*One contracting with defendant to install a fuel oil plant and prevented from completing the contract by the passage of an ordinance held not entitled, under a provision of the contract, to recover for material delivered on defendant's premises and labor performed.-Binz v. National Supply Co. (Tex. Civ. App.) 543.

*Under a contract whereby defendant was to furnish sufficient water for plaintiff's rice crop, defendant held not liable for a breach if he used his best judgment as to the amount of water to be supplied.-Kelly v. Corrington (Tex. Civ. App.) 1155.

§ 5. Actions for breach.

*Evidence in an action on a contract for cutting timber held to show that the price was fixed in the written contract at $10 through mistake, instead of $1, as agreed, and that the contractor knew of the mistake.-Mercer v. Hickman-Ebbert Co. (Ky.) 441.

Evidence as to the customary charge for cutting hickory timber is admissible on an issue whether the price, $10, specified in a written contract for such service, resulted from mistake; the agreed price being $1.-Mercer v. Hickman-Ebbert Co. (Ky.) 441.

with the contract.-Kerr v. Blair (Tex. Civ. App.) 548.

In an action for breach of contract to thresh

a crop of rice, a charge that defendant was only his contract was properly refused.-Kerr v. Blair obligated to exercise ordinary care to perform (Tex. Civ. App.) 548.

A paragraph of a charge for breach of a contract to furnish sufficient water for plaintiff's rice crop held not subject to certain objection.Kelly v. Corrington (Tex. Civ. App.) 1155.

CONTRADICTION.

Of record, see "Appeal and Error," § 16.
Of witness, see "Witnesses," § 3.

CONTRIBUTION.

*Where a joint judgment is settled by one party for less than its face, the other is liable for contribution to the extent of half the amount paid.-Thompson v. Fitzgerald & Ray (Tex. Civ. App.) 334.

CONTRIBUTORY NEGLIGENCE.

See "Negligence," § 3.

Of owner of animal killed or injured by opera-
tion of railroad, see "Railroads," § 10.
Of passenger, see "Carriers," § 7.

An instruction in an action on a warranty that an asphalt floor would continue waterproof for five years, that plaintiff could recover the value of salt in the basement beneath the floor destroyed by the leakage of the floor was proper, when taken in connection with an instruction as to the plaintiff's duty to lessen the dam-Of person injured by defective street, see "Muages as far as possible.-Gallais v. Trinidad Asphalt Mfg. Co. (Mo. App.) 693.

Where the defense in an action on a warranty that an asphalt floor would continue waterproof for five years was that the floor leaked on account of specific acts of negligence by plaintiff, an instruction failing to submit the question whether defendant knew the use to which the floor was to be put was not erroneous.-Gallais v. Trinidad Asphalt Mfg. Co. (Mo. App.) 693.

In an action for breach of a warranty that an asphalt floor would continue waterproof for five years, evidence that defendant offered to repair the floor and make it waterproof is properly excluded. Gallais v. Trinidad Asphalt Mfg. Co. (Mo. App.) 693.

In an action on a warranty that an asphalt floor would continue waterproof for five years, evidence of the condition of the floor at any time within the five years is properly admitted. -Gallais v. Trinidad Asphalt Mfg. Co. (Mo. App.) 693.

The petition in an action for breach of contract to thresh a crop of rice held to allege sufficiently the present value of the rice as if threshed.-Kerr v. Blair (Tex. Civ. App.) 548.

The petition in an action for breach of contract held to allege sufficiently the time and person who made representations.-Kerr v. Blair (Tex. Civ. App.) 548.

The petition in an action for breach of contract to thresh a crop of rice held to allege sufficiently the reasonable value of the rice when threshed.-Kerr v. Blair (Tex. Civ. App.) 548.

The petition in an action for breach of contract to thresh a crop of rice held to allege sufficiently that certain expenses were necessary or reasonable.-Kerr v. Blair (Tex. Civ. App.) 548. *There is no fatal variance between an allegation that a contract was made "on or about September, 1905," and the proof that it was entered into in October of the same year.-Kerr v. Blair (Tex. Civ. App.) 548.

Certain proof held insufficient to show that one contracting to thresh a crop of rice complied

nicipal Corporations," § 11.

Of person injured by operation of railroad, see
of person injured by operation of street rail-
"Railroads," §§ 6-8.
Of person injured on vessel, see "Shipping," § 1.
road, see "Street Railroads," § 2.
Of person killed by operation of railroad, see
Of servant, see "Master and Servant," §§ 10, 13.
"Railroads," § 9.

CONVENTION.

Appropriation by fiscal court of county for political convention, see "Counties," § 1.

CONVERSION.

Wrongful conversion of personal property, see "Trover and Conversion."

*Under certain directions in a will, certain land held to become personalty by the doctrine of equitable conversion and subject to sale under the will.-Crane v. Crane (Ky.) 370; Coulter v. Same, Id.

CONVEYANCES.

In fraud of creditors, see "Fraudulent Convey

ances.

In trust, see "Trusts," § 1.

Conveyances by or to particular classes of persons.

See "Husband and Wife," § 2; "Insane Per-
sons," § 1.

Married women, see "Husband and Wife," § 3.
Conveyances of particular species of, or estates
or interests in, property.
See "Easements," § 1; "Homestead," § 2.
Mortgaged property, see "Mortgages," § 2.

Particular classes of conveyances.
See "Assignments for Benefit of Creditors";
"Chattel Mortgages"; "Deeds"; "Mortga-
ges."

*Point annotated. See syllabus.

Evidence of conduct held not admissible on
the interpretation of the plan of organization
*Point annotated.

*Where a corporation without authority of its § 1. Persons, property, and funds liable.
charter guarantees the payment of other per- Statement as to how attorney's fees of a stake-
sons' notes without any consideration, it is not holder should be taxed.-Red River Nat. Bank
estopped to plead the defense of ultra vires.-v. De Berry (Tex. Civ. App.) 998.
Deaton Grocery Co. v. International Harvester
Co. of America (Tex. Civ. App.) 556.

*A corporation chartered under Rev. St. 1895,
art. 665, to deal in merchandise, held to have no
power to guarantee payment of other persons'
notes.-Deaton Grocery Co. v. International
Harvester Co. of America (Tex. Civ. App.) 556.

§ 6. Dissolution and forfeiture of fran-

chise.

2. On appeal or error, and on new
trial or motion therefor.
Statement as to apportionment of costs, under
Ky. St. 1903, § 891, on reversal of judgment
in several election contest suits depending on the
same matters.-Peter v. Wilson (Ky.) 980;
Scholl v. Bell, Id.

rendered by plaintiff's attorneys on appeal in
'An application for compensation for services
be made in the circuit court that tried the cause.
the Supreme Court, to be taxed as costs, should

Where, after the expiration of the charter
of a toll road company, it transferred its prop--Padgett v. Smith (Mo.) 742.
erty and rights to another corporation, which
continued to charge toll, the prosecuting attor-
ney of the county in which the road lay was
expressly authorized by Rev. St. 1899, § 9547

CO-TENANCY.

[Ann. St. 1906, p. 4369], and independent there- See "Tenancy in Common."
of, to sue for an injunction to restrain the
further obstruction of the road by toll gates and
the further charging of toll.-State ex rel. Hines
v. Scott County Macadamized Road Co. (Mo.)
752.

7. Foreign corporations.

COUNCIL.

See "Municipal Corporations," 88 1, 2, 5-7.

COUNTERCLAIM.

A petition, in an action against a corporation
for the penalty for using advertising matter
without having the word "incorporated" there- See "Set-Off and Counterclaim."
on, held to state a cause of action as against a
demurrer.-T. J. Moss Tie Co. v. Common-
wealth (Ky.) 163.

COUNTERFEITING.

*A foreign corporation furnishing goods to a See "Forgery."
merchant of this state in accordance with a
contract between them held not doing business
in the state in violation of Ky. St. 1903, §
571.-Three States Buggy & Implement Co. of
Cairo, Ill., v. Commonwealth (Ky.) 971.

Under Rev. St. 1895, arts. 245, 247-251, the
district court of one county held without juris-
diction to render a judgment against a foreign
corporation summoned as garnishee, doing busi-
ness in the state under a permit with an agent
in another county.-American Surety Co. v.
Bernstein (Tex.) 990; Same v. Hockwald (Tex.)
992; Same v. Allen, Id.

*Petition of a foreign corporation held not ob-
jectionable for failure to show its capacity to
sue in Texas.-Gulf & Interstate Ry. Co. v.
Southwestern Coal Selling Co. (Tex. Čiv. App.)
64.

Under Act April 11, 1907, upon the forfeiture
of the permit of a foreign corporation to do busi-
ness in the state, the court may appoint a re-
ceiver. Waters-Pierce Oil Co. v. State (Tex.
Civ. App.) 851.

Under Sayles' Civ. St. 1897, art. 1465, subd.
3, a receiver may be appointed for a foreign
corporation upon the forfeiture of its permit to
do business in the state.-Waters-Pierce Oil Co.
v. State (Tex. Civ. App.) 851.

CORRECTION.

Of assessment of taxes, see "Taxation," § 3.
Of irregularities and errors at trial, see "Crim-
inal Law," § 24.

Of record on appeal or writ of error, see "Ap-
peal and Error," § 15.

COSTS.

In mandamus, see "Mandamus," § 3.

COUNTIES.

See "Municipal Corporations."

County attorneys, see "District and Prosecut-
ing Attorneys."

County elections, see "Elections," § 4.
County equalization boards, see "Taxation," § 3.
Jurisdiction of county court to issue liquor li-
cense, see "Intoxicating Liquors," § 4.
Terms of county court, see "Courts," § 1.

§ 1. Fiscal management, public debt,
securities, and taxation.

A fiscal court has no power, under Act March
21, 1906 (Acts 1906, p. 342, c. 73), to make an
appropriation out of county funds to secure
a convention to be held in the county.-Jeffer-
son County v. Peter (Ky.) 887.

§ 2. Claims against county.

*The verification required by Kirby's Dig. §
3517 of claims presented to the county court for
certain fees held not necessary to jurisdiction of
the court, which is given by Const, art. 7, § 28.
-Saline County v. Kinkead (Ark.) 581.

The general statute (Kirby's Dig. § 1453) held
not to apply to presentation to the county court
of claims for certain fees; section 3517, special-
ly directing the manner.-Saline County v. Kin-
kead (Ark.) 581.

Under Const. art. 7, § 50, held, that the cir-
cuit court, on appeal from the allowance or dis-
allowance of a claim against a county, can, as
could the county court, allow an amendment of
the claim.-Saline County v. Kinkead (Ark.) 581.

COURTS.

Appointment of receiver on court's own motion,
see "Receivers," § 1.

Criminal jurisdiction, see "Criminal Law," § 3.
Determination of constitutional questions, see
"Constitutional Law," § 1.

Payment on taking appeal, see "Appeal and Judges, see "Judges.'
Error," & 8.

Judicial power, see "Constitutional Law," § 2.

*Point annotated. See syllabus.

Jurisdiction of court in attachment, see "At-
tachment," § 2.

Justices' courts, see "Justices of the Peace."
Mandamus to inferior courts, see "Mandamus,"
§ 2.

In an action to recover under attorneys' lien
act (Laws 1901, p. 46 [Ann. St. 1906, § 4937-
1]), appellate jurisdiction held exclusively in
the Supreme Court.-Taylor v. St. Louis Mer-
chants' Bridge Terminal Ry. Co. (Mo.) 740.

*In a suit to restrain a toll road company
from maintaining toll gates and further charg-

Power of district court to summon foreign cor-
poration as garnishee doing business in an-
other county, see "Corporations," § 7.
Presumption as to jurisdiction of lower courting toll for use of the road, constitutional ques-

on appeal or writ of error, see "Appeal and
Error," $ 24.
Province of court and jury, see "Trial," § 5.
Removal of action from state court to United
States court, see "Removal of Causes."
Review of decisions, see "Appeal and Error."
Right to trial by jury, see "Jury," § 1.
Subjects and titles of statutes, see "Statutes,"
§ 3.

Trial by court without jury, see "Trial," § 13.

§ 1. Establishment, organization, and
procedure in general.

*Where the Supreme Court had previously
held that a decree on which defendant's title
was based was of no force, the question would
not be re-examined under the rule of stare
decisis.-Boynton v. Chicago Mill & Lumber
Co. (Ark.) 77.

The phrase "population of the entire state,"
as used in Const. § 128. means all the state's
inhabitants.-Brown v. Moss (Ky.) 139.

Under Const. §§ 128, 132, the number of judi-
cial districts in the state is to be determined
by dividing the population of the entire state ac-
cording to the last enumeration by 60,000.-
Brown v. Moss (Ky.) 139.

tions held to have been sufficiently raised to
justify an appeal to the Supreme Court.-State
ex rel. Hines v. Scott County Macadamized
Road Co. (Mo.) 752.

*Where a constitutional question is involved
and must be passed on, though adversely, in
the determination of an appeal, the Supreme
Court has original jurisdiction, and will dis-
pose of the appeal on its merits.-State ex rel.
Hines v. Scott County Macadamized Road Co.
(Mo.) 752.

Under Const. art. 6 [Ann. St. 1906, p. 214]
1887, p. 281, § 2, for the election of a sheriff to
§ 3. the expiration of the time fixed by Acts
fill a vacancy, does not deprive the Supreme
Court of jurisdiction to order the county court
to hold an election for that purpose thereafter.-
State ex rel. Wagner v. Patterson (Mo.) 1048.

*Case presenting question whether one is en-
titled to homestead right in certain land so as
to exempt it from execution held not to involve
title to real estate, within Const. art. 6, § 12
(Ann. St. 1906, p. 218).-Sperry v. Cook (Mo.)
1088.

Supreme Court held to have no jurisdiction of
mandamus proceeding, where the right to relief
depends upon determination of question of fact.

Sess. Acts 1906. p. 12, c. 4, held not in viola--Parker v. Terrell (Tex.) 491.
tion of Const. § 134.-Brown v. Moss (Ky.) 139.
Under Rev. St. 1899. §§ 1783. 1785, 1786, 1787
[Ann. St. 1906, pp. 1247, 1248], a county court
may call a special term during the recess of its
regular term, though such term has not been
finally adjourned.-State ex rel. Tucker v. Mit-
chell (Mo. App.) 655.

2. Courts of general original jurisdic-
tion.

Const. art. 5, § 8, empowering the district
court and judges thereof to issue writs of habeas
corpus, mandamus, injunction, certiorari, etc.,
must be construed in connection with the rules
of law controlling the use of the writs.-Thorne
v. Moore (Tex.) 985.

Const. art. 5, § 8, empowering the district
court and judges thereof, to issue writs of ha-
beas corpus, mandamus, injunction, certiorari,
etc., held to constitute a grant of a distinct ju-
risdiction.-Thorne v. Moore (Tex.) 985.

An appeal from the orders of the probate
court held a direct attack on the orders, and on
the hearing the district court, under Rev. St.
1895, art. 2262, must act de novo with the
power originally possessed by the probate
court.-Goldstein v. Susholtz (Tex. Civ. App.)

219.

§ 5. Concurrent and conflicting juris-
diction, and comity.

A cause of action accruing to a railroad em-
ployé under Act Ind. March 4, 1893 (Laws
1893, p. 294, c. 130, § 1), will be enforced in
Kentucky, even though the courts of Indiana
would not enforce, as they doubtless would, a
cause of action accruing in Kentucky.-Louis-
ville & N. R. Co. v. Melton (Ky.) 366.

*Under Civ. Code Prac. § 499, subds. 10, 11,
and Ky. St. 1903, §§ 966, 1052, a case wherein
the title to land is involved or the right to par-
tition controverted must be removed to the cir-
cuit court, where the right of partition is con-
tested by demurrer raising a question of title.-
Hunt v. Phillips (Ky.) 445.

Where a motion to quash an execution on

*In an action to establish a lien for rent on
goods sold by a tenant, the jurisdiction of the
district court cannot be defeated as to purchas-constitutional grounds was overruled, and peti-
ers of such goods by showing that the goods so
purchased by them respectively amounted to
less than $500, the jurisdictional amount, where
the amount of the sales to each was alleged
to be $600.-Freeman v. Collier Racket Co.
(Tex. Civ. App.) 1129.

§ 3. Courts of limited or inferior juris-
diction.

The county court has no jurisdiction to grant
injunctions.-Randolph v. Abbott (Ark.) 576.
§ 4. Courts of appellate jurisdiction.
A judge of the Court of Appeals held with-
out jurisdiction of an application to reinstate
a restraining order granted under Civ. Code
Prac. § 276, and dissolved by a judge of the low-
er court; such restraining order not being an
injunction within sections 297, and 296, sub-
sec. 2.-Kelley v. Pulaski Stave Co. (Ky.) 153.

tioner appealed, constitutional questions were
raised which ousted the Court of Appeals of
jurisdiction.-Overton v. White (Mo. App.) 309.

*A suit in the name of the state on a statu-
tory bond is for a penalty, and therefore with-
in the exclusive jurisdiction of the district court,
as provided by Const. art. 5, § 8.-Myers v
State (Tex. Civ. App.) 48.

*A suit on behalf of the state on a replevy
bond given for possession of liquor and articles
seized in a proceeding under Acts 30th Leg.
1907, p. 156, c. 77, held a suit to enforce a
forfeiture, maintainable only in the district
court under Const. art. 5, § 8.-Myers v. State
(Tex. Civ. App.) 48.

*Where jurisdiction is given by the Constitu-
tion over cases involving designated kinds of
subject-matter, the grant is exclusive, unless a
Point annotated. See syllabus.

contrary intent is shown by the context.-Myers | Remedies against surety, see "Principal and
v. State (Tex. Civ. App.) 48.

itors"; "Creditors' Suit," § 1; "Fraudulent Violations of municipal ordinances, see "Mu-
Conveyances."

nicipal Corporations," § 9.

*Point annotated. See syllabus.