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When failure to properly instruct cured by ment cannot be rendered for plaintiff for the prin-
the verdict.-Clarkson v. 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 erroi 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 verdici “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) 645, 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.)

1016.
Instruction on an issue as to whether an article
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 Gro-
v. Davis (Tex. Civ. App.) 893.

cery Co. v. Sawyer (Tex. Civ. App.) 1031.
Instructions 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- Ashby (Mo.) 806.

When demand is unnecessary.---Richardson v.
roneous.-Paris, M. & S. P. Ry. Co. v. Nes-
bitt (Tex. Civ. App.) 280.

A creditor in possession of his debtor's prop-
An instruction attempting to set forth the al- erty 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

(Ark.) 1068.
Missouri, K. & T. Ry, Co. v. Siminons (Tex.
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 credit-
An instruction assuming a fact as to which ors against an attaching creditor, held inadmis-
the evidence is conflicting is erroneous.-M.sible.-Cunringham v. Holt (Tex. Civ. App.)

981.
Gregor v. Sima (Tex. Civ. App.) 1014.
It is error to give an instruction not supported

Evidence examined and held that plaintiff had
vidence.---Fergus v. Dodson (Tex. Civ. not waived his right to possession of the goods

converted. -Smith v. Maberry (Ark.) 1068.
App.) 273.
It is error to charge on an issue where the

Measure of damages as against purchaser un-
record 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 (Tes. Sup.) 832.
704.

Where collateral paper is converted, the meas-

ure of damages is its value when converted.-
Weight of evidence.

Richardson v. 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

Deed to a husband examined and held not to
to be upon the weight of the evidence.-Mis- create a resulting trust in favor of his wife.-
souri, K. & T. Ry. Co. of Texas v. Gordon (Tex. Morris S. Clare (Mo.) 1123.
Civ. App.) 681.

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, recovery 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 there-
See "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 no-
See, also, “Interest."

tice to purchasers of his landlord's claim.-Al-
In 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."

412.

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.-Lin-
Between 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 re-
quired 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.

Vol. 33

.

Venue in Criminal Cases.
See "Criminal Law."

Wife.
See "Ilusband and Wife."

Verdict.
See "Trial."
In criminal cases, see "Criminal Law.”

Wife's Separate Estate.
See "Husband and Wife."

Verification.

WILLS.
Of bill for injunction, see "Injunction."
Of complaint, see "Pleading.'

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 daugh-
A tenant in dower is not guilty of waste in missible to prove motive for excluding her from

ter, anil his declarations concerning her, are ad-
cutting 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 in-
WATER 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 tes-
poration, 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. Ber-
v. 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 dis-
overflowing 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 stat-
WEIGHTS 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.

WITNESS.

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, 01
“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 admis-
in 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 proren were not
recited.-Moore v. State (Tex. Cr. App.) 380.

Evidence of a male witness' general charac-

ter for unchastity was not admissible to im-
Competency.

peach him.-State v. Sibley (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 stateinents by the illegitimate child.--Eson v. State (Tex. Cr. App.)
father when the deed was made hell not inad- 336.
missible under Rev. St. art. 2248.-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 cred-
A stockholder of a corporation plaintiff held a ibility.-Brazos v. State (Tex. Cr. App.) 540.
competent witness, though the other party to the

Defendant, having testified that he heard a
contract sued on is_dead.-Banking House of
Wilcoxson & Co. v. Rood (Mo.) 816.

scuffle at the time the murder was committed,

it is proper to show that before the trial he
Examination.

stated that he did not hear such scuftle.--Mof-
Where partnership books on an accounting fatt v. State (Tex. Cr. App.) 341.
have 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"; "In-
A 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 uply, of defendant's Christian name.

A citation is not insufficient because it gives
a witness for defendant, she may be asked on --Milburn v. Šmith (Tex. Civ. App.) 910.
cross-examination if she is not paying defend-
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, be-

fore delivery to the sheriff, the clerk appeared
Where a party testifies that a paper was and sent out the same as his own act.-Louis-
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 Macb. Co. v. Hicks (Tex. Civ. Citation, in trespass to try title, without men-
App.) 137.

tioning the land sought to be recovered, held
Where defendant's wife testified as to his men- 1036.

insufficient.-Ford 1. 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 non-
ination 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 cross-
examination where witness is incompetent.-- Service on one not in the employ of a for-
Banking 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.) 1046.serrice of summons upon him in such jurisdic-

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 5.
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.

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