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

il. is not tenable, in view of instruction that guardianship bond, and was properly not sub-
duty of operators of train to use ordinary care mitted.-Id.
was not diminished or dispensed with because
of the fact that plaintiff might have been
wrongfully upon the track.-Frick v. Interna-
tional & G. N. Ry. Co., 207 S. W. 198.

296(11) (Mo.) An erroneous instruction in
condemnation proceeding that in estimating
the value and damages the jury might dis-
regard all testimony and act on their own
judgment was not cured by other instructions
inconsistent and contradictory thereto given
for other parties.-In re Sixth Street, 207 S.
W. 503.

VIII. CUSTODY, CONDUCT, AND DE-

LIBERATIONS OF JURY.

306 (Tex.Civ.App.) That some of jurors,
in passing upon question of negligence of de-
fendant's agent, stated, in substance, that one
of plaintiffs was more guilty of negligence than
said agent did not show misconduct.-Wash-
ington v. Austin Nat. Bank, 207 S. W. 382.
314(1) (Tex. Civ.App.) In a personal injury
action against a railroad company wherein the
jury failed to agree, a statement by the judge
after the jury had retired as to the desirabil-
ity of bringing in a verdict held not coercive.
-Texas Midland R. R. v. Brown, 207 S. W.
340.

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33 (Tex.Civ.App.) Where under the charge
the only theory on which verdict could be ren-
dered against defendant for injuries to rail-
road fireman was negligent lookout, a verdict
for plaintiff could not be indefinite in that it
could not be known whether jury found
some other acts of negligence.-Lancaster v.
Mays, 207 S. W. 676.

58.

on

In suit on guardianship bond, held, that court
properly refused questions submitting in sub-
stance whether money collected by guardian as
such had been turned over to plaintiffs, in ac-
counting suit brought against him as executor
and trustee.-Id.

350(6) (Tex.Civ.App.) In an action against
a carrier for damages to live stock from negli-
gent delay in loading, it was proper to refuse
to require a finding whether the delay was
caused by the weakened condition of defend-
ant's roadbed from excessive rains, since it
might be found that, in the exercise of ordi-
nary care, the carrier should have been pro-
vided against such rains, and particularly
where the jury found the delay was not caused
by an unavoidable accident brought about by
heavy and excessive rains.-Kansas City, M.
& O. Ry. Co. of Texas v. Bomar, 207 S. W.
570.

350(8) (Tex.Civ.App.) In suit on guardian-
ship bond, where undisputed evidence showed
that guardian had failed to account for guard-
ianship fund, there was no necessity of sub-
mitting issue as to amount which had been
lost by guardian as executor and trustee.-Da-
vis v. White, 207 S. W. 679.

351(2) (Tex.Civ.App.) Where case is sub-
mitted upon special issues, failure to submit an
issue does not present a ground of reversal,
unless its submission has been requested in
writing by the complaining party, in view of
Rev. St. 1911, art. 1985.-Davis v. White, 207
S. W. 679.

351(5) (Tex.Civ.App.) In action for death
of employé, refusal to submit issue of whether
foreman informed employé of danger incident
to work was not error, where issue of whether
employé comprehended danger had previous-
ly been submitted, such issue completely cov-
ering that refused.-San Antonio Portland Ce-
ment Co. v. Gschwender, 207 S. W. 967.

in-

352(1) (Tex.Civ.App.) An affirmative
struction held to sufficiently present same issue
as that requested, although requested instruc-
tion was in the negative form.-Sherrill v. Un-
ion Lumber Co., 207 S. W. 149.

352(4) (Tex.Civ.App.) A special issue,
simply whether defendants were guilty of neg-
(B) Special Interrogatories and Findings. ligence, should not be submitted over timely
349(3) (Ark.) In action against provision pleaded as well as shown by evidence.-Jamison
exception to it as not confined to negligence
dealer for negligence in sale of poisoned
Gin Co. v. Measels, 207 S. W. 365.
flour to plaintiff's husband, whereby plaintiff 352(5) (Tex. Civ.App.) In an action for in-
was poisoned, instructions in form of interrog-juries resulting to live stock from delay in
atories, though peculiar and unusual, stating law loading, where plaintiff relies, both on the neg-
correctly, and containing no reversible error, ligent condition of a switch preventing loading
held proper.-Heinemann v. Barfield, 207 S. W. and the muddy condition of the loading pens
as distinct acts of negligence, they require sub-
mission as distinct and separate special issues,
unless the pens' condition is proved merely to
show effect of delay.-Kansas City, M. & O.
Ry. Co. of Texas v. Bomar, 207 S. W. 570.
delay in loading cattle, requiring them to re-
In an action for damages resulting only from
main in the carrier's muddy pens, there was no
of the pens upon which no independent damage
error in not submitting the negligent condition
was sought, as special issue where the jury
were instructed to determine if such condition
caused the delay.-Id.

350(1) (Tex.Civ.App.) Where a case is sub-
mitted on special issues, a party is entitled to
an affirmative presentation of an issue raised
by the pleadings and evidence.-Sherrill V.

Union Lumber Co., 207 S. W. 149.

X. TRIAL BY COURT.

350(1) (Tex. Civ.App.) Contention, in action
on guardian's bond, that charge was upon the
weight of the evidence, because it failed to
subinit value of certain items of property turn
ed over on prior accounting, will be overruled,
where appellants point out no evidence show-
ing that such items were of any greater value
than that at which they were accepted by
plaintiffs.-Davis v. White, 207 S. W. 679.
350(3) (Tex.Civ.App.) Issues submitting
question as to amount of loss sustained by (A) Hearing and Determination of Cause.
plaintiffs against D. as guardian, and as exec-370(2) (Ky.) Though parties to an equitable
utor and trustee, held properly refused, as call-
ing for a conclusion upon a mixed question of
law and fact.-Davis v. White, 207 S. W. 679.
Where probate court never authorized guard-
ian to expend any part of guardianship fund,
and guardian had ample funds as executor and
trustee to educate and maintain wards as he
was directed to do under will, question as to
amount expended by guardian for maintenance
and education was immaterial, in suit on the

action are not entitled as a matter of right to
have a purely equitable issue submitted to a
jury, it is within chancellor's discretion to ob-
tain advisory aid of jury upon such issue.-
Early v. Early, 207 S. W. 466.

371 (Ky.) Even where either party is en-
titled to a trial by a jury of an issue out of
chancery, the motion therefor must be season-
ably made, and otherwise it is the court's duty
to deny it; and a motion for such trial, made

LIDITY.

after the evidence is entirely made up by depo- | I. CREATION, EXISTENCE, AND VA-
sitions, etc., was too late.-R. E. Jones & Co.
v. Northern Assur. Co., Limited, of London,
England, 207 S. W. 459.

374(2) (Ky.) If the chancellor submitted to
a jury the question of fact as to whether an
insurer's arbitrator was an impartial and dis-
interested appraiser, its verdict would have
been advisory only.-R. E. Jones & Co. v.
Northern Assur. Co., Limited, of London, Eng
land. 207 S. W. 459.

374(2) (Ky.) Where distinctly legal issue is
presented to jury by chancellor, verdict of jury
is conclusive, and will not be disturbed, unless
flagrantly against the evidence; but, where is-
sue is purely equitable, chancellor may disre-
gard verdict and enter judgment in conformity
with his view of the weight of the evidence.
Early v. Early, 207 S. W. 466.

In surviving wife's action for dower and
share of personalty, involving validity of ante-
nuptial contract alleged by wife to have been
procured through fraud, issue of fraud was of
purely equitable cognizance, and jury's verdict
thereon was merely advisory.-Id.

(B) Findings of Fact and Conclusions
of Law.

392(3) (Tex. Civ.App.) Rev. St. 1911, art.
1989, providing that on trial by court judge
shall, at request of either party, state in writ-
ing his conclusions of law or fact, does not re-
quire that the request to the court be in writ-
ing.-Griner v. Trevino, 207 S. W. 947.

395(5) (Tex.Civ.App.) The court's findings
should be of facts, and should not include evi-
dence which it thought established, as facts,
findings made.-Spearman v. Mims, 207 S. W.

573.

TROVER AND CONVERSION.

(A) Express Trusts.

12 (Mo.) One who is sui juris cannot cre-
ate a spendthrift trust for his own benefit.-
Jamison v. Mississippi Valley Trust Co., 207
S. W. 788.

The creditors of the beneficiary of a trust
have no right to complain of a gift to the
beneficiary which restricts the use in such man-
ner that they cannot reach it, the creditors
of the donor only being concerned.-Id.

13 (Mo.) Equity does not enforce a mere
executory agreement for a trust which is whol-
ly voluntary.-Harding v. St. Louis Union
Trust Co., 207 S. W. 68.

20 (Tex.Civ.App.) Trusts may be created
by conveyance or assignment to the donee, or
by transfer to third persons upon declared
terms, or upon declarations which fasten a
beneficial interest, but retains the legal title in
the donor.--Samuell v. Brooks, 207 S. W. 626.

25(1) (Tex.Civ.App.) Trusts may be creat-
ed by conveyance or assignment to the donee,
or by transfer to third persons upon declared.
terms, or upon declarations which fasten a
beneficial interest, but retain the legal title in
the donor; language showing unequivocally an
intention on his part to create a trust being es-
sential under the first method, but not under
the second and third.-Samuell v. Brooks, 207
S. W. 626.

44(3) (Mo.) Trust in personalty created by
express declaration and present conveyance to
a definite beneficiary can be enforced only on
evidence so clear, full, and demonstrative as
to banish any reasonable doubt as to the ex-
istence of every essential element.-Harding v.
St. Louis Union Trust Co., 207 S. W. 68.

59(1) (Mo.) Executed trust created in per-

See Appeal and Error, 1041; Chattel Mort-sonalty by express declaration and present con-
gages, 177; Judgment, 802; Landlord
and Tenant, 274; Limitation of Actions,
127, 167; Pleading, 204, 430.

I. ACTS CONSTITUTING CONVER-
SION AND LIABILITY
THEREFOR.

7 (Tex.Civ.App.) A landlord who, after
ousting a tenant from the premises for non-
payment of rent, takes possession of the ten-
ant's personal effects found on the leased prem-
ises, and excludes the tenant from access
thereto temporarily, is guilty of conversion.-
Henderson v. Beggs, 207 S. W. 565.

II. ACTIONS.

(A) Right of Action and Defenses.
22 (Tex.Civ.App.) Where a lessor upon
ousting lessee from the premises has taken
possession of the lessee's personal property,
the lessee did not abridge his rights to re-
cover for conversion by refusing a tender of
the property after the conversion was com-
plete.-Henderson v. Beggs, 207 S. W. 565.

(E) Trial, Judgment, and Review.
66 (Mo.App.) Evidence in action based on
claim of abstraction of money by defendant
from plaintiff's safe held to make a case for
the jury.-Peter Hauptmann Tobacco Co. v.
Unverferth, 207 S. W. 283.

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veyance to a definite beneficiary is irrevocable,
though voluntary.-Harding v. St. Louis Union
Trust Co., 207 S. W. 68.

Where decedent, about to travel, wrote son
that, if anything occurred to him, he had placed
bonds in an envelope in a safety deposit box
indorsed as the property of the son, there was
no present irrevocable creation of a trust in
favor of the son.-Id.

(B) Resulting Trusts.

632 (Ark.) Where plaintiff had furnished
half the consideration for land in which he
was to have an undivided half interest, title
holder to hold in trust for him, and the title
holder conveyed the land by absolute deed to
defendant, who, with knowledge of plaintiff's
interest, agreed orally to hold as his trustee,
a trust resulted in plaintiff's favor, valid un-
der the statute of frauds (Kirby's Dig. § 3666).
Davis v. Dickerson, 207 S. W. 436.

(C) Constructive Trusts.

922 (Ark.) Kirby's Dig. § 3666, providing
that trust can only be created by writing, re-
fers only to express trusts, and has no refer-
ence to trusts ex maleficio.-Barron v. Stuart,
207 S. W. 22.

96 (Ark.) Where a trust ex maleficio is
based on a promise, the promise need not be
expressly made, for actual co-operation or si-
lent acquiescence may have the same effect.-
Barron v. Stuart, 207 S. W. 22.

97 (Ark.) If a testator is induced to make
a will by a promise, express or implied, on the
part of the legatee that he will devote his leg-
acy to a certain trust, a secret trust is cre-
ated, and equity will apply the property ob-
tained in accordance with his promise, not-
withstanding Kirby's Dig. § 3666.-Barron v.
Stuart, 207 S. W. 22.

110 (Ark.) Parties seeking to prove a trust
ex maleficio must establish the same by clear

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

and satisfactory evidence.-Barron v. Stuart,
207 S. W. 22.

In an action to establish a trust, clear and
satisfactory evidence held to establish that a
decedent was induced by the promise of de-
fendant, to devise all his property to her, with
the understanding that the property was to be
divided among children in a certain manner.
-Id.

In a suit to establish a trust in property de-
vised, evidence held to show that testator de-
clared his intention of dividing his money and
other personal property among all his children,
including his grandchildren, and devised the
property to his wife, with the understanding
that it be so divided.-Id.

II. CONSTRUCTION AND OPERA-

TION.

(A) In General.

114 (Tex.Civ.App.) A written declaration
by grantor that a deed absolute, already given,
was in fact a mortgage, and that the grantee
should sell the property, pay off the incum-
brances, and set aside $5,000 in trust for gran-
tor's daughter, created a complete and execut-
ed trust as to the $5,000 enforceable in equity,
although grantor could delay funds becoming
available until his death by refusing to execute
a deed for the property when sold.-Samuell v.
Brooks, 207 S. W. 626.

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336 (Tex.Civ.App.) Where trustee seeks to
repudiate the trust, the beneficiary may sue to
enforce the trust.-Warren v. Parlin-Orendorff
Implement Co., 207 S. W. 586.

trust had acquired the legal title, the trustee,
or his heirs, if the trustee be dead, are neces-
sary parties.-McCoy v. Anderson, 207 S. W.
213.

371(6) (Ark.) The allegation in defend-
ant's cross-bill that the record title was out-
standing in one whom defendant claimed held
title in trust for her ancestor is not an aver-
ment that the legal title was still in the al-
leged trustee.-McCoy v. Anderson, 207 S. W.
213.

372(1) (Ark.) Where the cestui que trust
died in possession claiming title to the land as
against intruders, trespassers, or mere occu-
pants, it will be presumed, in a contest between
the heirs of the cestui and a mere occupant or
trespasser, that the cestui had before his death
acquired the legal title.-McCoy v. Anderson,
207 S. W. 213.

372(1) (Tex.Civ.App.) The burden is upon
the party claiming a resulting trust in land
to trace the funds claimed as his own into the
property purchased.-Diltz v. Dodson, 207 S.
W. 356.

TURNPIKES AND TOLL ROADS.

I. ESTABLISHMENT, CONSTRUC-
TION, AND MAINTENANCE.

31 (Ky.) In turnpike company's stockhold-
ers' action for settlement of affairs and distri-
bution of assets, the company was properly
charged with full amount that had been due
from county, though settlement was made for
reduced amount, where deduction was for divi-
dends due county and could have been credited
on pro rata due county as stockholder; other
stockholders being entitled to full amount.-
Hustonville & Coffey's Mill Turnpike Road
Co. v. McAninch's Adm'r, 207 S. W. 458.

In turnpike company's stockholders' action
for settlement of affairs and distribution of as-
sets, the company was properly charged with
full amount of proceeds of sale of tollhouse,
notwithstanding item in 1890 report reading
"to amount collected on house and lot $275.00,"
where sale was made in 1906 and president of
company while testifying did not explain item
or claim it referred to such sale.-Id.

TURNTABLE DOCTRINE.

339 (Ark.) On a breach of trust, the bene- See Negligence, 23.

ficiary has his remedy by personal action
against the trustee notwithstanding that the
trust property has been conveyed to an inno-

UNITED STATES.

cent person.-Davis v. Dickerson, 207 S. W. See Intoxicating Liquors, 17; War, 4.
436.

(B) Right to Follow Trust Property or
Proceeds Thereof.

356(1) (Ark.) Where plaintiff had furnish-

UNITED STATES FOOD ADMINISTRA-

ed half the consideration for land in which he See War, 4.
was to have an undivided half interest, title
holder to hold in trust for him, and the title
holder conveyed the land by absolute deed to

TION.

USE AND OCCUPATION.

defendant, who, with knowledge of plaintiff's See Landlord and Tenant, 200.
interest, agreed orally to hold as his trustee,
a trust resulted in plaintiff's favor, valid under
the statute of frauds. Kirby's Dig. § 3666.-
Davis v. Dickerson, 207 S. W. 436.

(C) Actions.

359(1) (Ark.) Where land held in trust was
conveyed by the trustee in breach of his trust,
the cestui que trust could sue for the value of
the land on account of the violation of the
trust or could sue for money had and received
for his benefit and recover the price realized on
the same.-Davis v. Dickerson, 207 S. W. 436.
359(2) (Tex. Civ.App.) Perfect or complete
voluntary trusts are enforceable in equity, but
executory, incomplete, or promissory trusts
are not.-Samuell v. Brooks, 207 S. W. 626.

366(3) (Ark.) In a suit to quiet title if it
is necessary to show that the beneficiary of a

USURY.

II. PENALTIES AND FORFEITURES.

140 (Tex. Civ.App.) The maker of notes
who has paid nothing thereon cannot sue the
payee for the penalty for charging usury im-
posed by Vernon's Sayles' Ann. Civ. St. 1914,
art. 4982, where another has assumed payment
of the notes; such action being maintainable
only by the party paying the usurious interest
or his legal representatives.-Burch v. First
Guaranty State Bank of Quanah, 207 S. W.
552.

VACCINATION.

See Constitutional Law, 84, 255; Schools
and School Districts, 158.

VENDOR AND PURCHASER.

See Appeal and Error. 1177; Bills and
Notes, 467; Brokers. 46; Cancella-
tion of Instruments, 37; Champerty and
Maintenance, 7; Curtesy, 8; Deeds,
94. 108; Estoppel. 97; Evidence.
213, 271, 413, 419, 568; Fixtures, 7, 21,
35; Fraud, 59; Fraudulent Conveyances,
298; Homestead. 117; Husband and
Wife, 78, 156, 193, 198. 273; Injunction,
128; Judgment, 104: Limitation of
Actions, 195; Logs and Logging, 5;
Mortgages, 353; Partition, 106;
Pleading, 49: Quieting Title, 44;
Railroads, 194; Receivers, 125, 128,
154: Sales; Specific Performance, 8, 12,
13, 29, 47; Subrogation, 23; Tenancy in
Common, 15; Trespass to Try Title,
4; Turnpikes and Toll Roads, 31; Wills,
771, 852; Witnesses, ~379.

I. REQUISITES AND VALIDITY OF
CONTRACT.

was placed in the stream while such vendors
owned the land.-Id.

(C) Bona Fide Purchasers.

232 (3) (Ark.) Defendant, in injunction set-
ting up a right of possession under a prior un-
recorded lease, adverse to record owner of fee,
had burden of establishing his right to posses-
sion by showing that purchaser had actual no-
tice thereof or knowledge of facts which would
have led a man of ordinary prudence to in-
quiries which, if pursued with reasonable dili-
gence, would have informed purchaser of de-
fendant's possession.-Staples v. Freeman, 207
S. W. 433.

236 (Tex. Civ.App.) First wife of decedent
claiming land in trespass to try title in the
right of her son against the second wife held
not a bona fide purchaser in good faith, having
notice when she purchased her son's interest of
the second wife's claim, and not having paid
valuable consideration.-Johnson v. Johnson,
207 S. W. 202.

243 (Ark.) Actual notice may be proved by
3(1) (Tex. Civ.App.) Where, in an exchange direct or positive evidence that notice was per-
of property, the values of the land or person-sonally given to the person to be notified, or
alty is agreed upon, the transaction is a sale
and not an exchange, and the rules of law gov-
erning in cases of sales will control, rather than
the law of exchange.-McDonald v. Whaley, 207

S. W. 609.

II. CONSTRUCTION AND OPERA-
TION OF CONTRACT.

54 (Tex.Civ.App.) Purchaser, having pos-
session of land and having paid the entire con-
sideration, has an equitable title superior to
vendor's legal title.-Masterson v. Pullen, 207
S. W. 537.

Purchaser who has not paid any of the con-
sideration has not sufficient title to authorize
recovery of land from vendor, his only right
being to tender consideration and ask for spe-
cific performance.-Id.

III. MODIFICATION OR RESCISSION
OF CONTRACT.

(B) Rescission by Vendor.

89 (Tex.Civ.App.) Vendor, by selling one of
his lien notes, loses the right to rescind the
sale.-Van Valkenburgh v. Ford, 207 S. W. 405.

IV. PERFORMANCE OF CONTRACT.

(D) Payment of Purchase Money.

187 (Tex.Civ.App.) Where a land contract
provided that the sale might be declared void
if the first note with interest were not paid on
a fixed date, and the grantee refused to accept
the payment, he waived his right to payment
on such date.-Eason v. Fowler, 207 S. W.

by circumstances warranting the inference that
actual notice was given; it being a question of
fact provable by any legitimate evidence tend-
ing to strengthen or impair a conclusion of
notice.-Staples v. Freeman, 207 S. W. 433.

244 (Ark.) In action by a purchaser having
record title to enjoin trespass by defendant
claiming under a prior unrecorded lease from
the same vendor, evidence held to sustain a
decree dismissing the complaint for want of eq-
uity in respect to notice.-Staples v. Freeman,
207 S. W. 433.

VI. REMEDIES OF VENDOR.

(A) Lien and Recovery of Land.

254(1) (Tex. Civ. App.) Purchase-money
notes are secured by an equitable vendor's lien,
though there is no express reservation of a
lien either in notes themselves or in deed.-
Luse v. Rea, 207 S. W. 942.

(B) Actions for Purchase Money,

320 (Tex.Civ.App.) Where notes given for
purchase price of land contained only the
usual stipulations regarding payment of attor-
ney's fees, refusal of vendor and payee to ac-
cept payment of the first note when it became
due, at which time the maker of the notes and
his vendee were ready and able to pay, estop-
ped the payee from claiming attorney's fees.—
Eason v. Fowler, 207 S. W. 958.

VII. REMEDIES OF PURCHASER.
(A) Recovery of Purchase Money Paid.
958.334(1) (Tex. Civ.App.) Where vendor agreed
to sink well and provide irrigation plant by
certain date, purchaser was entitled to recov-
er amount paid on contract upon vendor's fail-
ure to sink well by such date or within a rea-
sonable time thereafter.-McDonald v. Whaley,
207 S. W. 609.

V. RIGHTS AND LIABILITIES OF
PARTIES.

(B) As to Third Persons in General,
218 (Ky.) If the very presence of a per-
manent structure diminishes the market value
of adjoining land, or the placing of an obstruc-
tion in a stream causes immediate injury, the
cause of action then accrues, and is in the then
owner of the land.-Lexington & E. Ry. Co. v.
Crain, 207 S. W. 447.

If no immediate injury results from erection
of a permanent structure or the placing of ob-
struction in a stream, no cause of action aris-
es until it is apparent to person of ordinary
prudence that some injury has resulted, and
cause of action is always in person owning land
when injury actually occurs.-Id.

Where no damage occurred to land from an
obstruction of a water course diverting water
through the land prior to its purchase by plain-
tiff, the cause of action was in him, and not in
his vendors, merely because the obstruction

339 (Tex.Civ.App.) Where vendor agreed
to sink irrigation well upon premises after pur-
chaser had entered into written contract of
sale or exchanged deeds, purchaser could not
recover purchase money paid on contract, unless
vendor refused to sink well after purchaser had
offered to enter into written contract or ex-
changed deeds.-McDonald v. Whaley, 207 S.
W. 609.

341(5) (Tex. Civ.App.) Where value of au-
tomobile given as part consideration in land
deal was agreed upon, the purchaser in recov-
ering consideration paid, upon vendor's breach,
was entitled to the agreed value of the auto-
mobile, and not its market or intrinsic value,
where automobile itself was not in condition to
be returned.-McDonald v. Whaley, 207 S. W.
609.

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

VENUE.

See Appeal and Error, 544; Corporations,
503; Criminal Law, 122, 1117, 1150;
Pleading, 104; Railroads, 194.

ants residing in C. county that cause should
be removed to that county, as alleged in their
plea of privilege.-Ray v. W. W. Kimball Co.,
207 S. Ŵ. 351.

352.

VERDICT.

I. NATURE OR SUBJECT OF ACTION. See Criminal Law, 881-884; Trial, 327–
7 (Tex.Civ.App.) An implied promise to
perform a contract in a county other than that
of defendant's residence will not place the
venue of a suit thereon in such county-Val-
despino v. Dorrance & Co., 207 S. W. 649.

If the terms of a written contract are such
that it must necessarily be performed in a cer-
tain county, suit can be maintained thereon
in such county.-Id.

Suit on an oral contract to return overpay-
ments, if any, on a sale of cotton upon being
scaled and weighed in the county of the pur-
chaser's residence, cannot be brought in such
county under section 5 of the venue statute,
but must be brought in the county of the sell-

er's residence.-Id.

7(Tex.Civ.App.) Where plaintiff sold hay
to defendant f. o. b. at a point in Galveston
county, but drafts with bill of lading attached
were to be sent to county of defendant's resi-
dence, held, that the contract cannot be con-
strued as one to be performed within Galves-
ton county, the expression "f. o. b." cars im-
plying no promise to pay for the hay in Gal-
veston county so as to authorize suit therein,
but merely delivery free on board cars at that
point.-Harris v. Moller, 207 S. W. 961.

II. DOMICILE OR RESIDENCE OF
PARTIES.

WAR.

See Army and Navy, 34; Intoxicating Liq-
uors, 17.

4 (Mo.App.) The war measures embodied in
the rules of the Milling Division of the United
States Food Administration did not invalidate

prior contracts to purchase flour.-J. C. Lysle
Milling Co. v. Sharp, 207 S. W. 72.

4 (Tex.Cr.App.) The state Legislature
cannot, on the ground of military necessity,
pass a general prohibition law, under Const.
art. 16, § 28, military affairs being matter for
the federal government to attend to.-Ex parte
Myer, 207 S. W. 100.

WATERS AND WATER COURSES.
See Constitutional Law, 80; Continuance,
~~36; Corporations, 394; Drains;
Easements, 58; Injunction, 74; Mu-
nicipal Corporations, 682; Pleading,
248; Railroads, 113, 114, 194; Trial,
194, 253, 295; Vendor and. Purchaser,
218, 334, 339.

IV. NATURAL LAKES AND PONDS.
(Tex.Civ.App.) Where original bound-
ary followed lake meander line and waters re-
ceded imperceptibly, the water's edge was the
boundary.-Chew v. De Ware, 207 S. W. 988.

V. SURFACE WATERS.

21 (Tex.Civ.App.) One who sues a defend-
ant in a county other than that of his resi-
dence must bring his case clearly within the
exceptions to the general rule that a defendant
is entitled to be sued in the county of his own
residence. Valdespino v. Dorrance & Co., 207118 (Mo.App.) A railroad is not liable for
S. W. 649.
flooding land, where it is caused by extraordi-
nary and unprecedented rainfall.-Paulson v.
Wabash Ry. Co., 207 S. W. 81.

22(1) (Mo.App.) The summons having
been issued under the second amended petition,
which was against a corporation and individ-
uals, so that the petitions preceding are not to
be regarded as prior foundations of the suit,
the fact that the first amended petition was
against the corporation alone can have no effect
on the question of jurisdiction over the individ-
uals residing in county other than that of the
suit.-Riffe v. Wabash Ry. Co., 207 S. W. 78.

III. CHANGE OF VENUE OR PLACE
OF TRIAL.

70 (Tex.Civ.App.) Under Rev. St. 1911,
art. 1903, as amended by Acts 35th Leg. c. 176
(Vernon's Ann. Civ. St. Supp. 1918, art. 1903),
the averments of a defendant's verified plea of
privilege that he was a resident of a county
other than the one in which suit was brought
are prima facie proof of the facts averred, and
must be accepted as true, where the contro-
verting answer filed by plaintiff attempted to
defeat the plea solely on the ground that con-
tract on which suit was brought was to be
performed in the county where the venue was
laid. Harris v. Moller, 207 S. W. 961.

defendants

VIII. ARTIFICIAL PONDS, RESER-
VOIRS, AND CHANNELS, DAMS,
AND FLOWAGE.

171(2) (Mo.App.) A railroad is liable for
flooding land if its negligence concurs with an
act of God and is one of the proximate causes.
-Bailey v. Wabash Ry. Co., 207 S. W. 82.

179(6) (Mo.App.) Evidence, in action
against railroad for flooding land from embank-
ment sliding into stream, held sufficient to go
to jury on the defense of extraordinary rain-
fall.-Bailey v. Wabash Ry. Co., 207 S. W. 82.

IX. PUBLIC WATER SUPPLY.
(A) Domestic and Municipal Purposes.

210 (Tex.Civ.App.) In action against city
for ploughing up plaintiff's pipe lines, held, that
allegation and proof of contract granting ex-
clusive privilege to operate water system was
version or wrongful injury to property, so that
unnecessary to give plaintiff a remedy for con-
court erred in sustaining general exception to
petition and entering judgment thereon.-Tem-
pleton v. City of Wellington, 207 S. W. 186.

72 (Tex.Civ.App.) In action on notes ex-
ecuted by one alleged to have authority to bind
to payment in Tarrant county,
where there was a sworn plea of privilege under
Vernon's Sayles' Ann. Civ. St. 1914, art. 1903,
as amended by Acts 35th Leg. c. 176 (Vernon's
Ann. Civ. St. Supp. 1918, art. 1903), and is-
sue joined as to such authority, plaintiff was
bound to sustain his claim that defendants had
bound themselves to pay notes in county of
venue, and without any evidence thereof court
was required to sustain plea.-Ray v. W. W. See Homicide, 300.
Kimball Co., 207 S. W. 351.

While no action will lie if in order to main-

tain it plaintiff requires aid from an illegal
transaction, the fact that defendant city per-
mitted water system equipment in its streets,
whether under a void contract or by permis-
sion, did not authorize a wanton or willful in-
jury to it.-Id.

77 (Tex.Civ.App.) In suit on notes secured

by chattel mortgage, wherein appellants pray-

WEAPONS.

WEBB-KENYON ACT.

ed that cause be removed to E. county, that See Commerce, 14; Intoxicating Liquors,
prayer would be taken as waiver by the defend-

138.

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