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C>4 (Ark.) It will be presumed that the owner of land attaching chattels thereto intends that they shall become a part of the realty, and his intention is the test as to whether they are irremovable fixtures.—W. B. Thompson & Co. V. Lewis, 179 S. W. 343. G:21 (Tex.Civ.App.) Stationary engine, bolted to concrete bed prepared therefor and attached by its shaft to the building, held a fixture, title to which passed to the purchaser.—Phillips v. Newsome, 179 S. W. 1123. Purchaser of real estate with mortgaged fixture held not bound with notice of chattel mortgage record.—Id. 6:27 (Tex.Civ.App.) Contract between mortgagor and mortgagee of personal property that same shall not become fixture upon attachment to realty held valid between parties.—Phillips v. Newsome, 179 S.W. 1123.
<=33 (Ark.) The leasehold estate of defendant who attaches fixtures to the land merges in the fee he afterwards acquires by purchase, so that fixtures attached prior to purchase are thereafter irremovable.—W. B. Thompson & Co. v. Lewis, 179 S. W. 343. <>35 (Ark.) Evidence held sufficient to show intention of owner that trade fixtures attached to the land should become a part of the realty. —W. B. Thompson & Co. v. Lewis, 179 S. W.
See Waters and Water Courses, 3:171.
F00D. See Statutes, @:20, 110%.
&=>25 (Tenn.) The duty of one who prepares and markets in bottles or sealed packages foods, drugs, or beverages to exercise ordinary care that nothing unwholesome or injurious is contained therein is based upon negligence.—Crigger v. Coca-Cola Bottling Co., 179 S. W. 155. One who prepares and puts on the market in bottles or sealed packages foods or beverages is liable for breach of a duty to the public in the preparation thereof, regardiess of the privity of contract to any one injured.-Id. In an action for damages for illness caused by swallowing a decomposed mouse in a bottle of coca-cola purchased from a local dealer to whom it had been sold by a bottling company, evidence held to sustain a finding that the bottling company was not at fault.—Id.
&=> 12 (Ark.) Where a forged order for an express package, not addressed to any particular person, was yet addressed to “Express Agt.,” directing him to “let the bearer have my package,” its uttering was forgery.—Stith V. $'. 179 S. W. 178. Q->28 (Tex.Cr.App.) An indictment for forgery need not state in the purport clause the names to the instrument forged.—Bethany v. State, 179 S. W. 1166. &=29 (Ark.) Indictment for forgery, not alleging any person, firm, or corporation to whom a forged order for an express package was passed. held bad upon demurrer.—Stith v. State, 179 S. W. 178.
&=34 (Tex.Cr.App.) Variance between the purport clause in indictment for forgery and instrument forged held fatal.—Bethany v. State, 179 S. W. 1166.
See Criminal Law, @:170–200.
the contract.—Chamberlain v. Ft. Smith Lumber Co., 179 S. W. 740.
X. PLEADING, EVIDENCE, TRIAL, AND REVIEW.
Q: 158 (Ky.) It will be presumed that a contract within the statute of frauds, as one to reconvey land, was oral, unless the pleader al'', # was in writing.—Todd v. Finley, 179 S.
I. TRANSFERS AND TRANSACTIONS INVALI
(A) Grounds of Invalidity in General.
&:3 (Ky.) The Sales in Bulk Act, §§ 1–4, enacted to prevent fraudulent sales and to protect a merchant's creditors, held valid.— #" Wire Fence Co. v. Patterson, 179 S.
C: 3 (Tex.) The Bulk Sales Law held a valid exercise of the police power, and not to unreasonably deprive the owners of merchandise of their control over it and right to contract as to it.-Owosso Carriage & Sleigh Co. v. McIntosh & Warren, 179 S. W. 257.
(I) Retention of Possession or Apparent Title by Grantor.
C> 132 (Ark.) Though a husband continued in possession after sale of a stock of drugs to his wife, it cannot be held presumptively fraudulent for that reason, where the drugs were in the wife's building, and she objected to the levy of an attachment by the husband's creditors.— Webb v. Van Vleet-Mansfield Drug Co., 179 S. W. 357. Q: 137 (Tex.Civ.App.) Under Vernon's Sayles’ Ann. Civ. St. 1914, art. 3968, grass seed raised by wife on her separate real estate held not a gift to her by her husband as against his creditors where actual possession was not given to the wife.—First Nat. Bank of Plainview V. McWhorter, 179 S. W. 1147.
III. REMEDIES OF CREDITORS AND PURCHASERS.
(A) Persons Entitled to Assert Invalidity.
&=206 (Ky.) Within Ky. St. § 1907, declaring one's transfer of property without consideration void as to his then existing liabilities, liability for price under a contract for purchase of goods previously made is then existing, even as to goods subsequently received.-Sterk V. Redman, 179 S. W. 577. <=208 (Ky.) Under Ky. St. 1915, § 1906, declaring that every gift, conveyance, or transfer of land made with intent to delay, hinder, or defraud creditors shall be void, a conveyance made with intent to hinder subsequent creditors is void and may be set aside.—Williamson v. Morris, 179 S. W. 45.
(B) Remedies on Ground of Nullity of Transfer.
©2229 (Tex.) Under Bulk Sales Law, § 1, a purchaser who did not comply with the statute is a trustee for the seller's creditors, and they may reach the debt by garnishment, though the goods have been sold and the proceeds disposed of.—Owosso Carriage & Sleigh Co. v. McIntosh & Warren, 179 S. W. 257.
(C) Right of Action to Set Aside Transfer, and Defenses. Q=241 (Ky.) Under Ky., St. 1915, § 1907a, it is unnecessary that execution against the debtor who transferred the property be returned unsatisfied, or that an attachment be attempted.Williamson v. Morris, 179 S. W. 45.
©271 (Ky.) In action in equity to subject property to judgment, defendant, who had received two jacks from the judgment debtor, had the burden of showing that one of them had died before the commencement of the action.— Commonwealth v. Filiatreau, 179 S. W. 20. &=295 (Ky.) Evidence in an action in equity by a judgment creditor to reach several jacks belonging to the judgment debtor and fraudulently turned over to the defendant held insufficient to show that two of the jacks had died before the commencement of the action.—Commonwealth v. Filiatreau, 179 S.W. 20. C:295 (Tex.Civ.App.) Evidence held sufficient to justify jury's finding that the conveyance of the premises to defendant was fraudulent as to the grantor's creditors.–McGough V. Finley, 179 S. W. 918.
Q:299 (Ry.) Evidence held to show that a conveyance by a husband of his land to his wife was in fraud of creditors.—Williamson v. Morris, 179 S. W. 45.
&=>300 (Ark.) In a creditors’ suit to uncover a parcel of realty in the hands of the judgment debtor's wife, evidence held sufficient to show that the land which the debtor conveyed was originally purchased with the wife's money.—Scott v. McCraw, Perkins & Webber Co., 179 S. W. 329.
Evidence held to support the chancellor's finding that the conveyance was voluntary, and to put the property beyond plaintiff's reach.-Id. The statement of a wife, asserting her insolvent husband's conveyance to her in preference to other creditors was in payment of a prior loan made without written evidence of an agreement to repay, should be corroborated by other evidence.-Id.
s:ttachment: Fraudulent Conveyances, 3:9
XI. WRONGFUL GARNISHMENT.
3×248 (Mo..App.) That return of writ by summoning garnishee was so defective as not to show a valid garnishment held not to conclude the attachment debtor on the question of damages from the attachment.—State ex rel. Williams v. Stipp, 179 S.W. 723.
Q: 16 (Ky.) Turnpike company licensing gas company to use its road for a main cannot, by contract, lessen the latter's obligation to maintain such main consistently with public safe£illiams v. Kentucky Heating Co., 179
&= 17 (Ky.) Gas company, contracting with turnpike company for laying of mains, held to undertake to exercise ordinary care to maintain mains so that the road would be kept in reasonably safe condition.—McWilliams v. Kentucky Heating Co., 179 S.W. 24. Q: 18 (Ky.) Negligence of county officers, in ordering plaintiff operator of steam roller to pass over gas main held not to excuse gas company from liability for plaintiff's injuries in explosion.–McWilliams v. Kentucky Heating Co., 179 S. W. 24. Where a gas company occupies a highway or turnpike with its main, whether under contract or by obligation of law it must maintain the main in such condition that the road will be reasonably safe.—Id. To render a gas company liable for an explosion of gas from a broken main, the injury must have been the natural and probable consequence of the negligent act, such that an ordinarily prudent man might have anticipated.—Id. &=220 (Ky.) In an action against a gas com- . pany for injuries to plaintiff operator of a steam roller in road repairing when the spikes of the machine's wheels pierced a main, resulting in an explosion, question of company's negligence held for the jury.—McWilliams v. Kentucky Heating Co., 179 S. W. 24.
See Fraudulent Conveyances, 3:137.
GRADE CROSSINGS. See Railroads, @:97.
See Indictment and Information, ©:137.
See Municipal Corporations, & 680-684.
See Frauds, Statute of, 6:23; Limitation of Actions, 3:46.
III. DISCHARGE OF GUARANTOR.
Q: 57 (Ky.) The extension of time for payment of a note which, when extended by the holder to the maker, will discharge a guarantor, must be based on a valid contract, founded on consideration, and for a definite time.—Marshall v. Hollingsworth, 179 S. W. 34. G->67 (Ky.) Negotiator of note indorsing and guarantying it unconditionally held not discharged, under Ky. St. § 3 (20b, by holder's failure to notify him of maker's default.—Marshall v. Hollingsworth, 179 S. W. 34.
IV. REMEDIES OF CREDITORs.
C>91 (Ky.) In an action against a guarantor of notes, evidence held insufficient to support defense that defendant's guaranty was written above his indorsement in blank Without his knowledge or consent.—Marshall v. Hollingsworth, 179 S. W. 34. In an action against the guarantor of a note, evidence held insufficient to sustain defendant's allegations that at maturity plaintiff agreed With the maker for an extension of one year.
GUARDIAN AND WARD.
IV. SALES AND CONVEYANCES UNDER, ORDER OF COURT.
C: 77 (Mo..App.) Probate courts have no power to authorize the sale or incumbrance of property of minor wards, except for their education Or support, or for investment; so that a deed of trust from guardian to secure attorney engaged in litigation, involving their property, was void.—Eaker V. Harvey, 179 S.W. 985. Q:290 (Ky.) Errors in proceedings upon guardian's action for sale of land of his minor wards held not to render the judgment and sale voidable, so that until appeal under Civ. Code Prac. § 745, or vacation under sections 391, 518, it was binding on all parties.—Harris v. Hopkins, 179 S. W. 14. Q>105 (Ky.) Under the express provision of Civ. Code Prac. § 391, the setting aside of a voidable sale of lands of infant wards does not affect the title of the guardian as purchaser, or of purchasers from him, if they were bona fide purchasers.—Harris v. Hopkins, 179 S. W. 14. Q: 107 (INy.) It is only in cases where there is an entire want of jursidiction that a judgment and sale of a minor ward’s land can be g's attacked.—Harris V. Hopkins, 179 S. W. 14.
VI. ACCOUNTING AND SETTLEMENT.
G-> 162 (Tex.Civ.App.) The commissions allowed the county judge by Rev. St. 1911, art. 3850, are payable on all cash receipts shown by any annual account of the guardian when such account is approved by the judge to whom it is presented, rather than of approval of the guard# final account.—Grice v. Cooley, 179 S. W. 1098. The word “exhibits,” as used in Rev. St. 1911, art. 3850, providing that a commission shall be allowed the county judge on cash receipts of guardians on approval of exhibits, refers to annual accounts.-Id.
See Prisons, Ç:10.
II. JURISDICTION, PROCEEDINGS, AND RELIEE'.
C+85 (Tex.Cr.App.) No evidence being offered to sustain the allegations of applicant for writ of habeas corpus, it must be presumed that the judgment committing him for contempt was correct.—Ex parte Long, 179 S. W. 567. G->| | 3 (Tex.Cr.App.) On appeal from an order in habeas corpus denying admission to bail, the Court of Criminal Appeals will not discuss the evidence.—Ex parte Sapp, 179 S. W. 109. Where, in habeas corpus, there was evidence warranting the conclusion of the court, in denying bail, that proof of guilt of a capital offense was strong, its order will be upheld on appeal. C> 1 13 (Tex.Cr.App.) A transcript of the stenographer's notes attached to an application for writ of habeas corpus, not being agreed to by the attorneys nor approved by the judge as
3:64 (Tex.Civ.App.) Injunction is the proper remedy where the commissioners' court is proceeding without authority to open a first-class 60-foot road; Vernon's Sayles’ Ann. Civ. St. 1914, art. 6866, giving appeal only as to adequacy of damages.—Currie v. Glasscock County, 179 S. W. 1095. If the commissioners’ court in laying out a first-class 60-foot road is acting in substantial compliance with Rev. St. 1911, art. 6863, it cannot be enjoined, though the road would irreparably injure one's land.—Id. The commissioners’ court can be enjoined if In laying out a 60-foot road under Rev. St. 1911, art. 6863, it has transcended its authority or grossly abused its discretion.—Id. Petition for injunction alleging the commissioners’ court fraudulently laid out a first-class 60-foot road several miles to the side of the route required by Rev. St. 1911, art. 6863, so as to pass through plaintiff's lands, states ground for relief.—Id. Q:68 (Mo..App.) In an action for encroachment upon a public highway, evidence held not sufficient to show that a sufficient amount of money and labor had been expended on the road so as to vest title thereto in the county under #"ws'". § 10446.—Copeland V. Pyrtle, 179
(C) Alteration, Vacation, or AbandonImment.
&:372 (Ky.) Under Ky. St. 1909, § 4303, where, on remonstrant's appeal to the circuit court in a proceeding to alter a highway, trial de novo is had and no error occurs, the objection that the court ignored remonstrant's exceptions to the commissioner's report is unavailing.—Carrick V. Garth, 179 S. W. 609.
It is not error for the court on appeal to correct a patent clerical error in the record o the proceedings before the board of commissioners from whom the case is appealed.—Id.
Where a judgment changing the location of a highway requires the erection of an obstruction across the old highway, the inclusion of such matter, though not essential to the decision, is not error.—Id.
II. HIGHVVAY DISTRICTS AND OFFICERS.
&:90 (Ark.) A special statute creating a road district for the improvement of a road running through an incorporated town held not void because it included property in such town without the consent of a majority in value of the property owners first obtained.—Nall v. Kelley, 179 S. W. 486
A special statute creating a district to improve a road running through an incorporated town held not invalid as invading the jurisdiction of the town by authorizing the improvement of a highway constituting one of the streets thereof.—Id. A special statute creating a road district held not invalid as not sufficiently describing the route of the road to be improved.—Id Proceedings under a statute creating a road improvement district held not invalid because One of the commissioners named was not a property owner within the district.—Id. A special statute creating a highway improvement district held not invalid, under Const. art. 19, § 20, as failing to require the board of commissioners to take an oath of office.—Id. <>90 (Ark.) Acts 1915 held not to authorize the Miller county highway and bridge district to construct a system of highway improvements without also constructing the contemplated bridge over the Red river.—Conway v. Miller £y Highway and Bridge Dist., 179 S. W.
G->95 (Ark.) The Legislature has power to confer upon a board of a road improvement district plenary power in the matter of selecting the materials as well as forming the plans for the improvement.—Nall v. Kelley, 179 S. W. 486.
Q->95 (Ark.) Statute requiring road overseers to keep roads in good condition held not to authorize incurring of indebtedness exceeding '" of district.—Weaver v. King, 179 S.
Under Kirby's Dig. §§ 7314, 7318, under optional system of working roads, held that road overseer has no authority to incur an indebtedness for work on his roads in excess of his district's revenues.—Id.
III. CONSTRUCTION, IMPROVEMENT, AND REPAIR.
3:99/2 (Ky.) A way used by the public for 15 years held not a public highway under Ky. St. §§ 4287, 4295, which the county court was '' to order worked.—Rose V. Nolen, 179 S.
s', Master and Servant, @:29; Officers, @:
See Wills, 3:132.
II. TRANSFER, OR, INCUMIBRANCE.
ce= | 17 (Tex.Civ.App.) Under Rev. St. 1911, art. 1115, title to lots, occupied by incorporator as a business homestead, agreed by him to be transferred to the company in return for stock, which was issued, neither the application for the charter nor the affidavit being executed by such incorporator's wife, did not pass.—McGough v. Finley, 179 S. W. 918.
&= 1 18 (Ark.) Defendant. chase price for homestead, sold on executory contract without signature of his wife, cannot avoid repayment of purchase price, where property was destroyed before deed was made, though she joined in the deed after the fire.— Waters v. Hanley, 179 S.W. 817. Under Kirby's Dig. § 3901, a deed purport
&=>47 (Tex.Cr.App.) Adultery of the deceased with the wife of appellant was “adequate cause” which might reduce the homicide to manslaughter.—Wollintine v. State, 179 S. W. 108. Q:47 (Tex.Cr.App.) To reduce a killing to manslaughter, and upon defendant's belief of adultery between his wife and deceased, the killing must take place at the first meeting of the parties after he has become aware of the facts. --Mitchell v. State, 179 S. W. 116. Adultery of defendant's wife and deceased in which she was equally at fault, if such as to be an outrage against defendant, would afford ade£use reducing the killing to manslaughter.—Id. Defendant, who had reason to believe that his wife had committed adultery with deceased, and that deceased was then endeavoring to have such relations renewed, and whose mind was rendered incapable of cool reflection, would be guilty only of manslaughter.—Id.
&=49 (Tex.Cr.App.) That decedent called accused a bastardy Son of a bitch was not an insult to his mother and did not raise the issue of manslaughter.—Ahearn v. State, 179 S. W. 1150. 3:68 (Tenn.) One negligently operating an automobile in violation of Pub. Acts 1905, c. 172, who killed a child was guilty of felonious homicide.—Lauterbach v. State, 179 S. W. 130. One killing another while negligently operating an automobile in violation of a statute is not excused by negligence of the person killed. The doctrine of contributory negligence does not apply to criminal acts, and negligence o one killed by another, who is violating a law, does not relieve the violator.—Id.
IV. ASSAULT WITH INTENT TO KILL.
&=89 (Tex.Cr.App.) Where defendant fired into a small room packed with people in reckless disregard of human life, with intent to kill some one, and did shoot some one, his conviction of assault to murder was proper.—Williams v. State, 179 S. W. 710.
&=95 (Ark.) In prosecution for assault with intent to kill, an instruction that threatening acts, accompanied by opprobrious words, would be a provocation that might reduce the degree of assault held an incorrect statement of the law, in view of Kirby’s Dig. § 1587.—Deshazo v. State, 179 S. W. 1012.
V. EXCUSAIBLE OR JUSTIFIABLE HOMICIDE.
&= | 10 (Tex.Cr.App.) Defendant, charged with manslaughter, who was shot while down and being beaten by decedent and his friends, had the right of self-defense to shoot to protect him
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER