record, under an order of the commissioners', erly permitted to give their opinions as to court, parol evidence that the order did not husband's sanity.-Heinbach v. Heinbach, 202 correctly describe the contract is inadmissible, S. W. 1123. as contradicting the record.-King v. Marion County, 202 S. W. 1052. 408(7) (Tex.Civ.App.) Ordinarily a warehouseman's receipt is a contract which cannot be impeached by parol testimony.-Jackson v. Greenville Compress Co., 202 S. W. 324. ment. In widow's action to establish husband's will, defended on ground of incapacity, witnesses, who had seen husband every day for three years and present when will was executed, held competent to give conclusion as to wheth er husband at execution of will had sufficient mind to comprehend who his children were, nature and extent of his property, and to whom he desired to give it.-Ïd. sion of personal property, witness must show he was acquainted with market value of the property at such time and place.-Waldrop v. Goltzman, 202 S. W. 335. (C) Separate or Subsequent Oral Agree441(11) (Mo.App.) In an action on a note 489 (Tex.Civ.App.) In cases of converalleged to have been procured by fraud, evidence that plaintiff's cashier orally represented that it was not to be paid unless money was made out of the sale of the land for which it was given held inadmissible as violating the rule against showing contemporaneous oral agreement.-First Nat. Bank v. Henry, 202 S. W. 281. (B) Subjects of Expert Testimony. 505 (Tex.Civ.App.) In action for damages to shipment of horses, it was proper for expert witness to testify to market value of horses at point of destination if they had been transported in the usual manner and time; such testimony being in respect to a fact.-Galveston, H. & S. A. Ry. Co. v. Gibbons, 202 S. W. 352. 506 (Mo.) In action for injuries by explosion of powder mill, physician was properly allowed to state whether the conditions found in plaintiff could have resulted from the accident; such question not invading the province of the jury.-Liggett v. Excelsior Powder Mfg. Co., 202 S. W. 372. 534 (Mo.) Experts in sewer construction could testify in the city's action for the contractor's breach as to the cost of completing the work according to contract.-City of Kennett v. Katz Const. Co., 202 S. W. 558. (C) Competency of Experts. 470 (Mo.) A nonexpert witness may give his conclusions or deductions when matter is 537 (Mo.App.) Permitting a lay witness, one which witness of ordinary intelligence can who had herself been a sufferer with asthma for understand, and such conclusions or deduc-years, to state that she had never discovered tions are based on facts not capable of being symptoms of asthma in plaintiff, was not prejproperly or accurately described.-Heinbach v. udicial error.-Atkinson v. American School of Heinbach, 202 S. W. 1123. Osteopathy, 202 S. W. 452. 471(24) (Ky.) In action against railroad 538 (Ky.) In prosecution of board of councompany for assault and abuse by brakeman, cil of city for creating and maintaining nuievidence that women left. the station because of sance by permitting sewage field to become inbrakeman's language was properly excluded; adequate physician held qualified to testify as the reason why they left being but the witness's expert.-Board of Council of City of Danville opinion.-Blackburn v. Williamson & P. C. Ry. v. Commonwealth, 202 S. W. 858. Co., 202 S. W. 500. 471(26) (Ky.) Statement that a servant was injured on canal property ceded to the government, by one who did not profess to know the location of the right of way, was only a conclusion.-Henry Bickel Co. v. Wright's Adm'x, 202 S. W. 672. 471 (35) (Mo.App.) It was error to permit witness to testify as to whether lot had been benefited or damaged by improvement of street. -Nestlehut v. City of De Soto, 202 S. W. 425. 471(35) (Tex.Civ.App.) In an action against fire insurance companies for conspiring to prevent plaintiff from obtaining insurance, plaintiff's statement that he had been damaged held inadmissible as being a conclusion.-Palatine Ins. Co. v. Griffin, 202 S. W. 1014. 472(8) (Mo.) In widow's action to establish husband's will, where witnesses were permitted to detail all particulars of husband's life, court properly ruled out conclusions as to sanity where particular witnesses had neither had business transactions with him nor witnessed transactions of his.-Heinbach v. Heinbach, 202 S. W. 1123. (D) Examination of Experts. 553(1) (Mo.App.) Every party has right to place before jury scientific inferences properly deducible from such facts as evidence tends to prove.-Atkinson v. American School of Osteopathy, 202 S. W. 452. Counsel may put to an expert a question in which the things which the evidence adduced tends to prove, and which counsel claims to have proved, are stated as a hypothesis.—Id. 553(3) (Tex.Civ.App.) The age, experience, and average monthly earnings of brokers' representative are not facts to be considered in determining reasonable value of brokers' services for work done largely by such representative, and a hypothetical question based thereon was properly excluded.-Brady v. Richey & Casey, 202 S. W. 170. 553 (4) (Tex.Civ.App.) In action for damages for injuries sustained by minor while attempting to board defendant's street car, statement by medical expert that displacement of womb would likely cause accelerated or irregular menstruation was reversible error, in ab474(4) (Mo.) In widow's action to establish sence of evidence of such injury.-Northern husband's will, defended on ground of inca- Texas Traction Co. v. Crouch, 202 S. W. 781. pacity, witnesses who had had business trans-558(11) (Mo.App.) It was not error to peractions with husband, some over many years, mit counsel on cross-examination to contradict except two or three who had seen him when expert witness by asking whether "Hulett," engaged in business transactions, were prop- whom he had testified was a recognized author V. STAY, QUASHING, VACATING, AND RELIEF AGAINST EX ECUTION. 588 (Mo.) Testimony of witness present at conversation between grantor and grantee under a deed of trust made many years before the trial is not entitled to very great weight,171(1) (Tex.Civ.App.) In a suit for consince the witness, not having been interested version in unlawfully seizing property on an execution, to support which there is no judgin the transaction, may not have fully underment, a writ of injunction may issue to prestood it, and because of infirmities of memory. vent the sale of the property prior to final de-Whiteley v. Babcock, 202 S. W. 1091. termination.-Ramsel v. Miller, 202 S. W. 1050. See Appeal and Error, 870; Criminal Law, EXECUTORS AND ADMINISTRATORS. 1090-1093. See Appeal and Error, 374; Constitutional 283; Payment, 70; Trusts; AND TENURE. 41(1) (Tex. Civ.App.) Bills of exceptions II. APPOINTMENT, QUALIFICATION, not filed within the time allowed therefor cannot be considered on appeal.-Elledge v. St. (Mo.App.) Right of action for death of Louis Southwestern Ry. Co. of Texas, 202 S. child having no property authorizes appointment of administrator.-La Duke v. Dexter, 202 S. W. 254. W. 203. 59(2) (Mo.App.) When bill of exceptions is signed and filed, it is part of record, and can be amended only by motion nunc pro tunc, based on proper memoranda.-Keet & Rountree Dry Goods Co. v. Williams, 202 S. W. 620. 59(4) (Mo.App.) When term ends at which case is tried, and time is given to file bill of exceptions, which is signed, filed, and made part of record, latter is complete and imports verity, and judge cannot amend bill of exceptions after term, though time for filing has not expired.-Keet & Rountree Dry Goods Co. v. Williams, 202 S. W. 620. EXCESSIVE DAMAGES. See Damages, 132, 134. EXCHANGE OF PROPERTY. 8(1) (Mo.) Where defendant, after using forged abstract to acquire title to plaintiff's land, stands mute without attempt to justify his conduct or show that plaintiff obtained merchantable title to land received in exchange, plaintiff need not show that title to land received by him failed by reason of forgery.-Huggins v. Davidson, 202 S. W. 395. 8(4) (Mo.) Evidence held to show that defendant falsely represented to plaintiff that he was owner of land exchanged for plaintiff's, that abstract of title which he delivered to plaintiff to induce him to exchange was reliable, and that plaintiff in reliance upon representations made exchange.-Huggins v. Davidson, 15 (Ark.) A testatrix has a right in her will to appoint any one whom she deems proper as executor.-Bocquin v. Theurer, 202 S. W. 845. 20(4) (Tex.Civ.App.) Rev. St. 1911, art. 7491, authorizing county court to appoint administrator in inheritance tax proceedings without notice if no application for letters has been made within three months, etc., is not invalid because not requiring that notice be given, especially as property cannot be sold to satisfy tax without notice.-Dodge v. Youngblood, 202 S. W. 116. 29(5) (Ark.) Appointment of administrator of estate is conclusive of question of necessity for administration, but is not conclusive of question of whether lands of estate are needed to pay debts.-Turley v. Gorman, 202 S. W. 822. 31 (Tex.Civ.App.) Under Rev. St. 1911, art. 3289, providing that executor under foreign will filed in Texas should supersede administrator previously appointed there, an inheritance tax administrator appointed under Rev. St. 1911, art. 7491, is superseded by executor under probated foreign will.-Dodge v. Youngblood, 202 S. W. 116. 33 (Tex.Civ.App.) Where one nominated by will as independent executor was appointed guardian of estate of minor beneficiaries after filing his application to probate the will but prior to admission of the will to probate and his appointment as independent executor, appointment as guardian did not amount to resignation of his executorship.-Beckham v. Beckham, 202 1217 35(1) (Ark.) In view of Kirby's Dig. § 37, providing for the revocation of letters if an executor becomes of unsound mind or commits waste or mismanages estate or so acts as to endanger his coexecutor, the probate court has a right to remove an executor and appoint another in his place under a proper case made.-Bocquin v. Theurer, 202 S. W. 845. III. ASSETS. APPRAISAL, AND IN- 43 (Mo.App.) The legal title to personal estate of an intestate vested on her death in her administrator.-Messenbaugh v. Goll, 202 S. W. 265. IV. COLLECTION AND MANAGEMENT (A) In General. 383 (Ky.) Where, in action by administrator with will annexed to settle estate of decedent, land devised by decedent was sold to pay his debts, later action by devisee to recover the land, alleging that the judgment, sale, and conveyance in the old suit were void, being an original action, and not a proceeding under Civ. Code Prac. §§ 344, 414, 518, as to vacation of judgments, etc., is collateral attack.-Fraize v. Walls, 202 S. W. 310. Judgment, sale, and conveyance in action by administrator with will annexed to settle his decedent's estate, cannot be disturbed in collat90 (Tex.Civ.App.) Independent executors eral attack, unless it affirmatively appears from have the right to manage and control estates the record in that action that they are void. without interference of the courts, unless neces--Id. sity arises for the adjustment of some legal rights of others.-Beckham v. Beckham, 202 S. W. 517. 91 (Tex.Civ.App.) Administrator appointed under inheritance tax law of May 16, 1907 (Acts 30th Leg. [1st Called Sess.] c. 21), is governed by general statutes relating to administration of estates.-Dodge v. Youngblood, 202 S. W. 116. hus (C) Personal Property. VI. ALLOWANCE AND PAYMENT OF (B) Presentation and Allowance. X. ACTIONS. 437(7) (Ark.) Suit by state bank commissioner, as judgment creditor of deceased insolvent, to set aside transfer of life policy to sister and son as fraudulent to creditors, seeks to enforce claim against estate of insolvent, and statute of nonclaim, suit being brought more than year after appointment of administrator, bars debt under which bank commissioner claims.-Davis v. Cramer, 202 S. W. 239. XI. ACCOUNTING AND SETTLEMENT. (A) Duty to Account. 458 (Ky.) An executrix. who was decedent's widow and who has taken charge of the property under the will, owes to the heirs the duty of settling her accounts.-Furey v. Gallagher, 202 S. W. 641. EXEMPLARY DAMAGES. See Damages, 215. EXEMPTIONS. See Appeal and Error, 374; Homestead; I. NATURE AND EXTENT. fect in General. 227(3) (Ark.) The provisions of Kirby's (A) Nature, Creation, Duration, and EfDig. § 118, that if a debt be assigned after debtor's death affidavits shall be made by both the "person," holding at such time and the assignee, does not apply to a debtor's note in custodia legis at his death and later sold by the court under Acts 1913, p. 462.-Triplett v. Attwood, 202 S. W. 817. 233 (Ark.) Debt of decedent's estate being barred by statute of nonclaim, mere remedy for its enforcement, bottomed solely on debt or demand, and having no independent foundation, cannot be maintained.-Davis v. Cramer, 202 S. W. 239. (Ky.) Since, in the absence of statute, all property is subject to execution, only property specifically mentioned in the exempting statute is exempt.-Roberts v. Frank Carrithers & Bros., 202 S. W. 659. 4 (Ark.) Exemption statutes, as statutes exempting reasonable sum out of insolvent debtor's estate to provide insurance for wife and children, are always given liberal construction, and strict letter is never adhered to where it kills spirit of law.-Davis v. Cramer, 202 S. W. 239. (C) Property and Rights Exempt. 236 (Mo.App.) Notwithstanding the juris-4 (Ky.) Rule that exempting statutes must diction over all suits, etc., against executors giv- be liberally construed must not be indulged to extend privileges by construction not intended en probate court by Rev. St. 1909, §. 198, pro- to be conferred by the Legislature.-Roberts v. bate court had no jurisdiction over claim against Frank Carrithers & Bros., 202 S. W. 659. testatrix's estate arising from fact mortgagees foreclosed deeds of trust given by testatrix on realty specifically devised to claimants, thus forcing claimants to pay such incumbrances.48(1) (Ky.) Income, in its popular signifiPeck v. Fillingham's Estate, 202 S. W. 465. VIII. SALES AND CONVEYANCES UNDER ORDER OF COURT. (B) Application and Order. 337 (Ky.) Where, in action by administrator with will annexed to settle estate of de cation, is the return in money which one receives from an investment of capital, as distinguished from the capital itself; but it may be applied to define the proceeds of labor, or the receipts of a profession, business, or occupation.-Roberts & V. Frank Carrithers Bros.. 202 S. W. 659. In Ky. St. § 1697, exempting certain wages, For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER salary, or income of the debtor from execution, the word "income" should be construed as if qualified by the words "earned by labor," so that a tobacco crop grown by a farmer as his own business venture is not income, nor exempt.-Id. V. FEES. See Costs; Counties; Trusts, 227; Witnesses, 28. FELLOW SERVANTS. FENCES. 48(2) (Ky.) A salary or wages is the con- See Master and Servant, 190, 196. IV. PROTECTION AND ENFORCE- 148 (Ark.) To avail themselves of exemption under Kirby's Dig. § 5212, burden was on curators of deceased insolvent to prove, in suit to set aside deceased's transfer of life insurance policy as fraudulent to creditors, that premium paid by deceased on policy and others for his wife and children did not exceed $300 yearly.-Davis v. Cramer, 202 S. W. 239. EXPERT TESTIMONY. See Criminal Law, 448; Evidence, ~505558. EXPLOSIVES. 8 (Mo.) Where passenger on train was injured by explosion of powder factory near track, evidence as to location of villages, school roads, farmhouses, etc., was competent; plaintiff not being limited to proving his own presence within the zone.-Liggett v. Excelsior Powder Mfg. Co., 202 S. W. 372. 6 (Ky.) In view of Ky. St. § 1784, relating to division fence for improved or inclosed land, ing unimproved or wild lands.-Sturgill v. Sturpart of section 1786 held to apply only to fencgill, 202 S. W. 311. of creek forming boundary line between Where landowners built fence wholly on their their land and that of a neighbor, at places as much as 25 to 40 feet from the creek, it was not such a fence as would become a partition or division fence, to which the neighbor might claim right to attach his outside boundary fences, under Ky. St. § 1786.-Id. 9 (Ky.) Reference in deed to "conditional fence" on part of division line between land granted and other land of grantor did not show that parties agreed that a division fence was to be maintained jointly on grantee's land along other portions of division line.-Sturgill v. Sturgill, 202 S. W. 311. FILING. See Appeal and Error, 628; Bankruptcy, 303. FINDINGS. See Appeal and Error, 1008–1011; Trial, 349-365, 388. FIRES. See Railroads, 456–482. FORCIBLE DEFILEMENT. A manufacturer of explosives owes the public a duty to protect it from the concussion caused by an explosion, just as much as it does to protect it from flying materials thrown See Rape. by an explosion.-Id. FORCIBLE ENTRY AND DETAINER. I. CIVIL LIABILITY. 9(3) (Tenn.) One in actual possession under deed defining boundaries when another fenced part of the land could proceed by forcible entry and detainer against such other.Walker v. Davis, 202 S. W. 78. 12 (Ark.) A factor receiving goods to sell on consignment is bound to act in good faith 14 (Mo.App.) Under Rev. St. 1909, §§ 7687, and to use reasonable or ordinary care.-Burke | 7688, the heirs of lands have the same remedy v. Napoleon Hill Cotton Co., 202 S. W. 827. of forcible entry and detainer that their ances46 (Ark.) Evidence in action by factor to tor had.-Beaghler v. Messick, 202 S. W. 409. recover compensation held to present a jury29(3) (Ark.) In forcible entry and detainquestion whether plaintiff exercised ordinary er, evidence impeaching the deed under which care to protect and preserve goods consigned plaintiff claimed, although going to the title, to it. Burke v. Napoleon Hill Cotton Co., 202 was admissible to show who was entitled to S. W. 827. possession, though title was not in issue.— James v. McDuffy, 202 S. W. 821. Evidence in action by factor for compensation held to present jury question whether the principal had given the factor positive instructions not to sell the goods for less than a specific_price, in waiting which the goods spoiled. -Id. 52 (Tex.Civ.App.) Where a factor mortgaged goods belonging to his principal without the knowledge of principal or act of estoppel on principal's part, the principal's right to the goods is superior to that of mortgagee.-Chase Hackley Piano Co. v. Clymer, 202 S. W. 214. See Perjury. FALSE SWEARING. FEDERAL CONTROL OF RAILROADS. 29(4) (Ark.) Evidence that plaintiff in foreible entry and detainer had a deed to the land and a note for the rent from the tenant whom he had placed in possession made a prima facie case.-James v. McDuffy, 202 S. W. 821. FORECLOSURE. See Mechanics' Liens, 263, 281; Mortgages, 510-546. FOREIGN CORPORATIONS. See Corporations, 650-657; Railroads, 33. FORFEITURES. See Corporations, 335; Frauds, Statute of; I. DECEPTION CONSTITUTING 4 (Tex.Civ.App.) Representations by vendor that he would put water on land within 60 days will not amount to fraud unless it is alleged and proved that he had no intent to perform at time of making them.-Mid-Continent Life Ins. Co. v. Pendleton, 202 S. W. 769. 13(2) (Tex.Civ.App.) Representations of a vendor as to an existing fact may be basis for relief, although believed by him to be true. Mid-Continent Life Ins. Co. v. Pendleton, 202 S. W. 769. 25 (Mo.App.) Where defendant had option upon concessions for sale of ice cream when contract for sale of same was made with plaintiffs and later procured a formal contract by which concessions were procured for plaintiffs, defendant's representations that he was owner of concessions affords no basis for cause of action.Vlates v. Catsigianis, 202 S. W. 441. Fraud, to be actionable, must result in damages to party suing therefor.-Id. II. ACTIONS. (C) Evidence. 50 (Mo.App.) In action for damages for fraudulent representations inducing plaintiffs to purchase certain concessions for sale of ice cream, burden was on plaintiffs to show that fraud resulted in damages to them.-Vlates v. Catsigianis, 202 S. W. 441. a proper showing of damages recoverable for fraud and deceit.-Vlates v. Catsigianis, 202 S. W. 441. 64 (5) (Tex. Civ.App.) Mere fact that purchaser demanded privilege of inspecting land would not, as matter of law, establish that he undertook to discover truth with regard to representations as to value.-Hahl v. Davidson, 202 S. W. 792. 66 (Tex.Civ.App.) In action for fraudulent representations by vendor, special issue whethcover value of land sold to him was improper, er purchaser could, by ordinary prudence, disunless, as matter of law, purchaser undertook to discover truth with regard to such value.Hahl v. Davidson, 202 S. W. 792. FRAUDS, STATUTE OF. V. AGREEMENTS NOT TO BE PER FORMED WITHIN ONE YEAR. 44(4) (Mo.App.) Mining lease covering period of seven years was within the statute of frauds, and required to be in writing, since it was not to be performed within a year.-Last Chance Mining Co. v. Tuckahoe Mining Co., 202 S. W. 287. VI. REAL PROPERTY AND ESTATES AND INTERESTS THEREIN. 60(2) (Tex. Civ.App.) Agreement between railroad company and owner of land that the landowners might use a pond partially situated on their lands to stock fish and rent boats for fishing is not necessarily required by law to be in writing in order to be effective between the parties.-Town of Jacksonville v. Ragsdale, 202 S. W. 774. VIII. REQUISITES AND SUFFICIENCY OF WRITING. 103(1) (Mo.) The whole of a contract to convey real estate must be in writing, and its terms cannot be eked out by parol.-Anderson v. Hall, 202 S. W. 539. 103(2) (Mo.) A letter offering to buy a farm held binding if accepted even by parol.-Anderson v. Hall, 202 S. W. 539. IX. OPERATION AND EFFECT OF STATUTE. 58(1) (Mo.App.) In an action for damages for fraudulent representations inducing plaintiffs to purchase certain concessions for sale of ice cream, evidence held not to warrant recov-129(1) (Mo.) Contract which has been perery for plaintiffs.-Vlates v. Catsigianis, 202 S. W. 441. 58(4) (Mo.App.) Evidence in action by purchaser for rescission and cancellation of the contract held to show the vendor procured the sale by false representations.-Hayes v. Wyatt, 202 S. W. 584. (D) Damages. 59(2) (Mo.App.) If defendant agreed to sell concessions to plaintiff at what they cost him and by misrepresenting cost obtained more than he paid, plaintiffs would be entitled to recover difference between actual cost to defendant and amount paid.-Vlates v. Catsigianis, 202 S. W. 441. 59(3) (Mo.App.) If defendant falsely represented price paid for concessions which he sold to plaintiffs, amount of damages in action for fraud and deceit would be difference between reasonable market value of concessions and contract price thereof.-Vlates v. Catsigianis, 202 S. W. 441. formed, at least by one party, is removed from operation of statute of frauds.-McGinnis v. McGinnis, 202 S. W. 1087. 129(10) (Mo.App.) Where mining lease on certain royalties was written, but was orally modified on discovery of conditions making work more difficult, and one party sunk shafts, took out ore, and paid royalties, there was such part performance as to remove the contract from the statute of frauds.-Last Chance Mining Co. v. Tuckahoe Mining Co., 202 S. W. 287. 131(1) (Mo.App.) If contract is one which must be in writing to be valid under the statute of frauds, a material modification thereof is void unless in writing.-Last Chance Mining Co. v. Tuckahoe Mining Co., 202 S. W. 287. 139(1) (Mo.App.) No action at law can be maintained on an oral contract required by statute of frauds to be in writing, even when fully performed by the parties.-Last Chance Mining Co. v. Tuckahoe Mining Co., 202 S. W. 287. X. PLEADING, EVIDENCE, TRIAL, AND REVIEW. (E) Trial, Judgment, and Review. 64(1) (Mo.App.) Where defendant seller paid 152(1) (Mo.App.) Statute of frauds, to be but $350 for concessions sold to plaintiffs for available, must be invoked some way in trial $750 and there was testimony that defendant court.-Downing v. Anders, 202 S. W. 297. represented that he had paid $750, plaintiffs 152(1) (Mo.App.) In an action for breach were entitled to go to jury, provided there was of contract to hold property for plaintiffs, since |