FORNICATION.

See Criminal Law, §§ 450, 507.

89 (Tex.Cr.App.) Evidence, on a trial for fornication, held insufficient to sustain a verdict of guilty.-Koger v. State, 165 S. W. 577.

FRATERNAL INSURANCE.

See Insurance, §§ 687-819.

FRAUD.

See Appeal and Error, §§ 719, 1050; Bills and Notes, §§ 103, 354; Cancellation of Instruments, 45; Evidence, §§ 142, 317; Fraudulent Conveyances; Guardian and Ward, §§ 54, 131; Insurance, §§ 723, 819; Judgment, 88 251, 394, 747; Payment, § 87; Pleading, 111; Reformation of Instruments, § 25; Trial, §§ 191, 330; Vendor and Purchaser, § 350; enue, $32.

I. DECEPTION CONSTITUTING
FRAUD, AND LIABILITY
THEREFOR.

8 20 (Tex.Civ.App.) Where defendant's agents, though representing that sufficient water for irrigation could be obtained from wells on the land, refused to place a written guaranty thereof in the contract, and plaintiff, before making the contract, investigated the water situation on other lands in the vicinity, defendant's failure to produce a well furnishing sufficient water for irrigation was not actionable fraud.-Zavala Land & Water Co. v. Tolbert, 165 S. W. 28.

§ 22 (Tex.Civ.App.) One who undertakes to discover the truth of representations made to him is charged with the knowledge of everything which a proper investigation would disclose, and would not be justified in acting upon fraudulent representations merely because they were made to him.-Newman v. Lyman, 165 S. W. 136.

§ 28 (Tex.Civ.App.) If the seller of oats represented that they were of a certain kind, and knowingly delivered a wholly different variety, with the intention that the purchaser should receive them for the kind agreed to be delivered, the seller was guilty of actionable fraud, which would support an action in the nature of deceit by the purchaser.-Handy v. Roberts, 165 S. W. 37.

II. ACTIONS.

(C) Evidence.

§ 57 (Tex.Civ.App.) In an action for fraud in the sale of certain land, testimony of one of plaintiff's witnesses on cross-examination that witness had sold a 40-acre tract similar to plaintiff's, and situated near it for $100 an acre should have been permitted on the question of damages.-Zavala Land & Water Co. v. Tolbert, 165 S. W. 28.

(D) Damages.

§ 59 (Tex.Civ.App.) The damages recoverable in an action of deceit are such as would result from the fraudulent act within the contemplation of the parties, and did proximately result therefrom.-Handy v. Roberts, 165 S. W. 37. Where one suing for damages from fraud in agreeing to sell a certain quality of seed oats and delivering a wholly different kind only owned two-thirds of the oat crop, it was error to permit him to recover the value of the loss of the whole crop.-Id.

FRAUDS, STATUTE OF.

IV. REPRESENTATIONS.

§ 38 (Tex.Civ.App.) Rev. St. Mo. 1909, § 2785, prohibiting an action for representations

unless such representations be in writing, would not apply to fraudulent representations by defendant as to the solvency, etc., of a corporation made in order to sell to plaintiff stock of the corporation owned by defendant.-Newman v. Lyman, 165 S. W. 136.

V. AGREEMENTS NOT TO BE PERFORMED WITHIN ONE YEAR.

$49 (Tex.Civ.App.) A verbal contract for the sale of growing timber which allowed the buyers four years within which to remove the timber is not void, under the statute of frauds (Itev. Civ. St. 1911, art. 3965, subd. 4), as an agreement not to be performed within a year.-Groce v. West Lumber Co., 165 S. W. 519.

$50 (Tex.Civ.App.) A parol contract which does not provide that it is not to be performed within a year, and which may be performed on some contingency within a year, is not within the statute of frauds.-Adair v. Stallings, 165 S. W. 140.

§ 53 (Mo.App.) A verbal renting for a year, to commence at a future date, is invalid, under Rev. St. 1909, § 2783, as a contract not to be performed within a year.-Shacklett v. Cammins, 165 S. W. 1145.

VI. REAL PROPERTY AND ESTATES AND INTERESTS THEREIN. $72 (Tex.Civ.App.) Growing trees are a part of the realty, and a verbal sale thereof which does not contemplate their immediate separation from the soil is within the statute of frauds (Rev. Civ. St. 1911, art. 3965, subd. 4).-Groce v. West Lumber Co., 165 S. W. 519.

$ 74 (Mo.App.) Agreement by grantor, contemporaneous with conveyance, to procure consent of insurer to assignment of policy on building held not within the statute of frauds.-Matthews v. McGuffin, 165 S. W. 874.

VIII. REQUISITES AND SUFFICIENCY OF WRITING.

§ 116 (Mo.App.) Rev. St. 1909, § 2783, requiring a contract for sale of land by agent, to be authorized in writing, to be binding on the principal, does not apply to sales ordered by the court, and so in case of partition sale under section 2593, does not affect the right of action given by section 2223 to recover of the purchaser, refusing to pay his bid, the loss on a resale. Hall v. Giesing, 165 S. W. 1181.

IX. OPERATION AND EFFECT OF
STATUTE.

§ 123 (Mo.App.) It is not a putting of the tenant in possession, under a verbal letting, on shares, for a year, not to commence till a day in the future, invalid under Rev. St. 1909, § 2783, with the result of making him a tenant from year to year, that he, then being in possession under a lease extending to the commencement of the year, pursuant to part of the oral agreement, plows before the commencement of the year part of the land.-Shacklett v. Cummins, 165 S. W. 1145.

§ 129 (Mo.App.) It does not aid a verbal letting for a year, to commence at a day in the future, invalid under Rev. St. 1909, § 2783, that the tenant then in possession under a lease extending to the time such year commenced plowed part of the land, pursuant to part of such oral agreement, before the year commenced.Shacklett v. Cummins, 165 S. W. 1145.

§ 143 (Ky.) Where defendant purchased scales with knowledge that plaintiff had the right to use the scales free, plaintiff's right was not affected by the fact that defendant purchased the scales by a verbal contract, so that defendant cannot defeat plaintiff's action to enforce his right to use the scales because defendant's contract was unenforceable under the stat

ward should know in making the sale.-Waldstein v. Barnett, 165 S. W. 459.

HIGHWAYS.

Roads; Railroads, §§ 324–350.

II. HIGHWAY DISTRICTS AND

V. ACTIONS.

§ 131 (Ark.) In an action by former wards to recover a lot sold to their guardian, evidence held to sustain a finding that the sale was induced by the guardian's fraud.-Waldstein v. Barnett, 165 S. W. 459.

VI. ACCOUNTING AND SETTLEMENT. § 163 (Ark.) An order of the circuit court, on appeal from the probate court, settling the account of a guardian after a hearing in which all claims for credits were presented by him, is res judicata as to such claims in a subsequent action to recover the amount found due upon the settlement.-Beakley v. Cunningham, 165 S. W. 259.

VIII. LIABILITIES ON GUARDIANSHIP BONDS.

§ 173 (Ark.) Where the court, on removing a guardian, adjusted his accounts and required him to pay the amount found due to his successor, his sureties were liable for interest on such amount from the time of the settlement.-Beakley v. Cunningham, 165 S. W. 259.

§ 175 (Ark.) Where a guardian secured the execution of a new bond with a different surety for the full amount required, but there was no accounting by him of the funds theretofore received, and no discharge of the former surety, both sureties were liable for the failure of the guardian thereafter to account for and pay over to his successor the moneys received by him.-Beakley v. Cunningham, 165 S. W. 259. $ 179 (Ark.) An order of the circuit court, on appeal from the probate court, settling the account of a guardian who had been removed, and requiring him to pay the amount found due to his successor and directing the entry of the order by the probate court, is equivalent to an adjustment of the guardian's account by the probate court, so far as fixing the liability on

his bond is concerned.-Beakley v. Cunningham,

165 S. W. 259.

§ 180 (Ark.) An order fixing the amount due from a guardian entered after rehearing, in which claims for credits were presented by him, is conclusive as to such claims against the sureties.-Beakley v. Cunningham, 165 S. W. 259. § 182 (Ark.) An action on a guardian's bond payable to the state may be prosecuted either by the state as trustee or by the real party in interest; that is, by the party entitled to receive the money.-Beakley v. Cunningham, 165 S. W. 259.

OFFICERS.

§ 90 (Ark.) Acts 1909, p. 1151, amending Sp. Act 1907, p. 568, and providing for the creation of improvement districts for the building and maintaining of highways in certain counties, held not impliedly repealed by Acts 1913, p. 1179, creating the department of state lands, highways, and improvements, and authorizing the formation of improvement districts thereunder.-Polk v. Booker, 165 S. W. 262.

891 (Mo.) Under Laws 1913, p. 665, a county highway board consists of three members appointed by the county court, and in addition thereto the county highway engineer is a member by virtue of his office.-State ex rel. Flowers v. Morehead, 165 S. W. 746.

§ 93 (Mo.) An appointee to the position of member of a county highway board created by Laws 1913, p. 665, is a public officer within Const. art. 14, § 7, and, in the absence of any special provision for the removal of members of the board, a member may only be removed as prescribed by Rev. St. 1909, § 10204 et seq.State ex rel. Flowers v. Morehead, 165 S. W. 746.

§ 95 (Ark.) The road commissioner is authorized by statute to lay off roads into sections, classify them, and specify how they shall be worked, and the character and amount of work needed, etc.-Garland County v. Arkansas Corrugated Metal Culvert Co., 165 S. W. 631. III. CONSTRUCTION, IMPROVEMENT, AND REPAIR.

control and supervise public roads and bridges § 105 (Ky.) The power of the fiscal court to granted by Ky. St. § 4306, includes the right to prescribe necessary rules for repairing and keeping the roads and bridges in order.-Hickman County v. Viverett, 165 S. W. 688.

8120 (Ky.) The power given the county judge by Ky. St. § 4305, to provide for ditches to carsively to the making of ditches on the lands of ry off water from public roads, refers exclupersons adjoining public roads.-Hickman County. Viverett, 165 S. W. 688.

The action of the county judge in granting an owner of land adjacent to a public road permission to dig a ditch along the road is without effect, unless evidenced by an order entered of record in the county court.-Id.

Ky. St. § 4311, authorizes an overseer of highways, in the absence of rules prescribed by the fiscal court, to permit on request an owner of land adjacent to a public road to dig a ditch in the road to carry off surface water on the land.-Id.

V. REGULATION AND USE FOR

TRAVEL.

(B) Use of Highway and Law of the Road.

§ 181 (Tex.Civ.App.) Where a person operating an automobile along a public highway, after seeing that a team of mules indicate fright, increases the speed of the car, and thereby causes a noise which is calculated to and does frighten the mules, he is liable for the resulting damages.-Carsey v. Hawkins, 165 S. W. 64.

Where the operator of an automobile, when he negligently frightened a team of mules, causing them to run against a tree, whereby one was killed and the other injured, must have known that some injury would result to them, he could not avoid liability on the ground that the particular injury could not have been anticipated. -Id.

8184 (Tex.Civ.App.) Evidence, in an action for the death of one mule and injury to another

OF RIGHTS.

HISTORY.

See Evidence, § 11.

HOMESTEAD.

See Deeds, 143; Execution, § 256; Fraudulent Conveyances, § 52; Mechanics' Liens, 8 14; Mortgages, § 38; Public Lands, § 92; Trial, § 234.

I. NATURE, ACQUISITION, AND

EXTENT.

(A) Nature, Creation, and Duration of Estate or Right in General.

§ 5 (Mo.) Statutes granting homestead exemption are intended to protect the homes of the poor and financially unfortunate, and should be liberally construed.-Keeline v. Sealy, 165 S. W. 1088.

(D) Property Constituting Homestead.

§ 66 (Mo.) The exemption of certain property as a homestead is not affected by liens, where the value of the property without the liens is less than that specified as an exempt homestead.-Pocoke v. Peterson, 165 S. W. 1017.

(E) Liabilities Enforceable Against
Homestead.

§ 96 (Tex.Civ.App.) Neither a vendee nor his grantee can acquire homestead rights as against a vendor's lien reserved in a note given by the purchaser.-Wood v. Smith, 165 S. W. 471. A deed of trust as further security for the payment of a vendor's lien note is not avoided by the fact that the property was occupied by the purchaser as a homestead when the deed was executed and delivered.-Id.

II. TRANSFER OR INCUMBRANCE. § 128 (Tex.Civ.App.) A contract executed by a husband alone to convey the homestead is not unlawful, and an action lies against the husband for the breach of the contract, where he assured the purchaser that the wife would join in the deed, and she refused so to do.-Fonda v. Colquitt, 165 S. W. 1195.

III. RIGHTS OF SURVIVING HUS-
BAND, WIFE, CHILDREN,
OR HEIRS.

$145 (Ky.) Where a widow, who had a homestead in the lands of her first husband, remarried and removed to the residence of her new spouse, which he had for many years maintained, there was an abandonment of her homestead within Ky. St. § 1707, notwithstanding the widow and her second spouse after suit by the children for partition, returned to the homestead and took up their abode thereon.-Boggess v. Johnston, 165 S. W. 413.

IV. ABANDONMENT, WAIVER, OR

FORFEITURE.

§ 162 (Mo.) Removal by the owners of a homestead of nearly all their household goods during a temporary business venture, and their offer to rent the property from month to month only, held not to constitute an abandonment.-Pocoke v. Peterson, 165 S. W. 1017.

§ 167 (Mo.) A conveyance of a homestead by the claimant to another and a reconveyance to the claimant, there being no consideration for either deed, did not affect the homestead exemption. Keeline v. Sealy, 165 S. W. 1088.

deed claimed to have been intended as a mort§ 214 (Tex.Civ.App.) In an action to cancel a gage, on the ground that it covered homestead property, evidence held to sustain a finding of notice to the mortgagee that the property was homestead property.-Mitchell v. Morgan, 165 S. W. 883.

$216 (Mo.) An instruction with reference to a homestead exemption that the judgment became a lien on the debtor's real estate from the date of its rendition, unless such real estate was her homestead, and continued to be such for three years from that date, was erroneous.Keeline v. Sealy, 165 S. W. 1088.

Where the evidence concerning a debtor's removal from property claimed as her homestead indicated no intention not to return thereto, an instruction that her removal constituted a prima facie case of abandonment, and raised a presumption against the claim of homestead, which she was required to rebut, held erroneous.-Id. Modification of a request to charge on the issue of abandonment of a homestead held erroneous, as incorporating certain other property not in controversy, and as authorizing the jury to determine the question from the "facts and circumstances" instead of the evidence in the case.-Id.

HOMICIDE.

See Criminal Law, §§ 366, 404, 508, 534, 655, 6662, 761, 785, 1169, 1170; Witnesses, § 370.

I. THE HOMICIDE.

§ 5 (Tex.Cr.App.) On trial of an accomplice to murder, where the evidence was that the

wounds in front and those in the back were made by persons acting together, it was immaterial whether those in front or one in the 165 S. W. 208. back was the fatal wound.-Espinoza v. State,

II. MURDER.

88 (Tex.Cr.App.) The act of the 33d Leg. c. 116, changing the definition of murder did not repeal the prior law of murder to such an extent that no punishment could be imposed under indictments charging murder under the prior law; such act only changing the penalty.-Andrus v. State, 165 S. W. 189.

III. MANSLAUGHTER.

$34 (Ky.) Involuntary manslaughter is the killing of another in the doing of an unlawful act without intent to kill, whether such act is directed against the person killed, or against another person or thing.-Cox v. Commonwealth, 165 S. W. 411.

V. EXCUSABLE OR JUSTIFIABLE HOMICIDE.

§ 109 (Tex.Cr.App.) Where accused went to where decedent was, and killed him simply because he was on accused's premises and would not leave, as demanded by accused, self-defense was not in the case.-Humphrey v. State, 165 S. W. 589.

§ 116 (Ky.) One believing upon reasonable grounds that he is in danger of death or great bodily harm, and having no other apparent means of protecting himself, held entitled to kill, though the appearances are false and he is in fact not in danger.-Sizemore v. Commonwealth, 165 S. W. 669.

§ 116 (Tex.Cr.App.) The issue of self-defense upon the theory of apparent danger may be raised by the acts of deceased, coupled with his words or by his acts without words.-Andrus v. State, 165 S. W. 189.

If accused had been informed of threats toward him by decedent, and the latter at the time