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to the use or one of the toll houses as against one who obtained possession from a gate keeper

VAGRANCY. of the turnpike company without its knowledge Evidence in a prosecution against a minor or consent. - Nicholas County v. Hawkins (Ky.) for vagrancy held insufficient to sustain a con524.

viction.-McHenry v. State (Tex. Cr. App.) 850. The failure of a turnpike company to collect tolls and keep its road in repair, after its ac

VALUE. ceptance of the proposition of the county to make its road free, was not an abandonment Limits of jurisdiction, see "Appeal and Error," of the road by the company, under Ky. St. $ $ 2. 4732.-Bardstown & L. Turnpike Co. v. Nelson County (Ky.) 802.


Between pleading and proof in civil action, see UNDERTAKINGS.

"Pleading,” $ 8. See "Bonds."

in criminal prosecutions, see “Indictment

and Information," $ 4. UNDISCLOSED AGENCY.

See "Principal and Agent," $ 2.

See “Exchange of Property"; "Sales."

Effect of pendency of action, see “Lis Pen

dens." Courts, see "Removal of Causes."

Purchasers at sale on execution, see "Execu

tion," 8 1. USAGES.

under judgment, see “Judicial Sales."

Purchasers of property fraudulently conveyed, See "Customs and Usages."

see "Fraudulent Conveyances," $ 2.

Requirements of statute of frauds, see "Frauds, USURY.

Statute of,” 8 2.

Specific performance of contract, see “Specific See "Building and Loan Associations."


Vendor's lien on community property, see “Hus$ 1. Usurious contracts and transac band and Wife." § 6.

tions. Where a debtor borrowed money from the $ 1. Requisites and validity of contract. daughters of his creditor to pay his debt to Where the grantor in a deed held the land their father, and afterwards borrowed money adversely for 15 years, he acquired title, as from their mother to pay the debt to them, he against the grantees subsequently conreged, cannot recover from the mother usury paid to though he had no notice of the adverse holdthe daughters or their father; the transaction ing.--Fain v. Miles (Ky.) 939. being in good faith and in fact a loan of money by the mother to the debtor.-Stephenson v.

§ 2. Modification or rescission of con

tract. Shirley (Ky.) 387.

Where one who borrowed money to pay for A loan is not usurious because it draws the land purchased sued both the vendor and the highest legal rate of interest from a time pre- lender to rescind the contract for fraud, to vious to the delivery of the money to the bor- which he alleged both were parties, and lender rower, where it was set aside for his use at had no notice of the fraud, court will not resuch time.-Geisberg v. Mutual Building & scind the contract of sale, as it would be prejuLoan Ass'n (Tex. Civ. App.) 478.

dicial to plaintiff to do so, and leave him liaA contract is not usurious simply because ble for the money borrowed to pay the purthe highest rate of interest is charged, which chase price.- National Loan & Building Ass'n is payable monthly in advance, and the over

No. 1 of Newport v. Maloney (Ky.) 12. due interest bears interest:-Geisberg v. Mu Where the defendant is ousted from the postual Building & Loan Ass'n (Tex. Civ. App.) session of land on which he entered under an 478.

oral agreement to purchase, but without agreeWhere a special charge requested ignored an

ment as to the purchase price, he is entitled to issue changing the whole aspect of the case, it

an account for improvements, etc., notwithwas properly refused, and was not sufficient to standing, complainant tendered him a deed.call the court's attention to such issue omitted Gardenhire v. Rogers (Tenn. Ch. App.) 616. from the charge.-Cotton States Bldg. Co. v. Bank held entitled to recover on a note and Jones (Tex. Civ. App.) 587.

to foreclose a vendor's lien reserved to the A subsequent purchaser of mortgaged proper- amount of the debt secured, despite the cancelty, who assumed payment of a mortgage debt. lation of the note as to the parties by the recannot raise the question of usury in the origi- scission of the executory deed.-Terhune . nal contract:-Southern Home Building & Loan First Nat. Bank (Tex. Civ. App.) 352. Ass'n v. Winans (Tex. Civ. App.) 825.

A deed reserving a lien to secure one of ser. A contract to pay 10 per cent. interest per eral purchase-money notes was executory, and annum on principal, interest, and cost of tak- by its rescission the notes were canceled as being up a judgment on a debtor's land, in tween the parties, and one in privity with vencluding a note for $300 as further security, dor could not recover on them.-Terhune v. hold usurious.-Nesbit v. Goodrich (Tex. Civ! | First Nat. Bank (Tex. Civ. App.) 352. App.) 1017.

$ 3. Performance of contract. Where a debtor made a usurio:is contract Under a contract requiring the vendor to furwith one who took up a judgment against his nish a marketable title only, the fact that a land, he would still be liable for the amount corporate deed in the chain of title was ac of the judgment, with interest and costs, knowledged before a notary who was a stockthough the contract was avoided as usurious.- holder and general manager of the corporation Nesbit v. Goodrich (Tex. Civ. App.) 1017. was not ground for refusal to complete the pur

chase.-Jones v. Hanna (Tex. Civ. App.) 279. VACATION.

Where a deed of trust to secure the deferred

payments on property sold requires the payOf judgment, see "Judgment." § 4.

ment of interest, and provides that default in Sale on execution, see “Execution," § 1. any covenant will mature the deed, a failure

to pay such interest after the death of the ven

VENUE. dee is a default which will authorize the ven- ! dor to rescind the sale.-Curran v. Texas Land Criminal prosecutions, see “Criminal Law," & Mortgage Co. (Tex. Civ. App.) 466.

8 2. $ 4. Rights and liabilities of parties. § 1. Nature or subject of action.

Where a deed to a railroad company of The venue of an action to cancel a deed and right of way recited that it was executed in quiet title to land, and in the alternative for consideration of the fact that the grantee “has the enforcement of a lien on the land for the located and constructed its line of railroad unpaid purchase money, is in the county in through the lands of the first parties, according which the land lies.-Burt & Brabb Limber to the agreement entered into October 16, 1882, Co. v. Bailey (Ky.) 48.7. between the parties hereto," a purchaser from the grantee was not charged with notice of the, $ 2. Domicile or residence of parties. unrecorded agreement referred to.-Bailey v. Plea and demurrer to petition, on ground that Southern Ry. Co. (Ky.) 631.

defendants were entitled to be sned in another One who purchased land and accepted a deed counts, held waived.--Parlin & Orendorff Co. v. thereto without notice of a title bond previous. Miller (Tex. Civ. App.) 881. ly executed by the vendor to another is en- $ 3. Change of venue or place of trial. titled to hold the land as against the prior pur. | Where a court had jurisdiction of an action, chaser.-Combs v. Hall (Ky.) 647.

its order changing the venue to another county One who purchases land, believing it to be was not void, however erroneous it may have community property of the vendor and his de- been.-MeNew v. Martin (Ky.) +12. ceased wife, and having no notice that it is her Under Rev. St. 1899, 88 822, 833, a special separate property, held chargeable with notice judge, who has been elected without the conthat his vendor can only convey the legal title sent of the parties after the interposition of to one-half interest therein.-Hunt v. Matthews a motion for change of venue for disqualifica(Tex. Civ. App.) 674.

tion of the judge, has no jurisdiction to hear Evidence held insufficient to show plaintiff a

the cause.--State ex rel. Sprague v. Flournoy bona fide purchaser as against a recorded bond (Mo.) 1098. executed by one stating in the body of the deed Under Rev. St. 1899, $ 833, a motion for a that he was acting as agent for plaintiff's gran- change of venue in the circuit court to a diftors.-Marlin v. Kosmoroski (Tex. Civ. App.), ferent county is properly denied, when a de788.

posit of $10 is not made by the moving party. Purchasers of land held bound by a prior

-State ex rel. Sprague v. Flournoy (Mo.) 1098. exchange made by the vendor, whereby he ac A court to which a cause is transferred on quired certain land on east end of his lot in agreement of the parties, and order entered exchange for land conveyed from the west under Rev. St. art. 1270, has jurisdiction notend of the lot.-Scott v. City of Marlin (Tex. withstanding all papers are not transmitted as Civ. App.) 969.

provided in the agreement.-Jones v. Bour

bonnais (Tex. Civ. App.) 986. § 5. Remedies of vendor.

A vendor who has a lien for unpaid purchase money is entitled to an injunction restraining

VERDICT. the purchaser from cutting timber.-Vay v. Williams (Ky.) 325.

Directing verdict in civil actions, see "Trial." In a suit to redeem from foreclosure of a

In civil actions, see “Trial," $ 10. prior vendor’s lien, the purchaser held not bound In criminal prosecutions, see Homicide." $ 7. to prove that he had no notice of plaintiff's

of judgment, claim, based on an unrecorded assignment of Necessity of, conformity

“Judgment," $ 5. lien.-Rogers v. Houston (Tex. Sup.) $69.

Operation and effect as curing defects in pleadThe owner of a note, secured by a vendor's ings, see "Indictment and Information," $ 6; lien and acquired prior to a suit to foreclose "Pleading," $ 9. note secured by a prior lien, held entitled to Review on appeal or writ of error, see "Appeal redeem from the purchaser at the sale.-Rogers and Error," $ 1.7. v. Houston Tex. Civ. App.) 445.

Setting aside, see "New Trial," $ 1. Under Sayles' Civ. St. arts. 2378, 4640, a decree allowing a junior lienholder to redeem,

VESTED RIGHTS. he not having been a party to foreclosure of prior lien, held proper; purchaser making no Protection, see "Constitutional Law," $ 3. showing of lack of notice.-Rogers v. Houston (Tex. Civ. App.) 445. Where vendor's lien is reserved, and vendee

VICE PRINCIPALS. makes default, vendor may rescind contract and recover land, or affirm contract with fore. See “Master and Servant," $ 2, closure.--Curran v. Texas Land & Mortgage Co. (Tex. Civ. App.) 466.

VOTERS. Under the constitutional provision conferring exclusive jurisdiction of actions to try title See "Elections.” on the district court, such court has jurisdiction of an action brought by a vendor, who re

WAIVER. tained a lien on property sold, to recover the property after default by the estate of the See "Estoppel"; "Insurance," $ 6; "Pleadvendee.-Curran v. Texas Land & Mortgageing," $ 9; “Trial," $ 11. Co. (Tex. Civ. App.) 466.

Exemption of homestead, see “Homestead,"

§ 4. $ 6. Remedies of purchaser.

Grounds of abatement, see "Hatement and Where defendant had previously conveyed to Revival," $ 2. another real estate, which he conveyed to pain. Right to appeal, see "Appeal and Error," $ 3. tiff in exchange for other property, plaintiff was entitled to recover damages, though de fendant in the previous deesh had reserverin

WARDS. option on the property.-Caumisar v. ('onley (kiy.) 375.

See "Guardian and Ward."


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and their heirs," the daughters took a fee-sim

ple estate in the entire land in which the money By insured, see "Instance," $$ 4, 5.

was invested.-Harlow v. Scobee's Adm's (ky) On sale of goods, see “Sales,” 88 5, 7.


§ 2. Rights and liabilities of devisees WATERS AND WATER COURSES.

and legatees.

Under Ky. St. § 2067, providing that a deriSee "Navigable Waters."

see may disclaim by deed within a year after f 1. Appropriation of rights in public notice of the probate, the surviving husband

The banks of a river between high and low his benefit and claim his statutory share of her water mark belong to the owner of the land estate.-Brand's Ex'r v. Brand (Ky.) 704. above high-water mark.--Meek Catlettsburg & P. Packet Co. (Ky.) 484.

WITNESSES. § 2. Artificial ponds, reservoirs, and See “Depositions”; “Evidence."

channels, dams, and flowage. A person constructing an artificial pond on

Absence ground for continuance in criminal his land is responsible for injury caused by his Dying declarations, see "Homicide," "$ 6.

prosecutions, see “Criminal Law," § 10. permitting water to seep or percolate therefrom, regardless of the question of negligence Experts, see "Evidence,”... 10. in the construction of the banks. - Texas & P Opinions, see “Evidence," § 10. Ry. Co. v. O'Mahoney (Tex. Civ. App.) 902.

Perjury, see "Perjury.'

Testimony of accomplices, see “Criminal Law," Defendant's request to charge as to measure 885-9. of damages, in an action for overflow from an artificial lake, held properly refused.--Texas & $ 1. Competency. P. Ry. Co. v. O'Mahoney (Tex. Civ. App.) 902.

To render a person incompetent to testify Defendant's request to charge as to plain- ed, it is sufficient that he would have to re

as to a transaction with a person since deceastiff's duty to guard against injury from water imburse the person for whom he offers to tesoverflowing from an artificial pond held not ap- tify, if the decision should be against him.plicable to the evidence.-Texas & P. Ry. Co. v. Whitlow's Adm'r v. Whitlow's Adm'r (Kr.) O'Mahoney (Tex. Civ. App.) 92.

182. WAYS.

An agent may testify for his principal as to

a transaction had by him as such agent with Public ways, see "Highways"; "Municipal Cor. -Brooks v. Spain (Ky.) 184.

one who is dead at the time he offers to testify. porations," $$ 6, 7.

In an action by husband and wife on a note

executed to them jointly, in which the defendWEAPONS.

ant pleaded non est factum and no considera

tion, the wife, under Civ. Code Prac. $ 606, Sand. & H. Dig. $ 1498, held not to prohibit was a competent witness.-Smith v. Doherty carrying a pistol from defendant's premises to (Ky.) 380. those of another for the sole purpose of killing hogs.-Cornwell v. State (Ark.) 28.

Plaintiff was not a competent witness for himself as to a transaction with the president

of defendant corporation, who was dead at the WIDOWS.

time of trial.-Murray v. East End Imp. Co.

(Ky.) 618. Dower, see “Dower."

One from whom the grantor derived title Insurable interest in life of brother, see “In- was a competent witness to prove the execution surance," $ 3.

of a deed, though the grantee was dead when Rights in homestead, see “Homestead," $ 3. le testified.-Shoptaw v. Ridgway's Adm's

(Ky.) 723. WILLS.

Under Civ. Code Prac. & 606, the wife is not

a competent witness as to acts of cruelty on the See “Descent and Distribution”; “Executors part of the husband alleged by her as ground and Administrators."

of divorce.-Fightmaster v. Fightmaster (Ky.)

918. § 1. Construction.

A tenant in common by devise held not en-, Under Rev. St. 1889, $ 8918, testimony of a titled to the use of the property devised, but plaintiff to transactions between her deceased only to the management thereof, and charge. fatherand mother, by which it is sought to able with

and profits.-Dunavant v. establish the title of herself and co-plaintiffs, Fields (Ark.) 420.

as heirs of her mother, against defendants, Ky. St. § 4839, providing that a will shall be depisees of her father, is inadmissible. -Rice . construed "with reference to the real and

Shipley (Mo.) 740. personal estate comprised in it,” to take ef A husband's testimony held incompetent, 110fect if executed immediately before the der Shannon's Code, $ 5596, when offered to death of the testator, does not fix the time establish a resulting trust in land in wife's when the rights of devisees attach.-Perry v. favor.-Hornsby v. City Nat. Bank (Tenn. Ch. Perry (Ky.) 855.

App.) 160. Under a will devising real estate to testator's Under Sayles' Civ. St. art. 2302, a physician, son for life, and providing that at the death seeking to recover from an administrator for of himself and "wife” said property is to pass medical services, could not testify that he to his legal heirs, the son's wife living at the treated and prescribed for decedent.-Garwood time of testator's death having subsequently v. Schlichenmaier (Tex. Civ. App.) 573. died, a second wife is entitled to the benefit of the devise.--Perry v. Perry (Ky.) 855.

8 2. Examination.

Where defendant, in a prosecution for keepUnder a will directing the executor to de- ing a disorderly house, had been introduced as posit in bank for testator's daughters the mon- a witness in her own behalf, held not error to ey bequeathed to them until they shall marry recall her and prove that a deed of the proper. or arrive at the age of 21 years, "when he will ty had been made to her.-Hamilton v. State invest money in land, securing same to them (Tex. Cr. App.) 39.



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Where defendant was charged with being ac Where the accused had not attacked prosecessory after the fact to the theft of cattle. cuting witness' character for truth and veraciit was proper not to allow defendant to draw ty, it was reversible error to admit testimony from the state's witness statements that he to prove his good character.-Zysman v. State had heard his wife make to defendant.-Woods (Tex. Cr. App.) 669. 1. State (Tex. Or. App.) 244.

On trial of prosecution for fornication, adThe action of the trial court in stating to a mission of certain evidence held not to be rewitness that she would be exempt from prose- garded as error, in view of court's explanation. cution if she would testify to the truth held - Boatwright v. State (Tex. Cr. App.) 760. not erroneous under the evidence.-Stanford v.

On trial of a criminal case, that witnesses State (Tex. Cr. App.) 253.

gave improper testimony without objection held $ 3. Credibility, impeachment, contra- not to have legalized similar testimony subse. diction, and corruboration.

quently admitted over objection.--Boatwright It was error to permit the commonwealth to

v. State (Tex. Cr. App.) 760. impeach a witness for defendant by proving On trial of a prosecution for gaming, a quesby an officer that he had a warrant for the ar- tion put to a witness for the state, asking if rest of the witness, and then allowing the pros- he had ever been prosecuted for crimes, and ecuting attorney to read the warrant to the for what crimes, and if he had ever been conjury.-Welsh v. Commonwealth (Ky.) 185. victed, and for what, or had ever been in jail

Witnesses may be impeached by showing that or a convict on a county farm, held improper. they have made inconsistent statements out of 1-Young v. State (Tex. Cr. App.) 767. court as to material facts.--Hart v. Common Statements of a witness as to plaintiff's conwealth (Ky.) 298.

dition at the time of the injury complained of, Accused can show both that the general held admissible.-Luke v. City of El Paso (Tex.

inconsistent with her testimony on the stand, moral character of a witness for the prosecution is bad and also his general character for Civ. App.) 363. truth.-Smith .v. Commonwealth (Ky.) 531. Where defendants were not misled by their Under Civ. Code Prac. $ 597, it was error to

witness nor surprised by his testimony, they permit the commonwealth to'impeach a wit cannot read from his deposition in a different ness for defendant by proving by anottier proceeding and ask

him to reconcile his testithat he had a warrant for arrest of the wit-Miller (Tex. Cir. App.) 881.

inony therewith.-Parlin & Orendorff Co. v. ness, and then allowing the prosecuting attorney to read the warrant to the jury.-Welch v. Commonwealth (Ky.) 948, 1118.

WORK AND LABOR. A witness in a murder trial, who did not Liens for work and materials, see "Mechanics' live in the neighborhood of deceased at the Liens." time of the murder, and had no opportunity to learn what his reputation was there, is incom Verdict in action for services in raising cappetent to testify to such reputation.--State v. sized vessel held excessive under the evidence. Hudspeth (Mo.) 136.

-Andrew's v. Lemeos (Tex. Civ. App.) 1004.
It is not error to exclude evidence offered by
the defense affecting the credibility of a state's

witness, whose testimony is immaterial.-State See “Process."
v. McLain (Mo.) 736.

Particular writs, see “Attachment,” g 3; "CerAccused having attempted to prove contra tiorari"; "Execution"; "Habeas Corpus"; dictory statements of a state's witness, held, “Injunction”; “Mandamus"; "Quo Warranthe state could prove statements made by the to”; “Replevin." witness, similar to and corroborative of his certiorari to justice of the peace, see "Jusstatements on the trial. Johnson v. State (Tex. tices of the Peace," $ 2. Cr. App.) 48.

writ of error, see “Appeal and Error.”
The admission of impeaching testimony in a
prosecution for homicide held not error.-Pat WRONGFUL ATTACHMENT.
terson v. State (Tex. Cr. App.) 557.

Evidence as to the character of the prosecut. See “Attachment,” | 6.
ing witness for honesty held not to justify the
prosecution in introducing evidence as to his

truth and veracity.-Zysian v. State (Tex. Cr.
App.) 669.

Estates for years, see “Landlord and Tenant."


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