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 In suit on guardianship bond, held, that court
of the fact that plaintiff might have been properly refused questions submitting in sub-
wrongfully upon the track.-Frick v. Interna- stance whether money collected by guardian as
tional & G. N. Ry. Co., 207 S. W. 198.

such had been turned over to plaintiffs, in ac-
m 296 (11) (Mo.) An erroneous instruction in counting suit brought against him as executor
condemnation proceeding that in estimating and trustee.--Id.
the value and damages the jury might dis- 350(6) (Tex.Civ.App.) In an action against
regard all testimony and act on their own a carrier for damages to live stock from negli-
judgment was not cured by other instructions | gent delay in loading, it was proper to refuse
inconsistent and contradictory thereto given to require a finding whether the delay was
for other parties.--In re Sixth Street, 207 S. caused by the weakened condition of defend-
W. 503.

ant's roadbed from excessive rains, since it

might be found that, in the exercise of ordi-
VIII. CUSTODY, CONDUCT, AND DE. nary care, the carrier should have been pro-
LIBERATIONS OF JURY.

vided against such rains, and particularly
306 Tex.Civ.App.) That some of jurors, where the jury found the delay was not caused
in passing upon question of negligence of de- by an unavoidable accident brought about by
fendant's agent, stated, in substance, that one heavy and excessive rains.-Kansas City, M.
of plaintiffs was more guilty of negligence than & O. Ry. Co. of Texas V. Bomar, 207 S. W.
said agent did not show misconduct. --Wash-

570.
ington v. Austin Nat. Bank, 207 S. W. 382.

mm 350(8) (Tex.Civ.App.) In suit on guardian-
314(1) (Tex.Civ.App.) In a personal injury ship bond, where undisputed evidence showed
action against a railroad company wherein the

wherein the that guardian had failed to account for guard-
jury failed to agree, a statement by the judge |

ianship fund, there was no necessity of sub-
after the jury had retired as to the desirabil. mitting issue as to amount which had been
ity of bringing in a verdict held not coercive. lost by guardian as executor and trustee.-Da-
-Texas Midland R. R. v. Brown, 207 S. W.

vis y. White, 207 S. W. 679.
340.

351(2) (Tex.Civ.App.) Where case is sub-
IX. VERDICT.

mitted upon special issues, failure to submit an

issue does not present a ground of reversal,
(A) General Verdict.

unless its submission has been requested in
327 (Mo.App.) The purchaser of a railroad writing by the complaining party, in view of
need not be mentioned in verdict in action Rev. St. 1911, art. 1985.Davis v. White, 207
against it and the prior receivers thereof to es- S. W: 678.

S. W. 679.
tablish and enforce liability of receivers for Om 351(5) (Tex.Civ.App.) In action for death
damages, which the purchaser agreed should of employé, refusal to submit issue of whether
be paid; liability of the purchaser flowing as foreman informed employé of danger incident
matter of law from establishment of the claim to work was not error, where issue of whether
against the receivers.-Riffe v. Wabash Ry. Co.,

| employé comprehended danger had previous-
207 S. W. 78.

Jy been submitted, such issue completely cov-
331 (Tex.Civ.App.) Where under the charge

ering that refused.-San Antonio Portland Ce-
the only theory on which verdict could be ren- ment Co. v. Gschwender, 207 S. W. 967.
dered against defendant for injuries to rail- w352(1) (Tex.Civ.App.) An affirmative in-
road fireman was negligent lookout, a verdict struction held to sufficiently present same issue
for plaintiff could not be indefinite in that it as that requested, although requested instruc-
could not be known whether jury found on

tion was in the negative form.--Sherrill v. Un-
some other acts of negligence.--Lancaster y.

ion Lumber Co., 207 S. W. 149.
Mays, 207 S. W. 676.

cm 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

exception to it as not confined to negligence

I pleaded as well as shown by evidence.-Jamison
dealer for negligence in sale of poisoned | Gin Co. v. Measels, 207 S. W. 365.
flour to plaintiff's husband, whereby plaintiff

f m352(5) (Tex.Civ.App.) In an action for in-
was poisoned, instructions in form of interrog-
atories, though peculiar and unusual, stating law loading, where plaintiff relies, both on the neg,

juries resulting to live stock from delay in
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-
350(1) (Tex.Civ.App.) Where a case is sub-

mission as distinct and separate special issues,
mitted on special issues, a party is entitled to

unless the pens' condition is proved merely to
an affirmative presentation of an issue raised show effect of delay.--Kansas City, M. &
by the pleadings and evidence.--Sherrill V. Ry. Co. of Texas v. Bomar. 207 S. W. 570.

0.
Union Lumber Co., 207 S. W. 149.

In an action for damages resulting only from
En 350(1) (Tex.Civ.App.) Contention, in action delay in loading cattle, requiring them to re-
on guardian's bond, that charge was upon the
weight of the evidence, because it failed to error in not submitting the negligent condition

main in the carrier's muddy pens, there was no
submit value of certain items of property turn-

of the pens upon which no independent damage
ed over on prior accounting, will be overruled,

was sought, as special issue where the jury
where appellants point out no evidence show-

were instructed to determine if such condition
ing that such items were of any greater value

caused the delay.-Id.
than that at which they were accepted by
plaintiffs.-Davis v. White, 207 S. W. 679.

X. TRIAL BY COURT.
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 equit
utor and trustee, held properly refused, as call- action are not entitled as a matter of right to
ing for a conclusion upon a mixed question of have a purely equitable issue submitted to a
law and fact.-Davis v. White, 207 S. W. 679. jury, it is within chancellor's discretion to ob-

Where probate court never authorized guard- tain advisory aid of jury upon such issue.-.
ian to expend any part of guardianship fund, Early v. Early, 207 S. W. 466.
and guardian had ample funds as executor and Om371 (Ky.) Eyen where either party is en.
trustee to educate and maintain wards as he titled to a trial by a jury of an issue out of
was directed to do under will, question as to chancery, the motion therefor must be season-
amount expended by guardian for maintenance ably made, and otherwise it is the court's duty
and education was immaterial, in suit on the I to deny it; and a motion for such trial, made

34

58.

ve

TROVER AND CONVERSION.

after the evidence is entirely made up by depo- I. CREATION, EXISTENCE, AND VA-
sitions, etc., was too late.-R. E. Jones & Co.

LIDITY.
v. Northern Assur. Co., Limited, of London,
England, 207 S. W. 459.

(A) Express Trusts.
374(2) (Ky.) If the chancellor submitted to lem12 (Mo.) One who is sui juris cannot cre-
a jury the question of fact as to whether an ate a spendthrift trust for his own benefit.-
insurer's arbitrator was an impartial and dis- | Jamison v. Mississippi Valley Trust Co., 207
interested appraiser, its verdict would have / S. W. 788.
been advisory only.-R. E. Jones & Co. v. The creditors of the beneficiary of a trust
Northern Assur. Co., Limited, of London, Eng have no right to complain of a gift to the
land, 207 S. W. 459.

beneficiary which restricts the use in such man-
374(2) (Ky.) Where distinctly legal issue is ner that they cannot reach it, the creditors
presented to jury by chancellor, verdict of jury of the donor only being concerned.-Id.
is conclusive, and will not be disturbed, unless 13 (Mo.) Equity does not enforce a mere
flagrantly against the evidence; but, where is- executory agreement for a trust which is whol-
sue is purely equitable, chancellor may disre- ly voluntary.-Harding v. St. Louis Union
gard verdict and enter judgment in conformity | Trust Co., 207 S. W. 68.
with his view of the weight of the evidence.- em20 (Tex.Civ.App.) Trusts may be created
Early v. Early, 207 S. W. 466.

by conveyance or assignment to the donee, or
In surviving wife's action for dower and by transfer to third persons upon declared
share of personalty, involving validity of ante- terms, or upon declarations which fasten a
nuptial contract alleged by wife to have been beneficial interest, but retains the legal title in
procured through fraud, issue of fraud was of the donor.--Samuell v. Brooks, 207 S. W. 626.
purely equitable cognizance, and jury's verdict om25(1) (Tex.Civ.App.) Trusts may be creat-
thereon was merely advisory.-Id.

ed by conveyance or assignment to the donee,

or by transfer to third persons upon declared
(B) Findings of Fact and Conclusions

terms, or upon declarations which fasten a
of Law.

beneficial interest, but retain the legal title in
mw392(3) (Tex.Civ.App.) Rev. St. 1911, art.

the donor; language showing unequivocally an
1989, providing that on trial by court judge

intention on his part to create a trust being es-
shall, at request of either party, state in writ-

sential under the first method, but not under
ing his conclusions of law or fact, does not re-

the second and third.-Samuell v. Brooks, 207
quire that the request to the court be in writ S. W. 626.
ing.–Griner v. Trevino, 207 S. W. 947.

On 44(3) (Mo.) Trust in personalty created by
Cara 395(5) (Tex.Civ.App.) The court's findings I express declaration and present conveyance to
should be of facts, and should not include evi-

a definite beneficiary can be enforced only on
dence which it thought established, as facts,

evidence so clear, full, and demonstrative as
findings made.-Spearman v. Mims, 207 S. W.

to banish any reasonable doubt as to the ex-
573.

istence of every essential element.-Harding V.
St. Louis Union Trust Co., 207 S. W. 68.

Om 59(1) (Mo.) Executed trust created in per-
See Appeal and Error, C 1041; Chattel Mort- sonalty by express declaration and present con-

gages, m 177; Judgment, 802: Landlord / veyance to a definite beneficiary is irrevocable.
and Tenant, 274; Limitation of Actions,

though voluntary.-Harding v. St. Louis Union
Om 127, 167; Pleading, em 204, 430.

Trust Co., 207 S. W. 68.

Where decedent, about to travel, wrote son
1. ACTS CONSTITUTING CONVER-

that, if anything occurred to him, he had placed
SION AND LIABILITY

bonds in an envelope in a safety deposit box
THEREFOR.

indorsed as the property of the son, there was

no present irrevocable creation of a trust in
7 (Tex.Civ.App.) A landlord who, after favor of the son.-Id.
ousting a tepant from the premises for non-
payment of rent, takes possession of the ten-
ant's personal effects found on the leased prem-

(B) Resulting Trusts.
ises, and excludes the tenant from access 631/2 (Ark.) Where plaintiff had furnished
thereto temporarily, is guilty of conversion.-

balf the consideration for land in which he
Ilenderson v. Beggs, 207 S. W. 565.

was to have an undivided half interest, title

holder to hold in trust for him, and the title
II. ACTIONS.

holder conveved the land by absolute deed to
(A) Right of Action and Defenses. defendant, who, with knowledge of plaintiff's
22 (Tex.Civ.App.) Where a lessor upon

interest, agreed orally to hold as his trustee,
ousting lessee from the premises has taken

Ja trust resulted in plaintiff's favor, valid un-
possession of the lessee's personal property, |

| der the statute of frauds (Kirby's Dig. & 3666).
the lessee did not abridge his rights to re-

-Davis v. Dickerson, 207 S. W. 436.
cover for conversion by refusing a tender of
the property after the conversion was com-

(C) Constructive Trusts.
plete.-Henderson v. Beggs, 207 S. W. 565.

Cm921/2 (Ark.) Kirby's Dig. $ 3666, providing
(E) Trial, Judgment, and Review. that trust can only be created by writing, re-
Cm66 (Mo.App.) Evidence in action based on

fers only to express trusts, and has no refer-
claim of abstraction of money by defendant

ence to trusts ex maleficio.-Barron v. Stuart,
from plaintiff's safe held to make a case for

207 S. W. 22.
the jury.-Peter Hauptmann Tobacco Co. v.

w96 (Ark.) Where a' trust ex maleficio is
Unverferth, 207 S. W. 283.

based on a promise, the promise need not be
expressly made, for actual co-operation or si-

lent acquiescence may have the same effect.--
TRUST DEEDS.

Barron v. Stuart, 207 S. W. 22.
See Mortgages.

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-
See Assignments for Benefit of Creditors, com ated, and equity will apply the property ob-

44, 295, 333; Election of Remedies, C 7 ; 1 tained in accordance with his promise, not-
Fraudulent Conveyances. Omw 111, 237; 1 withstanding Kirby's Dig. f 3660.--Barron V.
Guardian and Ward, Cw58, 180; Husband | Stuart, 207 S. W. 22.
and Wife, O 272; Judgment, C590; Trial, am 110 (Ark.) Parties seeking to prove a trust
350.

Tex maleficio must establish the same by clear

TRUSTS.

TURNPIKES AND TOLL ROADS.

For cases in Dec,Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
and satisfactory evidence.-Barron V. Stuart, 1 trust had acquired the legal title, the trustee,
207 S. W. 22.

or his heirs, if the trustee be dead, are neces-
In an action to establish a trust, clear and sary parties.-McCoy v. Anderson, 207 S. W.
satisfactory evidence held to establish that a | 213.
decedent was induced by the promise of de- 371(6) (Ark.) The allegation in defend-
fendant, to devise all his property to her, with ant's cross-bill that the record title was out-
the understanding that the property was to be standing in one whom defendant claimed held
divided among children in a certain manner. ( title in trust for her ancestor is not an aver-
-Id.

ment that the legal title was still in the al-
In a suit to establish a trust in property de- leged trustee.-McCoy v. Anderson, 207 S. W.
vised, evidence held to show that testator de- / 213.
clared his intention of dividing his money and Om 372(1) (Ark.) Where the cestui que trust
other personal property among all his children, died in possession claiming title to the land as
including his grandchildren, and devised the against intruders, trespassers, or mere occu-
property to his wife, with the understanding pants, it will be presumed, in a contest between
that it be so divided.-Id.

the heirs of the cestui and a mere occupant or

trespasser, that the cestui had before his death
II. CONSTRUCTION AND OPERA | acquired the legal title.-McCoy V. Anderson,
TION,

207 S. W. 213.
(A) In General.

en 372(1) (Tex.Civ,App.) The burden is upon

the party claiming a resulting trust in land
cm 114 (Tex.Civ.App.) A written declaration to trace the funds claimed as his own into the
by grantor that a deed absolute, already given, property purchased.--Diltz y. Dodson, 207 S.
was in fact a mortgage, and that the grantee W. 356.
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, 1. ESTABLISHMENT, CONSTRUC-
although grantor could delay funds becoming

TION, AND MAINTENANCE.
available until his death by refusing to execute
a deed for the property when sold.--Samuell v.

31 (Ky.) In turnpike company's stockhold.
Brooks, 207 S. W. 626.

ers' action for settlement of affairs and distri-
bution of assets, the company was properly

charged with full amount that had been due
VI. ACCOUNTING AND COMPENSA.

from county, though settlement was made for
TION OF TRUSTEE.

reduced amount, where deduction was for divi-
289 (Tex.) Where property in defendant's)

dends due county and could have been credited
name is impressed with a trust in plaintiff's on pro rata due county as stockholder; other
favor, plaintiff's right to an accounting of the stoc

I stockholders being entitled to full amount.
property when sold cannot be defeated by a Huston vill

Hustonville & Coffey's Mill Turnpike Road
mere prior offer on defendant's part to convey | Co. v. McAninch's Adm'r, 207 S. W. 458.
the property to plaintiff and another.- Home In turnpike company's stockholders' action
Inv. Co. v. Strange, 207 S. W. 307.

for settlement of affairs and distribution of as-

sets, the company was properly charged with
VII. ESTABLISHMENT AND EN-

full amount of proceeds of sale of tollhouse,

notwithstanding item in 1890 report reading
FORCEMENT OF TRUST.

"to amount collected on house and lot $275.00,"
(A) Rights of Cestui Que Trust as against where sale was made in 1906 and president of
Trustee.

company while testifying did not explain item
336 (Tex.Civ.App.) Where trustee seeks to

or claim it referred to such sale.--Id.
repudiate the trust, the beneficiary may sue to
enforce the trust.---Warren v. Parlin-Orendorff . TURNTABLE DOCTRINE.
Implement Co., 207 S. W. 586.

39 (Ark.) 'On a breach of trust, the bene. See Negligence, 23.
fiçiary 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, m4.

UNITED STATES

436.

(B) Right to Follow Trust Property or

perty or UNITED STATES FOOD ADMINISTRA-
Proceeds Thereof.

TION.
356(1) (Ark.) Where plaintiff had furnish-
ed half the consideration for land in which he See War, Om 4.
was to have an undivided half interest. title
holder to hold in trust for him, and the title USE AND OCCUPATION.
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. 8 3666.-

USURY.
Davis v. Dickerson, 207 S. W. 436.

II. PENALTIES AND FORFEITURES,
(C) Actions.

Cu 140 (Tex.Civ.App.) The maker of notes
359(1) (Ark.) Where land held in trust was

was who has paid nothing thereon cannot sue the
conveved by the trustee in breach of his trust. | payee for the penalty for charging usury im-
the cestui que trust could sue for the value of posed by Vernon's Sayles' Ann. Civ. St. 1914.
the land on account of the violation of the

art. 4982, where another has assumed payment
trust or could sue for money had and received

of the notes; such action being maintainable
for his benefit and recover the price realized on only by the party paying the usurious interest
the same.-Davis y. Dickerson, 207 S. W. 436. or his legal representatives.-Burch V. First

359(2) (Tex.Civ.App.) Perfect or complete Guaranty State Bank of Quanah, 207 S. W.
voluntary trusts are enforceable in equity, but | 532.
executory, incomplete, or promissory trusts

VACCINATION.
are not.-Samuell v. Brooks, 207 S. W. 626.

366(3) (Ark.) In a suit' to quiet title if it See Constitutional Law, C 84, 255; Schools
is necessary to show that the beneficiary of all and School Districts, cm 158.

VENDOR AND PURCHASER. was placed in the stream while such vep:lors

owped the land.-Id.
See Appeal and Error, em 1177; Bills and
Notes, em 467; Brokers. 46; Cancella-

(C) Bona Fide Parchasers.
tion of Instruments, 37; Champerty and

www 232(3) (Ark.) Defendant, in injunction set-
Maintenance, 7;' Curtesy, Oms; Deeds, |
94. 108; Estoppel,

ting up a right of possession under a prior un-
97; Evidence, em

recorded lease, adverse to record owner of fee,
213, 271, 413, 419, 568; Fixtures, C7, 21,

had burden of establishing his right to posses-
35; Fraud, cm 59; Fraudulent Conveyances.

sion by showing that purchaser had actual no-
298; Homestead. 117; Husband and

tice thereof or knowledge of facts which would
Wife, m78, 156, 193, 198, 273; Injunction,

have led a man of ordinary prudence to in-
en 128; Judgment, m104; Limitation of

quiries which, if pursued with reasonable dili-
Actions, aw 195; Logs and Logging. 5;

gence, would have informed purchaser of de-
Mortgages, 353; Partition, m106;

fendant's possession.-Staples v. Freeman, 207
Pleading, m49; Quieting Title, m 141

S. W. 433.
Railroads, 194; Řeceivers, 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, Om 23; Tenancy in / right of her son against the second wife held
Common, 15; Trespass to Try Title, I not a bona fide purchaser in good faith, having
4; Turnpikes and Toll Roads, Oma 31; Wills,

notice when she purchased her son's interest of
m771, 852; Witnesses, 379.

the second wife's claim, and not having paid

valuable consideration.-Johnson v, Johnson,
I. REQUISITES AND VALIDITY OF 207 S. W. 202.
CONTRACT.

243 (Ark.) Actual notice may be proved by
3(1) Tex.Civ.App.) Where, in an excbange 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 by circumstances warranting the inference that
and not an exchange, and the rules of law gov. actual notice was given; it being a question of
erning in cases of sales will control, rather than fact provable by any legitimate evidence tend-
the law of exchange.--McDonald v. Whaley, 207 | ing to strengthen or impair a conclusion of
S. W. 609.

notice.-Staples v. Freeman, 207 S. W. 433.

On 244 (Ark.) In action by a purchaser having
II. CONSTRUCTION AND OPERA-

record title to enjoin trespass by defendant
TION OF CONTRACT.

claiming under a prior urecorded lease from

the same vendor. evidence held to sustain
54 (Tex.Civ,App.) Purchaser, having pos- decree dismissing the complaint for want of eq.
session of land and having paid the entire con- uity in respect to notice.-Staples v. Freeman,
sideration, has an equitable title superior to 20 S.
vendor's legal title.--Masterson v. Pullen, 207
S. W. 537.

VI. REMEDIES OF VENDOR.
Purchaser who has not paid any of the con-
sideration has not sufficient title to authorize

(A) Lien and Recovery of Land.
recovery of land from vendor, his only right w254(1) (Tex. Civ. App.) Purchase-money
being to tender consideration and ask for spe- notes are secured by an equitable vendor's lien,
cific performance.--Id.

though there is no express reservation of a

lien either in notes themselves or in deed.--
III. MODIFICATION OR RESCISSION Luse v. Rea, 207 S. W. 942.
OF CONTRACT.

(B) Action» for Purchase Money,
(B) Rescission by Vendor.

320 (Tex.Civ.App.) Where notes given for
Om 89 (Tex.Civ.App.) Vendor, by selling one of purchase price of land contained only the
bis lien notes, loses the right to rescind the usual stipulations regarding pa

usual stipulations regarding payment of attor-
sale-Van Valkenburgh v. Ford, 207 S. W. 405. I nev's fees, refusal of vendor and payee to ac-

cept payment of the first note when it became
IV. PERFORMANCE OF CONTRACT. due, at which time the maker of the notes and

his vendee were ready and able to pay, estop-
(D) Payment of Parchase Money.

ped the payee from claiming attorney's fees.-
Om 187 (Tex.Civ.App.) Where a land contract Eason v. Fowler, 207 S. W. 958.
provided that the sale might be declared void
if the first note with interest were not paid on VII. REMEDIES OF PURCHASER.
a fixed date, and the grantee refused to accept
the payment, he waived his right to payment

(A) Recovery of Purchase Money Paid.
on such date.-Eason v. Fowler, 207 S. W. 958.

334(1) (Tex.Civ.App.) Where vendor agreed

to sink well and provide irrigation plant by
V. RIGHTS AND LIABILITIES OF

tain date, purchaser was entitled to recor-
PARTIES.

er amount paid on contract upon vendor's fail-
(B) Ay to Third Persons in General.

ure to sink well by such date or within a rea-

sonable time thereafter.-McDonald v. Whaley,
w218 (Ky.) If the very presence of a per- 207 S. W. 609.
manent structure diminishes the market value 339 (Tex.Civ.App.) Where vendor agreed
of adjoining land, or the placing of an obstruc- to sink irrigation well upon premises after pur-
tion in a stream causes immediate injury, the chaser had entered into written contract of
cause of action then accrues, and is in the then sale or exchanged deeds, purchaser could not
owner of the land.- Lexington & E. Ry. Co. v. recover purchase money paid on contract, unless
Crain, 207 S. W. 447.

vendor refused to sink well after purchaser had
If no immediate injury results from erection offered to enter into written contract or ex-
of a permanent structure or the placing of ob- changed deeds.-McDonald v. Whaley, 207 S.
struction in a stream, no cause of action aris- W. 609.
es until it is apparent to person of ordinary 341(5) (Tex.Civ.App.) Where value of au-
prudence that some injury has resulted, and tomobile given as part consideration in land
cause of action is always in person owning land deal was agreed upon, the purchaser in recov-
when injury actually occurs.--Id.

ering consideration paid, upon vendor's breach,
Where no damage occurred to land from an was entitled to the agreed value of the auto-
obstruction of a water course diverting water mobile, and not its market or intrinsic value,
through the land prior to its purchase by plain- where automobile itself was not in condition to
tiff, the cause of action was in him, and not in be returned.-McDonald v. Whaley, 207 S. W.
his vendors, merely because the obstruction 609.

1

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

ants residing in C. county that cause should

be removed to that county, as alleged in their
See Appeal and Error, m544; Corporations, | plea of privilege.--Ray v. W. W. Kimball Co.,

m503; Criminal Law, 122, 1117, 1150; 207 S. W. 351.
Pleading, m104; Railroads, 194.

VERDICT.
I. NATURE OR SUBJECT OF ACTION.

See Criminal Law, C881-884; Trial, w327–
em? (Tex.Civ.App.) An implied promise to

352.
perform a contract in a county other than that

WAR.
of defendant's residence will not place the
venue of a suit thereon in such county.- Val- See Army and Navy, 34; Intoxicating Liq-
despino v. Dorrance & Co., 207 S. W. 649. uörs, 17.
If the terms of a written contract are such

em 4 (Mo.App.) The war measures embodied in
that it must necessarily be performed in a cer-
tain county, suit can be maintained thereon

n the rules of the Milling Division of the United

States Food Administration did not invalidate
in such county.--Id.
Suit on an oral contract to return overpay-

prior contracts to purchase flour.-J. C. Lysle
ments, if any, on a sale of cotton upon being

Milling Co. v. Sharp, 207 S. W. 72.
scaled and weighed in the county of the pur-

4 (Tex.Cr.App.) The state Legislature
chaser's residence, cannot be brought in such

cannot, on the ground of military necessity,
county under section 5 of the venue statute, pass.

pass a general prohibition law, under Const.
but must be brought in the county of the sell-

art. 16, § 28, military affairs being matter for
er's residence.--Id.

the federal government to attend to.-Ex parte
7 (Tex.Civ.App.) Where plaintiff sold hay

Myer, 207 S. W. 100.
to defendant f. o. b. at a point in Galveston
county, but drafts with bill of lading attached

| WATERS AND WATER COURSES.
were to be sent to county of defendant's resi-

See Constitutional Law, 80; Continuance,
dence, held, that the contract cannot be con-

m36; Corporations, 394; Drains;
strued as one to be performed within Galves-

Easements, 58; Injunction, w74; Mu-
ton county, the expression "f. 0. b.” cars im-
plying no promise to pay for the hay in Gal-

nicipal Corporations. Om682; Pleading, men

248; Railroads, om113, 114, 194; Trial, Om
veston county so as to authorize suit therein,

194, 253, 295; Vendor and. Purchaser, mm
but merely delivery free on board cars at that
point.--Harris v. Moller, 207 S. W. 961.

218, 334, 339.
II. DOMICILE OR RESIDENCE OF

IV. NATURAL LAKES AND PONDS.
PARTIES.

Om IIT (Tex.Civ.App.) Where original bound-

arv followed lake meander line and waters re-
ne who sues a d

ceded imperceptibly, the water's edge was the
ant in a county other than that of his resi-
dence must bring his case clearly within the

boundary.-Chew v. De Ware, 207 S. W. 988.
exceptions to the general rule that a defendant

V. SURFACE WATERS.
is entitled to be sued in the county of his own
residence.-Valdespino V. Dorrance & Co., 207

om 118 (Mo.App.) A railroad is not liable for
S. W. 649.

flooding land, where it is caused by extraordi-
22(1) (Mo.App.) The summons having nary and unprecedented rainfall.-Paulson V.
been issued under the second amended petition, | Wabash Ry. Co., 207 S. W. 81.
which was against a corporation and individ-
uals, so that the petitions preceding are not to

VIII. ARTIFICIAL PONDS, RESER-

VOIRS, AND CHANNELS, DAMS,
be regarded as prior foundations of the suit,
the fact that the first amended petition was

AND FLOWAGE
against the corporation alone can have no effect on 171(2) (Mo.App.) A railroad is liable for
on the question of jurisdiction over the individ- flooding land if its negligence concurs with an
uals residing in county other than that of the act of God and is one of the proximate causes.
suit.-Riffe v. Wabash Ry. Co., 207 S. W. 78. -Bailey y, Wabash Ry. Co., 207 S. W. 82.

Om 179 (6) (Mo.App.) Evidence, in action
III. CHANGE OF VENUE OR PLACE against railroad for flooding land from embank-
OF TRIAL.

ment sliding into stream, held sufficient to go
70 (Tex.Civ.App.) Under Rey. St. 1911. / to jury on the defense of extraordinary rain-
art. 1903. as amended by Acts 35th Leg. c. 176 | fall. --Bailey v. Wabash Ry. Co., 207 S. W. 82.
(Vernon's Ann. Civ. St. Supp. 1918, art. 1903),
the averments of a defendant's verified plea of

IX. PUBLIC WATER SUPPLY.
privilege that he was a resident of a county (A) Domestic and Municipal Parposes.
other than the one in which suit was brought

210 (Tex.Civ.App.) In action against city
are prima facie proof of the facts averred, and
must be accepted as true, where the contro-

for ploughing up plaintiff's pipe lines, held, that

allegation and proof of contract granting ex-
verting answer filed by plaintiff attempted to

clusive privilege to operate water system was
defeat the plea solely on the ground that con-
tract on which suit was brought was to be

unnecessary to give plaintiff a remedy for con-
performed in the county where the venue was

version or wrongful injury to property, so that
laid.-Harris v. Moller, 207 S. W. 961.

court erred in sustaining general exception to
72 (Tex.Civ.App.) In action on notes ex-

petition and entering judgment thereon.--Tem-
ecuted by one alleged to have authority to bind P

pleton v. City of Wellington, 207 S. W. 186.
defendants to payment in Tarrant county,

While no action will lie if in order to main-
where there was a sworn plea of privilege under

tain it plaintiff requires aid from an illegal
Vernon's Sayles' Ann. Civ. St. 1914, art. 1903,

transaction, the fact that defendant city per-
as amended by Acts 35th Leg. c. 176 (Vernon's

mitted water system equipment in its streets,
Ann. Civ. St. Supp. 1918, art. 1903), and is-

whether under a void contract or by permis-
sue joined as to such authority, plaintiff was

sion, did not authorize a wanton or willful in-
bound to sustain his claim that defendants had

jury to it.-Id.
bound themselves to pay notes in county of

WEAPONS.
venue, and without any evidence thereof court
was required to sustain plea.-Ray v. W. W. See Homicide, em 300.
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- On 138.

WEBB-KENYON ACT.