For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

ARGUMENT OF COUNSEL.

See Criminal Law, 706-730.

ARMY AND NAVY.

See Appeal and Error, 1050; Intoxicating
Liquors, 17; Principal and Agent,
34; War, 4.

37(2) (Mo.) In a prosecution against co-
conspirators for arson with intent to defraud
insurer, as defined by Rev. St. 1909, § 4511,
evidence held sufficient to show that the de-
fendant who actually brought combustible ma-
terials into the building knew that it was in-
sured, and that he was guilty.-State v.
Bersch, 207 S. W. 809.

ASSAULT AND BATTERY.

19, 44, 53.

34 (Mo.App.) In action to enjoin defend-
ants' breach of their contract making plaintiff See Criminal Law,
their exclusive sales agent for coal produced
by them, it was no defense that he had joined
the army, where he did not abandon his busi-
ness, but by himself and assistants carried it
on as before, as contract never contemplated
that plaintiff's part should be performed by him
individually.-Warren v. Ray County Coal Co.,
207 S. W. 883.

ARREST.

1170; Homicide; Rape,

I. CIVIL LIABILITY,
(B) Actions.

43(1) (Mo.App.) Instruction for plaintiff in
action for assault should not include any refer-
ence to defendant having sought out plaintiff
and called him names, these facts being un-
necessary to predicate the rule of law therein

See Assault and Battery, 64, 92; Criminal stated, it being enough to entitle plaintiff to re-
Law,

406, 519, 1170.

II. ON CRIMINAL CHARGES.
63(3) (Tex.Cr.App.) An officer inay make an
arrest without a warrant, where a felony or
an offense against the public peace is commit-
ted in his presence, under Code Cr. Proc. 1911,
arts. 254-260.-Harper v. State, 207 S. W. 96.
A town marshal may make an arrest without
a warrant for a felony or an offense against
the public peace committed in his presence,
where the ordinances of the city confer such
authority, under Code Cr. Proc. 1911, art. 261.

-Id.

ARSON.

cover that defendant, without just cause or ex-
cuse, unlawfully and violently assaulted him.-
Colby v. Thompson, 207 S. W. 73.

43(6) (Mo.App.) It was error for instruc-
tion in action for assault to authorize the jury
to consider whether the injuries were perma-
nent; the petition not alleging they were, but
merely that plaintiff would suffer in the future
therefrom.-Colby v. Thompson, 207 S. W. 73.
II. CRIMINAL RESPONSIBILITY.

(A) Offenses.

64 (Tex.Cr.App.) An officer making a law-
ful arrest may use reasonable means neces-
sary, taking care that the force used is com-
mensurate with the necessity, under Pen. Code,
1911, art. 1014, subd. 5.-Harper v. State,

See Criminal Law, 371, 423, 427, 641, 763, 207 S. W. 96.
764, 800, 867, 1036.

3 (Mo.) One accused of burning a build-
ing to collect the insurance thereon could not
have been guilty of intending to defraud the
insurer, unless he knew that insurance existed.
-State v. Bersch, 207 S. W. 809.

18 (Mo.) An indictment for arson, under
Rev. St. 1909, § 4511, denouncing the burning
of goods with intent to defraud insurer, need
not set forth the name of the owner who was
the beneficiary of the insurance, nor state
facts constituting intended fraud upon the in-
surer.-State v. Bersch, 207 S. W. 809.

In a prosecution for arson, under Rev. St.
1909, § 4511, the indictment was not bad be-
cause, in alleging that the property was insur-
ed to a named corporation and the policies
transferred to the corporation owning the
buildings destroyed, it failed to state by whom
such policies were transferred.-Id.

22 (Mo.) An indictment for arson, under
Rev. St. 1909, § 4511, is not defective, because
it does not allege that any of defendants were
stockholders of the corporation owning the
property or otherwise interested in it; it not
being necessary under such statute that de-
fendant should have had any interest in the
property burned.-State v. Bersch, 207 S. W.
809.

(B) Prosecution and Punishment.

92 (Tex.Cr.App.) In prosecution of town
marshal for aggravated assault, evidence held
sufficient to sustain a finding that a "serious
bodily injury" was inflicted.-Harper v. State,
207 S. W. 96.

In a prosecution of a town marshal for ag-
gravated assault and infliction of serious bod-
ily injury, evidence held to sustain a finding
that the injured party was not making a forc-
ible resistance to arrest.-Id.

ASSESSMENT.

See Drains, 66; Municipal Corporations,
566-567; Taxation, 450.

ASSIGNMENTS.

See Action, 57; Executors and Adminis-
trators, 158; Injunction, 118; Jus-
tices of the Peace, 124; Limitation of
Actions, 95, 167; Mechanics' Liens,
204; Public Lands, 151, 178; Subroga-
tion. 31; Taxation, 889; Trusts,
20, 25.

I. REQUISITES AND VALIDITY.
(A) Property, Estates, and Rights Assign-

28 (Mo.) In a prosecution for arson, un-
der Rev. St. 1909, § 4511, evidence showing
what defendant paid for the stock in the build-8
ing burned was admissible, as showing his es-
timate of its value as compared with the
amount of insurance carried.-State v. Bersch,
207 S. W. 809.

In prosecution for arson, under Rev. St.
1909, § 4511, denouncing the burning of goods
to defraud the insurer, policies of insurance
on the property were admissible in evidence.
-Id.

In a prosecution for arson, rejection of evi-
dence that defendant's former fellow stock-
holder was addicted to drink and guilty of
other improper conduct, which caused a dis-
agreement between himself and defendant, was
irrelevant.-Id.

able.

(Tenn.) An agreement or covenant to
convey by an heir expectant and sui juris, if
fairly made and based on an available consid-
eration, will be enforced as against the gran-
tor and privies, whenever the property comes
into his possession, but not until then.-Tate
v. Greenlee, 207 S. W. 716.

(B) Mode and Sufficiency of Assignment,

52 (Tex.Civ.App.) An agreement whereby
merchants were to furnish to laborers goods
for which their employers were to pay from
wages due amounted to an equitable assign-
ment of the claims for wages.-Hess & Skinner
Engineering Co. v. Turney, 207 S. W. 171.
A transaction by which a bank loaned money

An agreement by which laborers were paid
partly in cash and partly in board, but not
showing that the laborers agreed that any See Master and Servant, 204–226.
part of their wages should be paid for gro-
ceries, or that they knew such were bought
from claimant, does not constitute an equitable
assignment of laborers' wages to claimant.-Id.

(C) Claims and Liens Prior or Superior to through to a final determination.-King v.
Assignment.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

II. IN CRIMINAL PROSECUTIONS.
59 (Mo.) All examining magistrates, under
Rev. St. 1909, § 5027, and, in view of Rev. St.
1899, § 7, p. 2543, the judge of the St. Louis
court of criminal correction, may in felony
eases condition a recognizance upon the ap-
pearance of the accused, not only on a day
certain, but also in addition thereto "on any
future day to which the cause may be continu-
ed."-State v. Berger, 207 S. W. 777.

90 (Mo.) In scire facias by state upon a
forfeited recognizance requiring the appear-
ance of the principal before the court on May
22, 1916, and on "any future date to which this
said cause may be continued," the burden was
upon the state to show that the cause had been
continued to the 2d day of June, at which time
default was entered because the principal fail-
ed to appear on the latter date.-State v.
Berger, 207 S. W. 777.

54(1) (Mo.App.) Where the clearing house
refused to continue to clear for a bank unless
its directors put up a large sum in cash im-
mediately to take the place of assets which
were then charged off, held, that the advance-
ment to the bank by directors was supported
by a consideration, the advancement protect-
ing their interest, as it appeared the bank
could not continue to do business if refused
the privileges of the clearing house; so that
directors could not recover such money from
the bank in action for money had and received.
-Deibel v. Jefferson Bank, 207 S. W. 869.

Where a clearing house declined to continue
to clear for a bank unless its assets were in-
creased, and directors advanced a sum to
the bank, which transferred to them assets
written off of its books, held, that the direct-
ors could not recover from the bank the sum
advanced; there being no agreement to repay,
on the theory that they must be considered as
trustees for the stockholders and entitled to
be indemnified for the sum advanced.-Id.

Though directors of a bank who advanced
sums to it to enable it to continue enjoying the
privileges of a clearing house, which refused
to clear its checks unless its assets were in-
creased, acted under duress, held that, where
the directors by subsequent resolution turned
over to the president, as trustee for directors,
assets which the clearing house had directed
should be written off, and they accepted pay-
ments by the trustee, this was a ratification of
the contract.-Id.

96 (Ky.) Ky. St. §§ 3155 and 3162, relating
to fines, penalties, and costs collected in police
court for a city of the second class, held not
to entitle a city of that class to the proceeds 159 (Tex. Civ.App.) Where
of a bail bond given to secure the appearance
in police court of one to answer a warrant
charging him with the crime of grand larceny;
for, in view of section 3147 and Crim. Code
Prac. $$ 58 and 94, a police court has no
final jurisdiction in felony cases, but can sit
only as an examining court, and the bond could
be forfeited only in circuit court.-Reagan v.
Greenfield, 207 S. W. 707.

III. FUNCTIONS AND DEALINGS.
(D) Collections.

a bank. at
plaintiff's request, had forwarded a draft to
defendant bank which was accepted and paid
by defendant's cashier's check, but defendant
subsequently stopped delivery of its check be
fore it was received by the first bank, facts
held to support a finding that the first bank
merely acted as plaintiff's agent, and was not
therefore a proper party to the suit as a pur-
chaser of the draft.-Farmers' Guaranty State
Bank of Jacksonville v. Burrus Mill & Ele-
vator Co., 207 S. W. 400.

Under Ky. St. § 1139, relating to fines and
forfeitures, the proceeds of a forfeited bail
bond given in city police court to secure the
appearance of one to answer a warrant charg-|(F)
ing him with grand larceny belong to the state,
and not the city.-Id.

1882 (Tex.Civ.App.) In suit to recover
damages for wrongful failure of defendant bank
to make timely remittance in payment of pre-
15; mium on life policy, where evidence failed to
show that agreement to remit on the day in
question was based on a valuable consideration,
there could be no recovery based upon con-
tract liability.-Washington V. Austin Nat.
Bank, 207 S. W. 382.

See Assignments for Benefit of Creditors;
Champerty and Maintenance, 7.

V. RIGHTS, REMEDIES, AND DIS-
CHARGE OF BANKRUPT.

(H) Actions.

227 (3) (Tex.Civ.App.) In suit to recover
damages for wrongful failure of defendant bank
to make timely remittance in payment of pre-
mium on life policy, evidence held insufficient
to show that defendant was negligent in not

438 (Tex.Com.App.) Title of a bankrupt to
land. though not scheduled as an asset, passes
to his trustee, and, notwithstanding the bank-
rupt's discharge, he cannot recover the same;
no facts being shown revesting title in him.-remitting on the day in question.-Washing-
Raley v. D. Sullivan & Co., 207 S. W. 906.

ton v. Austin Nat. Bank, 207 S. W. 382.

In suit to recover damages for wrongful fail-
ure of defendant bank to make timely remit-
tance in payment of premium on life policy,
evidence held to show contributory negligence
on the part of plaintiffs.-Id.

BENEFICIAL ASSOCIATIONS.

See Insurance, 723-826.

BILLS AND NOTES.

tute notice of infirmity, person to whom instru-
ment is negotiated must have had actual notice,
is either actual knowledge of the particular in-
firmity or actual knowledge of facts which, if
investigated, would disclose the defect.-Citi-
zens' State Bank of Greenup v. Johnson Coun-
ty, 207 S. W. 8.

whom instrument is negotiated must have had
actual knowledge of infirmity, or of such facts
See Alteration of Instruments, 9, 12; As- that his taking the instrument amounted to
signments for Benefit of Creditors, 3, 44, bad faith, is declarative of the pre-existing
295, 333; Banks and Banking, 159; Chat-law.-Id.
tel Mortgages, 260; Continuance, 26; 332 (Ky.) "Actual notice," under Ky. St.
Counties, 184; Courts, 121; Election § 3720b, subsec. 56, providing that, to consti-
of Remedies, 7; Evidence, 76, 459,
568; Exchange of Property, 7; Execu-
tors and Administrators, 158, 227; For-
gery, 5, 12, 26, 29, 34, 37; Fraud,
59; Fraudulent Conveyances, 213; Hus-
band and Wife, 156, 171, 273; Indictment
and Information, 110; Insurance, 138,
1792, 187; Interest, 36; Judgment, 342 (Ky.) The same standard for measur-
104, 145, 585, 948, 956; Limitation of Ac- ing the good or bad faith of a purchaser of
tions, 167, 180; Lis Pendens, 4; Mort-negotiable paper applies when he acts upon evi-
gages, 28; Partition, 97; Pleading, dence furnished by the face of the paper as
104; Principal and Agent, 123, 177; when he is governed by facts aliunde the paper.
-Citizens' State Bank of Greenup v. Johnson
Subrogation, 23, 31; Tender, 7; Tres-
pass to Try Title, 4; Trial, 253; Us- County, 207 S. W. 8.
ury, 140: Vendor and Purchaser, 89,
187, 254, 320; Venue, 72, 77.

I. REQUISITES AND VALIDITY.
(B) Form and Contents of Promissory
Notes and Duebills.

47 (Tex.Civ.App.) A mere recital in a con-
tract order that the purchase price of the goods
might be paid in notes attached thereto did
make the payer's obligation a conditional one.
Commercial Credit Co. v. Giles, 207 S. W. 596.

363 (Tex. Civ.App.) In action on notes orig-
inally attached to a contract order and detach-
ed by the payee, as permitted by the order, and
sold to plaintiff, an innocent holder, for 76 per
cent. of the face of the notes until the remainder
should be paid by the maker, the holder's re-
covery should be limited to 76 per cent. of the
face of the notes.-Commercial Credit Co. v.
Giles, 207 S. W. 596.
not365(1) (Tex.Civ.App.) The maker of nego-
tiable notes attached to a contract order per-
mitting their detachment by the payee would be
liable to an innocent holder even though the or-
der contract and notes were revoked in the
69 (Tex.Civ.App.) Acceptance of a draft hands of the payee and it could not maintain an
may be verbal, and need not be in writing.- action thereon against the maker.-Commercial
Farmers' Guaranty State Bank of Jacksonville Credit Co. v. Giles, 207 S. W. 596.
v. Burrus Mill & Elevator Co., 207 S. W. 400.378 (Ky.) To defeat the rights of a holder
70 (Ark.) Under Negotiable Instrument Act, of commercial paper in due course, a fraudu-
lent alteration must be a material one.-Citi-
§ 132, providing that drawee who destroys a
bill will be deemed to have accepted the same, zens' State Bank of Greenup v. Johnson Coun-
drawee upon willfully destroying bill which he ty, 207 S. W. 8.
had not accepted in writing was liable thereon,
regardless of whether he had verbally accepted
bill.-Bailey & Co. v. Southwestern Veneer Co.,
207 S. W. 34.

(D) Acceptance.

VII. PAYMENT AND DISCHARGE.

426 (Mo.App.) Where a stranger to a note
paid the amount thereof to the holder through
of a
70 (Tex.Civ.App.) An acceptance
a bank, it is a question of intention whether the
draft may be implied from the drawee's con-
duct.-Farmers' Guaranty State Bank of Jack-payment was in discharge of the note or in
sonville v. Burrus Mill & Elevator Co., 207 purchase thereof.-Stark v. Scherf, 207 S. W.

S. W. 400.

863.

Where a bank to which a note was sent for
collection paid the holder and transferred the
note to a stranger, who paid the amount due
with intent to keep alive the obligation, the
makers of the note cannot complain and the in-
strument remains a subsisting obligation against
them.-Id.

VIII. ACTIONS.

72 (Tex.Civ.App.) Where the drawer of
bill of exchange presents it to his bank which
transmits it to defendant bank, which pays it
by its cashier's check under an agreement with
the drawee, incloses the remittance in an ad-
dressed and stamped envelope, and mails it,
such action makes defendant's acceptance a
finality, depriving both it and the drawee of
the right to withdraw the acceptance given.-467 (2) (Tex.Com.App.) Petition, in action
Farmers' Guaranty State Bank of Jacksonville
on vendor's lien note, alleging the appointment
v. Burrus Mill & Elevator Co., 207 S. W. 400. of vendor's foreign administrator, who trans-
ferred all notes to one S., and that note in suit
II. CONSTRUCTION AND OPERATION. was put in escrow by administrator and anoth-
er did not allege title under S. or any owner-
ship by S., and the word "transferred" meant
the written indorsement thereon, and not a le-
gal assignment and delivery, or that the trans-
fer to S. postdated the escrow agreement.—
Webb v. Reynolds, 207 S. W. 914.

129(2) (Tex.Civ.App.) A note payable in
installments, and providing that on default of
any installment the entire debt may be declar-
ed due, does not become due by the nonpay-
ment of an installment, in the absence of a
declaration to that effect by the holder.-Drink-
ard v. Jenkins, 207 S. W.-353.

V. RIGHTS AND LIABILITIES ON IN-
DORSEMENT OR TRANSFER.

(D) Bona Fide Purchasers.
329 (Ky.) Ky. St. § 3720b, subsec. 56, de-
claring that, to constitute notice of infirmity,
person to whom instrument is negotiated must
have had actual knowledge of the infirmity,
having been passed since the execution of the
bond sued on, its provisions will not govern the
rights of the parties, unless declarative of the
of
pre-existing law.-Citizens' State Bank
Greenup v. Johnson County, 207 S. W. S.
Ky. St. § 3720b, subsec. 56, declaring that,
to constitute notice of infirmity, person to

485 (Tex.Com.App.) Rev. St. 1911, art.
588, and article 1906. subd. 9, requiring a de-
nial under oath of genuineness of indorsement
or assignment of note, were not intended to
dispense with proof of an administrator's au-
thority to sell or assign, as such authority, un-
der article 3480, depends upon an order of
court, so that absence of any verified denial of
administrator's assignment thereof to plaintiff
did not dispense with proof of its validity.-
Webb v. Reynolds, 207 S. W. 914.

absence of a
488 (Tex.Com.App.) The
sworn pleading questioning genuineness of a
written instrument does not dispense with its
production in court; and, where a written in-
strument is declared on and there is a general
denial, it is necessary to establish plaintiff's

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

case for him to offer the instrument in evidence. I not render survey void, as distances called for
-Webb v. Reynolds, 207 S. W. 914.
would be extended to reach the objects.-Spear-
496 (1) (Tex.Com.App.) In action upon ven- man v. Mims, 207 S. W. 573.
dor's lien note, where plaintiff's pleadings show-3(5) (Tex.Civ.App.) Distance being regard-
ed that it had been the property of an estate ed as more unreliable than course, it follows
of which an administrator was appointed in that, the greater the distance, the greater the
Kentucky and been placed with a bank under probability of error, and vice versa.-Matador
an escrow agreement between one of the own- Land & Cattle Co. v. Cassidy-Southwestern
ers and the administrator, the burden was on Commission Co., 207 S. W. 430.
plaintiff to show an order of court under Rev.
St. 1911, art. 3480, authorizing a sale or as-
signment by administrator to him.-Webb v.
Reynolds. 207 S. W. 914.

39; See Criminal Law, 641, 867.

83; See Appeal and Error, 756–773.

3(2) (Tex.Civ.App.) In establishing bound-
aries, those calls will be adopted which are
more certain, avoid conflicts in surveys, etc.,
and harmonize with the evident purpose of the II. EMPLOYMENT AND AUTHORITY.
state in making the grant, even though a nat-8(3) (Tex. Civ. App.) In a cross-action,
ural object must be disregarded.-Matador wherein commissions, damages, etc., were
Land & Cattle Co. v. Cassidy-Southwestern sought by defendant broker for breach of a
Commission Co., 207 S. W. 430.
contract to receive cattle purchased by plain-
tiff, evidence held sufficient to sustain a find-
ing that such cattle were purchased upon plain-
tiff's order.-Hollis Cotton Oil, Light & Ice
Co. v. Marrs & Lake, 207 S. W. 367.