may consider all the facts and circumstances in evidence, and the relation of the parties to each other, and the reasonable inferences to be drawn therefrom, in determining whether an illegal combination is shown.-State ex inf. Hadley v. Standard Oil Co. (Mo.) 902.

§ 26. In proceedings in the nature of quo warranto against certain corporations for forming an illegal combination in restraint of trade, evidence that a majority of the stock of respondents was owned by another corporation was not conclusive evidence of an unlawful combination between respondents, but was admissible as bearing on such question.-State ex inf. Hadley v. Standard Oil Co. (Mo.) 902.

§ 26. A rebate system, maintained by a respondent corporation within the state, by which it prevented all of its competitors from doing more than from 10 to 15 per cent. of the oil business, and by which it fixed and maintained prices, held admissible to prove a combination in restraint of trade, in violation of anti-trust law (Rev. St. 1899, c. 143 [Ann. St. 1906, §§ 8965-8992]).-State ex inf. Hadley v. Standard Oil Co. (Mo.) 902.

§ 26. Where, in proceedings by the state to cancel a corporation's charter for violation of the anti-trust law (Rev. St. 1899, c. 143 [Ann. St. 1906, §§ 8965-8992]), the Supreme Court had power to suspend a judgment of ouster on condition that the corporation withdraw from an illegal combination of which it was a member and purge itself from trust control.-State ex inf. Hadley v. Standard Oil Co. (Mo.) 902.

§ 11. The interest acquired by a party to an exchange of lands held subject to mortgage.Masters v. Clark (Ark.) 186.

homestead is an absolute deed, or a mortgage § 32. Whether a conveyance of a business which would be void, does not depend on the intention of the grantor and his wife, regardless of the grantee's intent.-Nagle v. Simmank (Tex. Civ. App.) 862.

§ 37. Parol evidence is admissible to prove that an absolute deed is a mortgage.-Nagle v. Simmank (Tex. Civ. App.) 862.

§ 38. Inadequacy of consideration held an element to be considered in determining whether a contract evidenced a conditional sale or a mortgage.-Donovan v. Boeck (Mo.) 543.

§ 38. The court, in determining whether an instrument set out in a bill was a conditional sale or a mortgage, held required to consider the allegation of the inadequacy of the consideration in connection with the other allegations of the bill.-Donovan v. Boeck (Mo.) 543.

VI. TRANSFER OF PROPERTY MORTGAGED OR OF EQUITY OF REDEMPTION.

Parol or extrinsic evidence as to assumption of liability, see Evidence, § 441.

§ 280. Evidence in an action to foreclose deeds of trust held to show that defendant agreed to discharge outstanding liens when he purchased the land.-Grace v. Gill (Mo. App.) 442.

OR PERFORMANCE

OF CONDITION, RELEASE,

§ 6. Where the mortgagor by quitclaim deed, absolute on its face, conveys property to the mortgagee, who entered into an agreement to reconvey on condition, the deed will not be deemed as a mere security.-Donovan v. Boeck (Mo.) 543.

86. Where a contract is plainly ambiguous, and the question is whether it evidences a conditional sale or a mortgage, the court will lean towards construing it to be a mortgage if a fair resolution of the ambiguities can be made in favor of that view.-Donovan v. Boeck (Mo.)

543.

AND SATISFACTION.

§ 298. The transfer of a mortgage note to the purchaser of the land extinguished the mortgage lien.-Grace v. Gill (Mo. App.) 442. IX. FORECLOSURE BY EXERCISE OF POWER OF SALE.

§ 338. In an action by a divorced wife to enjoin the sale of a tract of land under a deed of trust because notes given by the husband, which were thereafter collected, should have been applied in payment of the debts secured, evidence held to sustain findings that the notes were not given as security for that debt, but for another loan.-Moss v. Brant (Mo.) 503.

X. FORECLOSURE BY ACTION. Foreclosure in suit to reform instrument, see Reformation of Instruments, § 47.

(F) PLEADING AND EVIDENCE. Parol or extrinsic evidence, see Evidence, § 441. (G) INJUNCTION AND RECEIVER. § 474. A surety on a bond given in discharge of a receivership in a mortgage foreclosure, conditioned for the payment of the amount found to be due plaintiff, is not liable for any indebtedness except that stated in the complaint claiming a lien.-Lacy Bros. & Kimball v. London (Ark.) 207.

XI. REDEMPTION.

§ 606. In order that a divorced wife may redeem from a deed of trust, held, that she must comply substantially with Rev. St. 1899. §§ 4343, 4344 (Ann. St. 1906, pp. 2390, 2391).Moss v. Brant (Mo.) 503.

MOTIONS.

For particular purposes or relief. Arrest of judgment in civil actions, see Judgment, §§ 263, 267.

NEW PROMISE.

1283

(B) MISCONDUCT OF PARTIES, COUNSEL, OR WITNESSES.

§ 31. A defeated party held not entitled to complain of the court's failure to pass on an objection to a statement of testimony in the argument of opposing counsel where the court passed on the objection provisionally, and left the matter open, and it was not afterwards called to his attention till the motion for a new trial.-Southern Pac. Co. v. Hart (Tex. Civ. App.) 415.

(D) DISQUALIFICATION OR MISCONDUCT OF OR AFFECTING JURY.

42. A false statement by a juror that he has not formed nor expressed an opinion concerning the merits of the case held ground for a new trial.-Stein v. Chesapeake & O. Ry. Co. (Ky.) 733.

(F) VERDICT OR FINDINGS CONTRARY TO LAW OR EVIDENCE.

§ 66. A verdict is contrary to law within Civ. Code Prac. § 340, subsec. 6, when it is contrary to the instructions, whether right or wrong.-Lynch v. Snead Architectural Iron Works (Ky.) 693.

(G) SURPRISE, ACCIDENT, INADVERTENCE, OR MISTAKE.

§ 98. In an action for injuries, facts held insufficient to entitle plaintiff to a new trial because of surprise.-Hobart Lee Tie Co. v. Keck (Ark.) 183.

(H) NEWLY DISCOVERED EVIDENCE. $99. Court held to have acted within its discretion in granting a new trial.-Hall v. Wilson (Ky.) 244.

§ 102. Applicants for new trial held not precluded by failure to use due diligence.-Hall v. Wilson (Ky.) 244.

§ 102. An application for a new trial on the ground of newly discovered evidence, held not to show sufficient diligence in the discovery of the evidence.-Keck v. Woodward (Tex. Civ. App.) 75.

§ 103. In a railroad brakeman's action for injuries through being thrown from a car by an alleged sudden jerk of the train, the overruling of plaintiff's motion for new trial on the ground of newly discovered evidence held not reversible error.-Ayers v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ. App.) 612.

III. PROCEEDINGS TO PROCURE NEW TRIAL.

§ 144. An affidavit for a new trial on account of misconduct of the jury in arriving at their verdict held an insufficient showing on which to grant the motion.-Southern Pac. Co. v. Hart (Tex. Civ. App.) 415.

$ 165. The court held not to have lost jurisdiction of the motion to set aside the order granting a new trial, by continuing it to the next term.-Chandler v. Gloyd (Mo.) 1073.

NEXT OF KIN.

See Descent and Distribution.

NON OBSTANTE VEREDICTO. Judgment, see Judgment, § 199.

NONRESIDENCE.

Effect on limitation, see Limitation of Actions, $ 85. NOTES.

Promissory notes, see Bills and Notes.

NOTICE.

As affecting particular classes of persons. Purchaser of property belonging to decedent's estate on sale under order of court, see Executors and Administrators, § 388.

As affecting particular rights, duties, and liabili ties.

Good faith of purchaser of property belonging to decedent's estate on sale under order of court, see Executors and Administrators, § 388. Right of execution debtor to exemptions, see Exemptions, § 114.

Of particular facts, acts, or proceedings not judicial. See Nuisance, § 42. Appeal in proceedings for consolidation of school districts, see Schools and School Districts, $ 39.

Defects in streets, see Municipal Corporations, § 791.

Election to determine question of increasing municipal indebtedness, see Municipal Corporations, § 867.

Of particular judicial proceedings. See Lis Pendens.

Appeal from justice's judgment, see Justices of the Peace, § 160. Guardians' sale, see Guardian and Ward, $ 96. Sale of property of bankrupt, see Bankruptcy, § 261.

5. The doctrine which charges all parties to a judicial proceeding with notice of orders the lis pendens doctrine.-J. M. West Lumber and judgments rendered therein is distinct from Co. v. Lyon (Tex. Civ. App.) 652.

NOTWITHSTANDING VERDICT.

Judgment, see Judgment, § 199.

IX. PUBLIC IMPROVEMENTS. (A) POWER TO MAKE IMPROVEMENTS OR GRANT AID THEREFOR. Contract with water company to furnish water for fire hydrants as creating monopoly, see Monopolies, § 6.

(C) CONTRACTS.

§ 362. Where the time for completion of a public improvement is specified in the contract, but not in the ordinance, time is not the essence of the contract; and, where the contract time is not reasonable, the city by ordinance may give the contractor reasonable time.-Brigham v. Hickman (Mo. App.) 449.

§ 362. In the absence of a showing to the

contrary, it will be assumed that the time prescribed in an ordinance extending the time for completion of a public improvement was reasonable.-Brigham v. Hickman (Mo. App.) 449. § 373. The claim of a materialman for money in the hands of a city retained from money due a contractor held superior to the claim of an assignee of another materialman under garnishment proceedings against the city.--Ross v. Beaumont Brick Co. (Tex. Civ. App.) 643.

§ 373. Claims of persons who had furnished material for an original contractor held not payable out of payments accruing under a new contract between the city and M. to finish the work the original contractor had abandoned.Ross v. Beaumont Brick Co. (Tex. Civ. App.) 643.

(E) ASSESSMENTS FOR BENEFITS, AND

SPECIAL TAXES.

§ 444. The failure of an ordinance authorizing a public improvement to fix a time for the completion of the work does not invalidate the assessment therefor.-Brigham v. Hickman (Mo. App.) 449.

§ 445. If a city delayed confirming a contract for public improvement because of collusion between the contractor and the city officials that the contractor might have more than a reasonable time to complete the work, the assessment would be invalid.-Brigham v. Hickman (Mo. App.) 449.

§ 513. Evidence held not to overcome the presumption that the time prescribed in an ordinance extending the time for completion of a public improvement was reasonable.-Brigham v. Hickman (Mo. App.) 449.

§ 513. In a suit to cancel special tax bills for grading a street, where the issue of fraudulent delay in the enactment of the confirmation ordinance was not presented by the pleadings, evidence thereof was properly excluded.Brigham v. Hickman (Mo. App.) 449.

X. POLICE POWER AND REGULA

TIONS.

XI. USE AND REGULATION OF PUB-
LIC PLACES, PROPERTY,
AND WORKS.

(A) STREETS AND OTHER PUBLIC WAYS.

Amendment of pleading in action for compensation for grant of rights in street, see Pleading, § 248.

Best and secondary evidence as to location, see Evidence, § 158.

Competency of witnesses on issue as to width of street, see Witnesses, § 37. Conflicting and concurrent exercise of power by state and municipality to impose penalties to enforce labor of citizens on streets, see Municipal Corporations, § 592. Liability of master for negligence of servant,

see Master and Servant, § 304.

$669. Owners of lots held to have the right of ingress to and egress from their lots by way of the street abutting their property of which the city cannot deprive them by granting to a railroad company a right to an exclusive use of the street.-Stein v. Chesapeake & O. Ry. Co. (Ky.) 733.

XII. TORTS.

(C) DEFECTS OR OBSTRUCTIONS IN STREETS AND OTHER PUBLIC WAYS.

Application of general statute of limitation to actions for injury caused by railroad failing to keep street in repair, see Limitation of Actions, § 55.

Judgment in action for injuries from failure of railroad to keep street in repair as bar to subsequent action, see Judgment, § 606.

§ 762. A city permitting abutting owners to use a street in the construction or repair of buildings is required to exercise the sanie care to protect travelers as if it had not surrendered a portion of the street for such construction or repair purposes.-Grider v. Jefferson Realty Co. (Ky.) 691.

$762. A city held not liable for injuries resulting from a failure to enforce police regulations.-Mehan v. City of St. Louis (Mo.) 514.

§ 791. Where a plank sidewalk has rotted away until it becomes dangerous to pedestrians, the city held liable without further notice for injuries received by a pedestrian.-City of Louisville v. Lambert (Ky.) 261.

§ 796. It is the duty of a city and of persons making excavations or obstructions in a street to give notice by such barriers and lights or other means as are reasonably sufficient to warn pedestrians and travelers of the unsafe place.-Grider v. Jefferson Realty Co. (Ky.) 691.

§ 796. In an action against a city, a building contractor, and the owner of the building for injuries to plaintiff through falling into a ditch dug in the street by the contractor, an instruction limiting the duty of defendants to

CISE OF POWER.

§ 592. Rev. St. 1895, art. 419, as amended by Rev. St. 1895, art. 4730a, held to give cities and towns exclusive power over their streets so that an ordinance fixing a penalty for failure of a person to attend for work on the streets is not invalid because the penalty is in excess of that fixed by White's Ann. Pen. Code art. 491.Ex parte Drake (Tex. Cr. App.) 49.

erroneous. Grider v. Jefferson Realty Co. (Ky.) 691.

§ 816. A complaint, in an action for injuries caused by an obstruction in an alley, though defective, held to be sustained if the good alle gations made out a cause of action at common law.-Mehan v. City of St. Louis (Mo.) 514.

REGULATIONS.

Authority of Governor to pardon one convicted of violation of ordinance, see Pardon, § 4.

§ 816. A complaint against a city for injuries sustained by falling over loose boards with