An instruction assuming the facts in question
is erroneous-St. Louis S. W. Ry. Co. v. McCul-
lough (Tex. Civ. App.) 285.

An instruction assuming a disputed fact is er-
roneous.-Paris, M. & S. P. Ry. Co. v. Nes-
bitt (Tex. Civ. App.) 280.

An instruction attempting to set forth the al-
leged faces held erroneous as omitting some.-
Missouri, K. & T. Ry. Co. v. Simmons (Tex.
Civ. App.) 1096.

Instructions abstractly correct, but not based
on the evidence, are erroneous.-Davis v. Bing-
ham (Tex. Civ. App.) 1035.

An instruction assuming a fact as to which
the evidence is conflicting is erroneous.-Me-
Gregor v. Sima (Tex. Civ. App.) 1014.

It is error to give an instruction not supported
by the evidence.-Fergus v. Dodson (Tex. Civ.
App.) 273.

It is error to charge on an issue where the
record discloses no evidence to establish it.
Texas & P. Ry. Co. v. Avery (Tex. Civ. App.)

704.

Weight of evidence.

Where the evidence as to the legality of a
sale is conflicting, an instruction that, if a
sale is shown, it is presumed to be legal, is on
the weight of evidence.-Reynolds v. Weinman
(Tex. Civ. App.) 302.

An instruction on an issue of negligence held
to be a charge on the weight of evidence.-
Spencer v. Shelburne (Tex. Civ. App.) 260.

An instruction which is in some parts on the
weight of evidence properly refused.-Miller v.
Sullivan (Tex. Civ. App.) 695.

A charge in an action by a servant held not
to be upon the weight of the evidence.-Mis-
souri, K. & T. Ry. Co. of Texas v. Gordon (Tex.
Civ. App.) 684.

Verdict.

On a verdict for plaintiff for a certain sum as
principal and interest, recovery of interest not
having been demanded in the complaint, judg-

ment cannot be rendered for plaintiff for the prin-
cipal demanded.-Goggan v. Evans (Tex. Civ.
App.) 891.

The evidence cannot be looked to for the pur
pose of correcting a verdict.-Goggan v. Evans
(Tex. Civ. App.) 891.

Where there are two theories of the case,
and it is erro to submit the evidence on one
of them. a general verdict should be set aside.
International & G. N. R. Co. v. Hall (Tex.
Civ. App.) 127.

A verdic "for plaintiff" is equivalent to "for
plaintiffs."-Reed v. Phillips (Tex. Civ. App.)

986.

Verdict of jury may be aided by reference to
the pleadings.-Reed v. Phillips (Tex. Civ. App.)
986.

Verdict on an issue as to the location of a line
in a survey held insufficient.-Best v. Splawn
(Tex. Civ. App.) 1005.

Where special findings are required, all the
material issues should be submitted.-Mitchell
v. Western Union Tel. Co. (Tex. Civ. App.)
1016.

A finding on an issue not included in the
pleadings will be disregarded.-J. A. Kemp Gro-
cery Co. v. Sawyer (Tex. Civ. App.) 1031.
Conclusions of fact.

A statement in a conclusion of fact that the
sum paid for certain goods was an inadequate
consideration is not a finding that the sale was
fraudulent.-State ex rel. Friedman v. Purcell
(Mo.) 13.

TROVER AND CONVERSION.

When demand is unnecessary.--Richardson v.
Ashby (Mo.) 806.

A creditor in possession of his debtor's prop-
erty under a contract to sell it and pay his debt
may sue for its conversion.-Smith v. Maberry
(Ark.) 1068.

Repledging of collateral paper to secure a debt
of pledgee is conversion.-Richardson v. Ashby
(Mo.) 806.

Evidence in trover by an assignee for credit-
ors against an attaching creditor, held inadmis-
sible.-Cunringham v. Holt (Tex. Civ. App.)

981.

not waived his right to possession of the goods
Evidence examined and held that plaintiff had
converted.-Smith v. Maberry (Ark.) 1068.

Measure of damages as against purchaser un-
der an illegal levy of execution determined.-
Munster v. Fields (Tex. Sup.) 852.

Where collateral paper is converted, the meas-
ure of damages is its value when converted.-
Richardson v. Ashby (Mo) 806

Trustee Process-

See "Garnishment."

TRUSTS.

See, also, "Executors and Administrators."
Right of action by party not privy to contract,
see "Action."

Deed to a husband examined and held not to
create a resulting trust in favor of his wife.-
Morris v. Clare (Mo.) 1123.

Where a trustee deposits money with a firm,
and it is paid to him on his order, without any
knowledge that it is trust funds, the firm is not
liable to the beneficiaries therefor.-Tenny v.
Porter (Ark., 211.

A power in a trust deed to substitute a new
trustee was not revoked by an extension of the
trust deed adopting all the provisions of said
deed.-McConnell v. Day (Ark.) 731.

The burden of proving the invalidity of a
trustee's deed reciting a substantial compliance
with the trust deed is on the person objecting
thereto.-McConnell v. Day (Ark.) 731.

A sale without the consent of the grantors in
a trust deed which conveyed an absolute title
held not affected by the statute of 1820, requir-
ing sales under trust deeds to be made in pur-
suance of a judgment.
judgment. Abbott v. Yeager
(Ky.) 195.

VENDOR AND PURCHASER.
See, also, "Fraudulent Conveyances"; "Judicial
Sales"; "Sale"; "Specific Performance."
Adverse possession of vendee, see "Adverse Pos-
session.'

Execution sales, see "Execution."

A mortgage sale without appraisement as re-
quired by statute held not to convey a title
which a vendee must accept, though confirmed
by the court.--Meddis v. Fenley (Ky.) 197.

The fact that there was an excess of 10 acres
will not entitle a vendee to relief under a con-
tract whereby he agreed to pay for the land at a
certain price per acre, in the absence of fraud.
-Claus v. Evans (Ky.) 620.

An extension of the time for payment under
a contract, while it waives the forfeiture for
nonpayment, does not enlarge the rights of the
purchaser in any other respect. Herman v.
Gieseke (Tex. Civ. App.) 1006.

-

The minor heirs of a deceased purchaser,
holding land under an executory contract of
sale, have no greater rights as to payments un-
der such contract than the decedent.-Herman
v. Gieseke (Tex. Civ. App.) 1006.
Vendor's lien.

A note secured by vendor's lien, and trans-
ferred without authority from the payee to a
third party, held postponed to the payee's lien
given by second note.-Goddard v. Peeples
(Tex. Civ. App.) 314.

A recital, in a note for money advanced for
the price of land, that a vendor's lien was re-
tained as security, does not entitle a payee to
recover the land after the note is barred by the
statute of limitations.-Grimes v. Griffith (Tex.
Civ. App.) 242.

Where a vendor's lien is expressly retained
the vendor, if owner of the lien, must execute at

his expense a release on payment of the price.
-Engelbach v. Simpson (Tex. Civ. App.) 596.
Bona fide purchasers.

Evidence held not sufficient to sustain a claim

of a bona fide purchase.-Halley v. Fontaine
(Tex. Civ. App.) 260.

One buying land from a bona fide purchaser
takes it freed from prior claims of which he
had notice.-Hickman v. Hoffman (Tex. Civ.
App.) 257

A purchaser ignorant of fraud practiced on
the wife held not chargeable with notice because
of possession by the husband and wife.-Hick-
man v. Hoffman (Tex. Civ. App.) 257.

The possession of land as tenant held not to
be, as a matter of law, constructive notice to
a subsequent purchaser of the land of his claim
under a prior sale to a gin mill situated there-
on.--Brown v. Roland (Tex. Civ. App.) 273.

Evidence examined, and held that possession
of land sold by the tenant of another was no-
tice to purchasers of his landlord's claim.-Al-
lison v. Pitkin (Tex. Civ. App.) 293.

Actual knowledge of a deed of trust to secure
a note executed by a stranger to the title, to
the owner, held notice of the equitable lien of
the assignee of the deed and note.-Barrett v.
Bake (Mo.) 162.

One purchasing a tract of land charged with
an easement of which he had notice held to have
bought subject thereto, though it was not re-
served in the deed.-Burress v. Barbee (Ky.)
412.

The fact that a purchaser at sheriff's sale
knew of an unrecorded deed did not preclude his
grantee from being an innocent purchaser.-Lin-
dell Real-Estate Co. v. Lindell (Mo.) 466.

One purchasing land subject to a vendor's
lien, and obtaining releases for the vendor, held
a bona fide purchaser, though one of the notes
secured by the lien had been assigned, but with-
out any record thereof.-Perkiewiez v. First
Nat. Bank (Tex. Civ. App.) 674.

VENUE IN CIVIL CASES.

A bill for divorce for desertion must be
brought in the county in which the parties re-
sided at the time of the separation, or where
the defendant was found when the bill was
brought.-Walton v. Walton (Tenn.) 561.

a suit brought outside of the county of domi-
When court has jurisdiction of defendants in
cile.-Taylor v. Gribble (Tex. Civ. App.) 765.

An action on a draft "returnable in G.," in
the county of G., was properly brought in such
county, though defendant resided in another
county.-Lammers v. Floyd (Tex. Civ. App.)

150.

Notice of one or two hours of an application
for change of venue is insufficient, under Rev.
St. 1889. § 2262.--St. Louis, C. G. & Ft. S. Ry.
Co. v. Holladay (Mo.) 49.

A party cannot. under Rev. St. 1889, § 2258,
be given more than one change of venue.-St.
Louis, C. G. & Ft. S. Ry. Co. v. Holladay (Mo.)
49.

An application for a change on the ground
that the opposite party had an undue influence
over the court held properly refused.-St. Louis,
C. G. & Ft. S. Ry. Co. v. Holladay (Mo.) 49.

that the applicant obtained his knowledge of
An application for a change of venue, stating
the existence of the cause "since" the last
term of court, is insufficient to show diligence,
under Rev. St. 1889, § 2261.-St. Louis, C. G.
& Ft. S. Ry. Co. v. Holladay (Mo.) 49.

WITNESS.

See, also, "Deposition"; "Evidence."
Absence of, as ground for continuance, see
"Continuance"; "Criminal Law."
Misconduct of witness as ground for new trial
in criminal cases, see "Criminal Law."

In a criminal case, an annlication for an at-
tachment for a witness should not be denied be-
cause the facts expected to be proven were not
recited. Moore v. State (Tex. Cr. App.) 980.
Competency.

In partition by persons claiming title to land
through a deed from their deceased father, tes-
timony of defendant as to statements by the
father when the deed was made held not inad-
missible under Rev. St. art. 2248.-Wagner v.
Isensee (Tex. Civ. App.) 155.

One convicted of felony, but not sentenced,
is a competent witness.-Hurley v. State (Tex.
Cr. App.) 354

It is within the discretion of the court to al-
low a child under 10 to testify, where he is
shown to be capable of relating facts truly.-
State v. Nelson (Mo.) 809.

A stockholder of a corporation plaintiff held a
competent witness, though the other party to the
contract sued on is dead.-Banking House of
Wilcoxson & Co. v. Rood (Mo.) 816.

Examination.

Where partnership books on an accounting
have been excluded because not properly kept.
held that defendant, on testifying that the en-
tries were made by him, may refresh his mem
ory by memoranda taken from such books.
Faver v. Bowers (Tex. Civ. App.) 131.

A witness may refresh his memory by mem-
oranda from books of account, though on being
notified he failed to produce such books.
Faver v. Bowers (Tex. Civ. App.) 131.

In a murder case, where deceased's wife is
a witness for defendant, she may be asked on
cross-examination if she is not paying defend-
ant's attorney's fees.-Magruder v. State (Tex.
Cr. App.) 233.

Where a party testifies that a paper was
signed without reading it, the other party can
cross-examine him as to why it was not read.-
White Sewing Mach. Co. v. Hicks (Tex. Civ.
App.) 137.

Where defendant's wife testified as to his men-
tal condition and alarm prior to the homicide,
the state cannot prove by her on cross-exam-
ination that defendant had shot another person.
-Hoover v. State (Tex. Cr. App.) 337.

Effect of answer to a direct question on cross-
examination where witness is incompetent.--
Banking House of Wilcoxson & Co. v. Rood
(Mo.) 816.

Credibility.

After a witness has admitted an indictment
for a certain crime, the state may introduce the
record in the case.-Moore v. State (Tenn.) 1046.
A witness having testified that he did not
see the shooting, it was error to permit per-
sons to show his contradictory statements.-
Saylor v. Commonwealth (Ky.) 185.

The credibility of a witness who has been
convicted of a felony and pardoned is for the
jury.-Douglass v. State (Tex. Cr. App.) 228.

Where the credibility of a witness is at-
tacked by proof that he has been charged with

a felony, evidence of his good character for
truth is admissible.-Farmer v. State (Tex. Cr.
App.) 232.

A declaration of a conductor that he, on
plaintiff's refusal to get off of his train,
"knocked the d-scoundrel off," is admis-
sible as impeaching testimony, the conductor
having denied that he made such statement.-
Missouri, K. & T. Ry. Co. v. Sanders (Tex.
Civ. App.) 245.

Evidence of a male witness' general charac-
ter for unchastity was not admissible to im-
peach him.-State v. Sibley (Mo.) 167.

A witness may be asked, for the purpose of
impeachment, whether she had not borne an
illegitimate child.--Exon v. State (Tex. Cr. App.)

336.

The state's witness having testified that the
dismissed, it was proper to ask him if his tes-
prosecution against him as an accomplice was
timony was the same as the statements he had

made before the case was dismissed.-Mitchell
v. State (Tex. Cr. App.) 367.

Where defendant testifies that he did not know

he had been indicted for other offenses, the in-
dictments are admissible on the question of cred-
ibility.-Brazos v. State (Tex. Cr. App.) 540.

scuffle at the time the murder was committed,
Defendant, having testified that he heard a
it is proper to show that before the trial he
stated that he did not hear such scuffle.-Mof-
fatt v. State (Tex. Cr. App.) 344.

WRITS.

See, also, "Attachment": "Certiorari"; "Error.
Writ of": "Execution"; "Garnishment"; "In-
junction"; "Mandamus"; "Prohibition, Writ
of."

Service of process on infant, see "Infancy."

A citation is not insufficient because it gives
the initial only, of defendant's Christian name.
Milburn v. Smith (Tex. Civ. App.) 910.

Summons signed in the name of the clerk by
one not in fact a deputy is good where, be-
and sent out the same as his own act.-Louis-
fore delivery to the sheriff, the clerk appeared
ville & N. R. Co. v. Banks (Ky.) 627.

Citation, in trespass to try title, without men-
tioning the land sought to be recovered, held
insufficient.-Ford v. Baker (Tex. Civ. App.)

1036.

Under Rev. St. art. 1230, a citation for a non-
resident, addressed to the sheriff, and served by
him, is insufficient.-Porter v. Hill County (Tex.
Civ. App.) 383.

Service on one not in the employ of a for-
eign corporation is not service on the corpora-
tion.-Texas & P. Ry. Co. v. Neal (Tex. Civ.
App.) 693.

of depositions therein in a jurisdiction other than
A party to an action, while attending the taking
that of his residence, is privileged from the
service of summons upon him in such jurisdic-
tion.-Powers v. Arkadelphia Lumber Co. (Ark.)
842.

Service on a nonresident out of the state will
not support a personal judgment.-Porter v.
Hill County (Tex. Civ. App.) 383.

Act Aug. 13, 1870, authorizing service by
publication, was not affected by the repeal of
the printing act in November, 1871.-Hambel v.
Davis (Tex. Civ. App.) 251.