« 이전계속 »
When failure to properly instructcured by ment cannot be rendered for plaintiff for the printhe verdict.-Clarkson y. Whitaker (Tex. Civ. cipal demanded.-Goggan v. Evans (Tex. Civ. App.) 1032
App.) 891. Under Rev. St. 1889, $ 2303, errors in the re The evidence cannot be looked to for the pur. fusal of requested instructions will not be con- pose of correcting a verdict.Goggan v. Evans sidered where the verdict is manifestly for the Tex. Civ. App.) 891. proper party.-Burns v. City of Liberty (Mo.) 18.
Where there are two theories of the case,
and it is error to submit the evidence on one Necessity of request.
of them. a general verdict should be set aside. A party who does not ask for more explicit International & G. N. R. Co. v. Hall (Tex. instructions cannot complain if they are not Civ. App.) 127. given.-Reichstetter v. Bostick (Tex. Civ. App.) A verdict "for plaintiff is equivalent to "for 158.
plaintiffs."-Reed v. Phillips (Tex. Civ. App.) Defendant cannot complain of a failure to
986. charge on a certain issue when he has made no Verdict of jury may be aided by reference to request therefor.---Missouri, K. & T. Ry. Co. the pleadings.-Reed v. Phillips (Tex. Civ. App.) v. Thompson (Tex. Civ. App.) 718.
986. Where an instruction is correct as far as it Verdict on an issue as to the location of a line goes, defendant, if he desires reference to evi- in a survey held insufficient.-Best v. Splawn dence to be made therein, should ask for an in- (Tex. Civ. App.) 1003. struction on such issue.-Lane v. Missouri Pac. Ry. Co. (Mo.) G45, 1128.
Where special findings are required, all the
material issues should be submitted.Mitchell Evidence to sustain.
v. Western Union Tel. Co. Tex. Civ. App.) Instruction on an issue as to whether an article
1016. was delivered and accepted in satisfaction of the A finding on an issue not included in the claim of a co-owner held erroneous.-Hinchman pleadings will be disregarded.-J. A. Kemp Grov. Davis (Tex. Civ. App.) 893.
cery Co. v. Sawyer (Tex. Civ. App.) 1031. Instructious having no application to the case Conclusions of fact. should not be given.-Best v. Splawn (Tex. Civ. App.) 1005.
A statement in a conclusion of fact that the
sum paid for certain goods was an inadequate An instruction suggesting that a fact not consideration is not a finding that the sale was shown by the evidence was in fact shown is fraudulent.-State ex rel. Friedman v. Purcell erroneous.-Kudow v. Irick (Tex. Civ. App.) (Mo.) 13. 315.
An instruction assuming the facts in question is erroneous-St. Louis S. W. Ry. Co. v. McCul TROVER AND CONVERSION. lough (Tex. Civ. App.) 285. An instruction assuming a disputed fact is er
When demand is unnecessary.--Richardson v. roneous.-Paris, M. & S. P. Ry. Co. s. Nes Ashby (Mo.) 806. bitt (Tex. Civ. App.) 280.
A creditor in possession of his debtor's propAn instruction attempting to set forth the alerty under a contract to sell it and pay his debt leged facis held erroneous as omitting some. - may sue for its conversion. --Smith v. Maberry Missouri, K. & T. Ry. Co. v. Siminons (Tex.
(Ark.) 1068. Civ. App.) 1096.
Repledging of collateral paper to secure a debt Instructions abstractly correct, but not based of pledgee is conversion.-Richardson v. Ashby on the evidence, are erroneous.---Davis v. Bing
(Mo.) 806. ham (Tex. Civ. App.) 1035.
Evidence in trover by an assignee for creditAn instruction assuming a fact as to which ors against an attaching creditor, held inadmisthe evidence is conflicting is erroneous.-M.sible.-Cunringham v. Holt (Tex. Civ. App.) Gregor v. Sima (Tex. Civ. App.) 1014.
981. It is error to give an instruction not supported
Evidence examined and held that plaintiff had by the evidence.-Fergus v. Dodson (Tex. Civ. not waived his right to possession of the goods App.) 273.
converted.-Smith v. Maberry (Ark.) 1068. It is error to charge on an issue where the
Measure of damages as against purchaser unrecord discloses no evidence to establish it. -- der an illegal levy of execution determined.-Texas & P. Ry. Co. v. Avery (Tex. Civ. App.) Munster v. Fields (Tex. Sup.) 852. 704.
Where collateral paper is converted, the measWeight of evidence.
ure of damages is its value when converted.
Richardson r. Ashby (Mo) 806 Where the evidence as to the legality of a sale is conflicting, an instruction that, if a sale is showli, it is presumed to be legal, is on
Trustee Process. the weight of evidence.-Reynolds v. Weinman (Tex. Civ. App.) 302.
See "Garnishment." An instruction on an issue of negligence held to be a charge on the weight of evidence.
TRUSTS. Spencer v. Shelburne (Tex. Civ. App.) 260.
An instruction which is in some parts on the See, also, “Executors and Administrators.” weight of evidence properly refused.-Miller v. Right of action by party not privy to contract, Sullivan (Tex. Civ. App.) 695.
see "Action." A charge in an action by a servant held not to be upon the weight of the evidence.-Mis- create a resulting trust in favor of his wife.
Deed to a husband examined and held not to souri, K. & T. Ry. Co. of Texas v. Gordon (Tex. Morris s. Clare (Mo.) 1123. Civ. App.) 081.
Where a trustee deposits money with a firm, Verdict.
and it is paid to him on his order, without any On a verdict for plaintiff for a certain sum as knowledge that it is trust funds, the firm is not principal and interest, recorery of interest not liable to the beneficiaries therefor.-Tenny v. having been demanded in the complaint, judg- Porter (Ark. 211.
A power in a trust deed to substitute a new his expense a release on payment of the price. trustee was not revoked by an extension of the -Engelbach v. Simpson (Tex. Civ. App.) 596. trust deed adopting all the provisions of said deed.—McConnell v. Day (Ark.) 731.
Bona fide purchasers. The burden of proving the invalidity of a
Evidence held not sufficient to sustain a claim trustee's deed reciting a substantial compliance of a bona fide purchase.-Halley v. Fontaine with the trust deed is on the person objecting (Tex. Civ. App.) 260. thereto.-McConnell v. Day (Ark.) 731.
One buying land from a bona fide purchaser A sale without the consent of the grantors in takes it freed from prior claims of which he a trust deed which conveyed an absolute title had notice.-Hickman v. Hoffman (Tex. Civ. held not affected by the statute of 1820, requir- | App.) 257 ing sales under trust deeds to be made in pur A purchaser ignorant of fraud practiced on suance of a judgment. – Abbott Yeager the wife held not chargeable with notice because (Ky.) 195.
of possession by the husband and wife.--Hick
man v. Hoffman (Tex. Civ. App.) 257. Undue Influence.
The possession of land as tenant held not to See “Wills."
be, as a matter of law, constructive notice to Uses.
a subsequent purchaser of the land of his claim
under a prior sale to a gin mill situated thereSee "Trusts."
on.-Brown v. Roland (Tex. Civ. App.) 273. USURY.
Evidence examined, and held that possession
of land sold by the tenant of another was noSee, also, “Interest."
tice to purchasers of his landlord's claim.-AlIn loan by building and loan association, see lison v. Pitkin (Tex. Civ. App.) 293. "Building and Loan Associations."
Actual knowledge of a deed of trust to secure What law governs, see “Conflict of Laws."
a note executed by a stranger to the title, to Where a surety assumed the debt, and gave the owner, held notice of the equitable lien of a note in renewal of the old one, held that he the assignee of the deed and note.-Barrett v. cannot set up usury in the old note to defeat Bake. (Mo.) 162. the new one. --Tenny v. Porter (Ark.) 211.
One purchasing a tract of land charged with
an easement of which he had notice held to have Vacation.
bought subject thereto, though it was not re
served in the deed.--Burress v. Barbee (Ky.) Of judgment, see "Judgment."
The fact that a purchaser at sheriff's sale Variance.
knew of an unrecorded deed did not preclude his
grantee from being an innocent purchaser.-LinBetween pleading and proof, see "Pleading."
dell Real-Estate Co. v. Lindell (Mo.) 466.
One purchasing land subject to a vendor's VENDOR AND PURCHASER. lien, and obtaining releases for the vendor, held
a bona fide purchaser, though one of the notes See, also, "Fraudulent Conveyances"; "Judicial secured by the lien had been assigned, but with
Sales"; "Sale"; "Specific Performance." out any record thereof.---Perkiewiez v. First Adverse possession of vendee, see "Adverse Pos- Nat. Bank (Tex. Civ. App.) 674.
session. Execution sales, see "Execution."
VENUE IN CIVIL CASES. A mortgage sale without appraisement as required by statute held not to convey a title which a vendee must accept, though confirmed brought in the county in which the parties re
A bill for divorce for desertion must be by the court.--Meddis v. Fenley (Ky.) 197.
sided at the time of the separation, or where The fact that there was an excess of 10 acres the defendant was found when the bill was will not entitle a vendee to relief under a con- brought.-Walton v. Walton (Tenn.) 561. tract whereby he agreed to pay for the land at a certain price per acre, in the absence of fraud. a suit brought outside of the county of domi
When court has jurisdiction of defendants in -Claus v. Evans (Ky.) 620.
cile.-Taylor v. Gribble (Tex. Civ. App.) 765. An extension of the time for payment under a contract, while it waives the forfeiture for
An action on a draft "returnable in G.," in nonpayment, does not enlarge the rights of the the county of G., was properly brought in such purchaser_in any other respect. - Herman v. county, though defendant resided in another Gieseke (Tex. Civ. App.) 1006.
county.-Lammers v. Floyd (Tex. Civ. App.)
150. The minor heirs of a deceased purchaser, holding land under an executory contract of Notice of one or two hours of an application sale, have no greater rights as to payments un- for change of venue is insufficient, under Rev. der such contract than the decedent.--Herman St. 1889, $ 2262.--St. Louis, C. G. & Ft. S. Ry. v. Gieseke (Tex. Civ. App.) 1006.
Co. v. Holladay (Mo.) 49. Vendor's lien.
A party cannot. under Rev. St. 1889, $ 2258, A note secured by vendor's lien, and trans- be given more than one change of venue.--St. ferred wituout authority from the payee to a Louis, C. G. & Ft. S. Ry. Co. v. Holladay (Mo.) third party, held postponed to the payee's lien 49. given by a second note.-Goddard" v. Peeples An application for a change on the ground (Tex. Civ. App.) 314.
that the opposite party had an undue influence A recital, in a note for money advanced for over the court held properly refused. -St. Louis, the price of land, that a vendor's lien was re- C. G. & Ft. S. Ry. Co. v. Holladay (Mo.) 49. tained as security, does not entitle a payee to recover the land after the note is barred by the that the applicant obtained his knowledge of
An application for a change of venue, stating statute of limitations.-Grimes v. Griffith (Tex. the existence of the cause “since" the last Civ. App.) 242.
term of court, is insufficient to show diligence, Where a vendor's lien is cxpressly retained under Rev. St. 1889. $ 2261.--St. Louis, C. G. the vendor, if owner of the lien, must execute at & Ft. S. Ry. Co. v. Holladay (Mo.) 49.
Venue in Criminal Cases. See "Criminal Law."
Wife's Separate Estate.
A will cannot be revoked by a verbal declara
tion.-Kirkpatrick v. Jenkins' Ex'rs (Tenn.) 819. Vice Principal.
Under Rev. St. 1889, $ 8870, it is not neces
sary that there be an attestation clause to the See "Master and Servant."
signatures of subscribing witnesses.-Berberet
v. Berberet (Mo.) 61. Voters.
A will dictated by a widow, signed in the
presence of two witnesses, who subscribed See "Electors and Voters."
their names in her presence, was properly ex
ecuted.-Berberet v. Berberet (Mo.) 61. Waiver.
Probate of a will cannot establish heirship as
to property not devised.--First Nat. Bank v. Of homestead, see "Homestead."
Sharpe (Tex. Civ. App.) 676. Of objections, see "Appeal."
to jurisdiction in criminal cases, see “Crim- Capacity and undue influence. inal Law."
The testator's declarations are not admissible to pleading, see "Pleading.
to prove undue influence, but may be looked to, Of plea to jurisdiction, see "Abatement and Re- to determine the effect of such influence after it vival."
has been otherwise proved.--Kirkpatrick v. Jen.
kins' Ex'rs (Tenn.) 819. WASTE.
The relations of a testator to an alleged daughA tenant in dower is not guilty of waste in missible to prove motive for excluding her from
ter, anil his declarations concerning her, are adcutting timber which worked no permanent in his will.-Kirkpatrick v. Jenkins' Ex'rs (Tenn.) jury to the inheritance.--Lunn v. Oslin (Tenn.) 819. 561.
An instruction authorizing the jury to consider
the testator's declarations to disprove undue inWATER COMPANIES.
fluence is erroneous.--Kirkpatrick F. Jenkins'
Ex'rs (Tenn.) 819. The failure of a water company to perform any corpora'e act for nearly eight years, and Though a son is made executor of a will, and an attempt to sell its property to another cor- i he is shown to have had influence over the tesporation, are ground for a forfeiture of its char- tatrix, hell, that the burden of proving that the ter, though another company is furnishing wa- i will was fairly executed is not on him, in an ter as its pretended successor.-City Water Co. action to set aside the will.-Berberet v. Berv. State (Tex. Civ. App.) 259.
beret (Mo.) 61. A water company supplying a city with wa- Construction. ter is a quasi public corporation. -City Wa- Will construed and held that certain bonds ter Co. v. State (Tex. Civ. App.) 259.
given to the wife for life went to the children on her death.-.Price v. Hutchins (Ky.) 1120.
Will construed, and held, that land devised to WATERS AND WATER
a wife for life on her death passed to her son COURSES.
in fee, one-half thereof charged with the sup
port of his uncle during the latter's life. Polluting stream, see "Nuisance."
Terry v. Bourne (ky) 403. Complainin an action for injuries caused by
A will giving the wife certain property to disoverflowing land held sufficient.--Hughes v. City pose of as she may choose at her death held to of Austin (Tex Civ. App.) 007:
convey a fee.--Byrne v. Weller (Ark.) +21. Measure of damages for overflowing land,
Will construed, and hold that on testator's whereby injury is caused to plaintiff's stock death his children acquired rested remainder, determined. -Flughes v. City of Austin (Tex though the beneficial interests might, on the Civ. App.) 607.
termination of the life estate, be further post
poned until the majority of the youngest child. Where an injury by obstructing a stream is -Byrne v. France (Mo.) 178. permanent, the damage must be computed on the value of the land when the dam was built.--
A derise "0. W. * * * and his children Missouri, K. & T. Ry. Co. of Texas v. Graham forever," with limitation orer "if w. shall die (Tex. Civ. App.) 576.
leaving no child," conveys to W. a fee simple, to be defeated only in case he dies without
children; nor is such a devise affected by statWEIGHTS AND MEASURES.
ntory provision that where an estate is given
to any person for his life, and after his death to Under Act 1879 (Act 16th Leg. p. 116), is
his heirs, the grantee shall take a life estate amended by Act 1883, the owner of produce only.-Hood v Dawson (Ky.) 75. may procure any one to weigh his produce, A devise of a life estate with remainder in where he is present and acts for himself.-Mar- fee to devisee's descendants, according to the tin v. Johnston (Tex. Civ. App.) 306.
laws of descent and distribution, conveys no interest to a mother and brother and sister of
the half blood of the devisee. -Tichenor v. Widow.
Brewer's Ex'r (Ky.) 86. See "Dower"; "Executors and Administrators”; Wben devisee in trust liable only for repair "Homestead.'
of property. -Dravo v. Seebolt (Ky.) 1106.
a felony, evidence of his good character for
truth is admissible.--Farmer v. State (Tex. Cr. See, also, “Deposition"; "Evidence."
App.) 232. Absence of, as ground for continuance, see A declaration of a conductor that he, on "Continuance"; "Criminal Law."
plaintiff's refusal to get off of his train, Misconduct of witness as ground for new trial knocked the d--- scoundrel off," is admisin criminal cases, see “Criminal Law.” sible as impeaching testimony, the conductor
having denied that he made such statement.--In a criminal case, an annlication for an at- Missouri, K. & T. Ry. Co. v. Sanders (Tex. tachment for a witness should not be denied be. Civ. App.) 245. cause the facts expected to be proven were not recited.-Moore v. State (Tex. Cr. App.) 980.
Evidence of a male witness' general charac
ter for unchastity was not admissible to imCompetency.
peach him.--State v. Sihley (Mo.) 167. In partition by persons claiming title to land
A witness may be asked, for the purpose of through a deed from their deceased father, tes- impeachment, whether she had not borne an timony of defendant as to statements by the illegitimate child.--Exon v. State (Tex. Cr. App.) father when the deed was made helil not inad
336. missible under Rev. St. art. 2218.--Wagner v. Isensee (Tex, Civ. App.) 155.
The state's witness having testified that the One convicted of felony, but not sentenced, dismissed, it was proper to ask him if his tes
prosecution against him as an accomplice was is a competent witness.-Hurley v. State (Tex. timony was the same as the statements he had Cr. App.) 351
made before the case was dismissed.-Mitchell It is within the discretion of the court to al. v. State (Tex. Cr. App.) 367. low a child under 10 to testify, where he is shown to be capable of relating facts truly.- he had been indicted for other offenses, the in
Where defendant testifies that he did not know State v. Nelson (Mo.) 809.
dictments are admissible on the question of credA stockholder of a corporation plaintiff held a ibility.--Brazos v. State (Tex. Cr. App.) 540. competent witness, though the other party to the contract sued on is dead.-Banking House of scuffle at the time the murder
Defendant, having testified that he heard a Wilcoxson & Co. v. Rood (Mo.) 816.
it is proper to show that before the trial he Examination.
stated that he did not hear such scuftle.--MofWhere partnership books on an accounting fatt s. State (Tex. Cr. App.) 34. liave been excluded because not properly kept. held that defendant, on testifying that the en
WRITS. tries were made by him, may refresh his mem. ory by memoranda taken from such books. See, also, "Attachment": "Certiorari"; "Error; Faver v. Bowers (Tex. Civ. App.) 131.
Writ of": "Execution"; "Garnishment"; "InA witness may refresh his memory by mem junction"; "Mandamus"; "Prohibition, Writ oranda from books of account, though on being of." notified he failed to produce such books. -- Service of process on infant, see "Infancy." Faver v. Bowers (Tex. Civ. App.) 131. In a murder case, where deceased's wife is the initial unly, of defendant's Christian name.
A citation is not insufficient because it gives a witness for defendant, she may be asked on cross-examination if she is not paying defend- / -Milburn v. Smith (Tex. Civ. App.) 910. ant's attorney's fees.-Magruder v. State (Tex.
Summons signed in the name of the clerk by Cr. Apr.) 233.
one not in fact a deputy is good where, beWhere a party testifies that a paper was and sent out the same as his own act.-Louis
fore delivery to the sheriff, the clerk appeared signed without reading it, the other party can ville & N. R. Co. v. Banks (Ky.) 627. cross-examine him as to why it was not read.White Sewing Mach. Co. v. Hicks (Tex, Civ, Citation, in trespass to try title, without menApp.) 137.
tioning the land sought to be recovered, held Where defendant's wife testified as to his men- 1036.
insufficient.--Ford v. Baker (Tex. Civ. App.) tal condition, and alarm prior to the homicide, the state cannot prove by her on cross-exam
Under Rer. St. art. 1230, a citation for a nonination that defendant had shot another persou. resident, addressed to the sheriff, and served by -Hoover v. State (Tex. Cr. App.) 337.
him, is insufficient.-Porter v. Hill County (Tes.
Civ. App.) 383. Effec: of answer to a direct question on crossexamination where witness is incompetent.- Service on one not in the employ of a forBanking House of Wilcoxson & Co. v. Rood eign corporation is not service on the corpora(Mo.) 816.
tion.- Texas & P. Ry. Co. y. Neal (Tex. Civ.
App.) 693. Credibility. After a witness has admitted an indictment of depositions therein in a jurisdiction other than
A party to an action, while attending the taking for a certain crime, the state may introduce the that of his residence, is privileged from the record in the case.-Moore v. State (Tenn.) 1016. serrice of summons upon him in such jurisdie
A witness having testified that he did not tion.-Powers v. Arkadelphia Lumber Co. (Ark.) see the shooting, it was error to permit per- 842. sons to show his contradictory statements.Saylor v. Commonwealth (Ky.) 185.
Service on a nonresident out of the state will
not support a personal judgment.-Porter F. The credibility of a witness who has been Hill County (Tex. Civ. App.) 383. convicted of a felony and pardoned is for the jury.–Douglass v. State (Tex. Cr. App.) 228.
Act Aug. 13, 1870, authorizing service by
publication, was not affected by the repeal of Where the credibility of a witness is at the printing act in November, 1871.-Hambel v. tacked by proof that he has been charged with Davis (Tex. Civ. App.) 251.