Contributory negligence of servant injured, see pany for injuries by being run over after being

In criminal prosecutions, see Criminal Law, 88 a protection to the opposing party.-Texarkana 7552-768.

§ 244. The use of the word "greatly," as ap$192. Testimony in an action for injury to plied to injury, in instructions in a personal ina shipment of cattle held to justify an assump-jury case, held misleading.-Louisville & N. R. tion in a charge that there was no market val- Co. v. Lynch (Ky.) 362. ue of the cattle at their destination, either when they arrived or when they should have arrived.-Missouri, K. & T. Ry. Co. of Texas r. Wasson Bros. (Tex. Civ. App.) 664.

§ 244. While it is a litigant's right to have
presented in an affirmative form any group of
facts constituting a defense, this does not re-
quire the court to emphasize, by a special
charge, each separate fact constituting the
group.-Missouri, K. & T. Ry. Co. of Texas
v. Wasson Bros. (Tex. Civ. App.) 664.

on

§ 244. Giving of plaintiffs' requested charge
urden of proof held not to give undue prom-
inence of the necessity of a matter being shown
by the preponderance of evidence.-Woodmen of
the World v. McCoslin (Tex. Civ. App.) 894.

§ 244. Instructions unduly emphasizing con-
tentions of one party are erroneous.-Van
Zandt-Moore Iron Works v. Axtell (Tex. Civ.
App.) 930.

(D) Applicability to Pleadings and Evi-

dence.

Review as dependent on prejudicial nature of
error, see Appeal and Error, § 1066.

§ 248. Abstract propositions of law should
not be charged, even though correct.-Edwards
v. Lee (Mo. App.) 194.

§ 251. Where plaintiff, injured by a stroke
of lightning conducted through telephone wires,
did not claim liability on the part of the tele-
phone company for an extraordinary stroke of
lightning, it is not error to refuse a requested
instruction on that issue.-Southwestern Tele-
graph & Telephone Co. v. Abeles (Ark.) 724.

§ 251. Where plaintiff offers no proof on
a ground of negligence alleged and abandons his
right to recover under it, refusal of an instruc-
tion requested by defendant on such issue is
erroneous.-Southwestern Telegraph &
Telephone Co. v. Abeles (Ark.) 724.

not

§ 251. The instructions authorizing a recov-
ery in a negligence case should limit the ele-
ments of liability to the negligence charged in
the petition. Compton v. Missouri Pac. Ry. Co.
(Mo. App.) 821.

§ 251. In an action against a railroad for the
death of a child run over by cars, an instruc-
tion predicating a recovery on the doctrine of
the turntable cases held erroneous because out-
side of the issues raised by the petition.-Comp-
ton v. Missouri Pac. Ry. Co. (Mo. App.) 821.

817.

§ 250. In an action for injuries from the § 252. In an action against railroad compa-
sudden starting of the car, as plaintiff was get-nies for damages to cattle en route, an instruc-
ting on, it was error in the charge to refer to tion held erroneous as submitting acts of negli-
plaintiff's falling from the car, where there was
gence not supported by the evidence.-Houston
no averment or evidence that he did so.-Set- & T. C. R. Co. v. Roberts (Tex. Civ. App.) 890.
tle v. San Antonio Traction Co. (Tex. Civ.
App.) 15.

§ 251. In an action for injuries to a servant,
a request with reference to a release held prop
erly refused as abstract.-St. Louis, I. M. & S.
Ry. Co. v. Carter (Ark.) 99.

$ 251. A requested charge, submitting a de-
fense hich been abandoned, is properly re-
fused.-Buster Brown Co. v. North-Mehornay
Furniture Co. (Mo. App.) 988.

§ 251. In an action for injuries to an infant
passenger, an instruction held erroneous as not
confined to the negligence charged in the peti-
tion.-Galveston Electric Co. v. Dickey (Tex.
Civ. App.) 332.

neous because of the absence of evidence on
which to base it.-Moore v. Shannon (Ky.) 136.

§ 251. A charge held not objectionable as
submitting as a disputed issue, a matter about
which there was no controversy.-Chicago, R.
I. & G. Ry. Co. v. Coffee (Tex. Civ. App.) 638.

252. An instruction must have evidence to

support it.-Scheurer v. Banner Rubber Co.
(Mo.) 1037.

252. An instruction asking a finding as to
a fact regarding which there was no evidence,
held erroneous.-Scheurer v. Banner Rubber Co.
(Mo.) 1037.

252. In an action against a carrier for
damages for delivering inferior cattle to plain-
tiff's consignee in place of those shipped by
plaintiff, it was error to authorize the award of
damages on the basis of the difference between
the weight of the cattle delivered as plaintiff's
and those shipped by him, where there was no
evidence as to the weight of the cattle shipped.
-Edwards v. Lee (Mo. App.) 194.

§ 252. Where, in an action against a physi-
cian for damages for negligent treatment, there
is no proof of permanent injury, the charge on
the measure of damages should not submit that
question.-McClarin v. Grenzfelder (Mo. App.)

§ 252. In an action for death of a railroad
failure to ring an engine bell held without evi-
employé, an instruction basing negligence on
dence to support it.-Gulf, C. & S. F. Ry. Co. v.
Anderson (Tex. Civ. App.) 928.

§ 253. An instruction which assumes to cov-
er the whole case and which directs a verdict
for a party must contain in its hypothesis all
of the facts essential to the cause of action.-
Miller v. Missouri & Kansas Telephone Co.
(Mo. App.) 187.

§ 253. In an action for injuries to a tele-
phone company's lineman caused by the fall of
the pole he had climbed, an instruction held er
roneous because omitting facts essential to a
recovery.-Miller v. Missouri & Kansas Tele-
phone Co. (Mo. App.) 187.

$253. Where it was alleged and pr
ved that
plaintiff was dragged by defendant's car, the
court erred in omitting any reference to this in
its charge.-Settle y. San Antonio Traction Co.
(Tex. Civ. App.) 15.

§ 253. In an action to recover money and
property turned over in payment for stock al-
leged to have been fraudulently represented as
valuable, an instruction held erroneous.-Mounce
v. Crowson (Tex. Civ. App.) 915.

(E) Requests or Prayers.

829, 830.

In criminal prosecutions, see Criminal Law, §§
Review of failure to give instructions as de-
pendent on request in lower court, see Ap-
peal and Error, § 216.

§ 256. In a widow's action for damages for
her husband's negligent death, an instruction
held not erroneous for not requiring the jury to
consider the mitigating and aggravating cir-
cumstances attending the wrongful act and to
be unobjectionable.-Ogan v. Missouri Pac. Ry.
Co. (Mo. App.) 191.

§ 256. The objection that instructions do
not limit the findings as element of damages is
§ 252. A charge embodying an issue not rais- not well taken in the absence of requests for in-
ed by the testimony is properly refused.-structions remedying the defect.-Bowen v. Kan-
Parker v. Metropolitan St. Ry. Co. (Mo. App.) sas City (Mo. App.) 790.
759; Smith v. Jefferson Bank (Mo. App.) 810;
Shramm v. Wolff (Tex. Civ. App.) 1185.

§ 252. In an action for breach of warranty
in the sale of a horse, an instruction held erro-

256. Where a charge is abstractly correct,
a party desiring fuller instructions must request
it. Bigham Bros. v. Port Arthur Canal & Dock
Co. (Tex. Civ. App.) 324.

§ 256. A charge on the measure of damages held not an affirmative error, so as to be available without a requested correct charge.-Chicago, R. I. & G. Ry. Co. v. Coffee (Tex. Civ. App.) 638.

§ 260. In an action to recover for death of an employé, a requested instruction held prop erly covered by the main charge.-Athens Cotton Oil Co. v. Harper (Tex. Civ. App.) 323.

§ 260. It is not error to refuse requests to charge fully covered by instructions given. St. Louis, I. M. & S. Ry. Co. v. Carter (Ark.) 99; Southwestern Telegraph & Telephone Co. v. Abeles (Ark.) 724; Chesapeake & O. Ry. Co. .V. Richards' Adm'r (Ky.) 1105; Greenbrier Distillery Co. v. Van Frank (Mo. App.) 222; Smith v. Jefferson Bank (Mo. App.) 810; Atchison, T. & S. F. Ry. Co. v. Seeger (Tex. Civ. App.) 1170; Missouri, K. & T. Ry. Co. of Texas v. Farris (Tex. Civ. App.) 1174. $260. In an action for injuries from negli-ject to criticism if correct when read in congence of a fellow servant, held not error to refuse a certain charge, where the court gave substantially the same instruction in its main charge.-Freeman v. Shaw (Tex. Civ. App.) 53.

§ 295. A portion of an instruction is not sub

nection with the whole instruction.-Atchison,

§ 295. In an action for injuries to a brakeman, instructions held properly read together as one instruction.-St. Louis, I. M. & S. Ry. Co. v. Rogers (Ark.) 375, 1199.

§ 295. Separate and disconnected instructions each complete in itself, and irreconcilable with each other, held not properly read together. St. Louis, I. M. & S. Ry. Co. v. Rogers (Ark.) 375, 1199.

§ 295. In determining the sufficiency of a charge relating to a particular matter, the entire charge must be construed as a whole.Feigelson v. Brown (Tex. Civ. App.) 17.

be considered as a whole, held that the part of § 295. Under the rule that a charge is to der for plaintiffs to recover, sufficiently referthe charge, stating the facts to be found in orred to the defense.-Woodmen of the World v. McCoslin (Tex. Civ. App.) 894.

& S. F. Ry. Co. v. Seeger (Tex. Civ. App.)

1170.

§ 296. An instruction ignoring a material ismisleading.-St. Louis, I. M. & S. Ry. Co. v. sue on which the evidence is conflicting held Rogers (Ark.) 375, 1199.

§ 296. In an action for injury in a collision with a street car, instructions authorizing recovery if defendant's negligence directly contributed Rys. Co. of St. Louis (Mo. App.) 200. ed to the injury held harmless.-Luecke v. Unit

§ 296. In an action against a railroad company for killing mules, an instruction held not as unduly emphasizing plaintiff's claim.-Texas Cent. R. Co. v. Hico Oil Mill (Tex. Civ. App.) 627.

erroneous

§ 296. An erroneous charge held not cured by another given.-Chicago, R. I. & G. Ry. Co. v. Coffee (Tex. Civ. App.) 638.

VIII. CUSTODY, CONDUCT, AND DE-
LIBERATIONS OF JURY.
Disqualification or misconduct of or affecting
jury, ground for new trial, see New Trial,
44.

In criminal prosecutions, see Criminal Law, §§ 854, 866.

$306. Where there is evidence on an issue of fact, the truth is to be found from the evidence, and not presumed, as in the absence of evidence.-Brannock v. St. Louis & S. F. R. Co. (Mo. App.) 552.

$307. A party suing on a written contract held not entitled to complain of the refusal of the court to permit the jury to take the contract to the jury room.-Buster Brown Co. v. NorthMehornay Furniture Co. (Mo. App.) 988.

IX. VERDICT.

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

In criminal prosecutions, see Criminal Law, §
878.

Review of sufficiency of evidence, see Appeal
and Error, §§ 1001-1004.
Setting aside verdict, see New Trial.

(A) General Verdict.

§ 328. Where a plaintiff sues several defendants and a verdict is rendered finding only as to one of them, judgment may be entered on it.-Cincinnati, N. O. & T. P. R. Co. v. Silvers (Ky.) 120.

(B) Special Interrogatories and Findings. Harmless error in submission of, or refusal to submit, special interrogatories, see Appeal and Error, § 1062.

§ 351. Under Sayles' Ann. Civ. St. 1897, art. 1331, the failure to submit an issue in a boundary suit held not error.-Pratt v. Slade (Tex. Civ. App.) 648.

§ 362. Under Sayles' Ann. Civ. St. 1897, art.
1327, where the jury answers special interrog-
atories as to material facts by stating that
they cannot answer them, it is the duty of the
court to send the jury back for further delibera-
tion.-Darden v. Taylor (Tex. Civ. App.) 944.

X. TRIAL BY COURT.

TRUST DEEDS.
Necessity of motion for new trial for purpose See Chattel Mortgages; Mortgages.
of review, see Appeal and Error, § 282.

TRUSTEE PROCESS.

(B) Findings of Fact and Conclusions

of Law.

8 403. Where conclusions of fact had been See Garnishment.
presented by defendant and signed by the judge,
held, that defendant could presume that the
duty of filing them would be performed by the
judge.-Melvin v. A. J. Deer Co. (Tex. Civ. See Trusts.
App.) 681.

§ 403. Where a county judge was unau-
thorized to make an order to file finding of
fact and law, held, that they cannot be consid-
ered on appeal.-Melvin v. A. J. Deer Co. (Tex.
Civ. App.) 681.

(E) Trial, Judgment, and Review.

§ 66. In an action for conversion of goods,
held unnecessary to submit the issue of conver-
sion to the jury if they found defendant held
them as security only.-Payne v. Lindsley (Tex.
Civ. App.) 329.

8404. Payment of a valuable consideration
for a deed held to have been found by the court
in a particular finding.-Breen v. Morehead
(Tex. Čiv. App.) 650.

TRIAL DE NOVO.

On appeal, see Justices of the Peace, § 174.

See Courts.

XI. WAIVER AND CORRECTION OF
IRREGULARITIES AND ERRORS.
Error in instructions cured by verdict or judg-
ment, see Appeal and Error, § 1068.
Error waived in appellate court, see Appeal and I. CREATION, EXISTENCE, AND VA-
Error, 1078.

LIDITY.

Review in appellate court as dependent on prej-
udicial nature of error, see Appeal and Error,
§§ 1032-1068.

Review in appellate court as dependent on pres-
entation of questions in lower court, see Ap-
peal and Error, §§ 170-286.

TRIAL OF RIGHT OF PROPERTY.
See Execution, § 179; Garnishment, § 225.

TRIBUNALS.

1339

TRUSTEES.

TRUSTS.

Combinations to monopolize trade, see Monop-
olies, §§ 10-31.
Conveyances in trust for creditors, see Assign-
ments for Benefit of Creditors.

and bequests, see Wills, § 686.
Creation and construction of particular devises
Existence of trust as affecting limitation of ac-

tions, see Limitation of Actions, § 102.
Particular fiduciary relations, see Brokers; Ex-
ecutors and Administrators; Factors; Prin-
cipal and Agent.

Trust deeds, see Chattel Mortgages; Mortga-
ges.

(A) Express Trusts.

§ 38. Evidence held to show an acceptance
by a husband of a trust created by a deed to
him for the benefit of his wife.-Jamison v.
Zausch (Mo.) 1023.

TROVER AND CONVERSION.

See Embezzlement; Larceny.
Of mortgaged property, see Chattel Mortgages,'
§ 169.

I. ACTS CONSTITUTING CONVER-
SION AND LIABILITY
THEREFOR.

§ 10. Where the owner of a building had the
right to remove it from the premises, the owner
of the premises could not be held liable for con-
version of the building because of a sale of the
premises by him.-Shelton v. Piner (Tex. Civ.
App.) 65.

(C) Constructive Trusts.

$942. Facts alleged in the petition held
not to make a company, organized to engage in
the same business as the company, to the trus-
tee of which plaintiff leased a machine on cer-
tain terms, or certain individuals who con-
trolled the former company, constructive trus-
tees to plaintiff's lessee so as to require them
to account to plaintiff for royalties, etc., from
operating the machines, as required by the
lease.-Vogelsong v. St. Louis Wood Fibre
Plaster Co. (Mo. App.) 804.

II. CONSTRUCTION AND OPERA-

TION.
Construction of particular devises and bequests,
see Wills, § 686.

AND DISPOSAL
IV. MANAGEMENT
OF TRUST PROPERTY.

§ 172. Trustees only have those powers con-
ferred upon them by the instrument creating
the trust.-Haldeman v. Openheimer (Tex.) 566.

$191. Testamentary trustees held not to
have power to sell the trust property to pay
debts and legacies.-Haldeman v. Openheimer
(Tex.) 566.

VII. ESTABLISHMENT AND EN.
FORCEMENT OF TRUST.
Necessity of presenting claim to administrator
of trustee, see Executors and Administrators,
§ 224.

II. ACTIONS.
(D) Damages.

§ 46. In an action for conversion of goods,
held proper to allow plaintiff as damages the
market value of the goods at the time of deliv-
ery, less the debt due by plaintiff to defendant
and debts assumed by defendant to pay to other
parties for plaintiff.-Payne v. Lindsley (Tex.
Civ. App.) 329

(C) Actions.
Computation of period of limitation as affected
by existence of trust in general, see Limita-
tion of Actions, § 102.

cases in

Proceedings during vacation of courts. Allowance of appeal in criminal prosecution, see Criminal Law, § 1069.

Evidence of value of goods damaged by carrier,
see Carriers, § 134.
Limits of jurisdiction, see Courts, §§ 120, 121.
Of land appropriated for public use as measure
of compensation, see Eminent Domain, § 134.
Of property as measure of damages for conver-
sion, see Trover and Conversion, § 46.
Of property, evidence of price paid for property
similarly situated, see Evidence, § 142.
Opinion evidence, see Evidence, § 489.

VARIANCE.

Between judgment and process, pleadings,
proofs, verdict, or findings, see Judgment, $$
246-256.

Between pleading and proof in civil actions, see
Pleading, 387.
Between pleading and proof in criminal prose-
cutions, see Indictment and Information, §
171.

VENDOR AND PURCHASER.

Estoppel of vendee by acts estopping vendor,
see Estoppel, § 98.

Parol or extrinsic evidence to contradict or vary
contract of sale, see Evidence, § 400.
Specific performance of contract, see Specific
Performance.

Validity of sales as to creditors or subsequent
purchasers, see Fraudulent Conveyances.

Sales by or to particular classes of persons.
County judge, of timber on public lands, see
Public Lands, § 173.

Mortgagees or trustees under power in mort-
gage, see Mortgages, §§ 334-372.
Trustees, see Trusts, § 191.

Sales of particular species of, or estates or
interests in, property.
See Homestead, §§ 112-129.

Mortgaged property, see Mortgages, §§ 334-
372.

Personal property in general, see Sales.
Public lands, see Public Lands, §§ 143-178.
Swamp lands, see Public Lands, & 61.
Timber on public lands, see Public Lands, §
173.

Trust property, see Trusts, § 191.

Sales on judicial or other proceedings.
See Execution, § 290.
Tax sales, see Taxation, §§ 642–671.

I. REQUISITES AND VALIDITY OF
CONTRACT.

Loss of option money as damages for error in transmission of telegram, see Telegraphs and Telephones, § 67.

II. CONSTRUCTION AND OPERA-
TION OF CONTRACT.

Parol or extrinsic evidence to contradict or vary written contract, see Evidence, § 400.

III. MODIFICATION OR RESCISSION
OF CONTRACT.

(B) Rescission by Vendor.

§ 100. In a suit on a note for part of the purchase price for land brought nine years aftthe suit had been changed to trespass to try er its maturity, held error for the court, after title to the land, to instruct a rescission of the sale and return of the land.-Ball v. Belden (Tex. Civ. App.) 20.

§ 105. Where a vendor failed to make demand for payment or ask rescission for nine years after the maturity of a note, given as part of the purchase price of land, held that the delay warranted adjustment of equities in favor Admissibility of evidence of value in suit to of those claiming under the vendee.-Ball v. restrain nuisance, see Nuisance, § 33. Belden (Tex. Civ. App.) 20.

VALUE.