376 (Tex.Civ.App.) Heirs who received the full benefit of the proceeds of a sale of property by an administrator are estopped to deny the validity of the sale.-Vineyard v. Heard, 167 S. W. 22. FEDERAL COURTS. See Courts, § 366. FEDERAL EMPLOYERS' LIABILITY See Evidence, § 236; Master and Servant, §§ 48. FEDERAL LIABILITY ACT. § 384 (Mo.) Where the record of entry ap- See Death, § 95. proving the report of sale by an administrator does not show to whom the sale was made or describe the land, but a deed was made conveying the land which could have been sold, it FELLOW SERVANTS. will be presumed that the report showed that See Master and Servant, §§ 177, 189, 279, 311. the grantee purchased the land which was conveyed to her.-Hicks v. Watson, 167 S. W. 533. FINAL JUDGMENT. § 388 (Tex.Civ.App.) A sale of land by an ad- See Appeal and Error, §§ 70-84. FINDINGS. ministrator of a wife, who was also executor X. ACTIONS. § 453 (Ky.) Where the vendors brought suit on a note for the price, in which the payee of the note joined as party plaintiff, and pending the appeal one of the vendors died, and the payee was substituted as his administrator, a judgment for the purchaser for amount due because of a deficiency in the quantity should be rendered against the payee only as administrator.-Rust v. Carpenter, 167 S. W. 873. XI. ACCOUNTING AND SETTLEMENT. (C) Charges and Credits. § 482 (Mo.App.) The court, on the final settlement of an administrator, properly refused a credit taken by him for the premium paid on his bond as administrator.-In re Whitlow's Estate, 167 S. W. 463. (E) Stating, Settling, Opening, and Re view. FIRES. § 21 (Ark.) Under a deed of land to a rail road for the erection and maintenance of a section house thereon, on condition that when it ceased to be used as such it should revert, a section house erected thereon and used as such held a fixture reverting with the land. St. Louis Southwestern Ry. Co. v. Curtis, 167 S. W. 489. $510 (Mo.App.) A credit allowed by the § 35 (Ark.) Evidence, in an action for the reprobate court on final settlement of an admin-moval of a fixture from land which had revertistrator for moneys advanced to the estate ed to the grantor, held to sustain a verdict for must be presumed to be proper, in the absence $200.-St. Louis Southwestern Ry. Co. v. Curof any evidence to the contrary.-In re Whit- tis, 167 S. W. 489. low's Estate, 167 S. W. 463. FORCIBLE DEFILEMENT. § 511 (Mo.App.) Where, on final settlement of an administrator, the principal question litigated involved the distribution of assets re- See Rape. maining in his hands, and on the facts disclosed the objector to the settlement was enti tled to all thereof, the administrator was not entitled to counsel fees for defending the settlement. In re Whitlow's Estate, 167 S. W. 463. EXEMPTIONS. FORCIBLE ENTRY AND DETAINER. See Judgment, §§ 408, 451; Landlord and Tenant, § 290. FORECLOSURE. See Charities, & 45; Fraudulent Conveyances, § See Chattel Mortgages, §§ 287, 290; Mechanics' 52; Homestead; Taxation, § 242. EXPERT TESTIMONY. See Evidence, §§ 505-553. Liens, 277, 415-587. FOREIGN CORPORATIONS. See Corporations, §§ 636–666. FOREIGN RECEIVERSHIP. See Receivers, § 210. FORFEITURES. See Insurance, §§ 146, 322-335, 558, 726, 748756; Landlord and Tenant, §§ 108, 291. FORGERY. See Carriers, § 57; Deeds, § 45. FORMER ADJUDICATION. See Judgment, $$ 565-717. FORMER JEOPARDY. See Criminal Law, §§ 169-200. FORNICATION. See Prostitution. FRAUD. See Bills and Notes, §§ 494, 497; Deeds, §§ 70, 196, 211; Dower, § 44; Election of Remedies, $3; Equity, § 39; Evidence, §§ 135, 219, 441, 471; Frauds, Statute of; Husband and Wife, §6; Insurance, §§ 553, 645, 818; Judgment, § 143; Limitation of Actions, §§ 33, 91, 99; Mortgages, § 84; Pleading, &8; Sales, 88 40, 97, 126, 404; Vendor and Purchaser, 93, 108; Wills, §§ 155, 163; Witnesses, § 414. II. ACTIONS. (C) Evidence. § 53 (Tex.Civ.App.) In an action for fraudulent misrepresentations as to the receipts from theaters which plaintiffs leased from defendants, testimony by plaintiffs' manager that he had quit plaintiffs' employ because of the improper management by plaintiffs held material on the issue of the truth of the representations. -Loftus v. Sturgis, 167 S. W. 14. Testimony by a witness for defendant that the statements by defendant as to the expense of conducting such theaters were correct held material.-Id. Testimony of such witness that the statements of defendant as to the expenses were true held to refer to the statements made by defendant before the execution of the lease.-Id. Evidence that a witness, who testified as to the truth of representations made by the defendant which were alleged by the plaintiff to be fraudulent, which tended to show that the witness did not and could not know what the statements were, affects the weight of the testimony, but not its admissibility.-Id. Evidence that, after the plaintiff took charge of the theaters, the performers were dissatisfied which had a tendency to hurt business, was admissible in rebuttal of plaintiff's testimony that the shows were properly conducted.—Id. § 58 (Ky.) Evidence, in an action for the amount of a note and mortgage, the execution of which by plaintiff to an innocent party was alleged to have been fraudulently procured by defendant, held to support a verdict for plain FRAUDS, STATUTE OF. See Trusts, §§ 17, 18. III. PROMISES TO ANSWER FOR DEBT, DEFAULT OR MISCARRIAGE OF ANOTHER. § 23 (Ky.) Order whereby a subcontractor, to whom plaintiff furnished goods on the understanding that the defendant contractor would pay for them out of money of the subcontractor in its hands directing defendant to pay money to plaintiff, held not an agreement to pay the debt of another within the statute of frauds. Fairbanks, Morse & Co. v. Tafel, 167 S. W. 887. $33 (Tex.Civ.App.) Oral promise by director of a corporation, the stock of which had been pledged as collateral for the note of a third party, that if the creditor would forbear threatened steps to prevent removal of the corporation's stock of goods, he would pay or see that the debt was paid, held supported by a new consideration, sufficient to take it out of the statute of frauds.-Enterprise Trading Co. v. Bank of Crowell, 167 S. W. 296. Oral promise by director of a corporation, the stock of which had been given as collateral security for a note of a third person, that if the creditor would forbear threatened steps to prevent removal of the corporation's stock of goods, he would pay the debt, supported by a good consideration, held an original promise not within the statute of frauds.-Id. Where a creditor reliquishes some right upon ing out of some new transaction, or upon some a third person's promise to pay the debt, springsubstantial ground of a personal concern to the promisor, the consideration to the promisor takes the promise out of the statute of frauds.-Id. V. AGREEMENTS NOT TO BE PERFORMED WITHIN ONE YEAR. seiler of his business not to engage in similar § 44 (Tex.Civ.App.) A parol agreement by the business in the village, so long as the buyer engages therein in the village, is not within the statute of frauds.-Tomlin v. Clay, 167 S. W. 204. VI. REAL PROPERTY AND ESTATES AND INTERESTS THEREIN. § 68 (Tex.Civ.App.) The statutes prohibiting the conveyance of land or an interest therein by parol have no application to a partition of lands.-Scott v. Watson, 167 S. W. 268. $70 (Tex.Civ.App.) Where the true location of a boundary line is unknown to the contiguous owners, and they orally agree on a line which they know is not the true boundary, the agreement is void under the statute of frauds. -Voigt v. Hunt, 167 S. W. 745. § 72 (Mo.App.) Standing timber is a part of the realty, and a contract for the sale thereof must be in writing, within the statute of frauds. -Starks v. Garver Lumber Mfg. Co., 167 S. W. 1198. VIII. REQUISITES AND SUFFICIENCY OF WRITING. of land for a stock of merchandise, which de$110 (Mo.App.) A contract for the exchance scribes plaintiff's farm as "80 acres of land 1% miles N. of Merwin, Bates county, Mo.." sufficiently describes the land within the statute of frauds.-Tracy v. Berridge, 167 S. W. 1176. § 116 (Mo.App.) Under the statute of frauds, Rev. St. 1909, §§ 2783, 2784, a contract for the exchange of real estate for a stock of merchandise, signed by the owner of the real estate and by an authorized agent of the owner of the stock, acting under a parol contract of agency, is valid.-Tracy v. Berridge, 167 S. W. 1176. FRAUDULENT CONVEYANCES. an unauthorized contract for the sale of land must be in writing, signed by the owner.-Id. A ratification of an unauthorized sale of per- I. TRANSFERS AND TRANSACTIONS sonalty may be by parol.-Id. IX. OPERATION AND EFFECT OF § 129 (Ark.) Where a tenant under an oral five-year lease, invalid under the statute of frauds, took possession, paid the rent for two years, and made the permanent improvements required by the lease, such part performance took the lease out of the statute.-Phillips v. Grubbs, 167 S. W. 101. § 129 (Mo.App.) A purchaser of standing timber under a parol contract, who cut and removed timber with the consent of the owner before a third person purchased the land, acquired title thereto as against the third person, notwithstanding the statute of frauds.Starks v. Garver Lumber Mfg. Co., 167 S. W. 1198. a § 129 (Tex.Civ.App.) Equity will sustain parol gift of land, notwithstanding the statute of frauds, where possession has been delivered and improvements of a substantial value have been made on the land by the donee with the donor's knowledge.-Wilkerson & Satterfield v. McMurry, 167 S. W. 275. Where an owner gave land to a son, who was placed in possession, and who, before building a house, removed trees and fences and filled in low places on the premises, the improvements made vested in the son the title in equity, notwithstanding the statute.-Id. § 132 (Ky.) Tender of performance by a vendor in a parol contract for the sale of real estate, after suit brought by the purchaser to recover the consideration paid, cannot take the contract out of the statute of frauds (Ky. St. § 470).-Grace v. Gholson, 167 S. W. 420. § 138 (Ky.) A purchaser who takes possession under a parol purchase has a lien on the land for the consideration paid and the enhanced value given by improvements, and he is chargeable with rent during his occupancy, measured by the interest on the consideration, plus the interest on the value of the improvements.-Grace v. Gholson, 167 S. W. 420. Where a purchaser in a parol contract for the sale of land did not take possession, but gave a note for the price and paid the first annual premium on a policy on the life of the vendor, the purchaser, suing for rescission, was entitled to a cancellation of the note and a repayment of the insurance premium, with interest from date of payment.-Id. $139 (Tex.Civ.App.) The statute of frauds is no defense to an action for delay in delivering a telegram, because F., by whom the sender of the telegram caused it to be sent, and who contracted with the company's agent to send it, orally guaranteed the charges, which were afterwards paid.-Western Union Telegraph Co. v. Taylor, 167 S. W. 289. X. PLEADING, EVIDENCE, TRIAL, AND REVIEW. $160 (Tex. Civ.App.) In an action for debt, where the pleadings and testimony presented the defense of the statute of frauds as to some of the items sued upon, the refusal of a requested charge correctly submitting that issue was erroneous.-Newman v. Benge & Flemister, 167 S. W. 6. INVALID. (C) Property and Rights Transferred. § 47 (Mo.App.) It is not a compliance with Bulk Sales Law, § 1, for the buyer to demand that the verified bill of sale contain a provision that the stock of goods sold is free and clear from incumbrance, and a sale so made is fraudulent as to the seller's creditors.-Joplin Supply Co. v. Smith, 167 S. W. 649. § 47 (Tex.Civ.App.) Under Rev. St. 1911, requiring a purchaser of a stock in trade to secure from the seller a verified list of his creditors, and to notify the creditors of the proposed sale, a sale of a stock is void as to a creditor of the seller whose name was omitted from the list furnished to the purchaser, but which list was not verified by the seller.-Williams v. J. W. Crowdus Drug Co., 167 S. W. 187. § 132 (Mo.) That a grantor, in a deed of entitled to be considered in determining whether trust to secure a debt, retained possession, if the deed of trust was fraudulent as against creditors, is only a fact to be considered in connection with all the evidence.-McMurray v. McMurray, 167 S. W. 513. (J) Knowledge and Intent of Grantee. § 158 (Ark.) Where the facts and circumstances surrounding a conveyance were such as to put a man of common sagacity on inquiry, and reasonable diligence would have disclosed itors, the grantee was charged with constructive that it was made to defraud the grantor's crednotice of that fact, and must be held to have assisted in the fraudulent purpose.-Merchants' & Farmers' Bank v. Harris, 167 S. W. 706. II. RIGHTS AND LIABILITIES OF PARTIES AND PURCHASERS. (A) Original Parties. (D) Bona Fide Purchasers from Grantee. $199 (Ark.) Where property conveyed in fraud of creditors was attached by the grantor's creditors, purchasers from the fraudulent grantee were not bona fide purchasers, being charged with notice of the attachment, which is, under Kirby's Dig. § 5152, required to be filed as a lis pendens.-Merchants' & Farmers' Bank v. Harris, 167 S. W. 706. § 202 (Ark.) One who purchases land which he knows was conveyed to his immediate grantor in fraud of the owner's creditors may, upon vacation of the conveyance, recover from his immediate grantor the purchase price, not being a participant in the fraud.-Merchants' & Farmers' Bank v. Harris, 167 S. W. 706. III. REMEDIES OF CREDITORS AND PURCHASERS. |