-City of St. Joseph ex rel. Forsee v. Baker
(Mo. App.) 1122.
On an issue of whether a husband or wife
owned certain property, certain testimony of
A letter written by a purchaser pending nego-
the county clerk as to the husband's state-
tiations for the trade held not to prevent his
ments in assessing the property held hearsay testifying what the agreement as to price was.
and incompetent, under Kirby's Dig. 8 3095,Oneal v. Weisman (Tex. Civ. App.) 290.
subd. 4.-Terry v. Clark (Ark.) 987.
Testimony of market value of cattle at a cer-
tain place, based on information received from
others, is hearsay and incompetent.-Texas &
P. Ry. Co. v. Arnett (Tex. Civ. App.) 448.
In an action against railroads for damages
to plaintiff's cattle resulting from delay in
transportation, certain testimony held not hear-
say. Red River, T. & S. Ry. Co. v. Eastin &
Knox (Tex. Civ. App.) 530.
*It was error to permit a witness to testify
that a certain certificate located on the land
in controversy had been given to her husband
and was his separate property, where she was
testifying to what her husband had told her.-
Stephens v. Herron (Tex. Civ. App.) 849.
Where a contract for the sale of land de-
scribed the vendor as the "estate of F.," parol
evidence that by the quoted words was meant
not the heirs, legatees, and devisees of F., but
those of another person, would be inadmissible,
because varying the written instrument.--Mor-
rison v. Hazzard (Tex. Civ. App.) 385.
In an action on mortgage note, evidence that
a part of the consideration was a contem-
poraneous parol agreement for an extension
without the knowledge of the sureties, held not
inadmissible as contradicting a written con-
tract.-Moroney v. Coombes (Tex. Civ. App.)
*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. Ashabrauner (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 Landsult 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
showing of the loss of the patent.-Carpenter
v. Smith (Ark.) 976.
*A transcript of the record of the State Land
Office is inadmissible to prove a conveyance
from the state, in the absence of a showing
that the original patent is lost or cannot be
produced. Covington v. Berry (Ark.) 1005.
*A certified transcript from the land office
showing the record of the issuance of a patent
is not admissible in evidence, in the absence of
any proof of the loss of the original.-Boynton
v. Ashabraner (Ark.) 1011.
§ 8. Parol or extrinsic evidence affect-
ing writings.
In action on note, parol evidence of condition
on which note was delivered held admissible.-
Graham v. Remmel (Ark.) 899.
Ky. St. 1903, §§ 470, 472, 656, 679, held to
render parol evidence admissible to show the
premiums stipulated for in a policy of in-
surance.-Continental Casualty Co. v. Jasper
(Ky.) 1078.
In an action for failure to deliver a tele-
gram held proper to permit addressee to testify
what he would have understood from the mes-
sage.- -Elam v. Western Union Telegraph Co.
(Mo. App.) 115.
Where parties executed a written contract,
such contract would be conclusively presumed
to contain all of the terms and constitute a
waiver of all matters discussed not included
therein. Standard Mfg. Co. v. Hudson (Mo.
App.) 137.
Where defendant signed a written contract
to purchase goods, he would be conclusively
presumed to know the contents thereof.-
Standard Mfg. Co. v. Hudson (Mo. App.) 137.
Oral testimony is admissible to explain the
meaning of figures and abbreviations employed
in a mechanic's lien statement.-Kneisley Lum-
ber Co. v. Edward B. Stoddard Co. (Mo. App.)
In an action for injuries to one whose vehicle
was run down by a street car, held proper to
permit him to testify as to the speed at which
the car
Transit Co. (Mo. Sup.) 648.
was running. Sluder v. St. Louis
In an action for injuries to a servant em-
ployed by a railroad, a witness held competent
to testify as to the purpose of a derailing
switch, and as to where one should be placed.
-Smith v. Fordyce (Mo. Sup.) 679.
In condemnation proceedings held error to
exclude evidence as to the rental value of the
land in controversy.-Union Ry. Co. v. Hunton
(Tenn.) 182.
In an action for death of deceased while
walking on defendant's railroad track, evidence
that it was witness' opinion that deceased was
one of two men he saw walking on the track
shortly before deceased was killed held admis-
sible.-Gulf, C. & S. F. Ry. Co. v. Matthews
(Tex. Sup.) 192.
In a will contest, the opinion of a witness that
testator was not capable of self-control or self-
government was incompetent.-Franklin
Boone (Tex. Civ. App.) 262.
In a will contest, the question whether tes-
tator controlled his wife or was controlled by
the wife called for a conclusion.-Franklin v.
Boone (Tex. Civ. App.) 262.
held admissible under exception to general rule.
Conclusions or opinions of common observers
-McCabe v. San Antonio Traction Co. (Tex.
Civ. App.) 387.
In action for injury to passenger, admissi-
bility of testimony of eyewitness as to cause of
passenger's fall held not affected, because a
conclusion of witness.-McCabe v. San Antonio
Traction Co. (Tex. Civ. App.) 387.
In an action against a carrier for damages
to a shipment of cattle, a witness held properly
allowed to state from his personal knowledge
the freight rate between two points.-Texas
Cent. R. Co. v. West (Tex. Civ. App.) 426.
The belief or opinion of a witness to the ef-
fect that certain other persons would swear to
the truth was not admissible.-Hardin v. St.
Louis Southwestern Ry. Co. of Texas (Tex.
Testimony is admissible to establish the
fact of the execution of a prior deed, which
has subsequently been changed as to date,
consideration, and the addition of property. | Civ. App.) 440.
* 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.
Ry. Co. v. Jones (Tex. Civ. App.) 445.
Witnesses held not qualified to give their
opinions as to effect of obstructions on natural
flow of water of a stream.-Gulf, C. & S. F.
Ry. Co. v. Harbison (Tex. Civ. App.) 452;
Same v. Wetherly (Tex. Civ. App.) 456; Same
v. Oates (Tex. Civ. App.) 457.
It is not error to permit a witness to testify
from his own knowledge as to what the freight
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.
Chicago, R. I. & M. Ry. Co. v. Harton (Tex.
Civ. App.) 857.
In an action for injuries, the opinion of a
physician, based on the fact that plaintiff seem-
ed to be in good health, as to whether his brain
was in any way affected by the injury, was com-
petent. Chicago, R. I. & M. Ry. Co. v. Har-
ton (Tex. Civ. App.) 857.
§ 10. Weight and sufficiency.
In order to support an action based on cir-
cumstantial evidence, the circumstances must
In the absence of a bill of exceptions pre-
pared as prescribed by Sayles' Ani. Civ. St.
1897, art. 1369, the appellate court must ac-
cept the bill prepared by the court.-Ray v.
Pecos & N. T. Ry. Co. (Tex. Civ. App.) 466.
EXCESSIVE DAMAGES.
See "Damages," § 4.
For wrongful death, see "Death,” § 1.
Regulation of traffic in intoxicating liquors, see
"Intoxicating Liquors."
EXCISE COMMISSIONER.
Duty as to making and certifying record in
relation to granting dramshop licenses, see
"Certiorari," § 2.
form a connected chain pointing to a single See "Homicide," § 5.
conclusion, or a number of independent cir-
cumstances pointing in the same direction.-
Fields v. Missouri Pac. Ry. Co. (Mo. App.)
134.
Of expert witnesses, see "Evidence," § 9.
Of witnesses in general, see "Witnesses," § 2.
Necessity for purpose of review, see "Appeal
and Error," § 2.
Taking exceptions at trial, see "Criminal
Law," § 15; "Trial," §§ 2, 10.
To pleading, see "Pleading," § 4.
EXCEPTIONS, BILL OF.
Necessity for purpose of review, see "Appeal
and Error," § 7.
§ 1. Nature, form, and contents in gen-
Under the express provisions of Sayles' Ann.
Civ. St. 1897, art. 1362, where evidence in the
statement of facts would explain or show the
relevancy of evidence in bill of exceptions, it
is sufficient for bill to refer to such evidence
without setting it out.-Northern Texas Trac-
tion Co. v. Yates (Tex. Civ. App.) 283.
§ 2. Settlement, signing, and filing.
*An instrument not signed or approved by the
trial judge held not to be considered as a sup-
plemental bill of exceptions.-Flint v. Illinois
Cent. R. Co. (Ky.) 1055.
The amendment of defendant's bill of excep-
tions by incorporating into it an admission,
contained in plaintiff's bill, of defendant's coun-
sel, that the accident was the result of de-
fendant's negligence, if allowable, would not
materially alter the case, where the admission
was nothing more than what the uncontradicted
evidence showed was the fact.-Reynolds v. St.
Louis Transit Co. (Mo. Sup.) 50.
Where no bill of exceptions was filed during
the term, or within an extension of time then
See "Attachment"; "Garnishment"; "Judicial
Sales."
Exemptions, see "Exemptions"; "Homestead.”
§ 1. Property subject to execution.
*A levy on a tenant's interest in a crop not
removed from the premises held valid.-Groes-
beck v. Evans (Tex. Civ. App.) 889.
§ 2. Lien, levy or extent, and custody
of property.
A constable levying under an execution from
a justice held to have secured a prior lien as
against a sheriff levying under execution from
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-
join the collection of a judgment in replevin in
favor of the holders of a junior claim thereon,
which judgment in effect represented the cat-
tle.-Tootle v. Buckingham (Mo. Sup.) 619.
§ 4. Sale.
Laws 1866-67, p. 317, changing the time of
holding court in Arkansas county, held not to
affect an order for the publication of a warning
order in attachment made at the May, 1867,
term of that court.-Williams v. Bennett (Ark.)
600.
That a foreign judgment sued on was not
properly authenticated held not an objection
which could be urged to defeat the validity of
a sale of real estate under the attachment.-
Williams v. Bennett (Ark.) 600.
Plaintiff held guilty of laches precluding them
from making certain objectious to defendant's
title to land acquired under an attachment pro-
ceeding.-Williams v. Bennett (Ark.) 600.
Where land was sold under an attachment,
the title of the purchaser was not subject to
collateral attack for irregularities which might
have been cured by amendment.-Williams v.
Bennett (Ark.) 600.
*The purchaser at execution sale is not pre-
cluded from setting up his rights when acquir-
Point annotated. See syllabus.
ed by failure of the constable to make proper
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, § 3617.-Kessuer v.
Phillips (Mo. Sup.) 66.
EXECUTORS AND ADMINISTRATORS.
See "Descent and Distribution"; "Wills."
Actions for wrongful death, see "Death," § 1.
Authority to sign protest against public im-
provement in city, see "Municipal Corpora-
tions," § 5.
Refusal to sue for wrongful death of decedent,
see "Death," § 1.
1. Collection and management of es-
tate.
A conveyance in fee by the widow and chil-
dren of a testator held to convey, by virtue of
his will, the fee to a creditor of the testator in
settlement of his claim.-Kerr v. Long's Ex'r
(Ky.) 1068.
§ 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.
§ 3. Sales and conveyances under order
of court.
EXEMPLARY DAMAGES.
For malicious acts of servant, see "Master and
Servant," § 10.
EXEMPLIFICATIONS.
As evidence, see "Evidence," § 7.
EXEMPTIONS.
See "Homestead."
From service of process, see "Process," § 2.
§ 1. Nature and extent.
A creditor, obtaining judgment against a gar-
nishee for a debt due the principal debtor for
goods bought by the garnishee, could levy on
the goods; they not being exempt under Const.
1874, art. 9, § 1, and Kirby's Dig. § 4966.-
Liddell v. Jones (Ark.) 961.
To pleading as evidence against agent, see
"Principal and Agent," § 2.
EXPERT TESTIMONY.
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 In
was paid by the wife.-West v. Burgie (Árk.)
In a suit to set aside an executor's deed on
the ground that the name of the defendant as
criminal prosecutions, see
Law," § 11.
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 held
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.)
674.
An administrator's sale held not subject to
collateral attack because of insufficiency of no-
tice thereof.-Robbins v. Boulware (Mo. Sup.)
674.
An heir held not entitled to. complain in an
ejectment suit of delay in sale of lands of the
ancestor for the payment of debts.-Robbins v.
Boulware (Mo. Sup.) 674.
Proceedings in probate court for the sale of
land of a decedent held not subject to collateral
attack merely because the petition for the sale
contained no affidavit as required by statute.-
Robbins v. Boulware (Mo. Sup.) 674.
Rev. St. 1879, § 148, requiring notice of pro-
ceedings for the sale of land by a decedent to
be published four weeks in some newspaper be-
fore the term of court, does not require the
publication for the four weeks immediately pre-
ceding the term of court.-Robbins v. Boul-
ware (Mo. Sup.) 674.
FALSE PRETENSES.
Hearsay in prosecution for swindling, see
"Criminal Law," § 9.
An indictment for swindling held not to charge
any offense against the laws of the state.-
Curtis v. State (Tex. Cr. App.) 236.
In a prosecution for swindling by means of
pretended sale of property, induced by false
representations of ownership, charge on defend-
ants' duty to ascertain the truth or falsity of
the representations held properly refused.-
Brown v. State (Tex. Cr. App.) 811.
Deed conveying property held admissible un-
der an indictment alleging fraudulent sale of
property.-Brown v. State (Tex. Cr. App.) 811.
In order to constitute one guilty of swindling
by means of a pretended sale of property, it is
not necessary that the defrauded purchaser be
involuntarily dispossessed of the property sold
to him.-Brown v. State (Tex. Cr. App.) 811.
FALSE SWEARING.
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. §§ 6003, 7823.-St. Louis, I. M.
& S. Ry. Co. v. Cleere (Ark.) 995.
Of attorney, see "Attorney and Client," § 3.
* Point annotated. See syllabus.
*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 See "Corporations," §§ 1, 2, 5; “Railroads,” § 1.
which he knew was not fastened to the bank.-
Wilson v. Alexander (Tenn.) 935.
Bill of exceptions, see "Exceptions, Bill of," § 2.
Action by on foreign judgment, see "Judg-
ment," § 10.
Criminal information or complaint, see "In- See "Judgment," §§ 10, 12.
dictment and information," § 1.
Record on appeal or writ of error, see "Ap-
peal and Error," § 9.
Written instrument in justice's court, see
"Justices of the Peace," § 1.
FINAL JUDGMENT.
Appealability, see "Appeal and Error," § 1.
Review on appeal or writ of error, see "Appeal
and Error, § 21.
Special findings by jury, see "Trial," § 12.
FORFEITURES.
Of homestead, see "Homestead," § 1.
Of insurance, see "Insurance," § 5.
Of permit to foreign corporation, see "Corpora-
tions," § 6.
Of railroad charter, see "Railroads," § 1.
Of rights under contract for sale of realty, see
"Vendor and Purchaser," § 2.
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.
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 § 1; "Trover and Conversion."
* Point annotated. See syllabus.
Corporate franchises, see "Corporations," & 2.
Estoppel to assert validity, see "Estoppel," § 1.
Forfeiture of railroad franchise, see "Rail-
roads," § 1.
Of street railroad company, see "Street
Railroads," § 1.
Power of legislature to grant and control in
cities, see "Municipal Corporations," § 3.
Right to grant pending injunction to restrain
declaration of election on question of annexa-
tion of property to municipality, see "In-
junction," § 2.
Right to jury trial in action for forfeiture of,
see "Jury," § 1.
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Conclusions in pleading, see "Pleading," § 1.
Instructions in general, see "Trial," § 5.
Motion to make allegations of more definite
and certain, see "Pleading," § 7.
In particular classes of conveyances, contracts,
or transactions.
See "Release," § 1.
Acquirement of control of ferry by railroad as,
see "Corporations," § 3.
§ 1. Deception constituting fraud, and
liability therefor.
A purchaser held entitled to recover damages
for false representations of the seller innocent-
ly made.-Oneal v. Weisman (Tex. Civ. App.)
290.
Certain representations and concealments on
the part of one joint purchaser of property held
to relate to material matters, and to be such
as the other purchaser had a right to rely upon.
-Paddock v. Bray (Tex. Civ. App.) 419.
In an action wherein defendant was charged
with fraud in a sale of plaintiff's farm, evi-
dence held to sustain judgment for defendant.
--Burgess v. Deierling (Mo. App.) 770, 771.
FRAUDS, STATUTE OF.
As affecting contract made by agent, see
"Principal and Agent," § 2.
Operation and effect as to right to specific per-
formance, see "Specific Performance," § 1.
Operation on trusts, see "Trusts," § 1.
§ 1. Promises to answer for debt, de-
fault, or miscarriage of another.
The complaint in an action on account held
to show a suit on an original undertaking, to
which the statute of frauds was not a defense.
-Cauthron Lumber Co. v. Hall (Ark.) 594.
*A promise held not within the statute of
frauds, as one to answer for the debt of an-
other.-Long v. McDaniel (Ark.) 964.
§ 2. Real property and estates and in-
terests therein.
subsequent owners.-Cheatham v. Hicks (Ky.)
1093.
A sale of personal property held void, under
Kirby's Dig. § 3656.-Taylor v. Godbold (Ark.)
959.
4. Requisites and sufficiency of writ-
ing.
Telegram and letter held not a sufficient mem-
orandum of a contract to satisfy the statute of
frauds. Kirby's Dig. § 3656.-Wm. Fait Co. v.
Anderson (Ark.) 905.
A memorandum evidencing the sale of per-
sonal property is not rendered insufficient as to
designation of the parties by reason of the fact
that one of them is acting as agent for an un-
disclosed principal; parol evidence being_ad-
missible to prove the agency.-Darnell v. Laf-
ferty (Mo. App.) 784.
A memorandum evidencing the sale of per-
sonal property is sufficient, with regard to the
description of the subject-matter, if the de-
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
Frauds), a memorandum evidencing the sale of
personal property must contain the essential
terms of the contract, expressed with such cer-
tainty that it may be understood without re-
(Mo. App.) 784.
course to parol evidence.-Darnell v. Lafferty
A written memorandum of a sale of person-
alty held sufficiently definite as to time and
place of delivery to satisfy the statute of
frauds.-Darnell v. Lafferty (Mo. App.) 784.
A memorandum evidencing the sale of per-
sonal property is sufficient to satisfy the stat-
ute of frauds, though it does not state the time
and place of delivery.-Darnell v. Lafferty (Mo.
App.) 784.
Where a contract for the sale of cattle fixed
the price at a certain amount per pound, and
made no other stipulation as to payment, the
price was payable in cash at the time and
place of delivery. - Darnell v. Lafferty (Mo.
App.) 784.
A memorandum evidencing the sale of per-
sonal property described as ten head of cows
and heifers is sufficiently definite in its descrip-
tion of the subject-matter to satisfy the stat-
ute of frauds.-Darnell v. Lafferty (Mo. App.)
784.
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,
but did not describe the respective parts owned
by each, the contract was insufficient to com-
ply with Sayles' Rev. Civ. St. 1897, art. 2543
(statute of frauds).-Morrison v. Hazzard (Tex.
Civ. App.) 385.
A contract for the sale of realty, describing
the vendor as the "estate of F." did not suffi-
ciently describe the vendor to comply with
Sayles' Rev. Civ. St. 1897, art. 2543 (statute
of frauds).-Morrison v. Hazzard (Tex. Civ.
App.) 385.
FRAUDULENT CONVEYANCES.
By bankrupt, see "Bankruptcy," § 2.
Of homestead, see "Homestead," § 5.
§ 1. Transfers and transactions invalid.
Under Const. art. 9, § 3, judgment creditor
cannot complain of a conveyance by the judg-
ment debtor of his homestead, nor reach the
property so conveyed in the hands of the gran-
tee.-Isbell v. Jones (Ark.) 593.
* Point annotated. See syllabus.
*Where adjoining landowners agree upon a
boundary line and occupy according to the
agreement, it is not within the statute of
frauds, but is enforceable in equity as against
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