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TOWNS.

See Counties; Municipal Corporations; Schools and School Districts, §§ 32-154.

TRANSCRIPTS.

As evidence, see Evidence, § 341.
Of evidence in criminal prosecution, authority
of district attorney to order, see District and
Prosecuting Attorneys, § 7.

Of record for purpose of review, see Appeal and
Error, 598; Criminal Law, §§ 1088-1122.

TRANSFER OF CAUSES.

III. COURSE AND CONDUCT OF
TRIAL IN GENERAL.

§ 25. In an action to cancel notes for purchase price plaintiff held entitled to open and close.-Harrison v. Russell & Co. (Idaho) 48.

§ 25. In an action under Rev. Codes, § 4928, permitting an action to determine an adverse claim, plaintiff must prove his complaint_entitling him to open and close.-Harrison v. Russell & Co. (Idaho) 48.

29. The court in ruling on an objection during the progress of the trial may assign a reason for a ruling without violating the constitutional provision forbidding the court to comment' on the facts.-Dunkin v. City of Hoquiam (Wash.)

Harmless error in proceedings in criminal pros- 149. ecution, see Criminal Law, § 1166.

TRANSITORY ACTIONS.

See Venue, §§ 5, 9.

TRESPASS.

See Action on the Case.
Ejection of trespasser, see Carriers, §§ 358-384.
To the person, see Assault and Battery, §§ 2-40.

I. ACTS CONSTITUTING TRESPASS AND LIABILITY THEREFOR.

§ 6. In actions for trespass to personal property, the gist of the action is the disturbance of plaintiff's possession.-Swank v. Elwert (Or.) 901.

§ 10. "Trespass," defined.-Welch v. Seattle & M. R. Co. (Wash.) 166.

TRESPASS TO TRY TITLE.

See Ejectment.

See Witnesses.

TRIAL.

IV. RECEPTION OF EVIDENCE. (A) Introduction, Offer, and Admission of Evidence in General.

§ 43. Where the defense is technical, the court may hold the party engaged in making the defense to the strictest letter of the rule governing the admission and exclusion of testimony. Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

§ 46. The exclusion of an offer to prove a fact held not sustainable on a specified ground. -Washington Gold Min. & Mill. Co. v. O'Laughlin (Colo.) 1092.

§ 46. Sustaining objection to question held not error, the question not indicating, and it not being open to presumption, that the answer would be material.-Vuilleumier v. Oregon Water Power & Ry. Co. (Or.) 706.

(B) Order of Proof, Rebuttal, and Reopening Case.

$ 59. The order of proof and other such matters are largely within the discretion of the trial court.-McCreery v. Morrison (Colo.) 876.

(C) Objections, Motions to Strike Out, and Exceptions.

§ 90. Where the admissibility of the evi

Trial de novo on appeal, see Appeal and Er- dence admitted subject to objection is to be deror, $895.

Proceedings incident to trials.

See Continuance; New Trial.

Conformity of judgment to verdict or findings, see Judgment, § 256.

Entry of judgment after trial of issues, see Judgment, §§ 239-256.

Right to trial by jury, see Jury, §§ 14, 25. Trial of particular civil actions or proceedings. See Cancellation of Instruments, § 53; Malicious Prosecution, §§ 71, 72; Negligence, $$ 136-142; Prohibition, § 29; Trover and Conversion, § 66.

For injuries caused by defective condition of street, see Municipal Corporations, § 821. For injuries to passenger, see Carriers, §§ 320,

321.

For injuries to persons on or near tracks, see Railroads, § 400.

For injuries to servant, see Master and Servant, $$ 284-295.

For wages, see Master and Servant, § 80. For wrongful ejection of passenger, see Carriers, § 384.

Suits to try tax titles, see Taxation, §§ 805

814.

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cided on a motion to strike, and no motion is made, the objection is waived.-Menardi v. Wacker (Nev.) 287.

V. ARGUMENTS AND CONDUCT OF COUNSEL.

§ 120. A remark of counsel in examining a witness held not error.-Bennett v. Seattle Electric Co. (Wash.) 825.

VI. TAKING CASE OR QUESTION FROM JURY.

(A) Questions of Law or of Fact in General.

As to particular facts, issues, or subjects. Contributory negligence of person injured on street, see Municipal Corporations, § 821. Delivery of goods, see Sales, § 233.

In particular civil actions or proceedings. See Malicious Prosecution, § 71; Trover and Conversion, § 66.

For injuries to passenger, see Carriers, § 320. For injuries to persons on or near tracks, see Railroads, § 400.

For injuries to servant, see Master and Servant, §§ 284-289.

For wages, see Master and Servant, § 80.

139. Under Code Civ. Proc. § 2061, subd. 2, held, that it is a question for the jury whether a fact has been proved against a presumption.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

$139. The weight of testimony having some evidential value is for the jury to determine.O'Brien v. Corra-Rock v. Corra-Rock Island Mining Co. (Mont.) 724.

§ 143. An issue upon which there is a reasonable conflict is for the jury.-Taylor v. Insurance Co. of North America (Okl.) 354.

§ 143. Where the evidence is conflicting, the § 143. Where the evidence is conflicting, the issue is for the jury.-Hewitt v. Huffman (Or.)

98.

(C) Dismissal or Nonsuit.

§ 159. At any time when it becomes apparent from plaintiff's testimony that he cannot, in any view thereof, recover, the court is justified in granting a nonsuit.-Roach v. Rutter (Mont.) 555.

$165. There being no evidence for defendants, evidence for plaintiff and all legitimate inferences therefrom must be taken as true in ruling on a motion by defendants for nonsuit. -Baldwin Star Coal Co. v. Quinn (Colo.) 1101. § 165. On a motion for nonsuit, those facts will be deemed proved which the evidence tends to prove.-Roach v. Rutter (Mont.) 555.

(D) Direction of Verdict.

§ 178. Direction of verdict for defendant held to admit the truth of plaintiff's evidence and inferences deducible therefrom.-Keane v. Pittsburg Lead Mining Co. (Idaho) 60.

VII. INSTRUCTIONS TO JURY.

Harmless error, see Appeal and Error, § 1070. Questions presented for review, see Appeal and Error, 701.

Review as dependent on specific objections, see Appeal and Error, § 231.

In particular civil actions or proceedings. See Malicious Prosecutions, § 72.

For injuries to passenger, see Carriers, § 321. For injuries to servant, see Master and Servant, §§ 291-295.

For wrongful ejection of passenger, see Carriers, § 384.

(A) Province of Court and Jury in Gen

eral.

§ 194. In an action for a miner's death by an explosion, an instruction held erroneous, as amounting to direction of a verdict for defendant.-O'Brien v. Corra-Rock Island Mining Co. (Mont.) 724.

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§ 343. A general verdict imports a finding in favor of the prevailing party on every material issue not specially submitted, or requested to be submitted, to the jury.-Pigeon v. W. P. Fuller & Co. (Cal.) 976.

(B) Special Interrogatories and Findings. In action for negligence, see Negligence, § 142.

$350. The refusal to submit a question not addressed to any material issue in the case is proper.-Pigeon v. W. P. Fuller & Co. (Cal.)

976.

$ 350. That an immaterial issue is raised by the pleadings does not require the jury to specially find on it.-Pigeon v. W. P. Fuller & Co. (Cal.) 976.

§352. Under Code Civ. Proc. § 625, before it was amended, the court was justified in refusing so framed as to admit of a plain answer, or to submit the issues where the question was not where an answer favorable to the party preferring the request would be inconsistent with a generat verdict for his adversary.-Pigeon v. W. P. Fuller & Co. (Cal.) 976.

X. TRIAL BY COURT.

(A) Hearing and Determination of Cause. § 387. The lapse of more than 90 days after the submission of a cause before filing of the decision did not deprive the court of jurisdiction. evi--Olympic Oil Co. v. Kane (Wash.) 477.

(C) Form, Requisites, and Sufficiency. $244. It is not error to refuse an instruction giving undue prominence to certain dence to the exclusion of other material evidence.-Kerr v. Coberly (Kan.) 520.

(D) Applicability to Pleadings and Evidence.

§ 251. Where plaintiff pleads an express oral contract, it was not error to refuse an instruction that a promise to marry might be implied from acts and conduct.-Reynolds v. Curry (Kan.) 437.

§ 252. An instruction implying that a certain fact would constitute contributory negligence should be refused, unless there is evidence to fully sustain it.-Western Union Telegraph Co. v. Brower (Kan.) 497.

$252. In an action for a personal injury, the refusal to give a charge held proper in view of the evidence.-Dunkin v. City of Hoquiam (Wash.) 149.

§ 252. In an action for injuries to a servant, an instruction as to the selection of ways and places to work held properly refused as inapplicable to the evidence.-Hale v. Crown Columbia Pulp & Paper Co. (Wash.) 480.

(B) Findings of Fact and Conclusions of Law.

$393. Plaintiffs held not entitled to notice of the time and place of signing findings of fact, conclusions of law, or judgment in favor of defendants.-Lindsay v. Scott (Wash.) 462.

$395. Where it is sufficient for plaintiff to allege merely that he is the owner of property, a finding on the fact of title or ownership is good title or want of title depends.-Cooley v. Miller without a finding of particular facts on which title or want of title depends.-Cooley v. Miller & Lux (Cal.) 981.

§ 404. A finding held sufficient as one of nonpayment.-Treis v. Berlin Dye Works & Laundry Co. (Cal. App.) 275.

§ 404. A finding that a sum "was" unpaid held sufficient.-Treis v. Berlin Dye Works & Laundry Co. (Cal. App.) 275.

$405. Ballinger's Ann. Codes & St. § 5052 (Pierce's Code, § 669), preserves the right to exceptions to the defeated party, until 5 days after notice of the filing of findings.-Lindsay v. Scott (Wash.) 462.

LIDITY.

$405. A general blanket exception to findings | I. CREATION, EXISTENCE, AND VAof fact in an action tried before the court is insufficient. Carroll v. Washington Water Power Co. (Wash.) 1026.

TROVER AND CONVERSION.

Conversion by lessors, see Landlord and Ten-
ant, § 262.

Conversion of mortgaged property, see Chattel
Mortgages, §§ 169, 170.

I. ACTS CONSTITUTING CONVER-
SION AND LIABILITY
THEREFOR.

§§ 4, 10. The gist of the action of trover and conversion held to be the unlawful dealing with property of another while in possession of the same. Swank v. Elwert (Or.) 901.

§ 10. Under B. C. Comp. § 423, a landlord's lien held enforceable only by suit.Swank v. Elwert (Or.) 901.

II. ACTIONS.

(B) Jurisdiction, Parties, Preliminary Proceedings, and Pleading.

32. A complaint for conversion of property held sufficient, though alleging merely a seizure without describing it.-Western Mining Supply Co. v. Quinn (Mont.) 732.

§ 32. Allegation in conversion held not election by plaintiff to claim certain measure of damages.-Funk v. Hendricks (Okl.) 352.

(C) Evidence.

Offer to purchase as evidence of value, see Evidence, 113.

(D) Damages.

For conversion by mortgagee, see Chattel Mortgages, 176.

(A) Express Trusts.

§ 25. Any words which indicate with suffi cient certainty an intention to create a trust will be effective in so doing without the use of the words "trust" or "trustee."-Cahlan v. Bank of Lassen County (Cal. App.) 765.

$ 302. One who owns property may so deal with it while retaining the legal title as to make himself a trustee for the benefit of an-. other. Cahlan v. Bank of Lassen County (Cal. App.) 765.

$372. Where the owner of certificates of bank stock transferred them, but retains possession of them until his death, the fact that he receives dividends on the stock does not affect the validity of the trust thus established.Cahlan v. Bank of Lassen County (Cal. App.) 765.

essary that the beneficiary of a trust be in§ 39. Under Civ. Code, § 2251, it is not necformed of its creation or express an acceptance. -Cahlan v. Bank of Lassen County (Cal. App.) 765.

III. APPOINTMENT, QUALIFICA-
TION, AND TENURE OF
TRUSTEE.

§ 159. It is competent for a person creating
a trust to himself become the trustee or to make
Lassen County (Cal. App.) 765.
the beneficiary the trustee.-Cahlan v. Bank of

ULTRA VIRES.

Acts of insurance company, see Insurance, § 36.
UNDERTAKINGS.

See Bonds.

UNDISCLOSED AGENCY.

$ 44. Rule for computing damages for con- See Principal and Agent, §§ 145, 146. version of personalty stated.-Swank v. Elwert (Or.) 901.

§ 49. An instruction in conversion as to the measure of damages, based upon Wilson's Rev. & Ann. St. 1903, § 2752, subd. 2, accepted by plaintiff without objection, constituted a sufficient election as to which measure of damages he claimed.-Funk v. Hendricks (Okl.) 352.

§ 49. Wilson's Rev. & Ann. St. 1903, § 2752, held to authorize an election by plaintiff in conversion of the measure of damages at the time of submission to the jury, unless he has, by his pleadings or otherwise, before made election.-Funk v. Hendricks (Okl.) 352.

(E) Trial, Judgment, and Review.

§ 66. Whether an action for conversion has been prosecuted with reasonable diligence, within Wilson's Rev. & Ann. St. 1903, § 2752, subd. 2, relative to the measure of damages, held a question of law for the court.-Funk v. Hendricks (Okl.) 352.

TRUST DEEDS.

See Chattel Mortgages; Mortgages.

TRUSTEES.

Of reclamation district, see Drains, § 18.

TRUSTS.

Charitable trusts, see Charities.

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Combinations to monopolize trade, see Mo- Validity of statute as denial of due process of nopolies, §§ 8-17.

law, see Constitutional Law, § 298.

5. The Legislature may regulate the rate of interest and prescribe criminal penalties for the violation of such laws.-State v. Sherman (Wyo.) 299.

§ 76. A note drawing more than 10 per cent. interest, payable to a domestic corporation doing a banking business in Indian Territory, is void as to both principal and interest under Ind. T. Ann. St. 1899, § 3043 (Mansf. Dig. 4732).-Sulphur Bank & Trust Co. v. Medlock (Okl.) 321.

VACATION.

Of particular acts, instruments, or proceedings. See Attachment, §§ 246, 249; Judgment, §§ 143-161; Judicial Sales, § 40.

Of decree of divorce, see Divorce, § 167.

VALUATION.

§ 44. Evidence held to make out a prima facie case for recovery by a purchaser of his vendors for fraudulent misrepresentations as to the land.-Bailie v. Parker (Wash.) 834.

II. CONSTRUCTION AND OPERATION OF CONTRACT.

77. The amount of monthly deferred payments on a contract of purchase determined.— Roberts v. Tuttle (Utah) 916.

III. MODIFICATION OR RESCISSION OF CONTRACT.

(B) Rescission by Vendor.

§ 93. The right of a vendor to declare a forfeiture for the nonpayment of the final installment of the price held to depend on his offer and ability to perform.-Reese v. Westfield (Wash.) 837.

Of property for taxation, see Taxation, § 347. IV. PERFORMANCE OF CONTRACT.

VALUE.

(A) Title and Estate of Vendor.

§ 130. The words "good and marketable title" as used in a contract of sale defined.-Roberts

Limits of jurisdiction, see Appeal and Error, v. Tuttle (Utah) 916. $ 45.

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I. REQUISITES AND VALIDITY OF CONTRACT.

Necessity of wife joining in assignment of option to purchase so as to bar right of dower, see Dower, § 12.

§ 3. Contract construed, and held to constitute a lease with option to purchase, and not a contract of sale.-Powers v. Myers (Okl.) 674.

§ 3. A contract for purchase of land construed.-Friendly v. Elwert (Or.) 404.

§ 18. Where an option is without consideration, the owner may revoke it before the expiration of the time limit, if an acceptance has not been communicated to the owner.-Canty v. Brown (Cal. App.) 428.

§ 18. A purchaser in an option contract failing to communicate his acceptance by any reasonable mode as authorized by Civ. Code, § 1582, within the time limited, held to lose his rights under the contract.-Canty v. Brown (Cal. App.) 428.

§ 34. A false representation by a vendor that the premises were bounded by public alleys is a material one, where the evidence shows that the existence of public alleys would increase the value of the premises to the extent of one-half. -Shultz v. Redondo Improvement Co. (Cal.) 118. § 44. Evidence held not to show a bona fide acceptance of an option to buy land.-Friendly V. Elwert (Or.) 404.

§ 144. An option purchaser of land held upon title not proving satisfactory_only entitled to a return of a payment made.-Friendly v. Elwert (Or.) 404.

(D) Payment of Purchase Money.

Subrogation of purchaser paying off incumbrances, see Subrogation, § 14.

§ 187. Vendor, having failed to keep his appointment as to the time and place for performance, waived formal tender.-Fletcher v. Painter (Kan.) 500.

V. RIGHTS AND LIABILITIES OF PARTIES.

(A) As to Each Other.

§ 209. Evidence held to show that a conveyance by a son to his father was a sale, and not a family settlement.-Finnell v. Finnell (Cal.) 740.

(B) As to Third Persons in General. Persons entitled to sue for injuries to land taken for right of way, see Eminent Domain, § 284.

§ 213. Grantee in unrecorded deed held equitable owner of the land, so that it is not subject to attachment for the grantor's debts.Good v. Williams (Kan.) 433.

(C) Bona Fide Purchasers. Of property affected by party wall agreement, see Party Walls, § 9.

§ 224. A quitclaim deed holder is charged with notice of an action in which the real estate has been attached.-Doty v. Knox (Kan.) 437.

§ 231. A purchaser by warranty deed whose grantor holds by quitclaim only held a purchaser in good faith.-Downs v. Rich (Kan.) 9.

$231. The holder of a warranty deed whose grantor held by quitclaim only obtained a good title as against a prior unrecorded warranty deed.-Downs v. Rich (Kan.) 9.

§ 231. Under B. & C. Comp. § 788, subd. 20, a subsequent purchaser having no other notice than a record showing satisfaction of a prior mortgage may assume that it has been paid by the party owing the primary duty to pay.-Stitt v. Stringham (Or.) 252.

§ 238. A purchaser with notice from a purchaser without notice may claim any immunity his grantor has.-Hawkes v. Hoffman (Wash.)

156.

VI. REMEDIES OF VENDOR.

(A) Lien and Recovery of Land.

Court of Second Judicial Dist. of Silver Bow
County (Mont.) 554.

Bar of debt as affecting vendor's lien, see Limi-lating to the shipment of game, held to create an § 9. Laws Okl. T. 1903, p. 168, c. 15, § 4, retation of Actions, § 167. offense within Organic Act (Act Cong. May 2, 1890, c. 182, 26 Stat. 87), § 10, and a civil action for the recovery of the penalty must be brought within the county where the violation occurred.-Chicago, R. I. & P. Ry. Co. v. Territory of Oklahoma (Okl.) 677.

§ 251. The fact that a vendor at the time of conveyance did not know that the vendor's lien existed did not affect his right to rely on the lien.-Finnell v. Finnell (Cal.) 740.

§ 251. Where, at the time of the conveyance, it was not agreed that a vendor's lien should not exist, and the vendor did not waive the lien, the lien existed.-Finnell v. Finnell (Cal.) 740.

§ 251. The act of a vendor, manifesting an intention that a vendor's lien shall not exist, must be one substantially inconsistent with the continued existence of the lien.-Finnell v. Finnell (Cal.) 740.

§ 255. Civ. Code, §§ 3046, 3048, held to give every vendor a lien for the unsecured price, valid against every one excepting bona fide purchasers or incumbrancers for value.-Finnell v. Finnell (Cal.) 740.

$265. One acquiring land from a purchaser held not a bona fide purchaser, but to take title subject to the vendor's lien.-Finnell v. Finnell (Cal.) 740.

§ 266. The right of a vendor to enforce his lien is personal, and may be waived.-Finnell v. Finnell (Cal.) 740.

§ 266. Where a vendor does any act manifesting an intention not to rely on the vendor's lien, the lien does not exist.-Finnell v. Finnell (Cal.) 740.

§ 266. Evidence held not to show a waiver by the vendor of a vendor's lien.-Finnell v. Finnell (Cal.) 740.

II. DOMICILE OR RESIDENCE OF
PARTIES.

§ 32. Though an action to redeem from a mortgage should have been commenced in the county of defendant's residence instead of that titled to a change of venue to his own county of plaintiff's residence, defendant is only enas provided by section 6505, Rev. Codes, and not to a change to the county in which the mortgaged land is situated, and, in the absence of a motion for a change to the proper county, the court of the county where the action was brought has jurisdiction.-State v. District Court of Second Judicial Dist. of Silver Bow County (Mont.) 554.

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VERIFICATION.

§ 278. Knowledge by subsequent purchasers of the existence of a vendor's lien removes any prejudice that resulted from delay in commenc- Of pleading, see Pleading, §§ 294, 301. ing a suit to foreclose the lien.-Finnell v. Finnell (Cal.) 740.

§ 281. A vendor's lien is presumed to exist, and is an incident to the transaction and sale.

unless the intention of the vendor that it shall not exist is clearly manifested.-Finnell v. Finnell (Cal.) 740.

VESTED RIGHTS.

Protection, see Constitutional Law, §§ 93, 101.

VETERANS.

Preference in appointment to office, see Officers,
§ 10.
VETO.

§ 298. Wilson's Rev. & Ann. St. 1903, §§ 5086, 5087, held not to entitle a vendor to recover possession from a vendee in default by unlawful detainer.-Powers v. Myers (Okl.) 674. Of legislative bills, see Statutes, §§ 26-352.

VII. REMEDIES OF PURCHASER.
(A) Recovery of Purchase Money Paid.
Liability of agent on unauthorized contract, see
Principal and Agent, § 155.

VICE PRINCIPALS.
See Master and Servant, §§ 185-201.

VILLAGES.

§ 334. A purchaser held not entitled to recover the cash payments made, on it appearing See Municipal Corporations. that the vendor tendered performance before any claim of forfeiture by the purchaser.-Price v. Loe (Wash.) 469.

VOTERS.

See Elections.

WAGERS.

WAGES.

§ 341. In an action for the consideration paid for options to purchase real estate on the ground of fraud, evidence held to justify a finding that defendant falsely represented that the premises See Gaming, § 19. were bounded by public alleys.-Shultz v. Redondo Improvement Co. (Cal.) 118.

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