to plaintiff, or consent to abide the judgment for possession, is equivalent to dispossession, and thereupon defendant becomes the tenant of plaintiff, and his possession is no longer adverse.-Ma bary v. Dollarhide, (Mo.) 11 S. W. 611.

6. While two years' adverse possession of a Texas land certificate may bar the original owner's right to recover it, it does not affect his right to recover the land described therein. Barker v. Swenson, 1 S. W. 117, followed.-Boon v. Miller, (Tex.) 11 S. W. 551

7. Defendant introduced evidence to show that she had settled upon the land in controversy upon the promise of a former owner that she might have it for her own; and that she had continued in actual, open, and notorious possession for 10 years. Held, that an instruction that, if the jury found the facts as defendant claimed, then they should find for defendant, notwithstanding they might believe plaintiff's evidence that, while defendant was in possession, she had expressed a willingness to pay the owner a sum of money for it, was error.-Liggett v. Morgan. (Mo.) 11 S. W. 241.

What constitutes-Evidence.

8. Mere lapse of time never creates a presumption that the owner of the legal title has parted with it.-Boon v. Miller, (Tex.) 11 S. W. 551.

9. In trespass to try title, plaintiff claimed by mesne conveyances from the patentee, who lived on an adjoining homestead survey, the deed from the patentee being dated in 1868. Defendant claimed under an execution sale on a judgment against the patentee made in 1873. The purchaser at this sale in 1878 conveyed the tract to the sons of the patentee. In 1879 one of the sons died, leaving his mother, the patentee being then dead,and brothers and sisters, as his heirs. These, in 1882, joined with the other son in a conveyance to defendant. On the patentee's death his family moved to another county, and one M. took possession of the homestead tract, and occupied and paid taxes on it for the widow, and at the same time occupied and paid taxes on the land in controversy for the sons, until the death of the one, when he occupied it for his heirs. He continued to so occupy and cultivate it until the sale, in 1882, to defendant, who took possession, and has since occupied it. Held, that the evidence was sufficient to sustain defendant's plea of the five-years statute of limitations.-Motley v. Corn, (Tex.) 11 S. W.

$50.

note for the purchase money by the first vendee, defendant could not set up a title by adverse possession. Hitt v. Pickett's Adm'r, (Ky.) 11 S. W. 9.

Against public.

ing, as an obstruction, without compensation, a 14. Plaintiff sued to restrain a city from removcertain building erected six years before the dedication of the street on which it was situated, alleging that he had claimed title to, and had been in adverse possession of, the building and the land on which it was situated for more than 30 years before suit. Defendant contested under Rev. St. Mo. § 3227, which provides that nothing contained in any statute of limitation shall extend to any lands appropriated to any public use. Held, that this statute is prospective, and does not apply to cases where right of entry accrued before it was enacted. BLACK, J., dissenting.-Connecticut Mut. Life Ins. Co. v. City of St. Louis, (Mo.) 11 S. W. 969. Sufficiency of possession.

15. The court charged that defendant and those under whom he claimed must have had actual possession of the land, using and cultivating it, and claiming it as their own, under the deeds offered in evidence, paying all taxes thereon; and that by possession was meant that defendant, and those under whom he claimed, must have had, during the time, actual, continued occupancy, by themselves or tenants, of some part of the land, using the same in such manner as to give notice to others that they were claiming the land included in their deed as against all others who might claim the same. Held, that the charge was not objectionable, in that it failed to require the possession to be exclusive, and failed to state that it should be based on deeds duly recorded.-Motley v. Corn, (Tex.) 11 S. W. 850.

16. When a purchaser of land incloses a parcel contiguous to his purchase by mistake, believing that he is putting his fence on the true boundary, his possession is adverse, and will avail against the true owner.-Erck v. Church, (Tenn.) 11 S. W. 794. Color of title.

17. A void tax-deed may constitute color of title, under the general statute of limitations.-Bartlett v. Kauder. (Mo.) 11 S. W. 67.

Affidavit.

Tacking.

Aider by Verdict.

Who are.

ALIENS.

1. The minor children of aliens, though born out of the United States, if dwelling within the United States when their parents are naturalized, become citizens by virtue of the parents' naturalization; and under Rev. St. U. S. § 1994, declaring that "any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen," where a widow of foreign birth marries a citizen, her minor son, of foreign birth, becomes a citizen.-Gumm v. Hubbard, (Mo.) 11 S. W. 61.

Removal of disabilities by annexation.

2. Under the constitution of the republic of Texas, (Pasch. Dig. art. 43,) providing that "no alien shall hold land in Texas except by titles emanating directly from the government," or by descent, a conveyance to an alien (resident in one of the states of the Union) was subject to be escheated by proceeding in the nature of office found, but was good between the parties, and upon the annexation

of Texas such grantee ceased to be an alien, and the conveyance then became indefeasible.-Baker v. Westcott, (Tex.) 11 S. W. 157.

ALTERATION OF INSTRU-
MENTS.

Description in mortgage.

After a chattel mortgage had been delivered to the mortgagee's agent, who had full authority to procure and retain possession of it, the agent, without the mortgagor's knowledge or consent, altered it by inserting the description of other property of the mortgagor. Afterwards the mortgagor discovered the alteration, and notified the mortgagees thereof, refusing to be bound by it, but the mortgagees proceeded to foreclose, and at the sale bought in all the property, including that wrongfully inserted by the agent. In an action by the mortgagees to recover all the property, claiming that the mortgage was valid as altered, held, that they were not entitled to recover any part thereof.-Bowser v. Cole, (Tex.) 11 S. W. 1131.

Amendment.

Of pleadings, see Pleading, 6-10. recognizance, see Bail, 3.

statutes, see Statutes, 2.

ANIMALS.

injunction thereto. Pending suit the council elected a new board, which substituted attorneys in the cause, and directed its dismissal. The attor neys of the new board, over the objection of those employed by the old, dismissed the suit, and the attorneys first employed asked an appeal. Held, under Čivil Code Ky. § 734, providing that an appeal to the court of appeals shall be granted as a matter of right during the term at which the judgment is rendered, or by the clerk of the court of appeals thereafter, that the judge of the trial court should have granted the appeal, in view of the peculiar circumstances of the case, in order that the question of law as to the right of the new board to dismiss the action might be reviewed.Louisville Industrial School of Reform v. City of Louisville, (Ky.) 11 S. W. 603.

3. Const. Ky. art. 4, § 2, providing that the court of appeals shall have appellate jurisdiction only under such regulations, not repugnant to the constitution, as shall be prescribed by law, gives to said court all powers necessary to the proper exercise of appellate jurisdiction, and it has the right to order the trial court to grant the appeal forthwith, an appeal being a matter of right.-Louisville Industrial School of Reform v. City of Louisville, (Ky.) 11 S. W. 603.

Appealable judgments and orders. 4. There is no final judgment in favor of plaintiffs, where one of the defendants is not mentioned in the judgment at all.-Masterson v. Williams, (Tex.) 11 S. W. 531.

5. A judgment in an action of trespass to try

68-72.

Constitutional law.

1. Pen. Code Tex. art. 756, requires those engaged in the business of slaughtering live-stock to report to the commissioners' court the number, age, sex, etc., of stock slaughtered. Article 754 defines the offense of killing for market an unbranded or unmarked animal, or purchasing or killing any animal without taking a bill of sale. Held, that the former article does not, as requiring a person to criminate himself under the latter article, violate section 10 of the bill of rights, providing that "in all criminal prosecutions the accused shall not be compelled to give evidence against himself.-Aston v. State, (Tex.) 11 S. W. 637. Pounds-Evidence.

2. In an action against a city for the value of an animal impounded and sold by it, where defendant justifies under an ordinance authorizing a public sale in such cases on giving a prescribed notice, the burden is on defendant to show that such notice was given.-City of Fort Smith v. Dodson, (Ark.) 11 S. W. 687.

3. Where the sale is made by an officer of the city, the presumption that the officer has done his duty cannot take the place of affirmative proof that the required notice was given.-City of Fort Smith v. Dodson, (Ark.) 11 S. W. 687.

APPEAL.

See, also, Certiorari; Error, Writ of; Exceptions,
Bill of; New Trial.

From an order probating will, see Wills, 13, 14.
In criminal cases, see Criminal Law, 105–120.
Appellate jurisdiction When appeal
lies.

1. Civil Code Ky. § 755, which provides that if the appellee has filed an assignment of errors in the trial court, or if he files an assignment in the court of appeals, he may obtain a cross-appeal by an entry on the records of the latter court, prevents the allowance of a cross-appeal by the trial court.-Murphy v. Blandford, (Ky.) 11 S. W. 715.

Who may appeal.

2. The board of managers of a corporation were appointed by the city council of a city which undertook to open a street through their grounds, and the board of managers obtained a temporary

as to whose interest there is no adjudication, is not final, and no appeal lies therefrom, though, after its rendition, that plaintiff files a disclaimer as to his interest, agreeing therein that one of his coplaintiffs shall have what title he has to the land. --Mignon v. Brinson, (Tex.) 11 S. W. 903.

6. An order making absolute a rule requiring the production, before trial, of the books of one not a party, is appealable at the instance of the respondent in the rule.-Marion Nat. Bank v. Abell's Adm'x, (Ky.) 11 S. W. 300.

Jurisdictional amount.

7. The supreme court of Missouri will not entertain an appeal, where the record shows that the amount of plaintiff's claim, exclusive of interest, is not within its jurisdiction, and plaintiff has shown no right to interest, but will transfer the case to the St. Louis court of appeals, though the petition prays for an amount within the jurisdiction of the supreme court.-Wolff v. Mathews, (Mo.) 11 S. W. 563.

8. Where a plaintiff in an action in the city of St. Louis prays judgment for $2,800, but his real demand, as gathered from the record, is for a sum less than $2,500, the case falls within the jurisdiction of the St. Louis court of appeals; Const. Mo. art. 6, § 12, limiting the jurisdiction of the supreme court, on appeal from such court, to cases where the amount in dispute, exclusive of costs, exceeds the sum of $2,500.-Anchor Milling Co. v. Walsh, (Mo.) 11 S. W 217.

10. The circuit court acquires jurisdiction upon the filing of the papers on appeal, notwithstanding the clerk of the county court has by mistake affixed the seal of the circuit court to the appeal papers; and that court may direct the proper seal to be affixed.-Hempstead County v. Howard County, (Ark.) 11 S. W. 478.

court to the circuit court, contemplated by Mansf. 11. The prayer for an appeal from the county Dig. Ark. § 1436, is addressed to the clerk for the purpose of apprising him that an appeal is desired; and if the statutory affidavit for appeal be presented to him without any formal prayer, and he acts upon it, and causes the appeal to be perfected, the object of the statute is substantially effected.-Hempstead County v. Howard County, (Ark.) 11 S. W. 478.

Requisites-Bond.

*

12. Rev. St. Mo. § 3713, provides that, to make an appeal operate as a stay of execution, the appellant must give bond in a penalty double the amount of whatever debt, damages, and costs "have been recovered," etc.; and that the court may, at the time of granting the appeal, "fix the amount of the appeal-bond; * and the bond thus filed and approved shall stay execution." Held, that the order of the court approving the bond and allowing the appeal is a determination that the amount of the bond is sufficient, and operates as a supersedeas, regardless of the actual amount of the bond.-State v. Dillon, (Mo.) 11 S. W. 255. Practice-Assignments of error.

13. An assignment of error that "the court erred in overruling defendant's motion for new trial for all the reasons stated in the motion" is too general to be considered.-Harrell v. Mexico Cattle Co. (Tex.) 11 S. W. 863.

14. Assignments of error, that "the court failed to charge the jury the law applicable to the facts and pleadings in this cause," and that "the verdict of the jury is contrary to the evidence," are too general to be considered.-Gross v. Hays, (Tex.) 11 S. W. 523.

Record.

15. A recital in the record that a party "objected" to an instruction by the court sufficiently shows an exception for the purpose of review. Elsner v. Supreme Lodge Knights & Ladies of Honor, (Mo.) 11 S. W. 991.

16. Under supreme court rules 15 and 16 of Missouri, requiring the abstract to show so much of the case as is necessary to a full understanding of the questions to be considered, a judgment will be affirmed where no part of the record is set out. and there is simply a statement in a few lines of counsel as to what he believes to be the proper conclusions to be drawn from the evidence.Jayne v. Wine, (Mo.) 11 S. W. 969.

Advancing on docket.

assigned on an appeal from the second decree will not be considered; the first judgment fixing the rights of the parties upon the adjournment of the term at which it was rendered, and being the foundation for the second decree. -Scheiner v. Probandt, (Tex.) 11 S. W. 538.

Objections not raised below.

23. An objection to the capacity of a plaintif to sue will not be entertained on appeal, if not made below.-Robinson v. German Ins. Co., (Ark.) 11 S. W. 686.

24. On an appeal to the Kentucky court of appeals from the superior court, objections that the motion in the circuit court for a new trial was not made in time, and that the bill of evidence was not filed during the term, which objections were not raised in the superior court, will not be considered. -Frazer v. Clark, (Ky.) 11 S. W. 83.

25. The misconduct of counsel in argument will not be considered on appeal, where no objection was taken at the trial.-Bland v. Gaither, (Ky.) 11 S. W. 423.

26. An objection that the names of the parties to an action and their residences were not given in the body of the complaint will not be considered, where not made below.-Hance v. Burke, (Tex.) 11 S. W. 135.

27. The fact that a judgment is excessive by about one-fourth of 1 per cent. will not cause a reversal on appeal, where it was not called to the attention of the trial court.-Schuster v. Frendenthal, (Tex.) 11 S. W. 1051.

28. When no exception to the ruling of the trial court in admitting evidence is taken at the time, an error assigned in relation thereto will not be considered on appeal.-Collins v. Panhandle Nat. Bank, (Tex.) 11 S. W. 1053.

29. It cannot be urged for the first time in the supreme court, to defeat the jurisdiction of the district court, in an action all of the papers in which were in fact duly filed in that court, that the filemarks on the petition, bond, etc., are signed by the clerk of the district court in his capacity as clerk of the county court.-Eggenberger v. Brandenberger, (Tex.) 11 S. W. 1099.

30. An objection to remarks of counsel in argulanguage used is not set forth, and it does not apment cannot be considered on appeal, where the

Appeal from inferior court.

18. On appeal from an order of the county court discontinuing a highway, the circuit court can hear no evidence, except as presented by a bill of evidence or exceptions.-Chittenden County Court v. Shanks, (Ky.) 11 S. W.468.

Review.

19. An objection that a verdict is contrary to the law and the evidence in a certain respect cannot be considered on appeal, where it appears that the matter alleged was not made a ground of motion for new trial.-Harrell v. Mexico Cattle Co., (Tex.) 11 S. W. 863.

20. Where the rulings of the trial court entirely preclude a recovery by plaintiff, the supreme court of Missouri will review proper exceptions to such rulings after nonsuit with leave, and an unsuccessful effort to have the alleged errors corrected below. Overruling Gill v. Clark, 54 Mo. 415.-Sachse v. Clingingsmith, (Mo.) 11 S. W. 69.

21. Where, on appeal from the circuit to the superior court, that court declared the law of the case, and remanded it to the circuit court for further proceedings, the supreme court will not reverse the circuit court for following the law as settled by the superior court. The appeal should have been taken in the first instance from the ruling of the superior court.-Adams Exp. Co. v. Hoeing, (Ky.) 11 S. W. 205.

22. Where it appears from the record that a judgment settling title in partition proceedings may have been rendered at a term preceding that at which the decree making the partition was entered, and the first judgment is not set out, errors

the attention of the court called to such language, or that any ruling was made or asked for with ref. erence thereto.-State v. Taylor, (Mo.) 11 S. W 570.

Presumptions.

31. Where a pleader points out but one objection to a judgment, it must be inferred that in his opinion the judgment was regular except in that particular.-Jewell v. Porter, (Kv.) 11 S. W. 717.

32. Where a bond, proper in other respects, and signed by sureties, is filed with a petition for the removal of a cause, and no objection is made as to its sufficiency, it must on appeal be presumed that it was sufficient.-Southern Pac. Co. v. Har

rison, (Tex.) 11 S. W. 168.

33. The rule in equity, as at law, is that, in the absence of all the testimony upon which the lower court acted, it will be presumed that everything was established which could have been proved under the pleadings by any reasonable intendment.Smith v. Fletcher, (Ark.) 11 S. W. 824.

34. Where the jury were instructed that, if they found for defendant on the issue of a former judg ment, they should so declare in their verdict, but that if they found in his favor on the merits they should return a general verdict, and they did return a general verdict, it must be presumed that they did not base their verdict on the former judgment, and errors committed in respect to that issue are immaterial.-Mayfield v. Williams, (Tex.) 11 S. W.

530.

35. Plaintiff alleged by amended petition that he had leased certain premises from defendant, and that during the lease defendant had wrongfully placed on the premises a quantity of unslacked lime, under coal-bins erected by plaintiff, and that heat generated by the lime coming in contact with high water had been communicated to

the coal-bins, which were fired and consumed. An instruction was given that if defendant had leave to use the premises for the purpose of storing its lime, and by the gross carelessness of its employés the lime was permitted to come in contact with high water, whereby fire ensued, and the bins were burned, then the jury should find for plaintiff. Held, that it would be presumed that pleadings not copied, but which were before the lower court, authorized the instruction.-Licking Rolling-Mills Co. v. Fischer, (Ky.) 11 S. W. 305.

Weight of evidence.

36. When the evidence is conflicting the verdict and judgment will not be disturbed on appeal. -Belote v. Glover, (Ark.) 518; Houston & T. C. Ry. Co. v. Lowe, (Tex.) 11 S. W. 1065.

37. Where, in a common-law issue of fact, the weight of evidence sustains the judgment below. it will not be disturbed.-Kendall v. Crouch, (Ky.) 11 S. W. 587.

38. In condemnation proceedings, as in ordinary cases, a verdict supported by competent evidence will not be interfered with on appeal.-Fayette ville & Little Rock Ry. Co. v. Combs, (Ark.) 11 S.

W. 418.

39. The opinion of the county contesting board, on the question of the weight of evidence in a contested election case, is not entitled to weight in the supreme court, on appeal from the circuit court, where the contest was tried de novo.—Anderson v. Winfree, (Ky.) 11 S. W. 307.

40. The question of what residence entitles an individual to vote is one of law, and whether such residence exists is a question of fact; and where the circuit court, in a contested election case, correctly states the law relative to residence, and separates the facts, and passes upon them from the standpoint of a jury, its findings will be tested by the rules applicable to a review of a jury trial.— Anderson v. Winfree, (Ky.) 11 S. W. 307.

Rulings on evidence.

41. A refusal to allow witness to testify will not be reviewed on appeal, unless it appears what the witness' answer would have been, and that it would have been favorable to the interrogator.Todd v. Louisville & N. R. Co., (Ky.) 11 S. W. 8.

42. A case tried by the court will not be reversed because incompetent evidence was admitted, when it does not appear that the court misconceived the law, and the competent evidence produced sustains his finding.-Andrews v. Hayden's Adm'rs, (Ky.) 11 S. W. 428.

Matters not apparent on record. 43. In the absence of a bill of exceptions or statement of facts, nothing will be reviewed on appeal except the single question, whether the pleadings justify the judgment rendered after trial of the issues.-Crawford v. McGinty, (Tex.) 11 S.

W. 1066.

44. An assignment of error that a citation is insufficient to support the judgment, cannot be considered where the record does not contain the citation, but shows the issuance and service thereof. -Hamilton Gin & Mill Co. v. Sinker, Davis & Co., (Tex.) 11 S. W. 1056.

45. An assignment of error in a civil case, that no judgment could be entered on the verdict because the record shows that there were only 10 jurors, cannot be sustained where the record contains nothing on the subject, except that in the entry of judgment on the verdict the names of only 10 jurors are given, as this may have been an error of the clerk, or the parties may have consented to a trial with less than a full jury, or, by trying the case without objection, may have waived their right to a full jury.-McDaniel v. Adams, (Tenn.) 11 S. W. 939.

46. In an action on three notes defendants answered that three new notes, which were attached to the answer, had been given and accepted in full satisfaction of the notes sued on. Plaintiffs answered that defendants' indebtedness exceeded the amount of the new notes by a certain sum, and that the agreement was to accept the new notes in extinguishment of the old, only upon payment of the excess, and that defendants had failed to

make the payment. On the trial defendants offered to show the agreement as alleged in their answer, but the court refused to admit the evidence, which was assigned as error. The bill of exceptions contained no statement of facts. Held that, as the fact of defendants' possession of the notes was unexplained, the record failed to show error in refusing to admit the evidence.-Torrey v. Cameron, (Tex.) 11 S. W. 1088.

Harmless error.

47. Where it appears that defendants in error were entitled to a larger judgment than they recovered, the judgment will not be reversed for errors in the proceedings.-Wilber v. Kray, (Tex.) 11 S. W. 540.

48. Error in overruling a motion for a new trial, on the ground of the financial condition of the parties, is harmless, where the supreme court decides that the ground urged for a new trial was not tenable.-City of Galveston v. Hemmis, (Tex.) 11 S. W 29.

49. Plaintiff cannot complain of an instruction in regard to certain water-tanks erected by defendant on another lot in the vicinity of plaintiff's, where her declaration contains no claim for damages on account of such tanks.-Smith v. East End St. Ry. Co., (Tenn.) 11 S. W. 709.

52. The reversal of a judgment rendered for plaintiff upon two counts of a petition setting up distinct causes of action for errors solely relating to the first count, if not limited to the issue on that count, sets aside the verdict as to both counts, and the action, when remanded, is triable de novo.-Needles v. Burk, (Mo.) 11 S. W. 1008.

53. The plaintiff, after the action was remanded, having been required to give security for costs accruing, and to accrue, under penalty of a dismissal of the action, as provided by Rev. St. Mo. § 986, which he failed to do, cannot dismiss as to the first count and have judgment on the former verdict as to the second, even if the reversal did not affect the trial of the issue as to the latter count.Needles v. Burk, (Mo.) 11 S. W. 1008.

54. Laws Tex. 1885, provide that where action is brought against a sheriff to recover goods levied on by him at the instance of an attaching creditor, and the latter has given to him an indemnifying bond, the sheriff may bring the creditor into the action, and recover in the same action judgment against the creditor for such amount as the plaintiff may recover against him. A sheriff availed himself of such statute, and, judgment having been rendered against the sheriff, and also directly against the creditor in favor of the plaintiff, from which only the creditor appealed, the plaintiff sought to have the latter part of the judgment set aside, and that part of it providing for a recovery against the sheriff, with a recovery over against the creditor left in force. Held, that a reversal as to the creditor would necessitate a reversal as to the sheriff. - Hamilton v. Prescott, (Tex.) 11 S. W. 548.

Modification of judgment.

55. On demurrer to evidence, the supreme court of Texas will render the judgment which should have been rendered below.-Good v. Galveston, H. & S. A. Ry. Co., (Tex.) 11 S. W. 854.

Remand.

56. On appeal to the superior court from the circuit court, when the former reverses the judgment for plaintiff, and remands the case for a new

trial, it is error for the circuit court to dismiss the suit.-Cox's Adm'x v. Louisville & N. R. Co., (Ky.) 11 S. W. 808.

57. Where the supreme court, on appeal, decrees the title to the land in controversy to be in plaintiffs as against defendant, but as to any other and further relief remands the cause to be tried anew, it is error for the trial court to enter a final decree without the production of any evidence.-Mason v. Crowder, (Mo.) 11 S. W. 743.

APPEARANCE.

Special appearance.

Rev. St. Tex. art. 1241, provides that the entry of appearance by a defendant in open court, noted on the judge's docket, and on the minutes, "shall have the same force and effect as if citation had been duly issued and served." Article 1242 provides that "the filing of an answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or serv ice of citation." Article 1243 provides that," when the citation or service thereof is quashed on motion of the defendant, the case may be continued for the term, but the defendant shall be deemed to have entered his appearance to the succeeding term." Under the statute all defensive pleadings, including pleas to the jurisdiction, are styled "the answer. Held, that a non-resident defendant, served with notice outside of the state, who appears specially, and files a plea denying the court's jurisdiction over him, thereby submits himself to its jurisdiction as fully as if duly served with process.-York v. State, (Tex.) 11 S. W. 869; Cunningham v. State, (Tex.) 11 S. W. 871.

ARBITRATION AND AWARD.

Engineer's estimates.

Where a contractor, under a contract for the construction of a railroad bridge, which provides for periodical measurements and estimates by the engineer in charge, accepts payments from time to time according to the estimates, he is bound thereby, in the absence of allegation and proof of fraud. Henderson Bridge Co. v. O'Connor, (Ky.) 11 S. W. 957.

Argument of Counsel.

See Trial, 5-10.

ARREST.

Without warrant.

Under Crim. Code Ky. § 36, authorizing a peace officer to make an arrest without a warrant when a public offense is committed in his presence, an officer who, when on his beat, hears the cries of a woman being beaten in a building and reaches the room, locating it by the cries, after the beating is stopped, and the cries have ceased, may arrest the offender.- Dilger v. Commonwealth, (Ky.) 11 S. W. 651.

ASSAULT AND BATTERY. With intent to kill, see Homicide, 22–24. Sufficiency of evidence.

1. Where, on a trial for assault with intent to rob, the testimony shows that one of three defendants, though not personally participating in the assault, was present, assisting and abetting his co-defendants, it is sufficient to authorize his conviction.-State v. Nelson, (Mo.) 11 S. W. 997.

2. Evidence that defendant struck a person with a "good-sized walking-stick made of bois d'arc, and loaded;" that the last blow was over the eye, and stunned the assaulted person; that the blow "cut the skin;" and that blood was wiped from the forehead,-is insufficient to convict of assault with a deadly weapon, or of an assault inflicting serious bodily injury. Stevens v. State, (Tex.) 11 S. W. 459.

3. Defendant was chastising his step-daughter, when his wife, very angry, rushed towards them. The wife testified that defendant asked her to go to the house, and she refused; that she struck defendant; and that she did not know whether he struck her, but, if he did, he did not hurt her. The step-daughter testified that defendant struck his wife twice. Held insufficient evidence to convict defendant of assault and battery on the wife. -Leonard v. State, (Tex.) 11 S. W. 112.

4. Defendant testified that he was assaulted by several, and, while defending himself, a deputysheriff rushed up and grabbed defendant, who struck him. Some witnesses testified that the sheriff entered into the fight, and commenced striking defendant. The sheriff testified that he told defendant, when he arrived, that he was an officer, and must arrest him, and that he grabbed defendant, and the latter said, "I will see that you don't," and struck witness. A statement of defendant, made after the fight, that, if he had known that the person he struck was an officer, he would have surrendered to him, was in evidence. Held, that a conviction for assaulting the officer would be set aside.-Franklin v. State, (Tex.) 11 S. W. 35.

5. The prosecuting witness was a tenant of defendant's aunt, and was to give her a portion of certain corn grown on the land. A misunderstanding arose, and when witness was cutting corn, defendant approached, whetting two knives together, and asked: "What kind of a game is this you are giving aunt?" The prosecuting witness testified that he told him to go away, and defendant threatened to cut his heart out; and that when witness started away, defendant said, “Go on after your daddy, and tell him to bring his gun," etc. Several witnesses for defendant testified that they were present; that defendant had knives, which he had been using to cut corn; that he made no demonstrations at the prosecuting witness, but told him it was his business to see that no advantage was taken of his aunt; and that when prosecuting witness started away defendant told him to summon his father, as they could reason with him. Held insufficient evidence to support a conviction for assault.-Bawcom v. State, (Tex.) 11 S. W. 639.

Justifiable assault.

6. On a prosecution for aggravated assault, it appeared that the injury was inflicted when the assaulted person was in the act of arresting defendant for theft, and that the assaulted person and the officer by whom he was summoned as a posse had attempted to arrest defendant for the theft without a warrant. Held, that the arrest was illegal, and defendant was justified in striking the injured person with his whip, to compel him to release defendant's horse.-Massie v. State, (Tex.) 11 S. W. 638.

Assessment.

For public improvements, see Municipal Corporations, 19-22.

Of taxes, see Taxation, 4-9.

Assignment.

Of errors, see Appeal, 13-17.

insurance policy, actions by assignee, see Insurance, 12-14.

mortgage, see Mortgages, 14.

ASSIGNMENT FOR BENEFIT
OF CREDITORS.

By bank, see Banks and Banking.
What constitutes.

1. A debtor executed an instrument by which, after reciting the claims which certain creditors had against him, and that he was "desirous of securing said debts," and certain sureties, on an obligation entered into by him, he conveyed all his property, except his homestead and household goods, to H., one of said sureties; H. being directed, as trustee, to sell the property whenever