Liability of carrier for demurrage paid by In civil actions, see "Trial,” § 4. shipper, see "Carriers," § 1.
To evidence, see "Trial," § 4.
DEPOSITIONS.
See "Affidavits"; "Witnesses."
In election contests, see "Elections," § 3. Presence of witnesses whose depositions had been withdrawn as ground for continuance, see "Continuance."
Depositions taken in a cause are not admissi- ble in a subsequent cause as against one not a party to that in which they were taken.- Parlin & Orendorff Co. v. Vawter (Tex. Civ. App.) 407.
Copy of notice to take depositions and inter- rogatories, required by Rev. St. 1895, art. 2274, to be served on the opposite party, need not be certified by the clerk of court.-El Paso & S. W. Ry. Co. v. Vizard (Tex. Civ. App.) 457. Under Sayles' Rev. Civ. St. 1897, art. 2289, motion to quash deposition made after an- nouncement of ready for trial held too late.- St. Louis Southwestern Ry. Co. of Texas v. Harkey (Tex. Civ. App.) 506.
Motion to quash deposition held to raise ques- tion of fact, authorizing court to receive testi- mony outside of what was shown by deposition itself or indorsement on envelope.-St. Louis Southwestern Ry. Co. of Texas v. Harkey (Tex. Civ. App.) 506.
In bank, see "Banks and Banking," § 1.
Maintenance of by railroads, see "Railroads," § 2.
DISQUALIFICATION.
Of judge, see "Judges," § 1. Point annotated. See syllabus.
Of partnership, see "Partnership," § 4.
Of assets of partnership on dissolution, see "Partnership," § 4.
Of estate assigned for creditors, see "Assign- ments for Benefit of Creditors," § 1.
Of estate of decedent, see "Descent and Dis- tribution"; "Executors and Administrators," § 2.
DISTRICT AND PROSECUTING AT- TORNEYS.
An ordinance declaring drunkenness in a pub- lic place a nuisance held not to conflict with Kirby's Dig. §§ 2550, 2552, 2553, authorizing arrest by a peace officer of the state of a drunk- en person in a public place.-Town of Dewitt v. La Cotts (Ark.) 877.
As a defense to criminal prosecution, see "Crimi- nal Law," § 1.
As contributory negligence of person sitting on end of railroad cross-tie, see "Railroads," $ 7.
Of passenger, see "Carriers," §§ 3, 6, 7. DYING DECLARATIONS.
Argument and conduct at trial, see "Criminal See "Homicide," § 8. Law," §§ 16, 27.
Ground of jurisdiction of United States courts, Damages for loss of, see "Damages," § 3. see "Removal of Causes," § 1.
DIVISIBLE CONTRACTS.
See "Sales," § 2.
Presumptions on appeal or writ of error, see "Appeal and Error," § 19.
Both parties in a suit for divorce denied re- lief, because both were at fault. Malone v. Malone (Ark.). 840.
§ 2. Jurisdiction, proceedings, and re-
The testimony of the wife, suing for a divorce, held not sufficiently corroborated.-Malone v. Malone (Ark.) 840.
Evidence in a suit by a wife for divorce held not to show cruel treatment sufficient to war- rant a decree.-Malone v. Malone (Ark.) 840.
Facts held not to show one a resident of Tennessee so as to entitle him to maintain a bill for divorce there under Shannon's Code, & 4203.-Sparks v. Sparks (Tenn.) 173.
§ 3. Alimony, allowances, and disposi- tion of property. *Awarding $400 to a wife as alimony in a de- cree of divorce held excessive.-Newton v. New- ton (Ky.) 1050.
EASEMENTS.
See "Dedication"; "Highways."
Of passenger, see "Carriers," § 8. EJECTMENT.
See "Trespass to Try Title." Contradiction of witnesses, see "Witnesses," § 3.
8 1. Right of action and defenses. *In ejectment, the plaintiff must rely on the strength of his own title.-Carpenter v. Jones (Ark.) 871.
§ 2. Pleading and evidence.
In ejectment for a mining claim, plaintiffs could not, under the issues, rely on adverse possession as a source of title.-White River Min. & Nav. Co. v. Langston (Ark.) 971.
In ejectment heid incompetent for defendants to contradict issues tendered by them and con- ceded by plaintiffs.-Kessner v. Phillips (Mo. Sup.) 66.
causes of action in pleading, see Between "Pleading," § 7.
Between testamentary provisions and other rights, see "Wills," § 4.
ELECTION OF REMEDIES.
As against principal and agent, see "Principal and Agent," § 2.
In an action on a contract between railroad companies for the protection of a right of way, defendant company, electing to stand on the contract, cannot recover on a quantum meruit. -Missouri Pac. Ry. Co. v. Kansas City & Air Line Co. (Mo. Sup.) 3.
Best and secondary evidence of vote cast, see "Evidence," § 3.
Local option elections, see "Intoxicating Liquors," § 1.
Stock law elections, see "Animals." Submission to voters of question of issuance of school district bonds, see "Schools and School Districts," § 1.
* Point annotated. See syllabus.
§ 1. Election districts or precincts and officers.
Votes cast in the wrong township in reliance on universally recognized but erroneous lines would not be excluded.-Lovewell v. Bowen (Ark.) 570; Rhodes v. Driver, Id.
§ 2. Count of votes, returns, and can-
Under Kirby's Dig. § 2838, when election bal- lots are once turned over to the court no pre- sumption in favor of official regularity can be indulged to sustain them if subsequently produ- ced from election commissioners.-Lovewell v. Bowen (Ark.) 570; Rhodes v. Driver, Id.
Under Kirby's Dig. § 2838, certain defective ballots produced at an election contest could not be deemed the identical original ballots in untampered form that were cast in a certain township, so as to authorize the returns from such township to be thrown out.-Lovewell v. Bowen (Ark.) 570; Rhodes v. Driver, Id.
Kirby's Dig. § 2861, requiring evidence in election contests to be taken by depositions, is exclusive of other modes, and precludes the hearing of oral testimony of judges of election to sustain the returns.-Lovewell v. Bowen (Ark.) 570; Rhodes v. Driver, Id.
with reference to business, the demand for property, and any increase or development rea- sonably to be expected in the immediate fu- ture, held proper. City of El Paso v. Coffin (Tex. Civ. App.) 502.
In a proceeding to condemn land near a projected union station for a park, the jury held entitled to consider the contemplated construc tion of the depot as bearing on the value of defendant's land.-City of El Paso v. Coffin (Tex. Civ. App.) 502.
Property owner held entitled to recover dam- ages sustained by personal annoyance and in convenience suffered by her and her family on account of operation of railway near her resi- dence.-St. Louis, S. F. & T. Ry. Co. v. Shaw (Tex. Civ. App.) 817.
In an action against a railroad for damages to plaintiff's property from the use of a right of way granted defendant over a street, plain- tiff's recovery held limited by allegations and proof to certain damages.-Õklahoma City & T. R. Co. v. Dunham (Tex. Civ. App.) 849. § 2. Proceedings to take property and assess compensation.
Under Kirby's Dig. §§ 2947, 2952, 2954, 2955, a court, on petition by a railway company to condemn land for a right of way, held not en- titled to try the issues raised by the answer of the owner of the land questioning the com- pany's right to condemn the land.-Mountain
In stores as common carriers, see "Carriers," Park Terminal Ry. Co. v. Field (Ark.) 897. § 6.
Assignment of errors in condemnation pro- ceedings, see "Appeal and Error," § 14. Establishment of highways, see Highways," § 1. Examination of witnesses in condemnation proceedings, see "Witnesses," § 2. Instructions in general in condemnation pro- ceedings, see "Trial," § 5.
Opinion evidence in condemnation proceed- ings, see "Evidence," § 9. Public improvements by municipalities, see "Municipal Corporations," § 5. Relevancy of evidence in condemnation pro- ceedings, see "Evidence," § 2.
Under Kirby's Dig. §§ 3001, 6681, a railroad company held not entitled to compensation for constructing a road crossing or keeping it in repair, but entitled to damages for the estab- lishment of a road across its right of way. -St. Louis Southwestern Ry. Co. v. Royall (Ark.) 555.
Where a landowner, after condemnation of a highway, received the damages assessed, he could not, without the consent of the county, restore his rights by a return of the money. Brooks, Neely & Co. v. Yell County (Ark.) 390.
Where the establishment of a railroad depot and switches near defendant's land was not a special benefit to him, it should not be consid- ered in determining his damages in condemna- tion proceedings.-Kirby v. Panhandle & G. Ry. Co. (Tex. Civ. App.) 281.
In proceedings to condemn land for a railroad right of way, damages sustained by the land- owner by an overflow caused by a defective construction of the railroad's embankment held not recoverable.--Kirby v. Panhandle & G. Ry. Co. (Tex. Civ. App.) 281.
In an action against a railroad company for damages caused by the appropriation of a right of way, defendant held not entitled to complain of a verdict on the ground that the market value of the land had not been shown.-Little Rock & Ft. S. R. Co. v. Evans (Ark.) 992.
In the absence of statutory regulations to the contrary, a municipal corporation held en- titled to abandon condemnation proceedings at any time before judgment in favor of property owners. In re Seventeenth St. (Mo. Sup.) 45; Kansas City v. Kansas City, Ft. S. & M. R. Co., Id.
Under St. Louis City Charter, art. 6, § 7 et seq., relating to proceedings to condemn land, the disapproval by the municipal assem- bly of the report of the commissioners appointed does not of itself operate as a dismissal of the proceeding.-City of St. Louis v. Lawton (Mo. Sup.) 80.
In condemnation proceedings, held, that owing to previous determination the question whether one of defendants was entitled to any damages was not examinable.-Union Ry. Co. v. Hun- ton (Tenn.) 182.
In condemnation proceedings the rental value of the property is one consideration to be look- ed to in determining the value.-Union Ry. Co. v. Hunton (Tenn.) 182.
In condemnation proceedings it was error not to permit petitioner to show that a lease of the property held by one of the defendants was not obtained with a view to use and en- joyment of the property, but as a means of speculation in the expected condemnation pro- ceedings.-Union Ry. Co. v. Hunton (Tenn.)
In condemnation proceedings a lessee of the land is a necessary party.-Union Ry. Co. v. Hunton (Tenn.) 182.
tition for condemnation of land held not re- Under Sayles' Ann. Civ. St. art. 4447, a pe- quired to allege the amount of defendant's land not taken which might be damaged thereby.- Kirby v. Panhandle & G. Ry. Co. (Tex. Civ. App.) 281.
An instruction authorizing a jury in condem- nation proceedings to consider conditions sur- rounding the property at the time it was taken Point annotated.
By judgment, see "Judgment," § 9. Of principal by knowledge of agent, see "Prin- cipal and Agent," § 2.
To avoid or forfeit insurance policy, see "In- surance," § 2.
To deny corporate existence, see "Corpora tions," § 2.
To set up tax title, see "Taxation," § 1.
§ 1. Equitable estoppel.
A municipality held not estopped from assert- ing the invalidity of a franchise.-Little Rock
Re-entry by landlord, see "Landlord and Ten- Ry. & Electric Co. v. City of North Little ant," § 5.
See "Ejectment."
EQUITABLE ESTOPPEL.
See "Estoppel," § 1.
Equitable estoppel, see "Estoppel," § 1. Laches in seeking to establish right of sub- rogation, see "Subrogation."
Relief against judgment, see "Judgment," § 6. Particular subjects of equitablé jurisdiction and equitable remedies.
See "Cancellation of Instruments"; "Fraudu- lent Conveyances"; "Injunction"; "Parti- tion," § 1; "Quieting Title"; "Receivers"; "Reformation of Instruments"; "Specific
Performance"; "Trusts."
§ 1. Jurisdiction, principles, and max- ims.
Plaintiff, being guilty of irregularities affecting defendant's rights, held not entitled to maintain trespass to try title.-Cobb v. Gooch (Tex. Civ. App.) 401.
§ 2. Laches and stale demands.
The court will refuse to apply the doctrine of laches to dealings of an old mother with her son except in a pronounced case, and, not being allowable as a defense against her, it is not available against her heirs suing timely on her demise. Stevenson v. Smith (Mo. Sup.) 86.
ERROR, WRIT OF.
See "Appeal and Error."
Harmless error in prosecution for furnishing means of, see "Criminal Law," § 27.
Creditor held not estopped to deny authority of attorney who collected a certain claim.- Bank of Batesville v. Maxey (Ark.) 968.
*Certain facts held not to constitute estoppel. -Fox v. Commercial Press Co. (Ky.) 1063.
Of tenant of demised premises, see "Land- lord and Tenant," § 3.
See "Affidavits"; "Depositions"; "Witnesses." Applicability of instructions to evidence, see Trial," § 8.
Harmless error in rulings on, see "Appeal and Newly discovered evidence as ground for new Error," § 24; "Criminal Law," § 27. see "Criminal Law," § 19; Trial," § 1. Objections for purpose of review, see "Appeal and Error," § 2; "Criminal Law," § 22. Questions of fact for jury, see "Trial," § 4. Questions presented for review, see "Appeal and Error," § 12.
Reception at trial, see "Criminal Law," § 15; "Trial," § 2.
Review on appeal or writ of error, see "Ap- peal and Error," § 21.
Verdict or findings contrary to evidence, see Tax deed as evidence, see "Taxation," § 2. "New Trial," § 1.
As to particular facts or issues. "Damages," §§ 2, 5;
"Deeds," 8 3; "Fraudulent Conveyances," § 2; "Judgment," § 13; "Partnership," § 1; "Trusts," 8 1. Agency, see "Principal and Agent," §§ 1, 2. Authority of corporate agent, see "Corpora- tions," § 4.
Breach of warranty, see "Sales," § 5. Criminal intent, see "Robbery."
Customs of railroad as affecting release by in- jured employé, see "Release," § 1.
Fire caused by railroad locomotive, see "Rail- roads," § 9.
* Point annotated. See syllabus.
Giving of signals, at railroad crossings, see "Railroads," § 6.
Negligence of passenger, see "Carriers," § 7. Ownership of railroad, see "Railroads," § 4. Probable cause for prosecution, see "Malicious Prosecution," § 1.
Undue influence in procuring making of will, see "Wills," § 1.
In actions by or against particular classes of parties.
See "Building and Loan Associations"; "Car- riers," §§ 1, 2, 6; "Husband and Wife," 84; "Master and Servant," § 9; "Principal and Surety," § 3; "Railroads," §§ 7-9; "Street Railroads," § 2.
*In an action against a street railway for in- juries to a passenger, evidence of plaintiff's expressions of pain at time of injury held com- petent. McHugh v. St. Louis Transit Co. (Mo. Sup.) 853.
refuse to allow petitioner to show the price of In condemnation proceedings, it was error to other lots in the neighborhood of the lot in question within a reasonable time prior to the taking of the land involved.-Union Ry. Co. v. Hunton (Tenn.) 182.
sold, evidence of a sum realized by the seller On the issue of the market price of goods
Hardwick v. American Can Co. (Tenn.) 797. on a resale is admissible, but is not conclusive. Evidence of purchases of certain land by a witness in the vicinity of that condemned for a railroad right of way held inadmissible without proof of similarity.-Kirby v. Panhandle & G. Ry. Co. (Tex. Civ. App.) 281.
Evidence material only on a question, issue as to which is not raised, held improperly ad- 290.
See "Account, Action on"; "Conspiracy," § 1; "Divorce," § 2; "Ejectment," § 2; "Fraud," $2; "Negligence," § 4; "Rape," § 3; "Remitted.-Oneal v. Weisman (Tex. Civ. App.) formation of Instruments," § 2; "Trespass," § 1. Condemnation
Domain," § 2. Election contests, see "Elections," § 3. For breach of contract, see "Contracts," § 3. For causing death, see "Death," § 1. For delay in transportation of live stock, see "Carriers," § 2.
For failure to deliver telegram, see "Telegraphs and Telephones," § 1.
For injuries from fires caused by operation of railroad, see "Railroads," § 9.
For injuries from overflow, see "Waters and Water Courses," § 2.
For injuries to live stock from operation of railroad, see "Railroads," § 8.
For injuries to property from use of right of way, see "Eminent Domain," § 1. For personal injuries, see "Carriers," 86; "Master and Servant," § 9; "Railroads,' §7; "Street Railroads," § 2.
For price of goods sold, see "Sales," § 7. On bill or note, see "Bills and Notes," § 6. On judgment, see "Judgment," § 12. On note given as bonus to railroad, see "Rail- roads," § 2.
Probate proceedings, see "Wills," § 2.
To enforce homestead rights, see "Home stead," § 5.
To establish lost instrument, see "Lost In- struments."
To foreclose vendor's lien, see "Vendor and Purchaser," § 4.
In criminal prosecutions.
See "Assault and Battery," § 2; "Burglary," § 1; "Criminal Law," §§ 6-13; "Homicide,' §§ 7-9; "Larceny," § 2; "Perjury," & 2; "Rape," § 2; "Robbery"; "Seduction," § 1. For offenses against liquor laws, see "Intoxi- cating Liquors," § 4.
In an action on a liquor dealer's bond, held proper for the district attorney to state that the minor's mother was mentally unsound, as re- butting any unfavorable inference from failure
to put her on the stand.-Brewster v. State (Tex. Civ. App.) 858.
2. Relevancy, materiality, and com- petency in general.
*In an action against a street railway com- pany for the death of a traveler in a collision with a car, evidence of certain experiments held inadmissible.-Louisville Ry. Co. v. Hos- kins' Adm'r (Ky.) 1087.
In an action for personal injuries, the admis- sion in rebuttal of certain evidence relative to a different accident held proper.-Texas & P. Ry. Co. v. Malone (Tex. Čiv. App.) 389.
3. Best and secondary evidence. *When the original deed is lost and was recorded, oral evidence thereof is admissible.- Carpenter v. Jones (Ark.) 871.
Testimony of election commissioners as to vote cast on license question held incompetent. in the absence of a showing of a loss of orig- inal returns.--State v. Songer (Ark.) 903. § 4. Admissions.
In an action against a railway company for failure to furnish cars to a shipper, the state- ments of certain persous, known as the com- pany's officers, held admissible.-Choctaw, O. & G. Ry. Co. v. Rolfe (Ark.) 870.
Where plaintiff's pleadings admitted a certain person was its agent, it was not error to admit in evidence the conversations of such agent, without evidence of the agency.-Nicola Bros. Co. v. Hurst (Ky.) 1081.
In an action for injuries to cattle shipped, a statement of defendant's conductor to plaintiff during the transportation held admissible as an admission against interest.-Missouri, K. & T. Ry. Co. of Texas v. Russell (Tex. Civ. App.) 379.
An application for a continuance, made by plaintiffs through their attorney, containing an admission contradicting plaintiffs' testimony, is admissible for that purpose.-W. Scott & Co. v. Woodard (Tex. Civ. App.) 406.
In a suit by a trustee in bankruptcy to re- cover property alleged to have been conveyed pursuant to a conspiracy to defraud creditors, testimony is admissible that the bankrupt stat- ed to witness that the property was his, and that he placed it in his wife's name to prevent his creditors from subjecting it to the payment of debts.-Shelley v. Nolen (Tex. Civ. App.) 524.
of plaintiff's wife, held that her declarations were admissible against plaintiff to show her physical condition.-Hardin v. St. Louis South- western Ry. Co. of Texas (Tex. Civ. App.) 440.
In an action against a carrier for the death
In an action for injuries, statements by in- jured party to her physician as to how she was injured were not admissible in favor of plain- tiff.-Hardin v. St. Louis Southwestern Ry. Co. of Texas (Tex. Civ. App.) 440. * Point annotated. See syllabus.
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