related rather to the cause than the remedy and was unauthorized.-Id. AUTHORITY. See Attorney and Client, § 101; Brokers, § 44. AUTOMOBILES. See Appeal and Error, § 1064; Larceny, § 32; Municipal Corporations, § 706; Trial, § 191, AWARD. See Arbitration and Award, § 67. BAGGAGE. See Carriers, § 402. BAIL. II. IN CRIMINAL PROSECUTIONS. § 57 (Tex.Cr.App.) Where a recognizance does not state the punishment assessed against accused in compliance with Code Cr. Proc. 1911, arts. 900-903, his appeal must be dismissed.-White v. State, 151 S. W. 826. $59 (Tex.Cr.App.) Under Code Cr. Proc. 1911, art. 321, subd. 5, and article 962, a bail bond binding defendant to appear at the next term of court on a date which fell within the term of court at which it was executed held to require an appearance on the specified date set, and not insufficient because of the inconsistency.-Barrett v. State, 151 S. W. 558. $65 (Tex.Cr.App.) A recognizance which fails to recite the amount of punishment assessed is fatally defective, and the court on appeal does not acquire jurisdiction.-Bush v. State, 151 S. W. 554. 893 (Tex.Cr.App.) Under Code Cr. Proc. 1911, § 321, a bond reciting that defendant was charged with a felony held not a variance from a judgment thereon, reciting that defendant was "charged with felony, to wit, burglary."Barrett v. State, 151 S. W. 558. BAILMENT. See Larceny, § 32; Pledges; Sales, § 454; Sunday, § 19. § 16 (Tex.Civ.App.) Where defendant was in lawful possession of property and entitled to hold it until certain payment by plaintiff, there could be no conversion until the correct amount was tendered and paid.-May v. Anthony, 151 S. W. 602. BANKRUPTCY. III. ASSIGNMENT, ADMINISTRATION, AND DISTRIBUTION OF BANKRUPT'S ESTATE. (B) Assignment, and Title, Rights, and Remedies of Trustee in General. BANKS AND BANKING. See Limitation of Actions, § 66. II. BANKING CORPORATIONS AND ASSOCIATIONS. (E) Insolvency and Dissolution. $84 (Tex.Cr.App.) One who had complete and personal charge of the business of an unincorporated bank, and knew of its insolvent condition when money was received on deposit by its president, was an accomplice to the crime. -Brown v. State, 151 S. W. 561. § 85 (Tex.Cr.App.) An indictment alleging that accused unlawfully received a deposit in the "unincorporated" bank named, of which he was president, while it was insolvent to his knowledge, charged that the bank was a private bank, and was bad under Pen. Code 1911, art. 532 (Acts 25th Leg. c. 100), for not alleging that accused was its owner, agent, or manager, or the names of the owners, and that they were insolvent.-Brown v. State, 151 S. W. 561. In a prosecution for receiving money on deposit with knowledge of the bank's insolvency, the court should charge as to the rule for determining solvency.-Id. In a prosecution of a bank president for receiving deposits on Monday with knowledge of the bank's insolvency, evidence that on the preceding Saturday other deposits were made was not admissible.-Id. III. FUNCTIONS AND DEALINGS. (C) Deposits. $126 (Mo.App.) Where a depositor presented a check for deposit, he and the bank could agree that payment should be deferred for a reasonable time until the bank ascertained whether there were sufficient funds of the drawer to pay it.-Pollack v. National Bank of Commerce in St. Louis, 151 S. W. 774. A plaintiff depositing a check, knowing of the custom of the bank to give credit subject to the right to charge the amount thereof on from preventing the bank from charging his want of funds to pay the check, held estopped account with the amount of the check.-Id. $134 (Tex.Civ.App.) A garnishee bank holding a balance to the credit of a debtor's general account held not entitled to credit the same against the debtor's unmatured notes to Presnall v. Stockyards Nat. Bank, 151 S. W. the bank as against plaintiff in garnishment.873. § 140 (Mo.App.) A "check" is payable on demand, and where nothing more appears the bank on which it is drawn must either pay or reject it on presentment.-Pollack v. National Bank of Commerce in St. Louis, 151 S. W. 774. § 154 (Ky.) In an action to recover a deposit in a bank, evidence held sufficient to support the finding that the deposit was made.-Corbin Banking Co. v. Bryant, 151 S. W. 393. BAR. See Judgment, §§ 568-713. § 142 (Mo.) Under Bankruptcy Act, July 1, 1898, §§ 70, 70e, a trustee takes no interest, estate, or title to land fraudulently conveyed by the bankrupt which will entitle him to sue under See Estates. Rev. St. 1899, § 650, as amended in 1909 (Laws 1909, p. 343), giving a right of action to ascertain and determine any person's interest in land.-Mayhew v. Todisman, 151 S. W. 436. (E) Actions by or Against Trustee. § 302 (Mo.) A petition by a trustee in bankruptcy to set aside a fraudulent conveyance, under Bankruptcy Act July 1, 1898, §§ 70, 70e, must clearly show that the property is needed to pay claims filed against the bankrupt debtor. BASE FEE. BASTARDS. I. ILLEGITIMACY IN GENERAL. $ (Mo.) Under Rev. St. 1909, § 342, providing that the issue of all marriages "decreed" null in law shall be legitimate, children born of a woman with whom a husband lived in the common-law relation after having left his first wife held legitimate; the word "decreed" being construed as meaning "deemed."-Nelson DORSEMENT OR TRANSFER. $3 (Mo.) In absence of proof to the con- V. RIGHTS AND LIABILITIES ON INtrary, it is presumed that a child is legitimate. -Nelson v. Jones, 151 S. W. 80. BILLS AND NOTES. See Accord and Satisfaction, § 27; Appeal and Error, § 1040; Banks and Banking, §§ 126, 134, 140; Compromise and Settlement; Estoppel, 878; Fraud, § 28; Gifts, § 4; Husband and Wife, § 268; Judgment, § 568; Limitation of Actions, § 157; Payment, § 39; Pleading, § 174; Pledges, § 30; Trial, § 253; Vendor and Purchaser, §§ 277, 308. I. REQUISITES AND VALIDITY. § 66 (Tex.Civ.App.) An order by a creditor, directing his debtor to pay a portion of the account to a third person, is not binding on the debtor until after presentation and acceptance. Gulf, T. & W. Ry. Co. v. Stark, 151 S. W. 641. (E) Consideration. 892 (Tex.Civ.App.) Extension of time held a sufficient consideration for a note executed by an abandoned wife for a community debt.Crowder v. McLeod, 151 S. W. 1166. (F) Validity. § 106 (Ky.) Note given for money advanced to pay candidate's election expenses, under an (D) Bona Fide Purchasers. § 348 (Ky.) Where a check, regular on its face and payable on demand, is transferred within two days after it is drawn, the transferee acquires title before it is overdue.-Asbury v. Taube, 151 S. W. 372. 8363 (Tex.Civ.App.) The purchaser of a note before maturity, in due course of trade, for a valuable consideration, and without notice of fraud on the maker, could recover thereon.Harlan v. Guitar, 151 S. W. 628. § 445 (Tex.Civ.App.) Cause of action on a note due October 1st, grace having been waived, held to accrue October 2d.-Standard v. Thurmond, 151 S. W. 627. $497 (Ky.) Under the express provisions of Ky. St. § 3720b, subsecs. 55, 56, and 59, the transferee of a check, obtained from the maker by fraud, has the burden of showing that he acquired title as a holder in due course.-Asbury v. Taube, 151 S. W. 372. § 518 (Mo.) Evidence, in an action to set aside a deed of trust given to secure notes based upon a prior note, held to sustain a finding that the prior note was without consideration. -First Nat. Bank v. Renick, 151 S. W. 421. $525 (Ky.) Evidence, held sufficient to show that plaintiff was a bona fide holder in due course.-Asbury v. Taube, 151 S. W. 372. $525 (Tex.Civ.App.) Evidence held to warrant a finding that plaintiff purchased the note before maturity, in due course of trade, for value, and without notice of fraud.-Harlan v. Guitar, 151 S. W. 628. BIRTH. See Criminal Law, §§ 417, 444. BOARDS. agreement that it would be void if the payee See Schools and School Districts; Taxation, § was employed as attorney by a person appointed by such candidate, held void because based on an illegal consideration.-Campbell v. Offutt, 151 S. W. 403. Note given for money advanced to a candidate for office held void, although not mentioned in an agreement accompanying a note previously given by which such note was to be void if the payee was employed as attorney by such person when appointed to office.-Id. III. MODIFICATION, RENEWAL, AND RESCISSION. $139 (Tex.Civ.App.) A payment of part of interest due on a note is no consideration for an extension of time.-Corbett v. Sweeney, 151 S. W. 858. 453. BOUNDARIES. shown by the deed filed, is deducible of record, does not show which title is the older, and plaintiff, though his title is superior.-Dockins v. Dukes, 151 S. W. 679. See Adverse Possession, § 73; Deeds, § 114; does not necessarily require a judgment for Trial, 252; Witnesses, § 406. I. DESCRIPTION. 83 (Ky.) The rule that courses and distances give way to monuments is to establish the actual location of the lines and corners, and has little application where the lines were not run out in the original survey.-Bryant v. Strunk, 151 S. W. 381. The lines of a patent will not be extended to reach a designated monument on the ground where the surveyor made a mistake as to its location.-Id. §3 (Mo.) An unmarked line is not a natural or artificial monument, and does not when called for in a deed overcome a call for distance. Dolphin v. Klann, 151 S. W. 956. Where a surveyor was not the county surveyor when he made a resurvey of a platted addition, and he did not give any data from which he made the survey, the survey did not overcome the calls in the plat.-Id. § 10 (Mo.) A plat of an addition must be taken as a whole, and a corner will not be so changed as to cause a shifting of the position of all the lots in the addition.-Dolphin v. Klann, 151 S. W. 956. § 21 (Mo.) The owner of property abutting a private way reserved in conveyances in partition which do not convey the fee to the way to any of the tenants held to have no more than half the way along the boundary, unless he acquired title to the other half by limitations. Dulce Realty Co. v. Staed Realty Co., 151 S. W. 415. § 46 (Ark.) The grantee of timber rights on defendant's land which had been added to by accretions cannot demand that the accretions to which he is entitled, defendant having purchased adjoining property, shall be determined according to the boundary for such adjoining property fixed by defendant and its then owner by parol at a time prior to the formation of the accretions.-Reeves v. Moore, 151 S. W. 1025. § 46 (Mo.) A boundary may be established by agreement of parties.-Hilgedick v. Gruebbel, 151 S. W. 731. § 53 (Mo.) Where a survey is illegal in a matter which the court knows about, it will not presume that it is correct in those particulars as to which it is not informed.-Dolphin v. Klann, 151 S. W. 956. official survey where it appears on its face or $54 (Mo.) A survey is not admissible as an from competent evidence that it was not made as the statute directs.-Carter v. Spracklin, 151 S. W. 451. Where plaintiff introduced on the issue of a disputed boundary, not only the official survey, but also evidence contrary thereto, the court properly refused plaintiff's requested instruction that the survey made by the county surveyor was presumptively correct.-Id. $55 (Mo.) A survey which violates an act of II. EVIDENCE, ASCERTAINMENT, AND See Obstructing Justices, §§ 4-11. ESTABLISHMENT. § 33 (Mo.) Under Rev. St. 1909, § 10290, relating to platting, the law presumes that a sur BRIEFS. vey and marking formed the basis of the plat. See Appeal and Error, §§ 742, 756-773, 835. Dolphin v. Klann, 151 S. W. 956. A plat of an addition held to show on its face that a survey was actually made before the making of the plat, and surveyor seeking to establish different lines from those designated on the plat must show good grounds therefor.-Id. § 35 (Mo.) Where the fact as to whether previous owners agreed on a boundary line was in issue, cross-examination of a witness to show that such boundary line as surveyed was not the true line held admissible; no one but the witness having ever heard of such agreement, and the line being an irregular one. -Hilgedick v. Gruebbel, 151 S. W. 731. $36 (Mo.) Rev. St. 1909, § 11,301, does not preclude introduction in evidence of surveys by private or public surveyors other than the County surveyor, where their correctness has been first shown.-Carter v. Spracklin, 151 S. W. 451. $37 (Mo.) Evidence in ejectment held to show that the prior owners of the respective tracts had not agreed upon a boundary line.Hilgedick v. Gruebbel, 151 S. W. 731. $40 (Ky.) The location of land granted by the state is for the court where there is no dispute as to the facts.-Bryant v. Strunk, 151 S. W. 381. $40 (Mo.) Where the prima facie case made out by an official survey was disputed by other evidence, the issue as to the boundary was for the jury.-Carter v. Spracklin, 151 S. W. 451. § 41 (Mo.) Instructions given in ejectment involving a disputed boundary held to present the issue as favorably for plaintiff as he was entitled to.-Hilgedick v. Gruebbel, 151 S. W. 731. $43 (Ky.) An agreed order that the chain of title to plaintiff's boundary, as set out in the petition, is deducible of record, and that BROKERS. See Appeal and Error, § 1052; Counties, § 122; Limitation of Actions, § 46; Trial, §§ 244, 296. II. EMPLOYMENT AND AUTHORITY. that he was not to pay a commission to plain§ 7 (Mo.App.) The testimony of defendant tiff and defendant's brother previously emthe brother alone who would employ plaintiff ployed to procure a purchaser jointly, but to and divide the commission, did not establish a joint obligation, and plaintiff could sue alone for the services rendered.-Dodge v. Childers, 151 S. W. 749. 89 (Mo.App.) Where a contract employing a broker does not limit the duration of the agency, the law implies performance within a reasonable time, after the lapse of which either party may revoke the contract.-Dodge v. Childers, 151 S. W. 749. · IV. COMPENSATION AND LIEN. § 39 (Tex.Civ.App.) Owner held liable to real estate broker for commission on a sale to a purchaser procured by the broker's subagent: the owner having knowledge of the method of procurance of the purchaser.-Bound v. Simkins, 151 S. W. 572. § 44 (Ark.) A contract giving a broker the exclusive right to procure a purchaser of real estate held modified by a new contract giving the owner the right to sell and binding him to pay the broker a specified commission, and a sale made by the owner revoked the broker's authority.-Johnston-Reynolds Land Co. v. Fuqua, 151 S. W. 693. § 44 (Mo.App.) Where an owner mailed his notice of revocation after receiving a proposal revocation was in bad faith, and did not de- An owner may not escape liability for com- BUILDING CONTRACTS. See Contracts, §§ 9, 32, 212; Mechanics' Liens, BUILDINGS. See Schools and School Districts. BURDEN OF PROOF. § 52 (Tex.) A contract by A. to give B. ex- § 54 (Mo.App.) A broker, employed to pro- § 56 (Tex.Civ.App.) An owner is liable for S. W. 572. V. ACTIONS FOR COMPENSATION. BURGLARY. See Criminal Law, §§ 364, 369, 413, 419, 420, that a store burglarized belonged to the pros- § 34 (Tex.Cr.App.) In a prosecution for bur- sustain a conviction.-Whorton v. State, 151 See Boundaries. CALLS. § 84 (Tex.Civ.App.) Fraudulent intent of an CANCELLATION OF INSTRUMENTS. § 86 (Tex.Civ.App.) Evidence held to support § 87 (Tex.Civ.App.) Where a broker's right to § 88 (Mo.App.) In an action for commissions, § 88 (Mo.App.) Instructions held to submit See Appeal and Error, § 843. I. RIGHT OF ACTION AND DEFENSES. $4 (Ky.) Equity will set aside transactions 84 (Mo.App.) One seeking to annul an in- § 24 (Tex.Civ.App.) An administrator of a a II. PROCEEDINGS AND RELIEF. $59 (Tex.Civ.App.) Where a grantee obtain- For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER CARRIERS. See Appeal and Error, § 1008; Damages. $ 132; Evidence, § 407; Trial, §§ 194, 252; Witnesses, § 414. II. CARRIAGE OF GOODS. (A) Delivery to Carrier. III. CARRIAGE OF LIVE STOCK. $228 (Tex.Civ.App.) Negligence in transportation of a shipment of cattle cannot be shown by evidence of another shipment about the same time having made the trip safely; it not being shown the two shipments were made under the same conditions.-Texas & P. Ry. Co. v. Good. 151 S. W. 617. § 40 (Ark.) The statute requiring carriers to $228 (Tex.Civ.App.) The presumption of negfurnish, without discrimination or delay, suffi-ligence against the last carrier, who receives cient facilities for the carriage of freight docs not make the duty an absolute one, and does not require the carrier to provide in advance for an unprecedented and unexpected rush of business. Cumbie v. St. Louis, I. M. & S. Ry. Co., 151 S. W. 240. (B) Bills of Lading, Shipping Receipts, and Special Contracts. § 66 (Ark.) A shipper's order for a specified number of cars for a specified day, when accepted, is a contract binding the carrier to furnish the cars, and the shipper to furnish the goods, but does not render the carrier liable to parties who did not authorize the order.Cumbie v. St. Louis, I. M. & S. Ry. Co., 151 S. W. 240. $67 (Ark.) A carrier who contracts to furnish all the cars necessary to transport the peach crop at a certain station, on failure to do so, cannot defend because of heavy and unprecedented traffic or other unavoidable casualties, nor does the contract relieve the shipper from ordering cars.-Cumbie v. St. Louis, M. & S. Ry. Co., 151 S. WV. 240. (F) Loss of or Injury to Goods. § 123 (Tex.Civ.App.) Defendant carrier held not liable for loss sustained by plaintiffs on a car of cabbage, where the consignee's refusal to accept the cabbage was not because of the carrier's error in adding an icing charge to the expense bill.-Freeman v. Quebedeaux, 151 S. W. 643. (H) Limitation of Liability. § 159 (Ark.) A provision in a bill of lading that a written notice of intention to claim damage should be presented to the carrier within 36 hours after delivery is not unreasonable. -Cumbie_v. St. Louis, I. M. & S. Ry. Co., 151 S. W. 237. Where a carrier has examined goods at their destination and knows their condition, it is not necessary to present a written notice of "intention to claim damages," as provided in the bill of lading.-Id. (J) Charges and Liens. $197 (Tex.Civ.App.) Sayles' Ann. Civ. St. 1897, art. 324, authorizing a carrier to store unclaimed freight, does not authorize a sale of unclaimed freight. Gulf, C. & S. F. Ry. Co. v. Patten Mfg. Co., 151 S. W. 1158. Sayles' Ann. Civ. St. 1897, arts. 327, 328, authorizing a sale of unclaimed freight, and article 324, authorizing the storage need not be construed together, and the right to sell unclaimed freight is not dependent on the use by the carrier of due diligence to notify the consignee of the arrival of the freight at destination.-Id. Under Sayles' Ann. Civ. St. 1897, art. 327, a carrier may sell freight unclaimed for three months, regardless of whether any charges are due thereon.--Id. Under Sayles' Ann. Civ. St. 1897, art. 327, the carrier may sell at a place other than the point of destination, and the owner, to avoid a sale at such other place, must show that the place selected was unreasonable and that he was probably injured.-Id. A carrier failing to give the notice required by Sayles' Ann. Civ. St. 1897, art. 4520, may not charge for the storage of freight remaining live stock in good condition and subsequently delivers it in a damaged condition can only be indulged in the absence of testimony accounting for the injury.-Texas Cent. R. Co. v. Scott & Robertson, 151 S. W. 1113. § 229 (Tex.Civ.App.) A shipper's measure of damages for injuries to cattle is the difference between the market value at the time they arrived at destination and what would have been their market value had they arrived without delay.-St. Louis & S. F. Ry. Co. v. Knox, 151 S. W. 902. IV. CARRIAGE OF PASSENGERS. (A) Relation Between Carrier and Passenger. § 247 (Mo.) A person in the act of getting upon a street car is a passenger.-Benjamin v. Metropolitan St. Ry. Co., 151 S. W. 91. (C) Performance of Contract of Transportation. $270 (Tex.Civ.App.) One railroad company which allowed another company to sell tickets over its line is bound to honor a ticket sold by the first company, where the purchaser had no notice of the limitation on the first company's authority.-Chicago, R. I. & G. Ry. Co. v. Carroll, 151 S. W. 1116. (D) Personal Injuries. § 280 (Mo.) A carrier owes to a passenger the highest degree of care that a prudent person experienced in that business can practicably exercise.-Benjamin v. Metropolitan St. Ry. Co., 151 S. W. 91. § 287 (Ky.) It is negligence to move a street car at all before a passenger has reasonable opportunity to reach the platform; but, if he has such opportunity, the company is not liable unless the car is started with an unusual jerk, or unless the passenger be feeble, etc.-Samuels v. Louisville Ry. Co., 151 S. W. 37. $ 287 (Mo.) If the conductor of a street car should have realized that a sudden starting of the car would throw down and injure a corpulent lady of 57 years who was entering the car, and she was accordingly thrown down and injured, the railroad company was liable.-Benjamin v. Metropolitan St. Ry. Co., 151 S. W. 91. ordinances fixing the speed of street cars are for the benefit $295 (Tex.Civ.App.) Municipal of persons crossing the track and not for pasdoes not raise an imputation of negligence per sengers, and a violation of such ordinances se in favor of an injured passenger.-Walker v. Metropolitan St. Ry. Co., 151 S. W. 1142. $305 (Mo.App.) The injury to one who, knowing a depot would not be heated or lighted at night, went to it two hours before time for his train and voluntarily got into a box car at the platform, occupied by a shipper, and in getting out fell, was not caused by any failure of the carrier to have the depot heated, lighted, and open a reasonable time before a train was due.-Sweaney v. Missouri, K. & T. Ry. Co., 151 S. W. 198. § 306 (Ky.) Where the trains of one railroad company were run over tracks leased from a second, and the tracks were jointly used by the lessee and a third company, all three companies are liable as principais to passengers injured by the aet of a switchman of the third |