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rected them to wholly disregard it.-Martoni v. State, 167 S. W. 349.
81169 (Tex.Cr.App.) The error, if any, in excluding evidence subsequently admitted is not prejudicial.-Willis v. State, 167 S. W. 352.
§ 1169 (Tex.Cr.App.) Where accused denied any knowledge of any attempt of his father and attorney to manufacture testimony, the admission of evidence of their efforts to manufacture testimony, including a letter written by the attorney, was prejudicial error.-Sorell v. State, 167 S. W. 356.
$1171 (Tex.Cr.App.) Where prosecutrix and her family were in moderate circumstances, and worked for a living, while the father of accused was well to do, and his witnesses were ministers and wives of ministers and other people of equal standing, the argument of the prosecuting attorney that, where a family had plenty of money, accused could gather around him influential friends, as had been done in this case, and that money could beat any case, was prejudicial. Sorell v. State, 167 Š. W. 356.
$11702 (Ky.) The accused cannot complain that questions asked witnesses called to impeach his character were as to his general morality, and were not limited to the time prior to the offense, where only a comparatively short time had elapsed between the offense and the trial, See Damages, § 112.
and where witnesses called to sustain his character were asked questions in the same form both as to time and reputation.-Gabbard v. Commonwealth, 167 S. W. 942.
Error in refusing to allow the accused to impeach the character of one witness out of seven who had testified to the bad reputation of accused was so inconsequential as not to give Sea Railroads, §§ 246, 301-351. ground for complaint.-Id.
§ 1172 (Mo.) Where accused and wife testified, a charge that, in determining the weight of such testimony, the jury could consider the fact that "he is the defendant, and she is his wife,' if erroneous, was harmless, where the proof of guilt was overwhelming.-State v. Hyder, 167 S. W. 524.
$1172 (Tex.Cr.App.) Where a charge on selfdefense, relating to the manifest intention of the deceased to execute threats previously made, through inadvertence used the word "excuse' instead of "execute," but it appeared that the word was read "execute" by all the attorneys and by the judge, the error was not prejudicial. -Carey v. State, 167 S. W. 366.
$1177 (Tenn.) Error in the court's assessing the fine for transporting intoxicating liquor in violation of Acts 1913 (2d Ex. Sess.) c. 1, instead of submitting its amount to the jury, as required by Const. art. 6, § 14, was harmless, where the fine was made $100, as it could not be made less.-State v. Green, 167 S. W. 867. (H) Determination and of Cause.
threats to take the life of the defendant and to do him serious bodily injury was harmless, where the uncontradicted evidence established those facts.-Carey v. State, 167 S. W. 366.
81186 (Mo.) Under Rev. St. 1909, § 5115, forbidding reversals of criminal cases for immaterial errors, the failure of the record to show a plea of not guilty is not fatal to a conviction, where the trial was conducted by both sides as though such plea had been entered. State v. O'Kelley, 167 S. W. 980.
XVII. PUNISHMENT AND PREVEN-
§ 1171 (Tex.Cr.App.) Where eight of the nine counts in an indictment had been withdrawn See Carriers, §§ 74, 76; Criminal Law, § 854. from the jury in a former case in which defendant was convicted on the ninth count, error in permitting the district attorney to read all nine counts to the jury in the second trial was harm- See Master and Servant, § 226.
CUSTOMS AND USAGES.
less, where the court again withdrew from the jury all of the counts except the one upon which the former conviction was had.-Hewitt v. State, 167 S. W. 40.
$1186 (Tex.Cr.App.) Under Code Cr. Proc. 1911, art. 743, forbidding reversal for immaterial errors, error in a charge which required the jury to believe that the threats which were communicated to the defendant were actually
§ 1206 (Tex.Cr.App.) Under Act Aug. 18, 1913 (Acts 33d Leg. [Extra Sess.] c. 5), the court, on the conviction of one for unlawfully selling whisky cannot sentence accused for two years, the term fixed by the verdict; but the sentence must be for the minimum fixed by the law and the maximum fixed by the jury.— Martoni v. State, 167 S. W. 349.
See Witnesses, §§ 268-270, 337.
See Appeal and Error, § 714; Assault and Battery, §§ 27, 39; Banks and Banking, § 175; Carriers, §§ 94, 105, 134, 135, 154; Death, $$ 95-99; Ejectment, § 132; Election of Remedies, $3; Injunction, § 186; Insurance. § 499; Nuisance, §§ 48, 50; Sales, §§ 384, 404, 442; Telegraphs and Telephones, §§ 27, 68, 71; Trial, § 114; Vendor and Purchaser, 108; Waters and Water Courses, § 261.
III. GROUNDS AND SUBJECTS OF COMPENSATORY DAMAGES. (A) Direct or Remote, Contingent, or Prospective, Consequences or Losses. § 44 (Mo.App.) Where a railroad right of way fence was washed onto plaintiff's land as one of the results of a railroad company's failure to provide a sufficiently extensive railroad embankment under a contract for right of way, and plaintiff's assignor necessarily replaced the fence to protect his land and minimize his damages, plaintiff was entitled to recover from the railroad company the reasonable value of the work of so doing.-Coffman v. Saline Valley R. Co., 167 S. W. 1053.
(B) Aggravation, Mitigation, and Reduction of Loss.
§ 62 (Tex.Civ.App.) A buyer of machinery under a warranty must exercise ordinary diligence to prevent loss in running the machinery if he can do so.-A. S. Cameron Steam Pump Works v. Lubbock Light & Ice Co., 167 S. W. 256.
IV. LIQUIDATED DAMAGES AND
§ 78 (Mo.App.) A stipulation in a building contract for payment for failure to complete the work within a specified time, inserted to insure completion of the building for use on a desig nated date, held to provide for a penalty and not for liquidated damages.-Ward v. Haren, 167 S. W. 1064.
§ 80 (Mo.App.) Where the amount provided to be paid by a building contractor, on his failure to complete the work within a specified time, was grossly disproportionate to the actual damages, the stipulation must be construed to be an unenforceable penalty, and the owner, ac
the delay, may not recover the amount stipulated.-Ward v. Haren, 167 S. W. 1064.
VIII. PLEADING, EVIDENCE, AND
§ 85 (Mo.App.) Where a stipulation in a building contract provided for liquidated damages for the contractor's delay in completing $143 (Mo.App.) An allegation in the petition the work within the time specified, but no dam-seeking a recovery for injuries caused by deages were sustained by the owner, the latter wounded plaintiff by striking him in and about fendant's assault that defendant beat and could only recover nominal damages.-Ward v. Haren, 167 S. W. 1064.
the right eye and on the nose is sufficiently general to permit recovery for the breaking of plaintiff's nose.-Ellis v. Wahl, 167 S. W. 582.
Where the amount stipulated in a contract becomes the measure of actual damages sustained, a party seeking to recover for a breach must show a breach and that substantial damages accrued in consequence thereof, and then the stipulation fixes the recovery.-Id.
§ 158 (Mo.App.) Where a petition alleged a severe laceration of plaintiff's knee, the allegation authorized evidence that the knee was swollen. Foster v. United Rys. Co. of St. Louis, 167 S. W. 643.
§ 177 (Mo.App.) In an action for injuries, evidence as to a physician's charge for medical and surgical services rendered to plaintiff was admissible, where she was personally liable therefor.-Cowgill v. City of St. Joseph, 167 S. W. 1157.
§ 185 (Tex.Civ.App.) Evidence in an action for personal injury to plaintiff's wife from falling while alighting from a car, in which defendant claimed that plaintiff was deliberately attempting to defraud, held to sustain a verdict for defendant.-Bryning v. Missouri, K. & T. Ry. Co. of Texas, 167 S. W. 826.
(C) Proceedings for Assessment.
§ 216 (Mo.) In action for personal injuries, instruction as to measure of damages held not erroneous.-Riley v. City of Independence, 167 S. W. 1022.
See Abatement and Revival, §§ 73, 77; Appeal and Error, §§ 171, 193, 238, 877, 1050, 1053, 1056, 1064; Carriers, § 318; Continuance, 14; Master and Servant, $$ 97, 137, 256, 258, 264, 270, 276, 278, 286, 289, 293; Partnership, $$ 251, 252, 336; Railroads, §§ 259, 347, 348, 395; Street Railroads, § 117; Trial, 88 191, 194, 253, 296.
II. ACTIONS FOR CAUSING DEATH.
(A) Right of Action and Defenses. section 9 as added by Act April 5, 1910, § 2. §11 (Ark.) Employers' Liability Act, § 1, and create a right of action for the benefit of the widow and children wholly independent of the right of action to the injured person for the pain and suffering endured prior to his death. -Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83.
(D) Pleading and Evidence.
§ 47 (Ky.) In an action for negligent death, it is sufficient to charge in a general way that the death was caused by the negligence of defendant.-Chesapeake & O. Ry. Co. v. Dawson's Adm'r, 167 S. W. 125.
$57 (Ky.) Where plaintiff, suing for negligent death, specifies in the petition the negligence relied on, the facts specified constitute the cause of action, and the right to recover must be confined thereto.-Chesapeake & O. Ry. Co. v. Dawson's Adm'r, 167 S. W. 125.
§ 64 (Tex.Civ.App.) In an action for a brakeman's death, brought by his representative for the benefit of his widow, etc., testimony of his widow that at the time of his death they owned no property, that they were renting a house in which to live and that he was a good provider out of his wages held admissible.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279.
8 67 (Tex.Civ.App.) In an action for a brakeman's death, evidence that deceased was a brakeman and extra conductor, and stood in line for
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER
See Equity, § 423.
See Acknowledgment, § 37; Cancellation of
I. REQUISITES AND VALIDITY. (A) Nature and Essentials of Conveyances in General.
§ 13 (Tex.Civ.App.) The grantees in a deed must be in existence when it is executed, but a deed to the heirs of a dead person is valid if the grantees can be identified, though a deed to the heirs of a living person, without specifying their names is invalid, especially where the heirs are yet unborn.-Vineyard v. Heard, 167 S. W. 22.
undeniable proof of fraud or undue influence.Bevins v. Lowe, 167 S. W. 422.
§ 17 (Ky.) A conveyance will not be canceled on the ground of want of consideration, unless the inadequacy is such as will shock the con
child in consideration of love and affection, and §17 (Mo.) A deed executed by a father to a the agreement of the child to support the grantor for life, is supported by a good and valuable consideration. Lee v. Lee, 167 S. W. 1030.
$70 (Mo.) The fraud of a grantee which will vitiate a deed consists of acts, omissions, and concealments involving a breach of legal or eq
See Criminal Law, § 427; Evidence, § 273; uitable duty, trust, or confidence justly reposed, Homicide, §§ 203-218.
and which are injurious to the grantor or by which undue advantage is taken of him.-Lee v. Lee, 167 S. W. 1030.
§ 54 (Mo.) A delivery of a deed by the grantor is essential to its validity.-Schooler v. Schooler, 167 S. W. 444; Cowsert v. Same, Id.
§ 56 (Mo.) Delivery of a deed may be shown by acts without words, or by words without acts, or by both combined, provided an intention appears on the part of the grantor to surrender dominion over the instrument, without power to recall it.-Miles v. Robertson, 167 S. W. 1000.
§ 70 (Tex.) A conveyance in fee on the promise of the grantee that he would execute a written agreement to reconvey when his use of the premises had terminated, which he did not at the time intend to perform, was procured by fraud warranting the cancellation $of the conveyance.-Cearley v. May, 167 S. W. 725.
III. CONSTRUCTION AND OPERA
Facts held sufficient to show valid delivery of a deed by a brother to a sister.-Id.
§ 58 (Mo.) A deed delivered by the grantor to a third person for delivery to the grantee and the delivery by the third person to the grantee is a good delivery, though the grantor is dead at the date of the delivery to the grantee.-Schooler v. Schooler, 167 S. W. 444; Cowsert v. Same, Id. 447.
§ 64 (Mo.) Acceptance of a deed by the grantee is essential to its validity.-Schooler v. Schooler, 167 S. W. 444; Cowsert v. Same, Id. 447.
§ 68 (Mo.) Sickness and old age do not in and of themselves amount to incapacity to execute a deed.-Lee v. Lee, 167 S. W. 1030.
TION. (A) General Rules of Construction. § 93 (Mo.) The court, in construing a deed, must consider all its parts together, and give effect to the intention of the parties, when ascertained.-Warne v. Sorge, 167 S. W. 967.
$ 100 (Mo.) Where a deed is fairly susceptible of different constructions, the court may ascertain the situation of the parties to determine the meaning of the language used.-Warne v. Sorge, 167 S. W. 967.
§ 101 (Mo.) Where a deed is susceptible of on it by the immediate parties thereto will be more than one meaning, the construction placed adopted.-Warne v. Sorge, 167 S. W. 967.
A construction placed on a deed. by a grantee for life is only persuasive in determining its true meaning, and does not estop the remain
§ 105 (Mo.) The word "children" in a deed conveying real estate to a person for life, and at his death to his "children," usually refers to his immediate offspring, and not to grandchildren; but the word may, in furtherance of the intention of the parties, include grandchildren. Warne v. Sorge, 167 S. W. 967.
§ 105 (Mo.) Where a deed conveyed the land for the use of the grantee and to her nearest blood kin, it passed the remainder to her surviving father and mother, to the exclusion of her brothers and sisters.-Smith v. Egan, 167 S. W. 971.
§ 105 (Tex.Civ.App.) Since the grantees must be in existence, under a deed to grantor's son and to the heirs of grantor and his wife, the son would take all of the land conveyed, if grantor then had no other children.-Vineyard v. Heard, 167 S. W. 22.
(C) Estates and Interests Created. § 125 (Mo.) Deed construed, and held to create in certain remaindermen a fee subject to be divested on their death without issue, and not an estate tail.-Collier v. Archer, 167 S. W. 511.
(D) Exceptions and Reservations.
§ 143 (Tex.Civ.App.) A provision in a deed to grantor's son, reserving to grantor the right to control the land as "guardian of said estate for the benefit" of his son, gave grantor no more rights over the property than he had as the natural guardian of his son, so that the fee-simple title passed to the son free from any trust.-Vineyard v. Heard, 167 S. W. 22.
§ 196 (Mo.) That a daughter resided with her aged father as his housekeeper, companion, and nurse did not raise a presumption that a deed, whereby the father conveyed to her one-half his farm, was executed under undue influence.Stanfield v. Hennegar, 167 S. W. 1036.
§ 208 (Mo.) The delivery of a deed and its acceptance may be established by indirect evidence.-Schooler v. Schooler, 167 S. W. 444; Cowsert v. Same, Id. 447.
Evidence held to sustain a finding of a delivery of a deed to a third person for delivery to the grantee.-Id.
Evidence held to sustain a finding that a grantor accepted the delivery of a deed.-Id.
§ 133 (Mo.) Where a deed conveyed a life estate to a son, and at his death to the children he might leave surviving him, and entitled by law to inherit his estate, and the son at the time of the deed was only 24 years old, the deed created a vested remainder in his children, so that grandchildren living at the time of his death were entitled to share in the property conveyed.-Warne v. Sorge, 167 S. W. 967.
A vested remainder exists where property is conveyed to a grantee for life, with remainder at his death to another.-Id.
Where a deed creates a doubt as to whether it was the intention of the grantor to convey a contingent or vested remainder, the doubt should-Lee v. Lee, 167 S. W. 1030. be resolved in favor of a vested remainder.-Id.
§ 196 (Mo.) In a suit to set aside a deed on the ground of the grantor's mental incapacity, the grantee may rely on the presumption of the grantor's mental capacity; the burden being on plaintiff to rebut the presumption.-Lee v. Lee, 167 S. W. 1030.
§ 210 (Ky.) In a suit to set aside a conveyance on the ground that the grantee by reason of his parental relation obtained the conveyance for a grossly inadequate consideration, evidence held insufficient to show such gross inadequacy as would warrant cancellation.-Bevins v. Lowe, 167 S. W. 422.
§ 211 (Ky.) In a suit to set aside a conveyance on the ground of the grantor's insanity, evidence held insufficient to show the grantor's mental incapacity.-Bevins v. Lowe, 167 S. W. 422.
8211 (Ky.) Evidence in partition held to show that the name of plaintiff's ancestor was included among the grantees in a deed by mistake, so that title to all the land was in the other grantees.-Glass v. Bradford, 167 S. W. 926.
§ 211 (Mo.) Evidence, in a suit to cancel a deed for fraud of the grantee, held to show his dealings with the grantor were free from fraud. -Carter v. Carter, 167 S. W. 570.
grantor had mental capacity to execute a deed. 211 (Mo.) Evidence held to show that a
Evidence held not to show that a deed was
procured by the fraud of the grantee.-Id.
Evidence held not to show that a deed was procured by the undue influence of the grantee. Id.
§ 211 (Mo.) In a suit to cancel a deed from a father to his daughter, evidence held to sustain a finding that the father was of sound mind when he executed the deed.-Stanfield v. Hennegar, 167 S. W. 1036.
In a suit to cancel a deed from a father to one of his daughters who lived with him and cared for him, etc., evidence held to sustain a finding that the deed was not procured executed by undue influence.-Id.
(E) Conditions and Restrictions.
§ 165 (Ark.) Upon a breach of a condition subsequent contained in a deed, ipso facto the title reverted and was vested in the grantor, without the necessity of his taking possession in order to effect a forfeiture.-St. Louis South- See Malicious Mischief, §§ 1, 4. western Ry. Co. v. Curtis, 167 S. W. 489.
IV. PLEADING AND EVIDENCE.
$194 (Mo.) The presumption of the delivery See Libel and Slander.
of a deed and its acceptance in case of voluntary settlement is stronger than in case of bargain and sale.-Schooler v. Schooler, 167 S. W. 444; Cowsert v. Same, Id. 447.
See Judgment, §§ 101-143.
§ 196 (Ky.) There is a presumption that the grantor of land has sufficient capacity to convey, and the burden of proof is upon him who See Insurance, § 602. asserts the grantor's incapacity; the presumption being strengthened where the transaction is old and the property has greatly enhanced in value since conveyance.-Bevins v. Lowe, 167 S. W. 422.
See Carriers, §§ 83-94, 105; Deeds, §§ 54-64, 194, 208; Sales, § 72; Telegraphs and Telephones, §§ 27, 38, 51, 54, 56, 66, 68, 71.
See Criminal Law, § 404.
The presumption is that a grantee obtaining a deed was not guilty of fraud inducing its execution.-Id.
See Pleading, §§ 193-214; Trial, § 156.
See Pleading, §§ 120, 127.
See Banks and Banking, §§ 140, 154.
See Rape, § 41; Witnesses, § 178.
$79 (Ky.) In an election contest, contestee held not entitled to have depositions, taken by contestant, quashed because they were not filed See Bills and Notes, §§ 396, 526. within 30 days allowed contestant for taking proof, nor within 20 days allowed contestee for the same purpose.-Potter v. Campbell, 167 S. W. 404.
DESCENT AND DISTRIBUTION.
III. RIGHTS AND LIABILITIES OF
§ 26 (Tex.Civ.App.) On a bill to enjoin tort
See Constitutional Law, § 297; Railroads, §§ feasors, when one of the defendants resides be58, 226.
yond the jurisdiction of the court, and has not been served with process, the suit may be dismissed as to him, and proceed as to the other. -Acme Cement Plaster Co. v. Keys, 167 S. W. 186.
§ 80 (Mo.) Where defendant conducted his mother's business for several years under her immediate direction, and collected moneys for her, and expended or retained same under circumstances satisfactory to her and where no See Judges, § 44.
accounting was required of him by her, an action could not be maintained against him by the administrator of his mother's estate for an accounting.-Barnett v. Kemp, 167 S. W. 546.
See Pleading, §§ 104, 111.
See Boundaries, §§ 3, 5; Deeds, § 105; Refor-
See Specific Performance, § 97.
Elections, § 286; Indictment and Information, 132; Jury, § 31; New Trial, § 39; Trial, §§ 112, 118.
See Accord and Satisfaction; Compromise and Settlement; Principal and Surety, § 101; Release.
See Divorce, § 128; Insurance, § 669.
II. UNDER STATUTORY PROVI
(A) Interrogatories and Examination of Parties and of Other Persons.
DISMISSAL AND NONSUIT.
See Appeal and Error, §§ 105, 592, 773; Bail, § 65; Habeas Corpus, § 113; Justices of the Peace, § 166; Trial, § 11.
829 (Mo.App.) The use of offensive language by a husband to his wife, his laying of his hand on her shoulder by way of emphasis, and his desertion, all within a few minutes, constitute but single indignity, insufficient under the -Bowling v. Dowling, 167 S. W. 1077. statute making "indignities" ground for divorce.
Neither a husband's declaration, on the morning following a quarrel with his wife, that he was not going to live with her, nor his notification of the landlord and grocer that he would
See Railroads, §§ 338, 348, 360, 400; Street not be responsible for her bills, constituted an Railroads, §§ 93, 103, 112. indignity within the divorce statute.-Id.
$70 (Tex.Civ.App.) Where complainants did not refuse to answer certain interrogatories as certified by the notary, the court did not err in permitting complainants to testify, and in not regarding the interrogatories as confessed.Connell v. Nickey, 167 S. W. 313.
DISCRETION OF COURT.
See Appeal and Error, §§ 977, 979, 1003; Crim
§ 17 (Mo.App.) In a prosecution for keeping a bawdyhouse, the evidence of the marshal and his deputy that defendant said she ran the house and had five girls, and that the reputation of the girls and of the house was bad, held sufficient to sustain a conviction.-City of Columbia v. Stout, 167 S. W. 1153.
See Injunction, § 186; Partnership, §§ 317, 336.
DISTRICT AND PROSECUTING
IV. JURISDICTION, PROCEEDINGS,
§ 124 (Mo.) Evidence, in an action for divorce, held to sustain a finding that there was no common-law marriage.-Cherry v. Cherry, 167 S. W. 539.
§ 128 (Mo.App.) In a suit by a wife for divorce on the ground that her husband had communicated to her a loathsome disease, evidence held to support a finding in her favor.-Darling v. Darling, 167 S. W. 1166.
(F) Judgment or Decree.
§ 172 (Ky.) A judgment granting the wife an absolute divorce on the ground of abandonment,