fore a notary public in another state.-Latimer
v. St. Louis Southwestern Ry. Co. (Tex. Civ.
App.) 444.

AFFREIGHTMENT.

Contracts, see "Shipping," § 1.

AFTER-ACQUIRED TITLE.

See "Deeds," § 2.

AGENCY.

See "Principal and Agent."

AGE OF CONSENT.

See "Rape," § 1.

AGREEMENT.

See "Contracts."

AGRICULTURE.

see "Trial," § 5.

See "Indians.”

ALIENS.

Citizenship of children of, see "Citizens."
§ 1. Disabilities.

It is presumed that the political status of an
alien continues, and the mere fact of long res-
idence in this country is not sufficient to over-
come this presumption.-Ehrlich v. Weber
(Tenn.) 188.

Code 1858, §§ 1998-2000, relative to the prop-
erty rights of aliens, held repealed by Acts
1875, c. 4, § 2 (Shannon's Code, §§ 3659, 3660),
relative to the same subject.-Ehrlich v. Web-
er (Tenn.) 188.

Acts 1883, p. 330, c. 250, §§ 1, 2, relative to
the rights of inheritance of aliens, when con-
strued in connection with Acts 1875, c. 4, § 2
(Shannon's Code, §§ 3659, 3660), held only to
apply to cases where all the next of kin are
aliens.-Ehrlich v. Weber (Tenn.) 188.

Act May 23, 1901 (Kirby's Dig. § 5450), rela-
tive to impounding animals, held not to repeal
Act April 20, 1895 (Kirby's Dig. § 5451), rela--
tive to the same subject.-Town of Benton v.
Willis (Ark.) 1000.

An agister's lien, superior where acquired to
a prior chattel mortgage, held not to lose its
priority by the cattle being taken to a state
where such rule of priority does not obtain.-
Everett v. Barse Live Stock Commission Co.
(Mo. App.) 165.

A right of priority of lien acquired in one
state held to be enforced in another state,
where such rule as to priority does not obtain.
Everett v. Barse Live Stock Commission Co.
(Mo. App.) 165.

One having an agister's lien held entitled to
recover for conversion against an innocent com-
mission merchant who sells the cattle.-Ever-
ett v. Barse Live Stock Commission Co. (Mo.
App.) 165.

One's right under the statute to an agister's
lien held not affected by his contract with the
owner as to pasturing the cattle.-Everett v.
Barse Live Stock Commission Co. (Mo. App.)
165.

One held not to lose an agister's lien by the
owner's taking the cattle without his knowl-
edge or consent.-Everett v. Barse Live Stock
Commission Co. (Mo. App.) 165.

Petition for stock law election, under Acts
26th Leg. p. 220, c. 128, § 3, held fatally de-
fective in failing to give the boundaries of the
precinct in which the election was to be held.
-Cox v. State (Tex. Cr. App.) 812.

Petition for stock law election, under Acts
26th Leg. p. 220, c. 128, §§ 3, 4, filed during
a regular term of the commissioners' court,
could not be acted upon at that term.-Cox v.
State (Tex. Cr. App.) 812.

ANNEXATION.

Of territory to municipal corporation, see "Mu-
nicipal Corporations," § 1.

ANNULMENT.

ANTI-TRUST LAWS.

See "Monopolies," § 1.

APPEAL AND ERROR.

See "Certiorari"; "Exceptions, Bill of";
"New Trial."

Appellate jurisdiction of particular courts, see
"Courts," & 4.

Costs, see "Costs," § 2.

Effect of disqualification of judge on affidavit in
proceeding to take appeal, see "Judges," § 1.
Harmless error in admission of evidence in ac-
tion against carrier, see "Carriers," § 2.

Review in particular civil actions.
See "Reformation of Instruments," § 2.
Review in special proceedings.

See "Contempt," § 1; "Habeas Corpus," § 1;
"Quo Warranto," § 1.
To open street, see
§ 7.

"Municipal Corporations,"

9760, a judgment in favor of defendant will
not be reversed for failure of the bill of ex-
ceptions to show that defendant proved he was
a citizen of the United States.-State ex inf.
Sutton v. Fasse (Mo. Sup.) 1.

Where a defendant failed to take any excep-
tion to the transfer of the cause to the equity
docket, but acquiesced therein, and tried the
cause as if one in equity, he could not com-
plain of the transfer on appeal.-Kessner v.
Phillips (Mo. Sup.) 66.

Where appointment of certain commissioners
was made at one term of court, and no objec-
tion made, a party could not at a subsequent
term have the validity of the appointment re-
viewed by incorporating the proceedings of the
prior term in a motion for a new trial.-City of
St. Louis v. Lawton (Mo. Sup.) 80.

Where a party made no exception to a judg-
ment against him for costs during the term, it
will not be reviewed on appeal.-Keene v. Sap-
pington (Mo. App.) 144.

Instructions not assigned as grounds for new
trial in the motion therefor are not reviewable
on appeal.-Llewellyn v. Spangler (Mo. App.)
1021.

A motion for a new trial, made and overrul-
ed, held necessary to a review of errors occur-
ring in the trial of the case, which a bill of ex-
--Memphis St. Ry. Co. v. Johnson (Tenn.)
169.

§ 2. Presentation and reservation in
lower court of grounds of review.
An objection that an attachment sale was
void because the plaintiff in attachment was
dead at the time of the sale cannot be urged
for the first time on appeal.-Williams v. Ben-
nett (Ark.) 600.

A question as to rendering a personal judg-
ment against a defendant, which was not made
a ground for a new trial, cannot be considered
first on appeal.-Hot Springs Ry. Co. v. Mc-
Millan (Ark.) 846.

*Complaint cannot be made of a failure to give
instructions on the burden of proof and credi-
bility of witnesses, when no request was made
therefor.-Carpenter v. Jones (Ark.) 871.

Where an objection to two instructions was

made in gross, and objection to one was omit-
ted from motion for new trial, the court on ap-
peal cannot consider the other.-Dowell v.
Schisler (Ark.) 966.

Defendant in a suit to foreclose a vendor's
lien held not entitled to raise on the appeal for
the first time the question of the vendor's fail-
ure to tender a deed.-Tillar v. Clayton (Ark.)
972.

A general objection to an instruction submit-
ting a question as to which issue was not raised
by the pleadings, held insufficient, in view of
introduction of evidence without objection.-
McElvaney v. Smith (Ark.) 981.

Where defendant's title to the office of school
director was contested in quo warranto pro-
ceedings on the ground that he had not paid
taxes as required by Rev. St. 1899, §§ 9759,

Evidence admitted without objection must be
considered, although hearsay or otherwise in-
competent.-Ehrlich v. Weber (Tenn.) 188.

Assignments of error attacking the findings
of fact on the ground of omissions therefrom
held without merit.-Logan v. Lennix (Tex.
Civ. App.) 364.

An objection to evidence on the ground that
it constituted the witness' opinion held insuffi-
cient to sustain a contention that the evidence
was incompetent because defendant was not
responsible for depreciation in the cattle result-
ing from their being transported.-Missouri, K.
& T. Ry. Co. of Texas v. Russell (Tex. Civ.
App.) 379.

An assignment of error held unavailing on
appeal where no objection to the ruling of the
court was made at the time.-Red River, T. &
S. Ry. Co. v. Eastin & Knox (Tex. Civ. App.)
530.

3. Requisites and proceedings for

transfer of cause.

ord.

§ 6.

Scope and contents of record.
*A bill of exceptions, not filed within the time
allowed by the trial court, will not be noticed on
appeal. Henry v. Beal & Doyle Dry Goods
Co. (Ark.) 987.

A bill of exceptions, not filed within the time
granted by the court for that purpose, will not
be noticed on appeal.-School District No. 1,
Tp. 24, R. 4, v. Boyle (Mo. App.) 136.

Allegations in a motion held not to dispense
with the necessity of a showing in the record
that the court acted on the matter complained
of.-M. L. Chambers & Co. v. Herring (Tex.
Civ. App.) 371.

§ 7.

-

Necessity of bill of exceptions,
case, or statement of facts.
Alleged erroneous argument of counsel can-
not be reviewed on appeal, unless timely ob-
jections and exceptions are made, and the
same appear with the matter complained of in
the bill of exceptions.-Champagne v. Hamey
(Mo. Sup.) 92.

In the absence of the facts the court on ap;
peal cannot review the requested charges and
bills of exceptions.-Patterson v. State (Tex.
Cr. App.) 226.

Statement in connection with assignment of
error held insufficient under rule 31 for the
Courts of Civil Appeals (67 S. W. xvi).-Logan
v. Lenuix (Tex. Civ. App.) 364.

Under Rules for the District Court 41 (67 S.
W. xxiii) defendant's bill of exceptions on ap-
peal held to properly present questions raised
by objection to improper language in argument
to jury. St. Louis Southwestern Ry. Co. of
Texas v. Boyd (Tex. Civ. App.) 509.
$ 8.

Abstracts of record.

An abstract of the transcript on appeal held
not to sufficiently present the testimony to the
Supreme Court.-Shorter University v. Frank-
lin Bros. Co. (Ark.) 587; Same v. Franklin
Bros., Id. 974.

Supreme Court rule 9 does not contemplate
that each party abstract his own testimony,
but requires appellant to abstract all neces-
sary matters.-Beavers v. Security Mut. Ins.
Co. (Ark.) 848.

In order to test the propriety of instructions
otherwise than as abstract propositions of law,
the substance of the evidence must be incor-
porated in appellant's abstract.-Beavers v.
Security Mut. Ins. Co. (Ark.) 848.

jury held not to be reviewed; the bill of ex-
Refusal to allow a deposition to go to the
ceptions not containing it, or showing the ex-
ceptions filed to it were passed on.-Flint v.
Illinois Cent. R. Co. (Ky.) 1055.

A judgment on the report of a referee affirm-
ed on appeal for failure of the transcript and
abstract of the record to contain all the evi-
dence.-Vandeventer v. Goss (Mo. Sup.) 610.

A ruling on demurrer to the evidence will
not be reviewed, unless all the evidence is be-
fore the court.-Harrison v. Pounds (Mo. Sup.)
713.

The rule that an assignment of error on the
court's refusal to allow a witness to answer
cannot be considered where it does not appear
what the witness would have stated does not
apply where the trial court rules out an entire
line of competent evidence, or where he holds
that a witness is incompetent and refused to
hear him at all.-Union Ry. Co. v. Hunton
(Tenn.) 182.

Assignments of error on the court's refusal
to allow witnesses to answer cannot be consid-
ered where it does not appear what the wit-
ness would have stated.-Union Ry. Co. v.
Hunton (Tenn.) 182.

§ 13.

Matters not apparent of rec-

ord.
Where the instructions were neither copied
nor called for in the bill of exceptions, an as-
signment that the court erred in modifying a
certain instruction could not be reviewed.-
Hartin Commission Co. v. Pelt (Ark.) 929.

The question whether appellant furnished
proof of his inability to pay costs, as required
by Rev. St. 1895, art. 1401, held properly raised
in the appellate court by affidavits showing the
facts.-Kalklosh v. Bunting (Tex. Civ. App.)

389.

§14. Assignment of errors.

Assignment of error in gross to several in-
structions will not be considered if any of the
instructions are good.-Wells v. Parker (Ark.)
602.

-

Transmission, filing, printing,
and service of copies.
Statement of facts filed after the adjournment
of the term without an order allowing the fil-
ing cannot be considered on appeal.-Patter-
son v. State (Tex. Cr. App.) 226.

amend-

Defects, objections,
ment, and correction.
Under Rev. St. 1895, art. 1239, the court held
not without jurisdiction to proceed with the
trial, and hence certiorari to perfect the rec-
ord, which would not change the result, if al-
lowed, must be denied.—Brewster v. State (Tex.
Civ. App.) 858.

$ 11.

Conclusiveness and effect, im-
peaching and contradicting.
A recital in the record on appeal held contra-
dicted by the affidavit of appeal.-State ex rel.
Orr v. Gates (Mo. App.) 640.

Certain propositions held not germane to the
assignments of error under which they were
placed.-Garrett v. Spradling (Tex. Civ. App.)

293.

An assignment of error will not be considered
where it is not supported by any statement as
required by the rules.-Parlin & Orendorff Co.
v. Vawter (Tex. Civ. App.) 407.

Where an instruction authorizes a finding for
plaintiff on an issue not made by the pleading,
the error, though not assigned, is so funda-
mental as to require the court to act on it.
San Antonio Traction Co. v. Yost (Tex. Civ.
App.) 428.

Assignments of error held not reviewable, un-
der rule 31 for the Courts of Civil Appeals (67
S. W. xvi), requiring each proposition under
an assignment to be followed by a brief state-
ment.-Gulf, C. & S. F. Ry. Co. v. Harbison
(Tex. Civ. App.) 452; Same v. Wetherly (Tex.
Civ. App.) 456; Same v. Oates (Tex. Civ. App.)
457.

Where the statements under assignments of
error relating to the admissibility of testimony
do not show what objections to the testimony
were urged, the assignments will not be con-
sidered. Texas Cent. Ry. Co. v. Miller (Tex.
Civ. App.) 499.

A proposition under an assignment of error
foreign to the assignment will not be consider-
ed on appeal.-Texas Cent. Ry. Co. v. Miller
(Tex. Civ. App.) 499.

A proposition under an assignment of error
which is not germane to the assignment will
not be considered.-International & G. N. R.
Co. v. Glover (Tex. Civ. App.) 515.

Where neither cross-assignments of error nor
a copy of appellee's brief containing them are
filed in the court below, as required by District
and County Court Rule 101, such cross-assign-
ments will not be considered on appeal.-City
of Austin v. Cahill (Tex. Civ. App.) 536.

An assignment of error that the court erred
in refusing to grant defendant a new trial be-
cause the verdict was contrary to the law and
the evidence held too general.-Brewster v.
State (Tex. Civ. App.) 858.

§ 15. Briefs.

Where no briefs were filed by either party to
an appeal after submission, as required by the
rules, the appeal would be dismissed.-Mis-
souri, K. & T. Ry. Co. v. Kidd (Ind. T.) 308.

Omission to consecutively number assign-
ments of error discussed in appellant's brief
held a mere technical violation of rule 29 for
the Courts of Civil Appeals (67 S. W. xv), and
insufficient to require court to refuse to consider
the assignments.-Lewis v. Houston Electric
Co. (Tex. Civ. App.) 489.

Failure of statement following assignment of
error in appellant's brief to refer to page of
record held a mere technical violation of rule
31 for the Courts of Civil Appeals (67 S. W.
xvi), and insufficient to require the court to re-
fuse to consider the assignments.-Lewis V.
Houston Electric Co. (Tex. Civ. App.) 489.
§ 16. Dismissal, withdrawal, or aban-
donment.

Under Kirby's Dig. § 1227, held, that an ap-
pellee may plead on appeal that since the ap-
peal was taken a judgment has settled as
against the appellant the rights asserted on the
appeal.-Church v. Gallic (Ark.) 979.

§ 17. Review-Scope and extent in gen-
eral.

On appeal, on trial by the court, held, that
the only question for review was the sufficiency
of the evidence.-Luster v. Robinson (Ark.)
896.

On appeal the parties are bound by the the-
ory they adopted at the trial. James v. Unit-
ed States Casualty Co. (Mo. App.) 125.

Assignment of error that there is no evidence
to sustain the judgment raises a question of
law, viz., whether the facts legally justify the
judgment.-Wilson v. Alexander (Tenn.) 935.

Where there is no statement of facts in the
record, and no finding that property involved
was a homestead, the appellate court cannot
consider that issue. - Featherstone v. Brown
(Tex. Civ. App.) 470.

§ 18.

-

Parties entitled to allege error.
*An attachment plaintiff cannot contend on
appeal that the court erred in rendering judg-
ment for costs against his surety on the at-
tachment bond.-Thompson v. Baxter (Ark.)
985.

A party cannot predicate error on the giving
of an erroneous instruction, which was given
at his request.-Haxton v. Kansas City (Mo.
Sup.) 714.

Rulings in favor of appellant cannot be re-
viewed, where respondents do not appeal.—
Darnell v. Lafferty (Mo. App.) 784.

A party cannot complain that the pleadings
did not raise a certain issue as to which evi-
dence was admitted, where he himself intro-
duced evidence on that issue.-Simons v. Witt-
mann (Mo. App.) 791.

A party held not entitled to complain of evi-
dence of value, though immaterial; it being
in rebuttal of testimony introduced by him.-
Oneal v. Weisman (Tex. Civ. App.) 290.

Where plaintiff's claim to a certain item of
damage was conditioned on the jury finding in
his favor upon another issue, and the jury
found against him, he was not entitled to claim
the item of damage mentioned on appeal.—Hil-
debrand v. Head (Tex. Civ. App.) 438.
§ 19.

-

Presumptions.

It is in the province of the circuit court to
amend its record, and in the absence of evi-
dence showing error it will be presumed cor-
rect. Shorter University v. Franklin Bros. Co.
(Ark.) 587; Same v. Franklin Bros., Id. 974.

Where appellant's abstract of the transcript
does not comply with Supreme Court Rule 9,
and none of the instructions are set out, they
will be assumed correct.-Shorter University v.
Franklin Bros. Co. (Ark.) 587; Same v. Frank-
lin Bros., Id. 974.

Where appellant did not bring the evidence
into his abstract, the court on appeal will pre-
sume that the trial court's finding was sus-
tained by the evidence. — Merritt v. Wallace
(Ark.) 876.

In an action on a note given for the price of
land, held, that it should be presumed that the
answer was taken as controverted.-Fitzpatrick
v. Vincent (Ky.) 1073.

signment that there is no evidence to sustain
The Supreme Court in disposing of an as-
the judgment must adopt the theory of the
facts most favorable to the successful party.-
Wilson v. Alexander (Tenn.) 935.

Under the statute regulating the practice when
cases are submitted upon special issues, the
of the prevailing party upon an issue which
court must be presumed to have found in favor
was not submitted to the jury, but as to which
there was evidence justifying its submission.
-Horstman v. Little (Tex. Civ. App.) 286.

In a suit for divorce and partition of com-
munity property, it must be presumed, in the
absence of a statement of facts, that the court
made a fair and equitable settlement, and that
its adjudication was founded on evidence sus-
taining it.-Longwell v. Longwell (Tex. Civ.
App.) 416.