*In an action against a street railroad com- pany for injuries to plaintiff in a collision with his vehicle, held. that the question of plaintiff's contributory negligence was one for the jury.- Rapp v. St. Louis Transit Co. (Mo. Sup.) 865.
In an action against a street railroad for in- juries to plaintiff in a collision with his vehicle, certain instructions held to have correctly pre- sented the issues. Rapp v. St. Louis Transit Co. (Mo. Sup.) 865.
resentatives are not parties.-Dyer v. Jacoway (Ark.) 901.
Creditors, seeking subrogation to sureties rights under indemnity mortgage, held guilty of laches.-Dyer v. Jacoway (Ark.) 901.
*An indorser on notes who has paid only a portion of them cannot claim by subrogation the right to participate in the securities held for the payment of the debt.-Bank of Fay etteville v. Lorwein (Ark.) 919.
It is the duty of a person crossing railway tracks to look and listen until he is safely across, and it is not sufficient merely to look before going on the track.-Ross v. Metropol- See "Action." itan St. Ry. Co. (Mo. App.) 144.
It is not the duty of a motorman operating
a street car to stop merely because he observes
a pedestrian approaching the track, but he is See "Process." only required to stop when something in the conduct of the pedestrian indicates that he is unaware of the presence of the car and apt to be struck by it.-Ross v. Metropolitan St. Ry. Co. (Mo. App.) 144.
Liquor sales on Sunday, see "Intoxicating Liquors," §§ 3, 4.
In an action against a street railroad company for injuries to a pedestrian, who was struck by a car, evidence held to show plaintiff guilty of contributory negligence.-Ross v. Metropol- See "Courts," §§ 1, 4. itan St. Ry. Co. (Mo. App.) 144.
In an action against a street railroad company for injuries to a pedestrian who was struck by a car, evidence held to justify submission
to the jury of the question whether defendant's See "Principal and Surety." motorman observed plaintiff's danger in time to have avoided the injury.-Ross v. Metropol- itan St. Ry. Co. (Mo. App.) 144.
Question of contributory negligence of plain- In pleading, see "Pleading," § 1. tiff in action against a street railroad held to be for the jury.-Waechter v. St. Louis & M. R.
Woman, who was struck by a street car, See "Public Lands," § 1.
which she would have seen, had she looked, held guilty of contributory negligence.-Waddell v. Metropolitan St. Ry. Co. (Mo. App.) 765.
Negligence of a pedestrian in failing to dis- See "False Pretenses." cover an approaching street car held super- seded as proximate cause by negligence of the motorman, who failed to prevent the injury when it was possible to do so. Waddell v. Metropolitan St. Ry. Co. (Mo. App.) 765.
In an action against a street railroad for in- juries to a pedestrian, testimony that the mo- torman would have been mobbed held erroneous and prejudicial to defendant.-Waddell v. Met- ropolitan St. Ry. Co. (Mo. App.) 765.
In an action against a street railroad for in- juries to a pedestrian, evidence held to raise an issue of fact as to whether the motorman could have stopped the car after discovering plaintiff's peril.-Waddell v. Metropolitan St. Ry. Co. (Mo. App.) 765.
In an action for injuries, where plaintiff char- ged negligence in defendant's permitting its rails to be charged with electricity, causing his horse to fall, etc., an instruction held erroneous
not presenting the issues involved.-San Antonio Traction Co. v. Yost (Tex. Civ. App.) 428.
See "Highways"; "Municipal Corporations," §§ 7, 8.
Dedication, see "Dedication," §§ 1, 2.
SUBROGATION.
Creditors cannot procure subrogation to de- ceased surety's rights in indemnity mortgage in a proceeding to which the surety's heirs or rep-
Payment of taxes to sustain adverse possession, see "Adverse Possession," § 1.
Power of county to contract for expenses of publication of notice to nonresident de- linquent taxpayers, see "Counties," § 2. Local or special taxes.
See "Highways," § 2; "Municipal Corpora- tions," § 9. Assessments for municipal improvements, see "Municipal Corporations," § 5.
Occupation or privilege taxes. See "Intoxicating Liquors," § 2. Foreign corporation, see "Corporations," § 6. § 1. Sale of land for nonpayment of tax.
The fact that taxes had been paid by defend- ant or his grantors, and that a forfeiture of the land and sale for taxes was void, did not estop defendant from acquiring the void tax title and setting up adverse possession thereunder.-Car- penter v. Smith (Ark.) 976.
The personal property received by an assignee for the benefit of creditors is subject to the un- paid taxes on the assignor's real and personal property before the real estate can be subjected thereto.-Phoenix Brewing Co.'s Assignee v. Central Consumers' Co. (Ky.) 1051.
Petition in an action seeking to enjoin the sale of property bid in by the state for delin- • Point annotated. See syllabus.
quent taxes held fatally defective.-Alexander | Parol or extrinsic evidence of telegram, s v. Aud (Ky.) 1103. "Evidence," § 8.
Under Ky. St. 1903, §§ 3760, 4030, an al- legation that the tax collector has certified certain facts gives rise to the presumption that the acts certified to have been performed, as well as all other acts required to be done to support them.-Alexander v. Aud (Ky.) 1103.
Under Ky. St. 1903, § 4036, plaintiffs, in a suit to enjoin the sale of land which had been bid in by the state for delinquent taxes, must tender the unpaid taxes.-Alexander v. Aud (Ky.) 1103.
Under Civ. Code Prac. § 25, all the tax- payers of a county held not entitled to join in a suit to enjoin on various grounds the sale of lands bid in by the state for delinquent taxes.-Alexander v. Aud (Ky.) 1103.
Under Const. § 171, and Ky. St. 1903, §§ 4019, 4021, 4143, failure of sheriff to levy upon a landowner's personalty to collect taxes assessed against the land held not to render a sale of land for taxes invalid.-Alexander v. Aud (Ky.) 1103.
*Under Gen. Laws 1897, p. 138, c. 103, § 15, a citation or notice in a tax suit by the state against a nonresident landowner, not comply- ing with the form prescribed, held insufficient to support a judgment.-Garvey v. State (Tex. Civ. App.) 873.
Tax deeds held not sufficiently certain in their descriptions and consequently void.-Covington v. Berry (Ark.) 1005.
Under section 3, p. 97, Acts 1866-67, ex- empting Real Estate Bank lands from taxation, listing of such lands for taxation held evi- dence of the sale by the bank's receiver. Cracraft v. Meyer (Ark.) 1027.
Under the act of 1867 exempting lands of the Real Estate Bank from taxation, certain re- ceivership proceedings held to constitute evi- dence of a sale of certain lands belonging to
the bank.-Cracraft v. Meyer (Ark.) 1027.
1. Regulation and operation. for telegraph company's failure to transmit message, when construed with sections 7943 an 7944, and Mansf. Dig. § 6419, applies only t Kirby's Dig. § 7946, prescribing a penalt a willful or intentional refusal to transmit Co. (Ark.) 834. message. State v. Western Union Telegraph
ordering potatoes from the addressee, held proper In an action for failure to deliver a telegram order.-Elam y. Western Union Telegraph Co. to permit him to testify that, if he had received (Mo. App.) 115. the message, he would have complied with the
gram for persons residing 31⁄2 miles from the A telegraph company, on receiving a tele- messengers available, held not guilty of negli- gence in failing to deliver until succeeding day. destination station, after hours when it had (Tenn.) 325. -McCaul v. Western Union Telegraph Co.
Homestead rights of tenant in common, see "Homestead," § 1.
TENANCY IN COMMON.
§ 1. Mutual rights, duties, and liabili-
co-tenants. Mahoney v. Nevins (Mo. Sup.) A co-tenant cannot, by buying in an outstand- 731. ing incumbrance, acquire title as against his
§ 2. Rights and liabilities of co-ten- ants as to third persons.
the other co-tenants are bound to contribute their respective proportions of the considera- Where a co-tenant buys in an incumbrance, tion paid.-Mahoney v. Nevins (Mo. Sup.) 731.
Of property on rescission of sale, see “Sales,” Sufficiency of complaint to show tender of goods § 3. to agent, see "Carriers," § 1.
Under Rev. St. 1837, c. 128, §§ 133, 134, Acts July 15, 1868 (Laws 1868, p. 62, § 1), and Kirby's Dig. § 4807, a land commissioner's deed to land forfeited for unpaid taxes is prima facie evidence of the taking of the steps neces- sary for the transmission of title.-Cracraft of leases, see "Landlord and Tenant,” § 2. v. Meyer (Ark.) 1027.
Failure to record a deed to certain land be- longing to the state held not to overcome the presumption of sale which arises from the is- suance of a subsequent tax deed by the State See "Wills." Land Commissioner.--Cracraft v. Meyer (Ark.) 1027.
3. Legacy, inheritance, and transfer taxes.
Under Shannon's Code, §§ 724, 735, one-half of personal property belonging to a nonresident decedent, which his widow elected to take in kind under his will, held not subject to collat eral inheritance taxation.-Memphis Trust Co. v. Speed (Tenn.) 321.
An executor of a nonresident, owning prop erty in Tennessee which passed to collateral legatees, held not entitled to deduct from the amount subject to collateral inheritance tax Tennessee debts not shown to have been paid from such assets.-Memphis Trust Co. v. Speed (Tenn.) 321.
TELEGRAPHS AND TELEPHONES. Municipal regulations, see "Municipal Corpora- tions," 6.
TESTAMENTARY POWERS.
Creation, see "Wills," § 3.
Effect on admissibility of confessions, Evidence of threats by defendant in prosecution "Criminal Law," § 12. Instructions as to threats by deceased against for homicide, see "Homicide," § 7. accused in trial for homicide, see "Homicide," § 10.
For carriage of passengers, see "Carriers," § 4. * Point annotated. See syllabus.
See "Logs and Logging."
In piles for use in building fence as fixture, see "Fixtures."
Removal of as trespass, see "Trespass," § 1.
For filing bill of exceptions, see "Exceptions, Bill of," § 2.
For giving indemnity bond in action on lost in- strument, see "Lost Instruments." For motion to quash deposition, see "Deposi- tions."
For payment of interest, see "Interest," § 2. For performance of contract, see "Con- tracts," § 1.
For rescission of sale, see "Sales," § 3.
For taking appeal or suing out writ of error, see "Appeal and Error," § 3.
Of taking effect of deed, see "Deeds," § 1.
Color of title, see "Adverse Possession." Covenants of title, see "Covenants," § 1. Removal of cloud, see "Quieting Title." Tax titles, see "Taxation," § 2.
Particular matters affecting title. See "Dedication," § 2; "Partition," § 1.
Particular species of property or rights.
See "Public Lands," § 1.
Stock of corporation, see "Corporations," § 3. Title necessary to maintain particular actions. See "Ejectment," § 1; "Quieting Title," § 1; "Trespass," § 1.
Titles of particular acts or proceedings. Statutes, see "Statutes," § 3.
Of record for purpose of review, see "Criml- nal Law," § 24.
See "Taxation," § 3.
TRANSITORY ACTIONS.
Action for wrongful death, see “Death,” § 1.
Where complainant based his claim upon the provisions of a treaty, it was not necessary to make a formal claim of his rights under the treaty.-Ehrlich v. Weber (Tenn.) 188.
See "Logs and Logging."
TRESPASS.
Evidence of former judgment, see "Judgment," § 13.
Injuries to trespassers, see "Negligence," § 1; "Railroads," §§ 5, 7.
To the person, see "Assault and Battery," § 1. § 1. Actions.
In an action for trespass on lands, evidence considered, and held insufficient to show that plaintiff had paid taxes on the lands in three payments before the date of the trespass, and after March 18, 1899, when Acts 1899, p. 177, No. 66, in relation to possession acquired by payment of taxes under color of title, took effect.-Price v. Greer (Ark.) 985.
In an action for trespass on lands, held, that the verdict could not be sustained under the evi- dence.-Price v. Greer (Ark.) 985.
In action for trespass on land, held, that the answer sufficiently denied plaintiff's allegation of payment of taxes on the land.-Price v. Greer (Ark.) 985.
*In actions for trespass on land, it is not necessary for the complainant to deraign title. but only necessary for him to allege that he is the owner or in possession.-Price v. Greer (Ark.) 985.
*In an action for trespass on land, plaintiff must show either title or possession, and mere color of title is not sufficient.-Price v. Greer (Ark.) 985.
*One showing only a sheriff's deed on execu- tion sale held not to have title to maintain trespass. Phillips v. Beattyville Mineral & Timber Co. (Ky.) 1058.
In trespass for cutting and removing timber from plaintiff's land, evidence held not to show plaintiff to be the owner of the land on which the alleged trespass was committed.— Cheatham v. Hicks (Ky.) 1093.
Between landlord and tenant, see "Landlord and Tenant," § 3.
Equitable defenses, see "Equity," § 1. Harmless error, see "Appeal and Error," § 24.
§ 1. Right of action and defenses. In trespass to try title, plaintiff, claiming un-
As cause of fire for which railroad was sued, der the sole heir of a former vendee, was not en- see "Railroads," § 9.
titled to recover without discharging the ven-
• Point annotated. See syllabus.
dor's lien to secure the purchase money, had never been paid.-Wall v. Club Land & Cat- tle Co. (Tex. Civ. App.) 534.
In trespass to try title, a charge to find for plaintiff if defendant failed to establish the al- legations of his plea in reconvention, without re- quiring plaintiff to prove his right to posses- sion, held properly refused.-Freeman v. Slay (Tex. Civ. App.) 404.
Where the petition in trespass to try title attacked the sheriff's deed, under which defend- ant claimed, as void, plaintiff was not entitled to relief on a showing that the deed was merely voidable.-Temple v. Branch Saw Co. (Tex. Civ. App.) 442.
See "New Trial"; "Witnesses." Construction of contract as question for court, see "Contracts," § 1.
Harmless error relating to instructions, see "Appeal and Error," § 25.
ages," § 5. Instructions as to negligence of passenger, see "Carriers," § 7.
Legal effect of dedication as question for court, see "Dedication," § 1.
Negligence of passenger as question for jury, see "Carriers," § 7.
Objections to instructions for purpose of review, see "Criminal Law," § 22.
Questions relating to instructions presented for review, see "Appeal and Error," § 12. Trial of right to property levied on, see "At- tachment," § 2.
Proceedings incident to trials.
See "Continuance."
122 Corporations,"§ 8; "Railroads," § 6; "Stree Railroads," § 2.
Probate proceedings, see "Wills," § 2. For wrongful death, see "Death," § 1. Suits to set aside fraudulent conveyances, see On bill or note, see "Bills and Notes," § 6. On insurance policy, see "Insurance," § 7. Trespass to try title to real property, see "Fraudulent Conveyances," § 2. "Trespass to Try Title."
See "Assault and Battery," § 2; "Burglary," Trial of criminal prosecutions. § 1; "Criminal Law," §§ 14-18; "False Pretenses"; "Homicide," § 10; "Larceny,'
§ 2; "Perjury," § 2; "Rape," § 2; "Seduc- tion," § 1.
For establishing lottery, see "Lotteries," § 1. For offense against liquor laws, see "Intoxicat- ing Liquors," § 4.
1. Course and conduct of trial in gen- eral.
In an action for injuries, a statement by the court in the presence of the jury, in ruling on an objection to the examination of a juror as to his qualifications in the presence of the en- tire panel, held not error.-Alexander v. Mc- Gaffey (Tex. Civ. App.) 462.
2. Reception of evidence.
to depositions and documentary evidence are to ton v. Ashabraner (Ark.) 1011. Under Kirby's Dig. §§ 2743, 3190, exceptions be determined before final submission.-Boyn-
mediately following the answer is timely.- Where a question is proper, but the answer is improper and prejudicial, an objection im- Waddell v. Metropolitan St. Ry. Co. (Mo. App.) 765.
Entry of judgment after trial of issues, see Ry. Co. (Mo. App.) 765. "Judgment," § 4.
Objection to improper answer to proper ques- tion held to have fulfilled the purpose of a mo- tion to strike.-Waddell v. Metropolitan St.
Place of trial, see "Venue," § 1.
Right to trial by jury, see "Jury," § 1. Summoning and impaneling jury, see "Jury," § 2.
Trial of particular civil actions or proceedings. See "Cancellation of Instruments"; spiracy," 1; "Libel and Slander," 83; "Malicious Prosecution," § 3; "Negligence," "Con- § 4; ""Trespass to Try Title," § 2; "Trover and Conversion," § 2.
Against building and loan association for negli- gence of contractor, see "Building and Loan Associations."
Against carrier for failure to furnish cars, see "Carriers," § 1. Condemnation proceedings, see "Eminent Do- main," § 2.
Election contest, see "Elections," § 3.
For accounting by broker, see "Brokers," § 2. For breach of contract, see "Contracts," § 3. For breach of contract to transport passenger, see "Carriers," § 5.
For breach of warranty of goods sold, see "Sales," § 7.
amination were allowed to proceed the court Where it appeared on the examination of a witness for plaintiff in rebuttal that if the ex- the examination to so proceed.-Union Ry. Co. would again have to go at large into testimony in chief, it was proper to refuse to permit v. Hunton (Tenn.) 182.
recover property transferred by a bankrupt in mitted by agreement between the plaintiff and In an action against several defendants to other defendants.-Horstman v. Little (Tex. fraud of his creditors, certain testimony, ad- Civ. App.) 286. certain of the defendants, held not harmful to
ages, held to be excluded, where the case, when Evidence of false statements of vendor, ad- mitted on a claim by the purchaser for dam- developed, shows the purchaser was not war- ranted in relying on them, or did not rely on them.-Oneal v. Weisman (Tex. Civ. App.)
For causing death, see "Death," § 1. For compensation of broker, see "Brokers," § 4. For delay in shipment by carrier, see "Car-8 riers," § 1.
For injuries from fires caused by operation of railroad, see "Railroads," § 9.
For injuries to live stock by carrier, see "Car- riers," § 2.
For injuries to live stock from operation of railroads, see "Railroads," § 8.
For loss of cargo, see "Shipping." § 1.
because made after plaintiff has rested.-Pitts- An offer of competent evidence sufficient to establish plaintiff's case should not be excluded, burg Plate Glass Co. v. Roquemore (Tex. Civ. App.) 449.
3. dence and derogatory to the opposite party, held Arguments and conduct of counsel. Argument of counsel, unsupported by the evi- derson (Ark.) 583. to constitute reversible error.-English v. An-
been made in a written contract, held not error On an issue as to whether an alteration had for counsel to have called the jury's attention to the fact that the contract was in several
For personal injuries, see "Carriers." 8 6; handwritings.-Harrison v. Lakenan (Mo. Sup.) "Master and Servant," § 9; "Municipal | 53.
* Point annotated. See syllabus.
Where no objection was made to the allow- ance of time for argument, and plaintiff's coun- sel argued for 35 minutes of the hour allowed him, he cannot complain that the time was not equally distributed.-Ray v. Pecos & N. T. Ry. Co. (Tex. Civ. App.) 466.
Rules for the District Courts 39 (67 S. W. xxiii) held violated by an argument of plaintiff's counsel which appealed to the jury on consid- erations other than the merits of the case.-St.
Louis Southwestern Ry. Co. of Texas v. Boyd (Tex. Civ. App.) 509.
Rules for the District Courts 39 (67 S. W. xxiii) held violated by an argument of plaintiff's counsel which appealed to the self-interest of the jury. St. Louis Southwestern Ry. Co. of Texas v. Boyd (Tex. Civ. App.) 509.
Argument of counsel that the jury should err, if at all, in giving excessive damages for per- sonal injuries, as this could be cured on appeal, held improper.-Missouri, K. & T. Ry. Co. of Texas v. Nesbit (Tex. Civ. App.) 891.
§ 4. Taking case or question from jury. In an action on an insurance policy, where the evidence as to value is uncontradicted, the ques- tion of value need not be submitted to the jury. -American Cent. Ins. Co. v. Noe (Ark.) 572. Where there was substantial evidence intro- duced by plaintiff to establish the allegations of the petition, a demurrer to the evidence was properly overruled.-Harrison v. Lakenan (Mo. Sup.) 53.
The question whether a child was sui juris is, when the evidence is all one way, a question for the court; otherwise, for the jury. Holmes v. Missouri Pac. Ry. Co. (Mo. Sup.) 623.
In considering whether a party is entitled to recover, all the evidence of both parties must be reviewed, and, if there is any substantial testimony in support of his case, it must be submitted to the jury.-Fields v. Missouri Pac. Ry. Co. (Mo. App.) 134.
Though there be slight testimony, yet if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the facts sought to be established, the court should instruct a verdict.-Wills v. Central Ice & Cold Storage Co. (Tex. Civ. App.) 265.
the character of any witness, held proper.- Harrison v. Lakenan (Mo. Sup.) 53.
discredited, a charge that the jury may reject Where the testimony of a witness is wholly the testimony of any witness whom they believe has willfully sworn falsely, etc., is proper.- Fields v. Missouri Pac. Ry. Co. (Mo. App.) 134.
An instruction, in action for slander, author- izing the jury, in making up their verdict, to consider the facts and circumstances admitted in evidence as produced by both parties, held error.-Grimes v. Thorp (Mo. App.) 638.
A charge requested, which is not justified by the evidence, is properly refused.-Haxton v. Kansas City (Mo. Sup.) 714.
In an action on a note, an instruction held erroneous as excluding a good defense.-City of Cleburne v. Gutta Percha & Rubber Mfg. Co. (Tex. Civ. App.) 300.
In an action for injuries to plaintiff's son, an instruction that if, at the time of his injuries, he was performing work outside the scope of his employment, he assumed the risk, held error. -Wood v. Texas Cotton Product Co. (Tex. Civ. App.) 496.
It is not error to refuse a requested charge withdrawing from the jury an essential element of an oral contract supported by the evidence of a party.-Texas Cent. Ry. Co. v. Miller (Tex. Civ. App.) 499.
- Requests or prayers.
In an action for damages for breach of con- tract, the request of an incorrect instruction on the measure of damages held sufficient to require the court to give a proper instruction on that point.-Nicola Bros. Co. v. Hurst (Ky.) 1081.
In an action for injuries, an instruction_on damages held not objectionable.-Smith v. For-
5. Instructions to jury-Province of dyce (Mo. Sup.) 679. court and jury in general.
In an action against a railroad for wrongful death, certain instructions held not erroneous as an expression of the court's opinion on the evidence. St. Louis, I. M. & S. Ry. Co. v. Hitt (Ark.) 908, 990.
In an action on a contract on which de- fendants pleaded fraud, instructions on that subject held correct.-Craft v. Barron (Ky.) 1099.
In proceedings to condemn land for a railroad right of way, an instruction held error, as as- suming that the construction of a proposed depot and switches constituted a special benefit to de- fendant's land.-Kirby v. Panhandle & G. Ry. Co. (Tex. Civ. App.) 281.
It is not error to assume in the charge facts established by uncontroverted evidence.- Northern Texas Traction Co. v. Yates (Tex. Civ. App.) 283.
Where defendant, in an action for injuries to a servant, desires to have the question of assumption of risk submitted to the jury, it is his duty to pray an instruction to that effect.- Smith v. Fordyce (Mo. Sup.) 679.
A charge requested, which is covered by the instructions given, is properly given.-Haxton v. Kansas City (Mo. Sup.) 714.
Omission in a charge held not to be com- plained of by one asking a special charge in effect like it. Oneal v. Weisman (Tex. Civ. App.) 290.
Where a charge was correct as far as it went, plaintiff could not avail himself of an error of omission therein without having requested a charge to supply it.-Freeman v. Slay (Tex. Civ. App.) 404.
There is no error in refusing to give a special charge, where the issue to which it relates was fully covered by the general charge and another In an action against a carrier for damages to special charge given at the same party's re- a shipment of cattle, an instruction held prop-quest.-Parlin & Orendorff Co. v. Vawter (Tex. erly refused as being on the weight of evidence. Civ. App.) 407. -Texas Cent. Ry. Co. v. Miller (Tex. Civ. App.) 499.
In an action for injuries, an instruction, though defective, held sufficient to direct the court's attention to the matter, making it in- cumbent to charge in reference thereto.-Ray v. Pecos & N. T. Ry. Co. (Tex. Civ. App.) 466. * Point annotated. See syllabus.
§ 6. Necessity and subject-matter. An instruction that the jury, in determining the credibility of testimony, might consider
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