quired to put handholds on the ends of cars until July 1, 1916, unless sent to the shop for general repairs, held not prejudicial.-Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83. §1062 (Ky.) In an action to recover land claimed by defendant under adverse possession, the error in submitting to the jury the title of plaintiff held not prejudicial in view of the facts.-Le Moyne v. Litton, 167 S. W. 912. §1062 (Tenn.) Where, in an action on a fire policy, the issue was the amount of the loss, the action of the court in submitting the issue of insurer's good faith in refusing to pay the loss was not prejudicial to insurer.-Gulf Compress Co. v. Insurance Co. of Pennsylvania, 167 S. W. 859. § 1062 (Tex.Civ.App.) Error in submitting an issue whether defendant purchased the land in controversy without notice that a deed executed by plaintiff was a partition deed held harmless as to plaintiffs; there being nothing in the deed from plaintiff to put defendant on notice that it was such a deed, and the burden being upon plaintiff to prove notice, and the court having charged to find for plaintiffs if the deed was a partition deed.-Gosch v. Vrana, 167 S. W. 757. § 1064 (Mo.App.) Where there was no dispute as to the place where plaintiff was injured, that plaintiff's instruction submitted the case to the jury by mistake as though it occurred at a street corner three or four blocks from the place where the injury actually occurred did not render it prejudicially misleading. Foster v. United Rys. Co. of St. Louis, 167 S. W. 643. Under Rev. St. 1909, § 2082, a mistake or defect in an instruction will not afford ground for reversal, unless the reviewing court believes it affected the substantial rights of the complaining party. Id. $1064 (Mo.App.) In an action for an injury to the driver of a wagon caused by his horse becoming frightened at a steam roller, an instruction to find for plaintiff if the engineer failed to stop the noises after seeing plaintiff's peril, even if erroneous in not requiring a finding that he could have stopped in time to prevent the accident, was harmless; the evidence showing that he could have stopped instantly. -Phelan v. Granite Bituminous Paving Co., 167 S. W. 1059. § 1064 (Tex.Civ.App.) Though a charge, in an action for the death of an engineer caused by the failure of switch tenders to throw switches, was erroneous in submitting whether both switch tenders gave the go-ahead signal, it was harmless; there being no evidence that the signal given was insufficient. Trinity & B. V. Ry. Co. v. Dodd, 167 S. W. 238. insurer.-Gulf Compress Co. v. Insurance Co. of Pennsylvania, 167 S. W. 859. § 1068 (Ark.) In an action on a note by a purchaser from the payee, the burden being upon defendant to show that plaintiff purchased with notice, and no effort having been made to do so, it was immaterial that the court erred in instructing the jury as to the amount of proof necessary to establish fraud in the procurement of the note by the payees.-Harbison V. Hammons, 167 S. W. 849. § 1068 (Mo.App.) In an action for injury to plaintiff's building by an excavation in an adjacent alley, any error in instructing that the damages should not exceed $3,000, the maximum amount claimed, held not prejudicial, where the damages were susceptible of computation, and the verdict for $2,100 was within the evidence. McGrath v. Heman Const. Co., 167 S. W. 1086. § 1068 (Tex.Civ.App.) In an action for injuries to a railway mail clerk from a falling letter box, where the evidence showed that de fendant furnished a defective car and failed to inspect it, instruction assuming such negligence held harmless.-Houston & T. C. R. Co. v. Walker, 167 S. W. 199. § 1068 (Tex.Civ.App.) The giving of an erroneous instruction, which the verdict clearly showed the jury disregarded, was harmless.Charles B. Smith & Co. v. Duncan, 167 S. W. 233. $ 1070 (Ark.) Failure of jury to return separate amounts for the loss to the widow and child from the death of an employé and for the employe's pain and suffering before death held not prejudicial, where the verdict was not excessive.-Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83. § 1070 (Tex.Civ.App.) Where, on a contest between a creditor and the wife of the debtor claiming property levied on, the uncontroverted evidence showed a gift by the wife prior to the debt, the question as to when the gift was made was immaterial, within Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, and the submission of the question and an insufficient answer thereto were immaterialWofford v. Lane, 167 S. W. 180. §1072 (Ky.) An order granting a new trial will not be set aside, where substantial justice has been done upon the new trial.-Greenberg v. Hyman & Oppenheim, 167 S. W. 914. (1) Error Waived in Appellate Court. of in appellant's points of error will not be re$1078 (Mo.App.) Instructions not complained S. W. 1142. viewed, particularly where appellant did not § 1064 (Tex.Civ.App.) Where the court, on include them in his abstract, and they were supappeal cannot determine whether the jury bas-plied by respondent.-Eisenman v. Griffith, 167 ed their verdict on the issue of an agreed boundary line, the agreement being by parol, and hence void, or on limitations, justified by the evidence, the error in an instruction submitting the issue of agreed line was reversible.-Voigt v. Hunt, 167 S. W. 745. $1066 (Mo.) In an action for personal injuries, an instruction which was too general because it did not restrict a recovery to the specific acts of negligence pleaded was harmless, where there was no evidence of any negligent acts except those pleaded.-Riley v. City of Independence, 167 S. W. 1022. § 1066 (Mo.App.) In an action for injury to plaintiff's building from an excavation in an adjacent alley, there was no reversible error in an instruction authorizing a recovery for the value of the building "and lot," where no injury to the lot was claimed, and its value was the same before and after the injury.-McGrath v. Heman Const. Co., 167 S. W. 1086. § 1067 (Tenn.) In an action on a fire policy, the refusal to give a charge on the right of insurer to withdraw from arbitration to ascertain (J) Decisions of Intermediate Courts. § 1094 (Tex.) On writ of error to review a judgment of the Court of Civil Appeals affirming a judgment of the trial court, the verdict, disturbed.-Pecos & N. T. Ry. Co. v. Thomp supported by sufficient evidence, will not be son, 167 S. W. 801. (K) Subsequent Appeals. 81097 (Mo.) Where the Supreme Court has jurisdiction of the whole case when transferred by a Court of Appeals, a decision of a Court of Appeals on a prior appeal is not binding.Keele v. Atchison, T. & S. F. Ry. Co., 167 S. W. 433. $ 1097 (Mo.App.) A decision of the court on appeal on a matter before the court and actually adjudicated and essential to a decision of the case as presented is the law of the case on a subsequent appeal.-Ward v. Haren, 167 S. W. 1064. The rule that it is the duty of a party to which he has to a counterclaim, and that, whether he does so or not, all are barred by a decision, applies only where a final judgment is pleaded in bar of another action, and does not treat of what matter is available on a second trial and appeal in the same case.-Id. § 1099 (Ky.) A holding on appeal that the case was properly submitted to the jury was conclusive on appeal after a second trial.-Kentucky Traction & Terminal Co. v. Downing's Adm'r, 167 S. W. 683. § 1099 (Ky.) A ruling on a former appeal that a peremptory instruction should have been given for defendant is the law of the case on a subsequent appeal, unless the proof on the second trial is substantially different from that on the first.-Beaver's Adm'r v. Proctor Coal Co., 167 S. W. 885. § 1099 (Ky.) Where on a former appeal the court directed what instructions should be given on the retrial, and such instructions were given, appellant could not complain that others were not given.-Hostetter v. Green, 167 S. W. 919. § 1099 (Mo.App.) A decision of the court on appeal that a demurrer to the petition was properly overruled is the law of the case on a subsequent appeal as to every objection to the petition that could have been raised under the demurrer.-Roth v. City of St. Joseph, 167 S. W. 1155. § 1170 (Mo.App.) In an action for a nuisance decreasing the rental value of property, instructions held not conflicting nor misleading, so that the court could not, under Rev. St. 1909, § 2082, reverse the judgment because of the giving of one of the instructions.-Roth v. City of St. Joseph, 167 S. W. 1155. § 1170 (Tenn.) In an action on a fire policy, the error in permitting complainant to testify that insurer had not, up to the filing of its cross-bill, .stated to him that a false proof of loss with knowledge of the falsity had been made to defraud insurer, was not prejudicial, and must be disregarded as required by Acts 1911, c. 32.-Gulf Compress Co. v. Insurance Co. of Pennsylvania, 167 S. W. 859. $1170 (Tex.Civ.App.) Under court rule 62a, (149 S. W. x), the improper exclusion of testimony is not reversible error, where it could not have changed the result.-Witt v. Teat, 167 S. W. 302; Owens v. First State Bank of Bronte, 167 S. W. 798. § 1175 (Ark.) Where, in an action upon an account, the finding that the balance due had been paid was unwarranted, the court will render judgment for plaintiff for the balance.-Aluminum Cooking Utensil Co. v. Chastain, 167 S. W. 495. § 1175 (Tex.) Where judgment in defendant's favor was reversed except as to a small tract of which he had actual possession for the statutory period, though his pleading and evidence furnished no field notes or other description of this tract, held, that he would be given an opportunity to furnish such description instead of rendering judgment for plaintiff.-Combes Stringer, 167 S. W. 217. V. judgment on the weight of evidence, if the evi§ 1177 (Tex.) Where the court reverses the dence, when considered in the light most favorable to the successful party, would sustain the judgment, it must remand the case.-Logue v. Southern Kansas Ry. Co. of Texas, 167 S. W. 805. § 1195 (Ark.) A determination on a prior appeal that the invalidity of certain notes given for premiums on wagering insurance contracts was not available as against a bona fide purchaser of the notes for value before maturity was the law of the case on retrial.-Little v. Arkansas Nat. Bank, 167 S. W. 75. the law of the case on another trial, unless the § 1195 (Ky.) A ruling on a former appeal is proof in the second trial is substantially different from that on the first.-Beaver's Adm'r v. Proctor Coal Co., 167 S. W. 885. § 1195 (Mo.App.) Where, on a former appeal from a judgment in an action on a building contract, there was no question whether a stipulation therein provided for liquidated damages or for a penalty for a delay, the question was open on a subsequent trial.-Ward v. Haren, 167 S. W. 1064. $1198 (Mo.App.) Where a cause is remanded by a court on appeal, with specific directions, the trial court may not do anything not embraced in the directions.-Ward v. Haren, 167 S. W. 1064. § 1215 (Ky.) Where the evidence was the failed to request an instruction on the first trial same on two different trials, defendant having based upon the evidence was concluded from complaining of the court's refusal to give such request on the second trial.-Kentucky Traction & Terminal Co. v. Downing's Adm'r, 167 S. W. 683. APPEARANCE. § 13 (Tex.Civ.App.) A defendant, who, by answer to the original petition in an action for personal injury submits himself to the jurisdiction of the court, held bound to take notice of all amendments filed thereafter in term time under appropriate orders.-Houston & T. C. R. Co. v. Walker, 167 S. W. 199. original petition in an action for personal in$19 (Tex.Civ.App.) Defendant, answering the juries, thereby submitted itself to the jurisdic tion of the court.-Houston & T. C. R. Co. v. Walker, 167 S. W. 199. § 1170 (Tex.Civ.App.) Where no issue was In view of Rev. St. 1911, art. 1882, and rule made as to a fact assumed in an instruction as 7 for district and county courts (142 S. W. true, based on the uncorroborated testimony of xvii), held, that defendant in an action for pera party, the error in the instruction was not sonal injury, who answered the original petimaterial, and, under Courts of Civil Appeals rule tion, and though objecting to amended petitions 62a (149 S. W. x), must be disregarded.- for misjoinder of causes of action, appeared at Iowa City State Bank v. Friar, 167 S. W. 261. I the trial and examined witnesses, submitted him self to the court's jurisdiction as to any judgment which the pleadings and evidence justified. -Id. APPLIANCES. See Master and Servant, §§ 101-129. APPLICATION. See Payment, § 45. APPOINTMENT. See Officers, § 58. ARBITRATION AND AWARD. II. ARBITRATORS AND PROCEEDINGS. § 41 (Ky.) Arbitrators under a common-law arbitration agreement, silent as to compensation, are entitled to recover reasonable compensation for services rendered, and both parties to the agreement are liable therefor.-Paine v. Kentucky Refining Co., 167 S. W. 375. The provisions of Civ. Code Prac. § 451, and of Ky. St. §§ 69-73, do not supplant common-law arbitration, but merely supplement it; and the compensation for arbitrators fixed by section 1745 is limited to arbitrators under the Code, and common-law arbitrators are entitled to reasonable compensation.-Id. ARGUMENT OF COUNSEL. ASSIGNMENT OF DOWER. See Dower, §§ 78, 116. ASSIGNMENT OF ERRORS. See Appeal and Error, §§ 518, 719-754, 758, 759. ASSIGNMENTS. See Attorney and Client, §§ 143, 190; Bankruptcy, § 268; Bills and Notes, § 345; Corporations, § 123; Estoppel, § 63; Evidence, $$ 219, 427; Insurance, § 602; Municipal Corporations, § 353; Vendor and Purchaser, § 261; Venue, § 27. I. REQUISITES AND VALIDITY. (A) Property, Estates, and Rights Assign able. § 23 (Mo.App.) A cause of action for breach of a railroad company's contract to raise its embankment above high-water mark, so as to protect adjoining lands from overflow, is assignable. Coffman v. Saline Valley R. Co., 167 S. W. 1053. (B) Mode and Sufficiency of Assignment. $50 (Ky.) Order of subcontractor to pay plaintiff money, growing out of an agreement whereby plaintiff was to furnish the subcontractor goods for which defendant was to pay out of the subcontractor's money in its hands, even if the basis of an action against defendant for the amount, held to operate as an eq See Criminal Law, §§ 720-730, 1171; Trial, 88 uitable assignment of such money, although not 112-133. ARREST OF JUDGMENT. See Criminal Law, § 974. ASSAULT AND BATTERY. See Continuance, § 30; Criminal Law. § 770; I. CIVIL LIABILITY. § 27 (Mo.App.) In an action for damages for assault and battery, where plaintiff claimed exemplary damages, defendant's evidence as to how he came to plaintiff's place of business where the assault occurred, held admissible on the issue of exemplary damages.-Ellis v. Wahl, 167 S. W. 582. accepted in writing by defendant.-Fairbanks, Morse & Co. v. Tafel, 167 S. W. 887. III. RIGHTS AND LIABILITIES OF PARTIES. $109 (Tex.Civ.App.) An assignee of a claim for the price of machinery sold by the assignor under a warranty is not liable personally for damage by breach of the warranty, though his claim may be abated or defeated thereby.-A. S. Cameron Steam Pump Works v. Lubbock Light & Ice Co., 167 S. W. 256. IV. ACTIONS. assigned for collection, the assignee is entitled $119 (Mo.App.) Where a chose in action is to sue as trustee of an express trust, being bound to account to his assignor for the proceeds. Coffman v. Saline Valley R. Co., 167 S. W. 1053. $121 (Mo.App.) Where a cause of action for breach of a railroad company's contract to raise its embankment above high-water mark, so as to protect adjoining lands from overflow, is assigned, the assignee can sue in his own name, though the assignment is only for collection.— Coffman v. Saline Valley R. Co., 167 S. W. 1053. ASSIGNMENTS FOR BENEFIT OF CREDITORS. § 39 (Mo.App.) In case of a willful and wanton assault without provocation, exemplary damages are allowed as a punishment to defendant, and, in considering such damages, the jury may regard the malice of defendant and the insulting nature of his conduct.-Ellis v. Wahl, 167 S. See Bankruptcy. W. 582. ASSUMPTION. See Insurance, §§ 186, 198, 741, 743; Municipal Corporations, 88 443-568; Taxation, § Of risks, see Master and Servant, §§ 204-220, ATTACHMENT. See Constitutional Law, § 309; Creditors' Suit, See Wills, § 120. ATTORNEY AND CLIENT. See Appeal and Error, §§ 874, 925; Chattel Mortgages, § 290; Courts, § 170; Criminal Law, $$ 720-730, 1037, 1055, 1171; Evidence, $$ 123, 427; Executors and Administrators, 111, 511; Injunction, § 186; Receivers, 194; Trial, §§ 112-133, 243. IV. COMPENSATION AND LIEN OF ATTORNEY. (A) Fees and Other Kemuneration. §143 (Tex.Civ.App.) An assignment by a client of one-half interest in his cause of action to his attorneys, by which he deprives himself of the right to compromise and settle so much thereof as is embraced within the assignment, is not contrary to public policy.-St. Louis, S. F. & T. Ry. Co. v. Thomas, 167 S. W. 784. § 148 (Tex.Civ.App.) A contract whereby a client assigned to his attorneys one-half his cause of action against a railroad for injuries sustained by reason of the alleged negligence of the railroad included an interest in the damage to the client's property, his horses and wagon, as well as personal injuries.-St. Louis, S. F. & T. Ry. Co. v. Thomas, 167 S. W. 784. (B) Lien. $190 (Tex.Civ.App.) Where a client assigned one-half interest in a personal injury case against a railroad company to his attorneys, a compromise by the client with the railroad company, which knew of the attorneys' rights, affected only the one-half interest of the client, and the attorneys could prosecute the original action to a conclusion for the one-half interest assigned to them.-St. Louis, S. F. & T. Ry. Co. v. Thomas, 167 S. W. 784. BAIL. II. IN CRIMINAL PROSECUTIONS. § 65 (Tex.Cr.App.) An appeal from a conviction will be dismissed, where the recognizance fails to recite the punishment assessed.-Warner v. State, 167 S. W. 1109. § 74 (Tenn.) Sureties upon a bail bond are not liable where, after conviction and sentence to the county jail pending the coming of proper authorities to carry accused to the penitentiary, the sheriff improperly allowed accused to go without custody for a few days, and he escaped.-Suggs v. State, 167 S. W. 122. feited bail bond held premature where entered $77 (Ark.) Judgment against sureties on forbefore the time allowed the sureties to answer, but will not be set aside, unless the sureties on the day fixed tendered a good defense.-Bryan v. State, 167 S. W. 484. $79 (Ark.) Showing by sureties on a bail bond that the principal intended to appear, but that after vigorous search they had been unable to find him, held not to exonerate them from liability on the bond.-Bryan v. State, 167 S. W. 484. BAILMENT. See Carriers, §§ 47-202. 82 (Mo.App.) One who obtains a suit of clothes of another to clean and press for a compensation is a bailee for hire.-Corbin v. Gentry & Forsythe Cleaning & Dyeing Co., 167 S. W. 1144. § 31 (Mo.App.) A bailor suing a bailee for hire for the loss of the property has the burden of proving that the bailee's negligence caused the loss.-Corbin v. Gentry & Forsythe Cleaning & Dyeing Co., 167 S. W. 1144. The bailor satisfies the burden of proving the bailee's negligence when he shows the bailment and the failure to return the property on demand, and the bailee must excuse his failure to deliver by proving that the loss was due to a cause consistent with the exercise of reasonable care.-Id. § 33 (Mo.App.) Whether a bailee for hire exIn a personal injury action prosecuted by at-cused his loss of the property by proving that torneys, assignees of a one-half interest therein, the loss was due to burglary and theft held for after their client had compromised, defendant's the jury.-Corbin v. Gentry & Forsythe Cleanrequest that the fact that defendant had com- ing & Dyeing Co., 167 S. W. 1144. promised with the client could not be considered in determining its liability to the attorneys was properly refused because not including a direction that the amount of the settlement See Elections, §§ 177-194, 293, 299, 305. should not be considered in determining the measure of damages.-Id. In a personal injury action prosecuted by attorneys, assignees of one-half thereof, after compromise by their client, the client was properly permitted to testify to a conversation with defendant's agent at the time of the compromise, in which he informed him of the attorneys' interest; it tending to show defendant's knowledge of the assignment.-Id. AUTHENTICATION. See Evidence, § 348. AUTHORITY. III. BALLOTS. BANKRUPTCY. ASSIGNMENT, ADMINISTRATION, AND DISTRIBUTION OF BANKRUPT'S ESTATE. (D) Administration of Estate. § 268 (Ky.) The purchaser at a bankruptcy sale of property on which a city had a lien for taxes takes it subject to the lien; the sale not having been free of tax liens, and the city not having had notice of the bankruptcy proceedings, or that its claim was therein adjudicated. -Citizens' Savings Bank of Paducah v. City of Paducah, 167 S. W. 870. Though Bankr. Act, § 64a, provides that the See Justices of the Peace, §§ 36-58; Principal court shall order the trustee to pay all taxes in and Agent, §§ 101-136. advance of payment of dividends, the purchaser of land on which is the lien of taxes may not complain of their not being paid by the trustee; he having no funds and deriving none from the sale.-Id. BANKS AND BANKING. See Insurance, §§ 654, 668; Limitation of Actions. §§ 56, 127; Payment, §§ 85, 89; Trial, § 296. BILL OF EXCEPTIONS. III. FUNCTIONS AND DEALINGS. (C) Deposits. See Exceptions, Bill of. BILL OF EXCHANGE. § 140 (Tex.Civ.App.) The rule that a bank is § 154 (Tex.Civ.App.) In an action against a In an action by a depositor who claimed that (D) Collections. 8171 (Tex.Civ.App.) Bank which in viola- 167 S. W. 165. § 175 (Tex.Civ.App.) Measure of damages for W. 165. BAR. BILL OF LADING. See Carriers, §§ 56, 57, 83, 218. BILLS AND NOTES. See Alteration of Instruments, § 5; Appeal V. RIGHTS AND LIABILITIES ON IN- (D) Bona Fide Purchasers. § 339 (Ark.) A bank, discounting notes for a § 344 (Tex.Civ.App.) A purchaser of a series See Judgment, §§ 565-717; Limitation of Ac- Bank v. Friar, 167 Ŝ. W. 261. tions. BATTERY. See Assault and Battery. BENEFICIAL ASSOCIATIONS. Notes, identical except as to their serial See Associations; Courts, § 97; Insurance, §§ bona fide holder. Id. 694-819. See Wills. BEQUESTS. § 345 (Tex.Civ.App.) Neither an equitable as- § 356 (Ark.) The rule that a bank, by dis- BEST AND SECONDARY EVIDENCE. counting a note and crediting the proceeds to See Criminal Law, § 404; Evidence, §§ 181, the indorser's account, does not become a pur- See Criminal Law, § 444. § 8 (Tex.Cr.App.) On a trial for bigamy, evi- § 9 (Tex.Cr.App.) Where, on a trial for big- On a trial for bigamy, a leaf of the register $1 (Tex.Cr.App.) On a trial for bigamy, evi- chaser for value, does not apply where the bank 357 (Tex.Civ.App.) An innocent holder of a § 359 (Ark.) An antecedent debt is a suffi- § 362 (Mo.) Where a note was good in the §383 (Ark.) In an action by a bona fide pur- VI. PRESENTMENT, DEMAND, NO- § 396 (Mo.App.) Under Negotiable Instru- |