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.
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.
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.
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.
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
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.
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.
(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.
See Assignments for Benefit of Creditors, 44, 295, 333; Election of Remedies, Fraudulent Conveyances. 111. 237; Guardian and Ward, 58, 180; Husband and Wife, 272; Judgment, 590; Trial,
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.
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
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.
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.
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 372(1) (Ark.) Where the cestui que trust 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-
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.
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.
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-
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
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.
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
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.
See Constitutional Law, 84, 255; Schools and School Districts, 158.
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- had burden of establishing his right to posses- recorded lease, adverse to record owner of fee, 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.
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, 236 (Tex.Civ.App.) First wife of decedent 154; Sales; Specific Performance, 8, 12, claiming land in trespass to try title in the 13, 29, 47; Subrogation, 23; Tenancy in right of her son against the second wife held Common, 15; Trespass to Try Title, not a bona fide purchaser in good faith, having 4; Turnpikes and Toll Roads, 31; Wills, notice when she purchased her son's interest of 771, 852; Witnesses, 379. the second wife's claim, and not having paid valuable consideration.-Johnson v. Johnson, 207 S. W. 202.
I. REQUISITES AND VALIDITY OF CONTRACT.
3(1) (Tex. Civ.App.) Where, in an exchange of property, the values of the land or person- 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.
243 (Ark.) Actual notice may be proved by direct or positive evidence that notice was per- sonally given to the person to be notified, or 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.
(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. 958.334(1) (Tex. Civ.App.) Where vendor agreed
V. RIGHTS AND LIABILITIES OF PARTIES.
VII. REMEDIES OF PURCHASER. (A) Recovery of Purchase Money Paid.
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.
(B) As to Third Persons in General. 218 (Ky.) If the very presence of a per- manent structure diminishes the market value 339 (Tex.Civ.App.) Where vendor agreed 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.
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.
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
For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
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.
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
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.
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 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.
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.
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.
flooding land, where it is caused by extraordi- nary and unprecedented rainfall.-Paulson v. Wabash Ry. Co., 207 S. W. 81.
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.
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.
72 (Tex.Civ.App.) In action on notes ex- ecuted by one alleged to have authority to bind defendants 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, Kimball Co., 207 S. W. 351.
77 (Tex.Civ.App.) In suit on notes secured
by chattel mortgage, wherein appellants pray-
ed that cause be removed to E. county, that See Commerce, 14; Intoxicating Liquors, prayer would be taken as waiver by the defend-
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