Rev. St. 1909, § 7068.-Lehmann v. Hartford, fact concerning the health, condition, or physiFire Ins. Co., 167 S. W. 1047.

A claim for damages for vexatious delay of the insurer in paying a loss, under Rev. St. 1909, § 7068, providing that in an action on a policy the court may in such case allow the plaintiff damages, could be assigned along with the insured's interest under the policy after the loss.-Id.

XVIII. ACTIONS ON POLICIES.

cal history of the applicant which would naturally have influenced the insurer in determining whether to issue the certificate.-Modern Brotherhood of America v. Jordan, 167 S. W. 794.

§ 724 (Mo.App.) Where a state agent of a fraternal benefit association offered to refund the initiation fee paid by a person to whom a certificate had been issued but not delivered with a view to the formation of a new lodge, but the beneficiary refused to accept it, and brought suit 36 days after the death of the person dying before initiation, there was no waiver of the right to insist on an initiation.Porter v. Loyal Americans of the Republic, 167

§ 645 (Tex.Civ.App.) Under Rev. St. 1911, art. 4949, a defense of fraud and misrepresentations in proofs of loss held unavailable, where there was no pleading or proof that the insurer had been misled, or had been caused thereby to waive or lose any valid defense to the policy.-S. W. 578. Fidelity-Phenix Fire Ins. Co. v. Sadau, 167 S. W. 334.

§ 654 (Tex. Civ.App.) Evidence, in a bank's action on the fidelity bond of its cashier, held to show that the bank had complied with its warranties as to when his accounts were last examined, that there was then no shortage, anu as to monthly examinations and reports as tu his accounts.-Southern Surety Co. v. First State Bank of Montgomery, 167 S. W. 833.

$665 (Tex.Civ.App.) Evidence held to show a waiver by defendant's general agent of a private garage warranty in a policy insuring plaintiff's automobile.-Commercial Union Assur. Co. of London v. Hill, 167 S. W. 1095.

§ 668 (Tenn.) In an action by a bank against a guaranty company upon a fidelity bond indemnifying it against loss due to the fraud or dishonesty of its cashier, held a question for the jury whether the bank had in good faith made reasonable examinations of the books and accounts of the cashier, as required by the contract with the guaranty company.-Hunter v. United States Fidelity & Guaranty Co., 167 S. W. 692.

§ 668 (Tex.Civ.App.) In an action upon an accident policy, evidence held to make it a question for the jury whether a loss to the insured was the result of sickness or of an accident within the policy.-First Texas State Ins. Co. v. Jones, 167 S. W. 9.

§ 669 (Ark.) In an action on an accident insurance policy, an instruction requiring a verdict for the defendant if the jury found that death resulted wholly or in part from disease held erroneous, where the evidence tended to show that death resulted from blood poisoning caused by an infection of a slight wound.-Maloney v. Maryland Casualty Co., 167 S. W. 845. XX. MUTUAL BENEFIT INSURANCE.

(A) Corporations and Associations.

§ 694 (Mo.App.) A fraternal association doing business under Rev. St. 1909, § 7109, must do business under a lodge system, and, where it issues certificates to persons to form a new lodge, the certificates are without force until the persons are initiated.-Porter v. Loyal Americans of the Republic, 167 S. W. 578.

$705 (Tex.Civ.App.) Defendant mutual benefit society, having absorbed the membership and entire insurance business of a prior corporation and of an unincorporated society which succeeded it, held answerable for a breach of certificates issued by such prior corporation and society. Supreme Lodge K. P. v. Mims, 167 S.

W. 835.

(B) The Contract in General. 8719 (Tex. Civ.App.) Right of mutual benefit society to amend its constitution and by-laws at will and the obligation of a certificate holder to pay monthly assessments as levied held not to authorize it to change the terms of a member's insurance contract by an increase in the assessment rate.-Supreme Lodge K. P. v. Mims, 167 S. W. 835.

8723 (Tex.Civ.App.) "Material to the risk,"

§726 (Mo.App.) Forfeitures are not favored, and contracts of insurance by fraternal associations, providing for forfeiture, should be construed strictly against the insurer.-Brittenham v. Sovereign Camp Woodmen of the World, 167 S. W. 587.

Where the conditions and provisions in a certificate of life insurance are ambiguous, they should be construed most strongly against those for whom they are introduced.-Id.

In construing an insurance certificate issued by a fraternal association, all parts, both printed and written, should be given effect.-Id.

(C) Dues and Assessments.

8741 (Tex.Civ.App.) That a mutual benefit certificate holder pays illegal assessments does not estop him or his beneficiary from questioning the legality of subsequent similar assessments.-Supreme Lodge K. P. v. Mims, 167 S. W. 835.

§ 743 (Mo.App.) Where a person to whom a beneficiary certificate had been issued but not delivered died before his initiation, and no administrator was appointed, a tender into court of the initiation fee by the association after the refusal of the beneficiary to accept is a sufficient offer to return the fee to relieve the association from liability.-Porter v. Loyal Americans of the Republic, 167 S. W. 578.

§ 743 (Tex.Civ.App.) Where the holder of certain certificates in a benefit society changed them for a single certificate in another class, and to do so agreed to surrender all his right. title, and interest therein, he was only entitled to recover, after he had become uninsurable, for defendant's breach of the contract assessments and interest paid subsequent to the change.-Supreme Lodge K. P. v. Mims, 167 S. W. 835.

(D) Forfeiture or Suspension.

9, a certificate issued by a fraternal insurer § 748 (Mo.App.) Under Acts 1911, p. 286, § is void where the member did not comply with the by-laws requiring members to give notice before engaging in prohibited occupations and to pay an additional premium.-Brittenv. Sovereign Camp Woodmen of the World, 167 S. W. 587.

ham

Where a member of a fraternal insurance order, who engaged in a prohibited occupation, did not give the notice and pay the additional premiums necessary to prevent forfeiture, recovery cannot be had under a by-law providing that payment of a certificate in force for five years should not be contested save on specific grounds, where, at death, a member was in good standing.-Id.

$750 (Mo.App.) An agreement providing for a forfeiture in case assessments are not paid on an insurance certificate issued by a fraternal association will be enforced regardless whether the condition be considered precedent or subsequent.-Brittenham v. Sovereign Camp Woodmen of the World, 167 S. W. 587.

8753 (Tex.Civ.App.) Where a member at large of a fraternal order paid dues and as

INTERSTATE COMMERCE.

INTOXICATING LIQUORS.

to the supreme officers, who received them with-
out objections, and the officers did not instruct
the member not to make payments to such per- See Commerce.
son, and the member continued to do so until
her death, and such person did not remit them
all, a recovery on the certificate could not be
defeated on the ground that dues and assess-
ments had not been paid.-Supreme Hive of
Ladies of Maccabees of the World v. Owens,
167 S. W. 233.

$755 (Mo.App.) Under the direct provisions of Sess. Acts 1911, p. 292, § 22, no subordinate officer or subdivision of a fraternal insurer can waive provisions in the contract of insurance, when the constitution expressly prohibits such waiver.-Brittenham v. Sovereign Camp Woodmen of the World, 167 S. W. 587. Where the officers of a fraternal insurer did not know that a member had been engaged in a prohibited occupation, which worked a forfeiture, because neither notice was given nor additional premiums paid as required, the refusal of payment on another ground does not estop the insurer from setting up the forfeiture. -Id.

§ 756 (Mo.App.) Where the by-laws of a fraternal insurer provided that if a member engaged in prohibited occupations, the certificate should be void unless he gave notice and paid an additional premium, the failure of a member, who engaged in a prohibited occupation, to give notice and pay premiums, invalidated the certificate without action by the insurer.Brittenham v. Sovereign Camp Woodmen of the World, 167 S. W. 587.

(F) Actions for Benefits.

§ 818 (Tex.Civ.App.) In an action upon a benefit certificate, defended on the ground that the insured falsely stated in her application that she had never had malaria, evidence that insured completely recovered from the attack within a few days was admissible upon the issue whether the false statement was material to the risk.-Modern Brotherhood of America v. Jordan, 167 S. W. 794.

See Carriers, § 92; Commerce, § 64; Criminal
Law, § 108; Evidence, §§ 12, 35; Indians,
$35; Indictment and Information, § 202;
Witnesses, § 337.

III. LOCAL OPTION.

$30 (Mo.App.) Where a city, pursuant to Rev. St. 1909, §§ 7238, 7239, has caused a cenit has a population of 2,500 so as to be ensus to be regularly taken to determine whether titled to a local option election apart from the rest of the county, such census is conclusive upon the county court in a proceeding for a local option election.-State ex rel. City of Elvins v. Marshall, 167 S. W. 1050. The result of a municipal census taken by a town under Rev. St. 1909, & 7239, authorizing the legislative body of a town to take a census to determine whether the town has 2,500 inhabitants or more so as to be entitled to vote apart from the remainder of the county to determine whether intoxicating liquors shall be sold within its limits, etc., is not subject to collateral attack.-Id.

IV. LICENSES AND TAXES.

§ 50 (Tex.Cr.App.) A bona fide club dispensing liquors to its membership is not within the law requiring a license to follow the business of selling liquors.-Baker v. State, 167 S. W. 340.

VI. OFFENSES.

$138 (Tex.Cr.App.) Pen. Code 1911, art. 606, held to prohibit the shipment of liquor into local option territory as baggage, without being properly labeled.-Phillips v. State, 167 S. W. 353.

§ 146 (Tex.Cr.App.) A club alleged to have been maintained by defendant and another where liquor was sold held not a bona fide organization, but a mere pretense for the sale of liquor, and that defendant was properly convicted of selling liquor there without a license.

§ 819 (Tex.Civ.App.) Evidence held not to show that a false statement made by insured in her application that she had never had malaria was material to the risk.-Modern Brotherhood of America v. Jordan, 167 S. W. 794.-Baker v. State, 167 S. W. 340.

INTENT.

See Contracts, § 147; Homicide, § 9; Malicious Mischief, § 1; Partition, § 9; Partnership, § 22; Specific Performance, § 28; Wills, 439.

INTEREST.

See Alteration of Instruments, § 5; Insurance, 8115; Joint Adventures, §§ 2, 7; Limitation of Actions, § 127; Mandamus, § 148; Mortgages, § 84; Payment, § 87; Usury; Witnesses, § 372.

II. RATE.

§ 37 (Ark.) Where a note stipulated that it should bear interest at 10 per cent. per annum, without stipulating for interest after maturity, it bore interest at 10 per cent. until maturity, and thereafter at 6 per cent.-Harbison v. Hammons, 167 S. W. 849.

INTERLOCUTORY INJUNCTION. See Injunction, §§ 144–186.

INTERLOCUTORY JUDGMENT. See Appeal and Error, §§ 70-84.

INTERROGATORIES.

See Discovery, § 70.

§ 148 (Ky.) Ky. St. §§ 2557 and 2557a, and Acts 1912, c. 146, held not violated by filling orders received from local option territory accompanied by the purchase price and delivering whisky to a carrier for shipment into local option territory.-Josselson Bros. v. Commonwealth, 167 S. W. 374.

§ 148 (Ky.) It was not an offense to sell whisky outside local option territory on orders received from persons residing in such territory, and to deliver the whisky to a carrier for transportation to the purchaser in such territory.-American Pure Food Co. v. Commonwealth, 167 S. W. 374.

§ 152 (Mo.) Two partners engaged in the drug business, neither of whom possessed a pharmacist's license, and who had no licensed pharmacist in their employ, were not druggists in contemplation of the statute, and had no right to sell whisky on a prescription or without it.-State v. O'Kelley, 167 S. W. 980.

§ 171 (Mo.) A member of a partnership which is engaged in the drug business, although neither of the partners nor any of their employés are licensed pharmacists, is liable for a sale of intoxicating liquor made by his copartner, although he was not present at the time.-State v. O'Kelley, 167 S. W. 980.

VIII. CRIMINAL PROSECUTIONS. § 233 (Tex.Cr.App.) On a trial for selling whisky, evidence that officers under a search warrant found in accused's trunk about 76 pint

§ 236 (Mo.App.) Proof that between five and six years before a sale by a drug store clerk, § 317 (Ky.) In a civil action by a wife, under and before adoption of the local option law, the Ky. St. § 1307, for damages against a saloonproprietor had pleaded guilty to selling liquor keeper for selling liquors to her inebriate huswithout a license, did not show that he author- band, an instruction as to damage held proper. ized or consented to the sale by the clerk.-State-Keyser v. Damron, 167 S. W. 381. v. Walls, 167 S. W. 1160.

8236 (Tex.Cr.App.) Uncorroborated evidence of a detective who admitted that he induced See Waters and Water Courses, § 261.

accused to make the sale to detect him in a violation of law, though contradicted by accused, will support a conviction for violation of the local option law.-Looper v. State, 167 S. W.

§ 236 (Tex.Cr.App.) In a prosecution for selling intoxicating liquors in prohibition territory, testimony by the alleged buyer held not sufficient to sustain a conviction.-Barnhill v. State, See Execution, § 216. 167 S. W. 348.

§ 259 (Tenn.) Act 2d Ex. Sess. 1913, c. 2, providing for the abatement of the business of selling intoxicating liquors as a nuisance, is constitutional.-State v. Ragghianti, 167 S. W. See Action, §§ 38-50; Dower, § 44.

XI. CIVIL DAMAGE LAWS. 285 (Ky.) Under Ky. St. § 1307, prohibiting any saloon keeper from selling liquors, etc., to any inebriate, and making him liable to a civil action for damages by the wife, etc., provided written notice has been given, there are See Elections, § 126; Tenancy in Common. but three requisites for recovery, assuming there was damage: (1) That there was a selling or furnishing of the liquor; (2) that the person

getting the liquor was an inebriate or habitual See Courts; Justices of the Peace. drunkard; (3) that it was sold or furnished in violation of a notice forbidding it.-Keyser v. III. RIGHTS, POWERS, DUTIES, AND Damron, 167 S. W. 381.

of "any extra compensation," after service ren-
dered.-Dallas County v. Lively, 167 S. W. 219.
IV. DISQUALIFICATION TO ACT.
$ 44 (Tex.Civ.App.) Under Const. art. 5, § 11,
taxpayers of the city of Dallas held disqualified
to sit in the Court of Civil Appeals in review
of a judgment holding that an ordinance for
the issuance of bonds submitted to the electors
under Dallas Charter, art. 8, had not been
adopted.-Holland v. Cranfill, 167 S. W. 308.
Under Dallas Charter, art. 2, § 5, in suit to
determine whether ordinance authorizing the
issuance of bonds was legally adopted, taxpay-
ers of Dallas held disqualified to sit as judges,
in view of Const. art. 5, § 11, whether the or-
dinance was submitted to the electors under
the initiative and referendum provisions of the
charter (article 8) or not.-Id.

JUDGMENT.

See Appeal and Error; Bail, 8 77; Carriers, § 76; Chattel Mortgages, § 287; Constitutional Law, § 309; Corporations, § 590; Courts, 88 89-107, 480; Criminal Law, §§ 951, 982, 1159; Divorce, § 172; Equity, 423; Execution; Judicial Sales; Justices of the Peace, ' 126, 130, 135; Limitation of Actions, §§ 91, 99; Mortgages, § 587; New Trial, § 79; Quieting Title, § 52; Reformation of Instruments, § 45; Trial, § 296.

1. NATURE AND ESSENTIALS IN GENERAL.

In determining the sufficiency of the allegations of a cross-action to support a default judgment against a third party, evidence on the trial of the action against defendant could not aid the pleadings in the cross-action.-Id.

$106 (Tex.Civ.App.) Under Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127, requiring plaintiff to answer any special matter of defense, a carrier sued for delay in transportation of live stock held entitled to judgment by default, where plaintiff failed to reply to the allegations of the answer.-Texas & P. Ry. Co. v. Martin Bros., 167 S. W. 792.

(B) Opening or Setting Aside Default. induced not to appear by the misstatement of § 143 (Tex.Civ.App.) Where defendants were their attorneys that the case was settled and either had or would be dismissed, such misrepresentation, whether due to mistake or fraud, was not mere negligence on the part of the atdefendants to have a default judgment entered torneys, but constituted fraud in law entitling against them set aside in equity.-Connell v. Nickey, 167 S. W. 313.

Where, at the appearance term in an action against nonresidents, plaintiff changed the proceedings from one in personam to an action in diction, and at the appearance term took judgrem by attaching land within the court's jurisment by default without notice, defendants were relieved of the imputation of negligence in permitting such default.-Id.

VI. ON TRIAL OF ISSUES. (C) Conformity to Process, Pleadings, Proofs, and Verdict or Findings.

§ 15 (Ark.) Where the amount for which a defendant in the circuit court was sued was not within the jurisdiction of the court, a judg§ 251 (Ky.) Under a petition charging negliment against her was void.-Harbison v. Ham-gence in general terms, a servant could recover mon, 167 S. W. 849. for the gross negligence of the master's serv816 (Tex.Civ.App.) A party, against whom ants, superior in authority to himself, in opa defendant by a cross-action sought to recov-erating the car by which he was injured, but not er judgment, who did not enter an appearance, for the master's failure to use ordinary care to was not entitled to a judgment in his favor, if furnish him a reasonably safe place to work, the cause of action alleged against him was not or reasonably safe appliances.-Ohio Valley subject to general demurrer.-Reserve Loan Coal & Mining Co. v. Heine, 167 S. W. 873. Life Ins. Co. v. Benson, 167 S. W. 266.

§ 252 (Tex.Civ.App.) Where plaintiffs, having § 17 (Mo.) The Georgia statutes authorizing title to 160 acres by adverse possession, receivjudgments against nonresidents by attachment ed from the record owner a deed to 200 acres, without service of any notice or writ of attach-sold 100 acres, and sued to cancel the deed and ment, either personally, by publication, or oth- vendor's lien, court held not to have erred in erwise, are not in violation of the United States rendering judgment in determining the shares Constitution, as the legal seizure of the proper- of the parties in the purchase price for the ty is constructive notice.-Kwilecki v. Holman, 100 acres, though such relief was not asked.167 S. W. 989. Stewart v. Williams, 167 S. W. 761.

§ 256 (Tex.Civ.App.) In an action in the nature of trespass to try title, where the jury found for the plaintiff for the quieting of her title and for a sum of money, judgment based upon findings of the court as to incumbrances, not included in the verdict, held improper.Lester v. Hutson, 167 S. W. 321.

X. EQUITABLE RELIEF.

(A) Nature of Remedy and Grounds. § 405 (Tex.Civ.App.) Plaintiff, in trespass to try title, is not entitled to restrain the defendants from enforcing a judgment secured against plaintiff's tenant in forcible entry and detainer, in which plaintiff could not rely upon his supeat least greater injury than defendants would rior title, without showing irreparable injury or suffer from the restraining of the enforcement of their judgment.-Gibbons v. Ross, 167 S. W. 17.

§ 408 (Tex.Civ.App.) Where one who had secured judgment in forcible entry and detainer was not able to respond in damages for the rental value of the premises during the pendency of a suit in trespass to try title, a temporary injunction to restrain the enforcement of the forcible entry and detainer judgment will be granted in a suit in trespass to try title.-Gibbons v. Ross, 167 S. W. 17.

§ 451 (Tex.Civ.App.) The fact that plaintiff, | 10 years, was barred by section 1912, though in a suit in trespass to try title, had wrongfully limitations prescribed may be tolled on proof entered upon possession of defendant, for which of nonresidence.-Davis v. Carp, 167 S. W. entry the defendant had secured a judgment in 1042. forcible entry and detainer, does not deprive the plaintiff of his right to restrain the enforcement of the forcible entry and detainer judgment. See Evidence, §§ 12-41. Gibbons v. Ross, 167 S. W. 17.

XIV. CONCLUSIVENESS OF ADJUDI-charge the jury without directing a verdict, and