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§ 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.

JUDICIAL NOTICE.

XI. COLLATERAL ATTACK. (A) Judgments Impeachable Collaterally. $472 (Tex.Civ.App.) A judgment of the Court of Civil Appeals as to which the Supreme Court denied a writ of error cannot be impeached collaterally.-Vineyard v. Heard, 167 S. W. 22. XIII. MERGER AND BAR OF CAUSES

OF ACTION AND DEFENSES. (A) Judgments Operative as Bar. $565 (Tex.Civ.App.) A judgment sustaining a plea in abatement and dismissing the suit without prejudice to plaintiff's right to file a new suit did not bar a new suit by plaintiff on the same cause of action.-Freidenbloom v. McAfee, 167 S. W. 28.

§ 572 (Ark.) A judgment sustaining a demurrer is an adjudication on the merits, and any error in rendering the judgment must be corrected by appeal.-Barrentine v. Henry Wrape Co., 167 S. W. 1115.

If plaintiff fails on demurrer in his first action from the omission of an essential allegation in his declaration, which is fully supplied in his second suit, the judgment in the first action is no bar to the second, though the respective actions were instituted to enforce the same right.-Id.

CATION.

II. RIGHT TO TRIAL BY JURY. rier for loss of goods, the action was one to $14 (Mo.App.) Where plaintiff sued a carrecover money only, in which defendant was entitled to a jury trial, under Const. art. 2, § XIV. CONCLUSIVENESS OF ADJUDI- 28, and hence it was error for the court to dis

charge the jury without directing a verdict, and to thereafter render judgment for plaintiff.Fehrenbach Wine & Liquor Co. v. Atchison, T. & S. F. Ry. Co., 167 S. W. 631.

(B) Persons Concluded.

$ 707 (Tex.Civ.App.) Minors interested in the land who were not parties to a partition proceeding were not bound by the decree.-Vineyard v. Heard, 167 S. W. 22.

$710 (Tex.Civ.App.) A subsequent judgment, involving the same land as that affected by a prior judgment in favor of one who was not a party to the action in which the subsequent judgment was rendered, would not affect such person or the prior judgment in her favor.Vineyard v. Heard, 167 S. W. 22.

$712 (Ky.) The opinion of the court as to the title of one suing for specific performance would not be binding upon unnamed heirs of the husband of plaintiff's testatrix, whose possible claim the petition averred was the reason for defendant's refusal to complete the contract, where they were not brought in by cross-petition or called upon to assert their title.-McCrocklin v. O'Donaghue, 167 S. W. 901.

(C) Matters Concluded.

§ 717 (Tex.) A judgment for plaintiff in a suit to try title held not res judicata of a subsequent action by defendant as a creditor of plaintiff's husband, attacking his deed to plaintiff as in fraud of creditors.-Lane v. Kuehn, 167 S. W. 804.

XVI. JUDGMENTS IN REM.

§ 809 (Tex.Civ.App.) Ordinarily where an action is brought against a nonresident by attachment of property within the state, judgment will not be rendered until jurisdiction and service has been procured for the required length of time before the court convenes for the term at which judgment is rendered.-Connell v. Nickey, 167 S. W. 313.

JUDICIAL SALES.

See Execution; Mortgages, 88 510, 551; Trover and Conversion, § 35.

taining the indorsement or approval of the § 61 (Ky.) A commissioner's deed, not concourt, is not evidence of title, in the absence of evidence of any order showing the examination and approval of the deed by the court.-Parsons v. Dills, 167 S. W. 415.

$ 910 (Mo.) Where a judgment debtor's usual place of abode was in the state for more than 10 years after the date of judgment, so that service of process could have been had, as authorized by Rev. St. 1909, § 1760, an action

JURISDICTION.

See Adoption, § 10; Appeal and Error, §§ 65, 84; Appearance; Constitutional Law, § 309; Corporations, § 503; Courts; Criminal Law, § 1020; Equity, §§ 38, 39; Infants; Justices of the Peace, $$ 36-58, 135, 141, 146, 183; Supersedeas, § 2; Trover and Conversion, § 35.

JURY.

See Appeal and Error, $200; Criminal Law, §§ 749-854, 9252. 1134; New Trial, §§ 42, 143; Trial, §§ 139-333.

§ 14 (Mo.App.) A suit to establish and enforce a resulting trust of the proceeds of a sale of land, though to recover a judgment for money only, was nevertheless a suit in equity as

to which defendants were not entitled to a jury trial.-Shelton v. Harrison, 167 S. W. 634.

$ 31 (Mo.) Rev. St. 1909, § 4472, leaving the punishment for having carnal knowledge of an unmarried female between 14 and 18 of previous chaste character to the discretion of the court within prescribed limits, does not violate Const. art. 2, §§ 22, 28, as to trial by jury.State v. Perrigin, 167 S. W. 573.

IV. SUMMONING, ATTENDANCE, DIS-
CHARGE, AND COMPEN-
SATION.

$80 (Tex.Cr.App.) In view of Code Cr. Proc. 1895, art. 683, which provides that the clerk in the district court shall draw from the jury box the names of 24 jurors, or so many as there may be, and furnish a list to defendant, the overruling of defendant's demand for a full panel of 32 names before passing on the list which contained 27 names held not error.James v. State, 167 S. W. 727.

$82 (Tex.Cr.App.) In view of Code Cr. Proc. 1911, art. 22, allowing defendant to waive any right secured to him by law, except the right of trial by jury in felony cases, where defendant knew when the talesmen were put in the jury box that the officer summoning them had not been sworn as required by statute, his objection on chat ground not made until after the jury had been selected was too late.-James v. State, 167 S. W. 727.

V. COMPETENCY OF JURORS, CHAL-
LENGES, AND OBJECTIONS.
$90 (Ky.) The statement of a juror on his
voir dire examination that he was not related
to a party was not false. though the wife of

ty.-Chesapeake & O. Ry. Co. v. Jesse, 167 S. | new trial after ten days from the judgment.W. 407. Dickensheets v. Hudson, 167 S. W. 1097.

§ 103 (Ark.) A juror who stated that he would decide the case on the law and the evidence, if he could, but that he had a fixed opinion which would influence him at the trial, held disqualified.-McGough v. State, 167 S. W. 857. A juror who had an opinion founded on rumor which he could not change so as to decide according to the law and the evidence held disqualified, on the ground of a formed opinion.-Id.

§ 126 (Tex.Civ.App.) While a justice, under Rev. St. 1911, art. 2374, has no authority to grant a new trial after ten days from the judgment, he can by article 2015, correct a mistake in the record of the judgment so as to make it speak the truth.-Dickensheets v. Hudson, 167 S. W. 1097.

§ 103 (Tex.Cr.App.) Where a juror testified that he had formed and then had an opinion as to accused's guilt or innocence, but could lay it aside and render a fair and impartial verdict based alone on the testimony, he was competent.-Phillips v. State, 167 S. W. 353.

$ 137 (Ark.) While the court may, in its discretion, permit the defendant to exercise peremptory challenges after having accepted a juror, an election by the state to challenge a juror after his acceptance by both sides must be exercised before defendant has exhausted his challenges, and cannot be exercised thereafter. -McGough v. State, 167 S. W. 857.

JUSTICES OF THE PEACE. III. CIVIL JURISDICTION AND THORITY.

1097.

§ 135 (Ark.) A judgment defendant in a justice's court who alleged fraud in the plaintiff's breach of an agreement to file a proper transcript had a complete remedy at law against execution on the judgment, and hence the chancery court had no jurisdiction to enjoin the judgment.-Radford v. Samstag, 167 S. W. 491. A complaint seeking to enjoin execution against a judgment defendant in a justice's court whose appeal was dismissed in the circuit court because the transcript filed therein failed to show an affidavit for appeal, not alAU-leging that any fraud was practiced in procuring the dismissal, held to state no cause of action, as, if the dismissal was erroneous, the

remedy was by appeal to the Supreme Court.

§ 36 (Tex.Civ.App.) An action by a city against a railroad company for the penalty imposed by Rev. St. 1911, art. 1068, for failure to place its roadbed over a street in a proper condition for travel, is for a money judgment within the jurisdiction of a justice's court.City of San Marcos v. International & G. N. Ry. Co., 167 S. W. 292.

§ 43 (Mo.App.) An action on an itemized account totaling $500.16, exclusive of interest, without any credit or remission, is not within the jurisdiction of justice of the peace of the city of St. Louis, as limited by Rev. St. 1909, § 7615, for under sections 7412, 7413, the account is the foundation of the suit.-Guhman v. Dunaway, 167 S. W. 598.

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§ 130 (Tex.Civ.App.) Where a justice's judgment without jurisdiction adjudged against a lienor's right to a lien, and thereafter was corrected so as to state that the court had no jurisdiction to foreclose the alleged lien, the judgment as corrected was not res judicata of such issue.-Dickensheets v. Hudson, 167 S. W.

$91 (Mo.App.) A complaint in a justice's court, stating that defendant, without leave, wrongfully entered upon plaintiff's land and cut timber of a certain value, and asking judgment under Rev. St. 1899, § 4572, was sufficient. Falloon v. Fenton, 167 S. W. 591.

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§ 183 (Mo.App.) Though a judgment of a justice of the peace for an amount less than that appearing to be due may in fact be for defendant's benefit, he may insist upon the justice's lack of jurisdiction, where the amount of the demand is in excess of such jurisdiction.

§ 116 (Tex.Civ.App.) A justice, under Rev.
St. 1911, art. 2374, has no authority to grant a-Trapp v. Mersman, 167 S. W. 612.

JUSTIFICATION.

See Libel and Slander, 88 56, 94, 123.

KNOWLEDGE.

See Animals, § 70; Elections, § 230; Evidence, 8314; Insurance, § 379; Intoxicating Liquors, § 287; Parent and Child, § 7; Telegraphs and Telephones, § 38.

LACHES.

See Adoption, § 21; Corporations, § 189;
Quieting Title, § 29.

LANDLORD AND TENANT.

See Abatement and Revival, § 73; Evidence, § 135; Executors and Administrators, §§ 131, 150; Frauds, Statute of, § 129; Railroads, § 259; Vendor and Purchaser, § 228; Waters and Water Courses, § 261; Weapons, § 14.

IV. TERMS FOR YEARS.
(D) Termination.

lieve her on her surety from liability on the bond and the judgment for the lessor should, under section 4702, assess such liability.-Matthews v. Crofford, 167 S. W. 695.

Where a tenant removed unlawful detainer proceedings to the circuit court, giving a bond under Shannon's Code, § 5111, for the value of the rent of the premises during litigation, the lessor need not declare a forfeiture for nonpayment of each installment of rent as it accrues; the single bond covering the whole contract. -Id.

LANDS.

LAW OF THE CASE.

§ 108 (Tenn.) In order to forfeit a lease for nonpayment of rent, the landlord must demand it on the day due, before sunset, and at the See Appeal and Error, §§ 1097, 1099, 1195. most public place on the land.-Matthews v. Crofford, 167 S. W. 695.

See Public Lands.

LEASE.

The necessity of demand, which is a condition precedent to the forfeiture of a lease for See Landlord and Tenant. nonpayment of rent, may be waived by agreement in the lease.-Id.

LEGACIES.

LARCENY.

See Criminal Law, § 784; Husband and Wife, § 326; Receiving Stolen Goods; Robbery.

Before a landlord can declare a lease forfeit

ed for nonpayment of rent, re-entry must be ef- See Wills.

fected.-Id.

VIII. RENT AND ADVANCES. (A) Rights and Liabilities.

§ 195 (Tex.Civ.App.) Where a lessee abandoned the premises, the refusal of the lessor to accept a new tenant on condition of a lease for a period beyond the unexpired term for the same rental was not a failure to exercise ordinary diligence to relet the premises, and he could recover from the lessee the loss sustained. -Robinson Seed & Plant Co. v. Hexter & Kramer, 167 S. W. 749.

LAST CLEAR CHANCE.

See Railroads, §§ 338, 348, 360, 400; Street
Railroads, §§ 93, 103, 112.

IX. RE-ENTRY AND RECOVERY OF
POSSESSION BY LANDLORD.

Where a lessor declared a forfeiture of a

lease for nonpayment of an installment of rent, See Constitutional Law, § 62.
and instituted unlawful detainer to recover pos-
session, the lessee cannot, by a tender of the ac-
crued rent, avoid the forfeiture.-Id.

$ 290 (Tenn.) In view of Shannon's Code, § 5090, the action of unlawful detainer is a substitute for an entry by a landlord to forfeit a lease for nonpayment of rent; the institution of the action having the same effect as an entry. Matthews v. Crofford, 167 S. W. 695.

§ 291 (Tenn.) Where a lessee who defaulted retained possession pending unlawful detainer by giving the bond required by Shannon's Code,

§ 109 (Tex.Civ.App.) Where a lessee, abandoning the premises, was only able to secure third persons who would take the premises for the unexpired term at the same rental on condition that the lessor would extend the period at the same rental, refusal of the lessor to lease the premises beyond the unexpired term was not an acceptance of a surrender.-Robin- See Taxation, § 493. son Seed & Plant Co. v. Hexter & Kramer, 167 S. W. 749.

LEGISLATIVE POWER.

LIBEL AND SLANDER.

§ 110 (Tex. Civ.App.) Where a lease author- See Prostitution. ized the lessor in case of abandonment to resume possession and relet for the unexpired term, the act of the lessor in reletting for the unexpired term on the lessee abandoning the premises was See Appeal and Error, § 1050; Judgment, § 18. not an acceptance of a surrender, but was for the benefit of the lessee by reducing his liability.-I. Robinson Seed & Plant Co. v. Hexter & Kramer, 167 S. W. 749.

LETTERS.

See Contracts, § 26; Corporations, § 308; Criminal Law, 88 419, 420; Evidence, §§ 181, 185, 273, 318, 368, 442; Libel and Slander, 16; Trial, § 48.

LEVY.

LEWDNESS.

WORDS AND ACTS ACTIONABLE
AND LIABILITY THEREFOR.

86 (Ky.) The publication of an article that plaintiff, a miner who refused to participate in a union strike, was a detestable scab and blackleg is libelous per se.-United Mine Workers of America v. Cromer, 167 S. W. 891.

§ 16 (Tex.Civ.App.) A letter to plaintiff's employer charging that plaintiff had assigned his wages to the writer when shown by innuendo to be one which would affect plaintiff's financial reputation, and subject him to contempt and ridicule, is libelous per se under Rev. St. 1911, art. 5595.-Texas Furniture Co. v. Meyers, 167 S. W. 766.

§ 19 (Ky.) In determining whether words are libelous, the court is not bound to construe them in the least objectionable sense, but should accept hem as popularly understood.-United Mine Workers of America v. Cromer, 167 S. W. 891.

III. JUSTIFICATION AND MITIGA

TION.

§ 56 (Tex.Civ.App.) Proof that plaintiff, acting as agent for the defendant in the purchase of a mule, drew upon the defendant for a sum

verted the excess to his own use, is sufficient to justify a charge by defendant that plaintiff was a thief, under Code Cr. Proc. 1911, art. 772.Burkhiser v. Lyons, 167 S. W. 244.

IV. ACTIONS.

(B) Parties, Preliminary Proceedings, and Pleading.

§ 80 (Tex.Civ.App.) A petition which clearly set forth the import of a libelous communication, and contained innuendoes explaining wherein the language used was libelous, and averred that it was falsely and maliciously made, and that plaintiff was damaged, is sufficient. Texas Furniture Co. v. Meyers, 167 S. W. 766.

§ 94 (Tex.Civ.App.) In an action for slander, justification must be specially pleaded with such particularity as to notify the plaintiff as to what charge he will be compelled to meet.Burkhiser v. Lyons, 167 S. W. 244.

LICENSES.

See Bigamy, § 9; Criminal Law, § 444; In-
toxicating Liquors, § 50; Negligence,
32;
Parent and Child, § 13; Railroads, §§ 356,
364, 395, 400, 401.

I. FOR OCCUPATIONS AND PRIVI-
LEGES.

Room Statute (Acts 33d Leg. c. 74, § 11) that, 87 (Tex.Civ.App.) The provision of the Pool if the result of the election be in favor of prohibiting the running of pool halls in the county, a contest shall not suspend the enforcement of the law pending such contest is constitutional. they-Winn v. Dyess, 167 S. W. 294.

$100 (Tex.Civ.App.) Proof that defendant had charged that plaintiff had swindled or stolen from him in the purchase of a mule is not proof of an alleged slander that plaintiff had stolen from defendant all that he raised on defendant's place.-Burkhiser v. Lyons, 167 S. W.

244.

In actions for slander, the material and actionable words must be proved strictly as are alleged in the petition.-Id.

(C) Evidence.

§ 107 (Ark.) Testimony by a witness for the plaintiff that a third person had repeated the slander to the witness was admissible, even though the defendants were not liable for such repetition, as tending to show that the slander was generally known, and thereby to augment the damages.-Williams v. Fulks, 167 S. W. 93. Testimony by the plaintiff that she was the next highest officer in a certain lodge, and that about the time the slander was circulated she was dropped out of line, and not promoted to the highest office, was competent.-Id.

Evidence that a slander had been generally circulated in the community as a result of its utterance by the defendant is competent for the purpose of showing the extent of the damage.id.

$ (Tex. Civ.App.) In an action for slander, the character of the plaintiff and business transactions between him and the defendant and other parties affecting the rights of the defendant may be considered by the jury in mitigation of damages, even though they did not justify the accusation.-Burkhiser v. Lyons, 167 S. W. 244.

guilty of technical theft, may be construed as a charge of swindling.-Burkhiser v. Lyons, 167 S. W. 244.

VI. CRIMINAL RESPONSIBILITY.

(E) Trial, Judgment, and Review. § 123 (Ky.) When words are used under such special circumstances as to show that they have a meaning different from that ordinarily intended, the question of their true construction is for the jury.-United Mine Workers of America v. Cromer, 167 S. W. 891.

§ 123 (Tex.Civ.App.) In an action for slander, where the defense was that the charge by defendant that plaintiff had stolen the hay from defendant's place was true, evidence held suthcient to take to the jury the issue of the truth of the words spoken by defendant.-Burkhiser v. Lyons, 167 S. W. 244.

Where defendant had stated that plaintiff had stolen every blade of grass upon defendant's place, proof that any part of the hay on the place had been stolen or fraudulently appropriated by the plaintiff is sufficient to take to the jury the question of justification.-Id.

(A) Offenses.

$148 (Tex.Cr.App.) Statement of defendant to L., the father of the wife of defendant's son, B., when, B. having left his wife, L. went to defendant and asked him what was the matter, that she was unchaste before she was married was not privileged; defendant being the originator of the false charge.-Davis v. State, 167 S. W. 1108.

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§ 124 (Tex.Civ.App.) In an action for slander, a charge that plaintiff stole defendant's property, which was made to one who knew that plaintiff was in possession of defendant's § 22 (Ky.) An action against a principal in an property, and therefore could not have been administrator's bond is barred under Ky. St. §

(B) Limitations Applicable to Particular

Actions.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

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§ 33 (Mo.) In action by county against former county clerk, counts seeking to recover money received by him as plaintiff's agent held not to state causes of action, within the three years' statute of limitations (Rev. St. 1909, § 1890).-Putnam County v. Johnson, 167. S. W.

1039.

Counts in action by county against former county clerk to recover money claimed to have been wrongfully exacted and obtained by him held not to state causes of action for fraudulently receiving the money so as to render inapplicable the three years' statute of limitations (Rev. St. 1909, § 1890), and hence they were demurrable, where they showed that more than three years had elapsed.-Id.

Money received by a county clerk in excess of that due him for making out and computing tax books, salary, etc., held to have been received in virtue of his office, within the three years' statute of limitations (Rev. St. 1909, § 1890).-Id.

II. COMPUTATION OF PERIOD OF LIMITATION.

(A) Accrual of Right of Action or Defense.

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ancestor under trust certificates which had been long lost, and plaintiffs had no knowledge of their ownership as heirs of the original owner until August, 1909, and brought suit to establish their rights in November following, the action was not barred by limitations.-Yeaman v. Galveston City Co., 187 S. W. 710.

$95 (Tex.) Where defendant corporation, prior to July, 1909, had taken no affirmative

$99 (Mo.) The "improper act" in Rev. St. 1909, § 1905, must be one in the nature of a fraud that will prevent the commencement of an action, and a judgment debtor, who merely concealed his name from the assignee of the judgment, did not commit an improper act which prevented suit.-Davis v. Carp, 167 S. W. 1042.

§ 102 (Ky.) Where testatrix directed a sale of her real estate to discharge an indebtedness her son owed her daughter-in-law, and provided for a division of the surplus, the administrator of testatrix had no right to hold the property as trustee, but the daughter-in-law or her administratrix could sue for it; and an action therefor was barred by the 15-year statute of limitations (Ky., St. § 2514).-Baugh's Adm'x v. Baugh's Adm'r, 167 S. W. 124.

§ 103 (Tex.) A corporation's relation to its stockholders is that of a trustee of a direct trust, concerning which limitations have no application until there has been a clear and unequivocal notice of repudiation to the cestui que trust.-Yeaman v. Galveston City Co., 167 S. W. 710.

(H) Commencement of Action or Other Proceeding.

in by amendment, the suit as to them is begun § 124 (Mo.App.) Where parties are brought when the amendment is filed.-Hiller v. Schulte, 167 S. W. 461.

In a suit to enforce a mechanic's lien, new parties defendant cannot be brought in by amendment so as to affect their rights after the expiration of 90 days from the filing of the lien.-Id.

The rule that the filing of a petition is the commencement of an action, and that subsequent amendments relate to the institution of the suit, applies only to defendants originally sued, and not to new parties brought in by amendment.-Id.

§ 91 (Mo.) The absconding or concealing with--Collin in Rev. St. 1909, § 1905, must be of such a char- 165. acter as to prevent the commencement of an action, and a judgment debtor, who merely concealed his name from an assignee of the judgment, did not prevent an action on the judgment.-Davis v. Carp, 167 S. W. 1042.

Where defendant D. became the owner of certain property sought to be subjected to a mechanic's lien before the materials were furnished, and the work done, and she was not joined as a party to the action for days after the filing thereof, it could not be enforced as against her. |--Id.

§ 127 (Tex.Civ.App.) Where, in action against bank for detaching bills of lading from drafts sent it for collection, the original petition alleged the facts and was sufficient as against a general demurrer, cause of action held not barred by limitations, though amended petition making the allegations more specific was filed after the expiration of the period of limitation. County Nat. Bank v. Turner, 167 S. W.

$127 (Tex.Civ.App.) Under the original and amended petitions in an action to recover double the usurious interest paid, held that the suit throughout was against defendant as the sole owner of the company which made the_loan, so that his plea of limitations was bad.-Cotton v. Barnes, 167 S. W. 756.

III. ACKNOWLEDGMENT, NEW
PROMISE, AND PART

PAYMENT.

§ 155 (Ark.) A claim against an estate barred by the statute of nonclaim cannot be revived by part payments by the administrator.-Hicks v. Hicks, 167 S. W. 95.

LIMITATION OF LIABILITY.

See Carriers, §§ 154, 163; Telegraphs and

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