excessive in amount.-St. Louis, I. M. & S. Ry. Co. v. Waren (Ark.) 222. Argument to jury, going outside of the evidence, in an accident case where large damages were awarded. held prejudicial error.Chicago, R. I. & T. Ry. Co. v. Langston (Tex., Civ. App.) 610. 3. Taking case or question from jury. Where a witness made conflicting statements, held, that the credit to be given to his testimony was a question for the jury.-State ex rel. Jackson County v. Chick (Mo.) 829. The evidence of fraud held sufficient to render the granting of a nonsuit erroneous.-Lindsay v. Murphy (Tex. Civ. App.) 531. An issue held properly withdrawn from the jury, where there was no evidence to support it. International Order of Twelve of the Knights and Daughters of Tabor v. Boswell (Tex. Civ. App.) 1108. § 4. Instructions to jury. An instruction without evidence to sustain it is properly refused.-San Antonio & A. P. Ry. Co. v. Griffin (Tex. Civ. App.) 542. Where a party desires a more explicit submission of the matter than is made by the court, he must ask an instruction embodying the point in the manner desired.-San Antonio & A. P. Ry. Co. v. Long (Tex. Civ. App.) 599. Where the charge is silent as to a point on which a party has a right to have the jury instructed, it is the duty of the party to request an instruction.-San Antonio & A. P. Ry. Co. v. Long (Tex. Civ. App.) 599. It is not error to refuse an instruction to find for defendant unless the jury are satisfied, with "clearness and certainty," of the existence of plaintiff's claim.-Mixon v. Farris (Tex. Civ. App.) 741. ering a particular phase of the case, it is not When a court has given a charge fully covproper to reiterate it.-Houston & T. C. R. Co. v. Patterson (Tex. Civ. App.) 747. It is not error to refuse request for instruc- A charge held insufficient, as not directing the tion where substance of requested instruction jury to the facts in issue and invoking their has been given.-Noyes v. Tootle (Ind. T.) 1031. judgment on the evidence relative to the issue. Instruction that jury may disregard entire tes-Houston & T. C. R. Co. v. Patterson (Tex. timony of witness intentionally testifying false- Civ. App.) 747. ly as to any material fact held proper.-Noyes v. Tootle (Ind. T.) 1031. The refusal of an instruction in the nature of a demurrer to plaintiff's evidence held not erroneous, where the testimony was conflicting.Baird v. Citizens' Ry. Co. (Mo.) 78. Instructions as to the necessity of ringing bell of locomotive at crossing held sufficient.-Lamb v. Missouri Pac. Ry. Co. (Mo.) 659. The court need not single out each witness, and charge whether his testimony tended to prove any particular fact.-State ex rel. Jackson County v. Chick (Mo.) 829. A refusal to charge that defendant, in the regular course of pleading, should have filed his answer much sooner, held proper.-State ex rel. Jackson County v. Chick (Mo.) 829. An instruction held not objectionable as a comment on evidence.-Baker v. Kansas City, Ft. S. & M. Ry. Co. (Mo.) 838. It is not error to refuse a charge which assumes facts that are controverted.-St. Louis S. W. Ry. Co. v. Casseday (Tex. Civ. App.) 6. A requested charge is properly refused where the court's charge fully covered the case.-St. Louis S. W. Ry. Co. v. Casseday (Tex. Civ. App.) 6. It is not error to refuse a charge grouping facts where some of the facts were not sustained by the evidence.-St. Louis S. W. Ry. Co. v. Casseday (Tex. Civ. App.) 6. One relying on circumstantial evidence held entitled to a charge thereon.-Jones v. Hess (Tex. Civ. App.) 46. The court, having charged on the burden of proof, need not repeat it in a requested charge. Texas & P. Ry. Co. v. Humphries (Tex. Civ. App.) 201. An omission to define a word held not error, where the party relying on such omission did not make a request for a special charge thereon.-Schulz v. Tessman (Tex. Civ. App.) 207. Charges on the weight of evidence should be refused.-Galveston, H. & S. A. Ry. Co. v. Houston (Tex. Civ. App.) 539. It was not error to instruct that the evidence showed a certain fact, where the evidence was undisputed-San Antonio & A. P. Ry. Co. v. Griffin (Tex. Civ. App.) 542. It was not error to refuse an instruction, where a like instruction had been given.-San Antonio & A. P. Ry. Co. v. Griffin (Tex. Civ. App.) 542. Charges relating to questions not raised by the pleadings are properly refused.-Houston & T. C. R. Co. v. Patterson (Tex. Civ. App.) 747. Where a charge is not sufficiently full, special charges ought to be requested.-Houston & T. C. R. Co. v. Stuart (Tex. Civ. App.) 799. A party cannot complain of failure to instruct as to an issue, when he did not request submission of such issue.-Graves v. Hillyer (Tex. Civ. App.) 889. A party cannot complain that charge, not actually erroneous, is not clear and explicit enough, when he did not ask for different one.-San Antonio & A. P. Ry. Co. v. Safford (Tex. Civ. App.) 1105. § 5. Verdict. A contradictory special verdict held not to prevent entry of judgment because a breach of Covenant had made only one judgment proper.Roberts, Willis & Taylor Co. v. Sun Mut. Ins. Co. (Tex. Civ. App.) 559. In view of Sayles' Civ. St. art. 1331, an issue that was not submitted to the jury will be considered as having been resolved in favor of the judgment.-Devine v. United States Mortg. Co. of Scotland (Tex. Civ. App.) 585. A verdict finding that defendant was a principal is not a conclusion of law.-Devine v. United States Mortg. Co. of Scotland (Tex. Civ. App.) 585. A verdict that defendant "has" no claim in certain land as a homestead held not to show that he did not have such claim two years prior to the trial.-Devine v. United States Mortg. Co. of Scotland (Tex. Civ. App.) 585. § 6. Trial by court. A request to the trial judge to file conclusions of fact and of law must be brought to his attention to be available.-Western Union Tel. Co. v. Trice (Tex. Civ. App.) 770. A special issue held defective as assuming an issuable fact as proved.-Houston, E. & W. T. Ry. Co. v. Hartnett (Tex. Civ. App.) 773. In preparing its conclusions of fact and of which it bases its conclusions.-Gordon v. Mclaw, the court need not state the evidence on Call (Tex. Civ. App.) 1111. 8 7. Waiver and correction of irregu larities and errors. Objections to admission of evidence held waived.-Weeks v. McNulty (Tenn. Sup.) 809. Charitable trusts, see "Charities," § 2. One paying $1,000 for land worth $500,000, held to acquire no title against a cestui que trust, though he had no knowledge of his rights. -Hanrick v. Gurley (Tex. Civ. App.) 994. Cestui que trustent have the burden of proving that a grantee of their trustee had notice of their Conveyances in trust for creditors, see "Assign-equitable title, or did not purchase for a valu ments for Benefit of Creditors." Trust deeds, see "Mortgages." § 1. Creation, existence, and validity. Evidence held insufficient to establish resulting trust.-Wacker v. Wacker (Mo.) 835. Evidence held insufficient to establish a resulting trust.-Hutzler v. Groff (Tex. Civ. App.) 206. Evidence to establish a resulting trust must be both clear and satisfactory.-Goodrich v. Hicks (Tex. Civ. App.) 798. A trust held not to result by acts of plaintiffs done after the execution of the deed to the alleged trustee.-Arnold v. Ellis (Tex. Civ. App.) 883. able consideration.-Hanrick v. Gurley (Tex. Civ. App.) 994. TURNPIKES AND TOLL ROADS. § 1. Regulation and use for travel. resulting from the frightening of a horse and the A turnpike-road company is liable for injuries backing of a vehicle over the side of the road where the declivity was such as to cause a person of ordinary prudence to apprehend danger from the failure to erect barriers.-Canton, C. & H. Turnpike Co. v. McIntire (Ky.) 980. Money received by a father from one to whom See "Bonds." he had made an unauthorized conveyance of his children's land does not belong to the children.Arnold v. Ellis (Tex. Civ. App.) 883. UNDERTAKINGS. UNFAIR COMPETITION. A cestui que trust has an equitable title, See "Trade-Marks and Trade-Names," § 3. though the trustee has conveyed to another.Hanrick v. Gurley (Tex. Civ. App.) 994. property. A master with whom a contract of insurance is made for the benefit of the servant is the trustee of an express trust, and under Civ. Code Prac. § 21, the servant need not be joined with him in an action on the contract.-Fidelity & Casualty Co. v. Ballard & Ballard Co. (Ky.) 1074. Liability of county judges made trustees of fund for charitable purposes, where county treasurer to whom the fund had been turned over defaults, determined.-Anderson v. Roberts (Mo.) 847. $ 5. Accounting and compensation of trustee. A trustee held not accountable for compound interest.-Kane v. Kane's Adm'r (Mo.) 446. The account of a trustee under a will held surcharged by a bonus allowed him for services by a cestui que trust in ignorance of the nature of the services.-Garesche v. Levering Inv. Co. (Mo.) 653. UNITED STATES. See "Territories." UNLAWFUL DETAINER. See "Forcible Entry and Detainer." USURY. 1. Usurious contracts and transactions. Facts held to show a mortgage note not to be usurious.-Martin v. Adams (Ark.) 494. Presumption, until the contrary is shown, is that a contract made in another state is valid.Everton v. Day (Ark.) 900. Notes dated and payable in another state cannot be held usurious, in absence of proof of the usury law of such state.-Sawyer v. Dickson (Ark.) 903. will be determined by the law of the state Rights of parties to alleged usurious contract where it was made and is to be performed.Sawyer v. Dickson (Ark.) 903. lieu of the original note and the principal disWhere the note of the surety was accepted in charged, the principal may recover of the payee usury theretofore paid by him.-Mann v. Bank of Elkton (Ky.) 413. It was error to sustain a demurrer to an answer which showed that the note sued on contained some usury, though the exact amount did not appear.-Pryse v. Three Forks Deposit Bank's Assignee (Ky.) 415. A note executed to plaintiff as renewal of a note executed to her husband, since deceased, though embracing other indebtedness, should be purged of usury embraced in the original note. | tained an interest held erroneous, as prejudicial -Hinkson v. Wigglesworth (Ky.) 1079. to vendor's title.-Watt v. Hunter (Tex. Civ. App.) 593. Act March 9, 1897, rendering usurious note valid for amount of principal and legal interest, is not invalid, as attempting to vitalize void contract.-Hardaway v. Lilly (Tenn. Ch. App.) 712. Act March 9, 1897, providing that suit on note showing usury on its face shall not be dismissed, but judgment shall be rendered for principal with legal interest, applies to contracts made before its passage.-Hardaway v. Lilly (Tenn. Ch. App.) 712. A usurious building and loan note negotiated in Texas is governed by the laws of that state, though executed and performable in another state, by the laws of which it is not usurious. -People's Building, Loan & Saving Ass'n v. Bessonette (Tex. Čiv. App.) 52. § 2. Penalties and forfeitures. Since the part of a note providing for usurious interest is void, the maker is not confined to his statutory right to recover double interest paid, but may apply such payments on the principal debt.-People's Building, Loan & Saving Ass'n v. Bessonette (Tex. Civ. App.) 52. VACATION. Vacating particular proceedings. Of attachment, see "Attachment," § 3. Of judgment, see "Judgment," § 2. VALUE. Contract of sale requiring vendee to pay off or extend an existing loan held to require the vendee to pay or procure an extension within a reasonable time.-Watt v. Hunter (Tex. Civ. App.) 593. Where contract to sell land fixes no time for performance, the vendee must tender contract price within reasonable time.-Cunyus v. Hooks Lumber Co. (Tex. Civ. App.) 1106. § 4. Rights and liabilities of parties. The recital of a consideration in a subse- Assignment of inferior lien by vendor's assignee held not to carry the legal title with it. -Davis v. Hertman (Tex. Civ. App.) 50. A record of a deed in which the clerk neglects to copy the acknowledgment, as required by law, is not constructive notice to subse Limits of jurisdiction, see "Appeal and Error," quent purchasers.-Dean v. Gibson (Tex. Civ. § 1. VENDOR AND PURCHASER. See, also, "Sales." App.) 57. Purchasers of land sold under a released trust deed, before the release was recorded, are not innocent purchasers, where they acquired title after the release was placed on record.-Mans Purchasers at sale on execution, see "Execu- field v. Garrison (Tex. Civ. App.) 554. tion," § 1. 31. Requisites and validity of contract. Where a deed was to one and her heirs, but, if she should die without issue, then to her mother and her heirs, the title is not marketable, under Rev. St. 1835, p. 119, she surviving her mother as sole heir, and still living with issue.Rosier v. Graham (Mo.) 470. Vendor's representation that the lands did not overflow, held not false or fraudulent simply because such lands were at times overflowed by floods.-Kerns v. Perry (Tenn. Ch. App.) 729. Description of land in contract of sale held sufficient.-Cunyus v. Hooks Lumber Co. (Tex. Civ. App.) 1106. § 2. Construction and operation of contract. A contract of sale, providing that vendee pay or extend an incumbrance, held sufficient to authorize vendee to make a new loan on the land and pay the existing incumbrance.-Watt v. Hunter (Tex. Civ. App.) 593. § 3. Performance of contract. Under a contract authorizing vendee to procure the extension of an existing incumbrance or pay it by making a new loan on the land, but not fixing the terms of the new loan, a decree directing him to make the loan for five years, at 10 per cent. interest, was not unreasonable.-Watt v. Hunter (Tex. Civ. App.) 593. Where a contract of sale required vendee to pay off or procure an extension of an incumbrance, held that three months was a reasonable time for him to comply with the contract. -Watt v. Hunter (Tex. Civ. App.) 593. A provision in a decree directing a vendee to make a loan on land on which the vendor re Notice to the agent of a purchaser of land sold under a trust deed that the land had been re leased is imputable to his principal.-Mansfield v. Garrison (Tex. Civ. App.) 554. Under a contract by a vendee to improve the land for the better security of the unpaid price, the vendee, by defaulting on the contract, cannot recover of the vendor the value of such improvements. Watt v. Hunter (Tex. Civ. App.) 593. A vendor obliged to par off a note secured by mortgage on the land which the vendee had assumed cannot recover of the vendee attorney's fees provided by the note unless he actually paid them.-Watt v. Hunter (Tex. Civ. App.) 593. Purchaser by a deed of a grantor's interest with covenants of seisin held a bona fide purchaser. Hanrick v. Gurley (Tex. Civ. App.) 994. § 5. Remedies of vendor. N. sold to B. his interest in a tract of land which they held jointly under title bond from H. In consideration thereof, B. conveyed to N. a tract of land on which A. held a mortgage, and, in satisfaction of A.'s mortgage, executed to him a note as for the purchase money Held, that a of the half of the II. tract. purchase-money lien was thereby created in A.'s favor.-Pickering v. Beckner (Ky.) 148. Vendee's note given in payment of assumed mortgage, and reciting that it is purchasemoney note, held not to create vendor's lien.— Allen v. Newton (Tenn. Ch. App.) 283. A married woman's realty held subject to vendor's lien to amount of incumbrances, which she covenanted against, the properties having been exchanged as a consideration for each other.-Harvey v. Gallaher (Tenn. Ch. App.) 298. There is no vendor's lien where he demands personal security.-Peterson v. Carson (Tenn. Ch. App.) 383. A vendor's contract, made after a sale to enforce his lien, to make good a shortage in the acreage, held unenforceable, as being without consideration.-Pigeon River Lumber & Iron Co. v. Mims (Tenn. Ch. App.) 385. An action for the price cannot be defended because of fraudulent representations of the vendor, where the vendees made payments on the price after discovery of the fraud.-Kerns v. Perry (Tenn. Ch. App.) 729. Of objections to particular acts or proceedings. Fraudulent representation by the vendor in regard to the overflowing of the land held not See "Insurance," § 5. shown by the evidence.-Kerns v. Perry (Tenn. Ch. App.) 729. A decree for the sale of the entire land on WARDS. credits corresponding approximately with the See "Guardian and Ward." payments still due on the contract, to satisfy a vendor's lien, held correct, under Mill. & V. Code, §§ 4306-4308.-Kerns v. Perry (Tenn. Ch. App.) 729. WAREHOUSEMEN. Warehouse receipts issued by a corporation Defendant held not entitled to object that de- not engaged in the warehouse business do not cree foreclosing vendor's lien did not comply create a lien upon the property named therein. with Mill. & V. Code. §§ 4306-4308, as to mode-Bell & Coggeshall Co. v. Kentucky Glassand terms of sale.-Kerns v. Perry (Tenn. Ch. Works Co. (Ky.) 440. App.) 729. WARRANT. A judgment of foreclosure containing an insufficient description held sufficient, where the land was described in another deed, to which For arrest, see "Criminal Law," § 6. it referred as containing a better description. -Sanger v. Roberts (Tex. Sup.) 1. WARRANTY. Petition held not within the rule that, where a description by metes and bounds is followed by On sale of goods, see "Sales," § 2. a reference to some other writing for a further description, the latter cannot be looked to to enlarge the former.-Sanger v. Roberts (Tex. WATERS AND WATER COURSES. Sup.) 1. 86. Remedies of purchaser. The fact that the vendor had previously sold to another the mineral rights in the land sold did not coustitute a breach of the covenant of warranty, the purchaser having knowledge of that fact.-Sanders v. Rowe (Ky.) 1083. VENUE. § 1. Domicile or residence of parties. Rev. St. 1895, art. 1194, held not to authorize joinder as defendant of a nonresident of a particular county in an action on another's writ ten obligation, performable therein.-Behrens Drug Co. v. Hamilton (Tex. Sup.) 5. § 2. Change of venue or place of trial. Rev. St. 1889, § 2258, providing that a change of venue may be awarded "in any civil suit," inter alia, where the inhabitants of the county are prejudiced against the applicant, is not limited to jury trials.-Walker v. Ellis (Mo.) 457. Rev. St. 1889, § 2258, relating to changes of venue, held mandatory.-Walker v. Ellis (Mo.) 457. VERDICT. In civil actions, see "Trial," § 5. In criminal prosecutions, see "Criminal Law," § Reception of, on Sunday, see "Sunday." VERIFICATION. Of pleading, see "Pleading," § 6. VESTED RIGHTS. Protection, see "Constitutional Law," § 3. VILLAGES. See "Municipal Corporations." See, also, "Levees." § 1. Artificial ponds, reservoirs, and channels, dams, and flowage. Rule as to measure of damages for flooding plaintiff's land, and road leading thereto, stated.-Hall v. City of Austin (Tex. Civ. App.) 53. § 2. Public water supply. A city cannot require citizen who refuses to ply to pay a higher water rate.-Dittmar v. City release it from liability for failure in water supof New Braunfels (Tex. Civ. App.) 1114. A city cannot require citizen to sign release from liability for scarcity or failure in water supply.-Dittmar v. City of New Braunfels (Tex. Civ. App.) 1114. WAYS. Public ways, see "Highways"; "Municipal Corporations," § 8. WIDOWS. Dower, see "Dower." Rights under statutes of descent and distribution, see "Descent and Distribution," § 1. WILLS. See, also, "Descent and Distribution"; "Execu tors and Administrators." Charitable bequests and devises, see "Charities." § 1. Requisites and validity. A paper in the form of a will, but which directs that the devisees shall take possession at once of the land devised, cannot be admitted to probate as a will.-Ward v. Ward (Ky.) 411. A codicil making no change in a particular devise held to be immaterial in determining the devisees.-Neal v. Hodges (Tenn. Ch. App.) 263. 2. Probate. The creditor in a judgment against the heir of one dying seised of real estate which, in the absence of a will, would pass to his heir, is "interested in the probate" of a will of deceased, within Rev. St. 1889, § 8888, so as to have the right to contest its validity, where it disinherited him.-Watson v. Alderson (Mo.) 478. The children of the testator, as his next of kin, may contest the validity of the will as of common right.-Watson v. Alderson (Mo.) 478. Under Rev. St. 1895, art. 1902, a nuncupative will not offered for probate within six months from the time the words were spoken cannot be probated, whatever the excuse for delay may be.-Martinez v. De Martinez (Tex. Civ. App.) 532. Application for probate of nuncupative will must allege that the words were uttered during the last sickness of decedent.-Martinez v. De Martinez (Tex. Civ. App.) 532. § 3. Construction. Trustees under a will held to have no power to incorporate the estate and to issue shares of stock in lieu of the property.-Garesche v. Levering Inv. Co. (Mo.) 653. Mill. & V. Code, $$ 2812, 3035, held not to change the rule that a devise of a remainder to the children of a life tenant inures to the benefit of only such children as survive the life tenant.-Neal v. Hodges (Tenn. Ch. App.) 263. Devise of land to "heirs" of testator's sons. "so as to give each one the homestead he now occupies," held to give sons only life estate.Arrants v. Crumley (Tenn. Ch. App.) 342. § 4. Rights and liabilities of devisees and legatees. Widow having accepted probate of will excluding her from homestead, and giving her estate during widowhood, on remarriage cannot hold homestead or any of the land devised her. -Helm v. Leggett (Ark.) 675. WITNESSES. See, also, "Evidence." § 1. Competency. Under Sand. & H. Dig. § 2916. subd. 2, a boy eight years of age is incompetent.-St. Louis, I. M. & S. Ry. Co. v. Waren (Ark.) 222. A surety in a note executed to plaintiff as renewal of a note to her deceased husband, though no judgment is asked against him, cannot testify for the principal as to transactions with the original payee.-Hinkson v. Wigglesworth (Ky.) 1079. A widow was not a competent witness as to transactions with her husband to establish a claim against his estate in favor of her children by a former marriage.-Schaurer v. Schaurer (Ky.) 1087. Testimony of an accused's wife held not admissible against him without his consent.-State v. Burlingame (Mo.) 72. An executor of a deceased daughter held a competent witness, where a recovery was sought against him personally.-Connor V. Hickey (Tenn. Ch. App.) 289. Under Shannon's Code, § 5596, disqualifying husband or wife from testifying as to matters occurring between them by virtue of the marriage, the wife may testify as to claim of ownership to property received from the husband.Young v. Hurst (Tenn. Ch. App.) 355. Statements of husband and wife, made to a third person when property was purchased by them, are competent to show how and under what title it was to be held.-Young v. Hurst (Tenn. Ch. App.) 355. Under Shannon's Code, § 5596, disqualifying husband or wife from testifying as to matters occurring between them, they cannot testify to a gift from the husband to the wife, and an arrangement as to the investment of its proceeds.-Young v. Hurst (Tenn. Ch. App.) 355. Evidence of plaintiffs, who conveyed and disclaimed, to evade the rule incapacitating parties as witnesses, held inadmissible in behalf of plaintiffs.-McRae v. Poor (Tex. Civ. App.) 47. Where persons having no interest in the suit were joined as defendants to incapacitate them as parties, their evidence in behalf of defendant was properly admitted.-McRae v. Poor (Tex. Civ. App.) 47. A widow held competent to testify to affairs of a late firm composed of the deceased husband and others.-Gordon v. McCall (Tex. Civ. App.) 1111. § 2. Examination. Where a witness testified that defendants admitted signing a bond, they may inquire on cross-examination if they did not state that the bond was altered after they signed it.State ex rel. Jackson County v. Chick (Mo.) 829. Counsel having, in cross-examination, questioned witness as to conversations not gone into in chief, cannot complain that on redirect they are brought out in full, though originally hearsay.-Nichols v. Nichols (Mo.) 947. A question held erroneous as leading.-Gordon v. McCall (Tex. Civ. App.) 1111. § 3. Contradiction and corroboration of witness. Though the evidence connecting accused with the murder was circumstantial, he was entitled to prove, for the purpose of impeaching the principal witness for the prosecution, that he said after the discharge of accused on the examining trial that he "knew" that accused had nothing to do with the killing.-Franklin v. Commonwealth (Ky.) 986. One making the adverse party his witness may prove his case by other evidence, though it contradicts such party's testimony.-Imhoff v. McArthur (Mo.) 456. An attempt to prove what the father of defendant may have said to the witness as to the guilt of defendant, in order to impeach the witness on such hearsay testimony, is not permissible.-Poyner v. State (Tex. Cr. App.) 516. As bearing on the credibility of a witness for accused, the prosecution may show that such witness left the state at the time of the_convening of the grand jury.-Gregory v. State (Tex. Cr. App.) 577. A witness can be cross-questioned as to his friendliness or other feelings towards the parties.-Cox v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ. App.) 745. WORK AND LABOR. Liens for work and materials, see "Mechanics' Liens." WEST PUBLISHING CO., PRINTERS AND STEREOTYPERS, ST. PAUL, MINN. |