Imágenes de páginas

$ 6. Hearsay.

-City of St. Joseph ex rel. Forsee y. Baker
On an issue of whether a husband or wife (Mo. App.) 1122.
owned certain property, certain testimony of
the county clerk as to the husband's state- tiations for the trade held not to prevent his

A letter written by a purchaser pending nego-
ments in assessing the property held hearsay testifying what the agreement as to price was.
and incompetent, under Kirby's Dig. $ 3095,

-Oneal v. Weisman (Tex. Civ. App.) 290.
subd. 4.—Terry v. Clark (Ark.) 987.

Where a contract for the sale of land de-
Testimony of market value of cattle at a cer- scribed the vendor as the "estate of F.,” parol
tain place, based on information received from evidence that by the quoted words was meant
others, is hearsay and incompetent.- Texas & pot the heirs, legatees, and devisees of F.. but
P. Ry. Co. v. Arnett (Tex. Civ. App.) 448.

those of another person, would be inadmissible,
In an action against railroads for damages because varying the written instrument.-Mor-
to plaintiff's cattle resulting from delay "in rison v. Hazzard (Tex. Civ. App.) 383.
transportation, certain testimony held not hear-
say.-Red River, T. & S. Ry. Co. v. Eastin &

In an action on mortgage note, evidence that
Knox (Tex. Civ. App.) 530.

a part of the consideration was a contem-

poraneous parol agreement for an extension
*It was error to permit a witness to testify without the knowledge of the sureties, held not
that a certain certificate located on the land inadmissible as contradicting a written con-
in controversy had been given to her husband tract.-Moroney v. Coombes (Tex, Civ. App.)
and was his separate property, where she was 430.
testifying to what her husband had told her.- $ 9. Opinion evideuce.
Stephens v. Herron (Tex. Civ. App.) 849.

*In an action against a railroad for the kill-
$ 7. Documentary evidence.

ing of cattle in the nighttime, certain testimony
Under Kirby's Dig. $ 3064, a certified copy

as to how far a common headlight would light
of the records of state land office by the com-

up a track held competent.–St. Louis, M. & S.
missioner held of equal diguity as evidence with E. Ry. Co. v. Shannon (Ark.) 851.
the originals.- Boynton v. Asha brauner (Ark.) Testimony as to how far one could see on a
566; Same v. Ashabraner, Id. 1011.

railroad track held incompetent unless the re-
*Exemplification of records of State Land sult of actual experiment.-Ayers v. Wabash
Commissioner is not the best evidence of a pat-| R. Co. (Mo. Sup.) 608.
ent, and is not competent, in the absence of a In an action for injuries to one whose vehicle
showing of the loss of the patent.-Carpenter was run down by a street car, held proper to
v. Smith (Ark.) 976.

permit him to testify as to the speed at which

the car
*A transcript of the record of the State Land Transit Co. (Mo. Sup.) 648.

was running. --- Sludery, St. Louis
Office is inadmissible to prove a conveyance
from the state, in the absence of a showing In an action for injuries to a servant em-
that the original patent is lost or cannot be ployed by a railroad, a witness held competent
produced.—Covingtou v. Berry (Ark.) 1005. to testify as to the purpose of a derailing
*A certified transcript from the land office switch, and as to where one should be placed.

-Smith v. Fordyce (Mo. Sup.) 679.
showing the record of the issuance of a patent
is not admissible in evidence, in the absence of In condemnation proceedings held error
any proof of the loss of the original.--Boynton exclude evidence as to the rental value of the
v. Ashabraner (Ark.) 1011.

land in controversy.-Union Ry. Co. v. Hunton

(Tenn.) 182.
$ 8. Parol or extrinsic evidence affect-

In an action for death of deceased while
ing writings.
In action on note, parol evidence of condition that it was witness' opinion that deceased was

walking on defendant's railroad track, evidence
on which note was delivered held admissible.-
Graham v. Remmel (Ark.) 899.

one of two men he saw walking on the track

shortly before deceased was killed held admis-
Ky. St. 1903, 88 470, 472, 656, 679, held to sible.—Gulf, C. & S. F. Ry. Co. v. Matthews
render parol evidence admissible to show the (Tex. Sup.) 192.
premiums stipulated for in a policy of in-
surance.-Continental Casualty Co. v. Jasper

In a will contest, the opinion of a witness that
Ky.) 1078.

testator was not capable of self-control or self-

In an action for failure to deliver a tele- Boone (Tex. Civ. App.) 262.
gram held proper to permit addressee to testify
what he would have uuderstood from the mes-

In a will contest, the question whether tes-
sage.-Elam v. Western Union Telegraph Co.tator controlled his wife or was controlled by

the wife called for a conclusion.-Franklin y.
(Mo. App.) 115.

Boone (Tex. Civ. App.) 262.
Where parties executed a written contract,
such contract would be conclusively presumed held admissible under exception to general rule.

Conclusions or opinions of common observers
to contain all of the terms and constitute a
waiver of all matters discussed not included

-McCabe v. San Antonio Traction Co. (Tex.

Civ. App.) 387.
therein.-Standard Mfg. Co. v. Hudson Mo.
App.) 137.

In action for injury to passenger, admissi-

bility of testimony of eyewitness as to cause of
Where defendant signed a written contract passenger's fall held not affected, because a
to purchase goods, he would be conclusively conclusion of witness.-McCabe v. San Antonio
presumed know the contents thereof.

Traction Co. (Tex. Civ. App.) 387.
Standard Mfg. Co. v. Hudson (Mo. App.) 137.

In au' action against a carrier for damages
Oral testimony is admissible to explain the to a shipment of cattle, a witness held properly
meaning of figures and abbreviations employed allowed to state from his personal knowledge
in a mechanie's lien statement.--Kneisley Lum- the freight rate between two points.--Texas
ber Co. v. Edward B. Stoddard Co. (Mo. App.) Cent. R. Co. y. West (Tex. Civ. App.) 426.

The belief or opinion of a witness to the ef-
Testimony is admissible to establish the fect that certain other persons would swear to
fact of the execution of a prior deed, which the truth was not admissible.—Hardin v. St.
has subsequently been changed as to date, Louis Southwestern Ry. Co. of Texas (Tex.
consideration, and the addition of property. I Civ. App.) 110.

* Point annotated. See syllabus.





In an action by a husband for injuries to his granted, the exceptant could not incorporate
wife, he may testify from his actual knowledge, the proceedings in a bill filed at a subsequent
derived from personal observation as to the ef- term.-City of St. Louis v. Lawton (Mo. Sup.)
fect on the wife of her efforts to work, without 80.
qualifying as an expert.-Chicago, R. I. & T. In the absence of a bill of exceptions pre-
Ry. Co. v. Jones (Tex. Civ. App.) 445.

pared as prescribed by Sayles' Ann. Civ. St.
Witnesses held not qualified to give their 1897, art. 1369, the appellate court must ac-
opinions as to effect of obstructions on natural cept the bill prepared by the court.--Ray v.
flow of water of a stream.-Gulf, C. & S. F. Pecos & N. T. Ry. Co. (Tex. Civ. App.) 466.
Ry. Co. v. Harbison (Tex. Civ. App.) 432;
Same v. Wetherly (Tex. Civ. App.) 436; Same
v. Oates (Tex, Civ. App.) 457.

It is not error to permit a witness to testify See “Damages,” $ 4.
from his own knowledge as to what the freight For wrongful death, see "Death,” $ 1.
rates between two points are.—Texas Cent.
Ry. Co. v. Miller (Tex. Civ. App.) 499.
In an action by an employé for injuries

through negligence, a question asked a medical
expert witness held not objectionable in form. Regulation of traffic in intoxicating liquors, see

-Chicago, R. I. & M. Ry, Co. v. Harton (Tex. "Intoxicating Liquors."
Civ. App.) 857.

In an action for injuries, the opinion of a EXCISE COMMISSIONER.
physician, based on the fact that plaintiff seem-
ed to be in good health, as to whether his brain Duty as to making and certifying record in
was in any way affected by the injury, was com-
petent.-Chicago, R. I. & M. Ry, Co. v. Har-

relation to granting dramshop licenses, see
ton (Tex. Civ. App.) 857.

"Certiorari,” 8 2.
8 10. Weight and sufficiency.
In order to support an action based on cir-

cumstantial evidence, the circumstances must
form a connected chain pointing to a single See "Homicide,” s 5.
conclusion, or a number of independent cir-
cumstances pointing in the same direction.

Fields V. Missouri Pac. Ry. Co. (Mo. App.)

See "Attachment”; “Garnishment”; “Judicial


Exemptions, see “Exemptions"; "Homestead."
Of expert witnesses, see "Evidence," $ 9. § 1. Property subject to execution.
Of witnesses in general, see "Witnesses," $ 2. *A levy on a tenant's interest in a crop not

removed from the premises held valid.-Ĝroes-

beck v. Evans (Tex, Civ. App.) 889.

$ 2. Lien, levy or extent, and oustody
Necessity for purpose of review, see "Appeal

of property.
and Error," $ 2.

*A constable levying under an execution from
Taking exceptions at trial. "Criminal a justice held to have secured a prior lien as
Law," $ 15; "Trial," $$ 2, 10.

against a sheriff levying under execution from
To pleading, see "Pleading,” § 4.

the circuit court.- Miller v. Grady (Ark.) 963.

§ 3. Stay, quashing, vacating, and re-

lief against execution.

Owners of certain cattle held entitled to en-
Necessity for purpose of review, see "Appeal join the collection of a judgment in replevin in
and Error,'' g 7.

favor of the holders of a junior claim thereon,

which judgment in effect represented the cat-
§ 1. Nature, form, and contents in gen- tle.—Tootle v. Buckingham (Mo. Sup.) 619.

Under the express provisions of Sayles' Ann. § 4. Sale.
Civ. St. 1897, art. 1362, where evidence in the Laws 1866–67, p. 317, changing the time of
statement of facts would explain or show the holding court in Arkansas county, held not to
relevancy of evidence in bill of exceptions, it affect an order for the publication of a warning
is sufficient for bill to refer to such evidence order in attachment made at the May, 1867,
without setting it out.-Northern Texas Trac- term of that court.-Williams v. Bennett (Ark.)
tion Co. v. Yates (Tex. Civ. App.) 283.

$ 2. Settlement, signing, and filing.

That a foreign judgment sued on was not
*An instrument not signed or approved by the properly authenticated held not an objection
trial judge held not to be considered as a sup-

which could be urged to defeat the validity of
plemental bill of exceptions.-Flint v. Illinois & sale of real estate under the attachment.-
Cent. R. Co. (Ky.) 1035.

Williams v. Bennett (Ark.) 600.
The amendment of defendant's bill of excep-

Plaintiff held guilty of laches precluding them
tions by incorporating into it an admission, from making certain objectious to defendant's
contained in plaintiff's bill, of defendant's coun-

title to land acquired under an attachment pro-
sel, that the accident was the result of de ceeding.-Williams v. Bennett (Ark.) 600.
fendant's negligence, if allowable, would not Where land was sold under an attachment,
materially alter the case, where the admission the title of the purchaser was not subject to
was nothing more than what the uncontradicted collateral attack for irregularities which might
evidence showed was the fact.-Reynolds v. St. have been cured by amendment.-Williams v.
Louis Transit Co. (Mo. Sup.) 50.

Bennett (Ark.) 600.
Where no bill of exceptions was filed during *The purchases at execution sale is not pre-
the term, or within an extension of time then cluded from setting up his rights when acquir-

• Point annotated. See syllabus.



ed by failure of the constable to make proper EXECUTORY CONTRACTS.
return.---Miller v. Grady (Ark.) 963.

A sheriff's deed given pursuant to execution of sale, see “Sales,” $ 2.
sale held not required to contain the recitals
which the execution return is required to con-

tain by Rev. St. 1899, 8 3617.-Kessuer v.
Phillips (Mo. Sup.) 66.

For malicious acts of servant, see "Master and

Servant," $ 10.
See "Descent and Distribution”; “Wills."

Actions for wrongful death, see “Death,” $ 1. As evidence, see “Evidence," 8 7.
Authority to sign protest against public im-
provement in city, see "Municipal Corpora-

tions," 5.
Refusal to sue for wrongful death of decedent, See “Homestead."
see "Death," 8 1.

From service of process, see “Process," $ 2.
§ 1. Collection and management of es-

§ 1. Nature and extent.
A conveyance in fee by the widow and chil-

A creditor, obtaining judgment against a gar-
dren of a testator held to convey, by virtue of nishee for a debt due the principal debtor for
his will, the fee to a creditor of the testator in goods bought by the garnishee, could levy on
settlement of his claim.-Kerr v. Long's Ex'r the goods; they not being exempt under Const.
(Ky.) 1068.

1874, art. 9, § 1, and Kirby's Dig. $ 4966.--

Liddell v. Jones (Ark.) 961.
8 2. Distribution of estate.
Under a will a loss caused by the insolvency

of an executor held to fall upon the entire
estate.-Barret v. Gwyn (Ky.) 1096.

To pleading as evidence against agent, see
§ 3. Sales and conveyances under order "Principal and Agent," $ 2.

of court.
The validity of an executor's sale of land is

not affected by the fact that the deed was
made to the husband of the successful bidder In civil actions, see “Evidence,” $ 9.
at her request, even though the purchase price în

criminal prosecutions,

was paid by the wife.— West v. Burgie (Ark.)

Law," § 11.
In a suit to set aside an executor's deed on

the ground that the name of the defendant as
grantee was fraudulently inserted, evidence See “Brokers”; “Principal and Agent."
held to show that the defendant paid the pur-
chase price.- West v. Burgie (Ark.) 557.

Order for the sale of lands of a decedent hela
not subject to collateral attack, though the See “Malicious Prosecution.”
proof of publication was made by the publish-
ers as a firm.-Robbins v. Boulware (Mo. Sup.)


An administrator's sale held not subject to Hearsay in prosecution for swindling,
collateral attack because of insufficiency of no- “Criminal Law," § 9.
tice thereof.-Robbins v. Boulware (Mo. Sup.)

An indictment for swindling held not to charge

any offense against the laws of the state.-
An heir held not entitled to complain in an

Curtis v. State (Tex. Cr. App.) 236.
ejectment suit of delay in sale of lands of the
ancestor for the payment of debts.-Robbins v.

In a prosecution for swindling by means of
Boulware (Mo. Sup.) 674.

pretended sale of property, induced by false
Proceedings in probate court for the sale of ants’ duty to ascertain the truth or falsity of

representations of ownership, charge on defend-
land of a decedent held not subject to collateral the representations held properly refused.
attack merely because the petition for the sale Brown v. State (Tex. Cr. App.) 811.
contained no affidavit as required by statute.-
Robbins v. Boulware (Mo. Sup.) 674.

Deed conveying property held admissible un-

der an indictment alleging fraudulent sale of
Rev. St. 1879, § 148, requiring notice of pro- property.-Brown v. State (Tex. Cr. App.) 811.
ceedings for the sale of land by a decedent to
be published four weeks in some newspaper be-

In order to constitute one guilty of swindling
fore the term of court, does not require the by means of a pretended sale of property, it is
publication for the four weeks immediately pre-

not necessary that the defrauded purchaser be
ceding the term of court.- Robbins v. Boul- involuntarily dispossessed of the property sold
ware (Mo. Sup.) 674.

to him.-Brown v. State (Tex. Cr. App.) 811.
Failure of vendor, after decease of vendee,
to enforce remedy under vendor's lien through

the probate court, held to result in a loss of
the debt. Sayles' Ann. Civ. St. 1897, art. 2121. See “Perjury."
-Wall v. Club Land & Cattle Co. (Tex. Civ.
App.) 534.

& 4. Foreign and ancillary administra- see "Courts," § 1; “Removal of Causes.”

*A married woman, acting as a foreign ad-
ministratrix, held entitled to sue in Arkansas.

Kirby's Dig. 88 6003, 7823.–St. Louis, I. M.
& S. Ry. Co. v. Cleere (Ark.) 995.

Of attorney, see "Attorney and Client," $ 3.
* Point annotated. See syllabus.



on sale of the land.-Longino v. Wester (Tex.

Civ. App.) 445.
Oreation by deed, see “Deeds," 2.


Liability of carrier for destruction of goods

by, see “Carriers," 8 1.
See “Master and Servant," $86, 9.
Concurrent negligence of employer and fellow
servant as affecting question of proximate

cause of injury, see “Negligence," $ 2.

See "Waters and Water Courses," $ 2.

Duty of railroad to fence track, see "Rail-
roads," $ 8.

See “Trusts," $ 3.
Instruction in action for breach of contract
relating to fences, see "Contracts,” s 3.


As element of robbery, see “Robbery."
Acquirement of stock of ferry company by FORCIBLE DEFILEMENT.

railroad corporation, see "Corporations," $ 3.
Tenant of ferry acting as servant after ex- See "Rape."
piration of tenancy, see “Master and Ser-
vant," $ 1.

§ 1. Regulation and operation.
*A ferryman becomes responsible for the safe- of vendor's lien, see "Vendor and Purchas-

Or lien, see “Mechanics' Liens," $ 2.
ty of a team which undertakes to use the ferry
as soon as the operator of the ferry directs the

er," § 4.
driver of the team to drive upon the ferryboat.
- Wilson v. Alexander (Tenn.) 935.

*Ferryman on whose boat mules were being see "Executors and Administrators," $ 4.
driven held negligent. — Wilson V. Alexander
(Tenn.) 935.
*Driver of team held not guilty of contribu-

tory negligence in driving upon a ferryboat
which he knew was not fastened to the bank.- See “Corporations," $$ 1, 2, 5; “Railroads," $ 1.
Wilson v. Alexander (Tenn.) 935.

Action by on foreign judgment, see "Judg-

ment," $ 10.

Bill of exceptions, see "Exceptions, Bill of," $ 2.
Criminal information or complaint, see “In- See "Judgment," 88 10, 12.

dictment and information," 8 1.
Record on appeal or writ of error, see "Ap-

peal and Error," $ 9.
Written instrument in justice's court,
“Justices of the Peace," $ 1.

Of homestead, see "Homestead," $ 1,
Of insurance, see "Insurance," 8 5.

Of permit to foreign corporation, see “Corpora-

tions," $ 6.

Of railroad charter, see “Railroads," $ 1.
Appealability, see "Appeal and Error," $ 1. Of rights under contract for sale of realty, see

“Vendor and Purchaser," $ 2.

Review on appeal or writ of error, see “Appeal

and Error," 8 21.
Special findings by jury, see "Trial," 8 12.

Payment of forged paper by bank, see "Banks

and Banking," $ 1.

An indictment for forgery of a check held

bad for failing to contain innuendo averments
For violation of city ordinances, see "Municipal explaining certain terms in the check. Mc-
Corporations," § 6.

Bride v. State (Tex. Cr. App.) 237.

See "Insurance."

See "Judgment,” $8 8, 9.

See "Arson."
Caused by operation of railroad, see "Rail- Bar to prosecution, see "Criminal Law," $ 5.
roads," § 9.

Timber cut from land and piled thereon for See “Action," § 2; "Ejectment"; "Trespass,"
the purpose of building a fence does not pass 8 1; "Trover and Conversion."

• Point annotated. See syllabus.




subsequent owners.-Cheatham v. Hicks (Ky.)

See “Seduction," 8 1.

§ 3. Sales of goods.

A sale of personal property held void, under

Kirby's Dig. $ 3656.—Taylor v. Godbold (Ark.)

Corporate franchises, see “Corporations,". $ 2.
Estoppel to assert validity, see "Estoppel,” § 1. & 4. Requisites and sufficiency of writ-
Forfeiture of railroad franchise, see "Rail-

roads," 8 1.

Telegram and letter held not a sufficient mem-
Of street railroad company,

"Street orandum of a contract to satisfy the statute of
Railroads," $ 1.

frauds. Kirby's Dig. $ 3656.-Wm. Fait Co. v.
Power of legislature to grant and control in Anderson (Ark.) 903.

cities, see "Municipal Corporations," $ 3. A memorandum evidencing the sale of per-
Right to grant pending injunction to restrain sonal property is not rendered insufficient as to
declaration of election on question of annexa- | designation of the parties by reason of the fact
țion of property to municipality, see “In- that one of them is acting as agent for an un-
junction,” g 2.

disclosed principal; parol evidence being_ad-
Right to jury trial in action for forfeiture of, missible to prove the agency.-Darnell v. Laf-
see "Jury," 1.

ferty (Mo. App.) 784.

A memorandum evidencing the sale of per-
FRATERNAL ASSOCIATIONS. sonal property is sufficient, with regard to the

description of the subject-matter, if the de-
See "Insurance," 8 8.

scription, taken together with the facts sur-
rounding the transaction, identifies the subject-

matter.-Darnell v. Lafferty (Mo. App.) 784.

Under Rev. St. 1899, § 3419 (Statute of
See “False Pretenses”; “Fraudulent Convey. Frauds), a memorandum evidencing the sale of

personal property must contain the essential
Conclusions in pleading, see "Pleading," $ 1.

terms of the contract, expressed with such cer-
Instructions in general, see “Trial," $ 5.

tainty that it may be understood without re-
Motion to make allegations of more definite | (Mo. App.) 784.

course to parol evidence.—Darnell v. Lafferty
and certain, see “Pleading,” $ 7.

A written memorandum of a sale of person-
In particular classes of conveyances, contracts, alty held sufficiently definite as to time and
or transactions.

place of delivery to satisfy the statute of
See "Release," $ 1.

frauds.—Darnell v. Lafferty (Mo. App.) 784.
Acquirement of control of ferry by railroad as, A memorandum evidencing the sale of per-
see "Corporations," $ 3.

sonal property is sufficient to satisfy the stat-
$ 1. Deception constituting fraud, and and place of delivery.-Darnell v. Lafferty (Mo.

ute of frauds, though it does not state the time
liability therefor.
A purchaser held entitled to recover damages

App.) 784.
for false representations of the seller innocent- Where a contract for the sale of cattle fixed
ly made.-Oneal v. Weisman (Tex. Civ. App.) | the price at a certain amount per pound, and

made no other stipulation as to payment, the
Certain representations and concealments on

price was payable in cash at the time and
the part of one joint purchaser of property held place of delivery. — Darnell v. Lafferty (Mo.
to relate to material matters, and to be such

App.) 784.
as the other purchaser had a right to rely upon.

A memorandum evidencing the sale of per-
-Paddock v. Bray (Tex. Civ. App.) 419. sonal property described as ten head of cows

and heifers is sufficiently definite in its descrip-
$ 2. Actions.

tion of the subject-matter to satisfy the stat-
In an action wherein defendant was charged ute of frauds.-- Darnell v. Lafferty (Mo. App.)
with fraud in a sale of plaintiff's farm, evi- 781.
dence held to sustain judgment for defendant.
--Burgess v. Deierling (Mo. App.) 770, 771.

Where a contract for the sale of land showed
on its face that a part of the land was owned

by an individual and part by a certain estate,
FRAUDS, STATUTE OF. but did not describe the respective parts owned

by each, the contract was insufficient to com-
is affecting contract made by agent, see ply with Sayles' Rev. Civ. St. 1897, art. 2543
“Principal and Agent," $ 2.

(statute of frauds).—Morrison v. Hazzard (Tex.
Operation and effect as to right to specific per- Civ. App.) 385.

formance, see “Specific Performance," $ 1. A contract for the sale of realty, describing
Operation on trusts, see “Trusts," $ 1.

the vendor as the “estate of F." did not suffi-
§ 1. Promises to answer for debt, de- ciently describe the vendor to comply with

fault, or miscarriage of another. Sayles' Rev. Civ. St. 1897, art. 2543 istatute
The complaint in an action on account hela of frauds).-Morrison v. Hazzard (Tex. Civ.
to show a suit on an original undertaking, to App.) 385.
which the statute of frauds was not a defense.
-Cauthron Lumber Co. v. Hall (Ark.) 394. FRAUDULENT CONVEYANCES.

*A promise held uot within the statute of
frauds, as one to answer for the debt of an- By bankrupt, see "Bankruptcy," $ 2.
other.-Long v. McDaniel (Ark.) 964.

Of homestead, see “Homestead," $ 5.
§ 2. Real property and estates and in-8 1. Transfers and transactions invalid.
terests therein.

Under Const. art. 9, § 3, judgment creditor
*Where adjoining landowners agree upon a cannot complain of a conveyauce by the judg-
boundary line and occupy according to the ment debtor of his homestead, nor reach the
agreement, it is not within the statute of property so conveyed in the hands of the gran-
frauds, but is enforceable in equity as against tee.-Isbell v. Jones (Ark.) 593.

* Point annotated. See syllabus.

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