§ 13. Review-Scope and extent in general.

Where, in an election contest, the legality of the vote of a district is questioned on appeal, the appellate court will not decide the question, when it appears that the decision would not change the result.--Schuman V. Sanderson (Ark.) 940.

Where appellant assails a decree for want of jurisdiction, appellee is not entitled to a review of the evidence to determine whether the decree is supported thereby.-State ex rel. Priddy v. Gibson (Mo. Sup.) 472.

Material facts, shown by evidence to which no objection was made, will be considered on appeal, without reference to defects in the pleading. Alabama Steel & Wire Co. v. Symons (Mo. App.) 78.

On general verdict on trial to the court, a motion for new trial on the ground that the finding was contrary to the evidence and the law raises no question on appeal.-Mauch v. Hornback (Mo. App.) 536.

Where the verdict in trespass to try title is a general one for all the defendants, the court cannot say, as matter of law, that the issue of estoppel, pleaded by one of them, was sustained by the evidence.-Wilkins v. Clawson (Tex. Civ. App.) 732. § 14.

ror.

Parties entitled to allege er

Where both sides introduce evidence as to value of real estate, without restricting the evidence to market value, neither can complain. Schrodt v. City of St. Joseph (Mo. App.) 543. Plaintiff held not estopped by the record to complain of the refusal of an instruction. Hawkins v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ. App.) 52.

Defendant, having requested an instruction submitting the issue of discovered peril to the jury, was not entitled to object to such submission, on appeal.-Chicago, R. I. & T. Ry. Co. v. Williams (Tex. Civ. App.) 248.

In a suit to restrain the obstruction of a road, defendant held not precluded from urging that the burden was on plaintiff to show affirmatively that he was not under legal disability during the prescriptive period, because he objected to the testimony when offered.-Evans v. Scott (Tex. Civ. App.) 874.

15.

Presumptions.

Discretion of lower court. The exercise of discretion by the trial court, in granting a new trial for error in an instruction, will not be reversed if there is any doubt about the propriety of the instruction.-Delaplain v. Kansas City (Mo. App.) 71.

The appellate court will not interfere with the trial court's disposition of a motion for a new trial on conflicting affidavits as to newly discovered evidence.-Esler v. Wabash R. Co. (Mo. App.) 73.

Discretion of court in setting aside verdict for prejudicial remarks made by him will not be disturbed, unless palpably abused.-Septowski v. St. Louis Transit Co. (Mo. App.) 286.

Motions to set aside a default judgment are addressed to the sound discretion of the trial court, which, unless abused, will not be disturbed on appea!.-El Paso & S. W. Ry. Co. v. Kelly (Tex. Civ. App.) 855.

§ 17.

Questions of fact, verdicts, and findings.

Finding of fact by circuit court in election contest held conclusive on appeal, notwithstanding Sand. & H. Dig. § 2698, providing that the evidence is to be taken by depositions.-Schuman v. Sanderson (Ark.) 940.

Though the finding of facts in an equity case is not conclusive on the Supreme Court on appeal, it will nevertheless largely defer to it.Smoot v. Judd (Mo. Sup.) 481.

of service of summons was false, two chancelWhere, on the issue whether a sheriff's return lors refused to believe the only witness who testified that it was false, the Supreme Court on appeal will not interfere.-Smoot v. Judd (Mo. Sup.) 481.

In action against carrier for injuries from assault by defendant's conductor, a verdict for $50 held not so inadequate as to warrant court on appeal in setting aside judgment based thereon.-Meyer v. St. Louis & S. Ry. Co. (Mo. App.) 267.

It is not the province of an appellate court to weigh the evidence or the credibility of testimony.Schergen v. Baerweldt Const. Co. (Mo. App.) 281.

An excessive verdict is not conclusive of prejudice of the jury.-Schergen V. Baerweldt Const. Co. (Mo. App.) 281.

Amount of verdict in personal injury suit A. Ry. Co. (Mo. App.) 530.

Where the record does not show all the evidence introduced on the trial, every intendment will be indulged on appeal in favor of the correctness of the holding of the trial court.-City of St. Joseph v. Pitt (Mo. App.) 544.

Where a statement of facts was agreed to which omitted the laws of another state, introduced in evidence, it would be presumed on appeal that such laws were such as to support the judgment.-National Bank of Commerce v. Kenney (Tex. Sup.) 368.

In the absence of evidence as to the nature and character of injuries, it will be presumed that a default judgment in a certain sum was supported by the testimony heard by the trial judge.-El Paso & S. W. Ry. Co. v. Kelly (Tex. Civ. App.) 855.

Court on error held not entitled to presume that nunc pro tunc entries were made at a special term, so that they were necessarily con

prejudicial error.-Seidel v. Quincy, O. & K. C.
R. Co. (Mo. App.) 77.

Refusal of court before whom action at law
is tried without jury to give declaration of law
held reversible error.-Edwards v. Carondelet
Milling Co. (Mo. App.) 764.

Reference of counsel on trial in circuit court
of a case appealed from justice of the peace as
to verdict in the justice's court held not cause
for reversal.-Beatty v. Clarkson (Mo. App.)
1033.

Refusal to dismiss a writ of error as to cer-
tain defendants in error held not prejudicial as
to them, where the reversal of the judgment as
to plaintiff in error would have reversed the
judgment in their favor.-Summerville v. King
(Tex. Sup.) 680.

In an action on a benefit certificate, defendant
held not prejudiced by a failure of the court to
specially find certain statements in the appli-
cation, etc., were warranties. Endowment
Kank Supreme Lodge K. P. v. Townsend (Tex.
Civ. App.) 220.

In the absence of a statement of facts, the
court having held that two deeds executed by
plaintiff were absolute conveyances, a mistake
in reciting the consideration of the last deed
held insufficient to require a reversal of a judg-
ment for defendant.-Moore v. Lee (Tex. Civ.
App.) 420.

That defendants received more than they
were entitled to held not to entitle them to avail
themselves of the court's error in rendering a
judgment in favor of plaintiff in conflict with
the verdict.-Eastham v. Patty & Brockinton
(Tex. Civ. App.) 885.

Appellant held not precluded from objecting
to a judgment more favorable to her than the
findings of the jury warranted.-Eastham v.
Patty & Brockinton (Tex. Civ. App.) 885.

The asking of a leading question was not
prejudicial error, where the fact elicited there-
by was otherwise well established.-Northern
Texas Traction Co. v. Lewis (Tex. Civ. App.)

894.

$ 19.

Harmless error in rulings on
evidence.

Error in permitting questions asking for the
opinion of witnesses as to the amount of dam-
age from flood held harmless.-Owen v. Chi-
cago, R. I. & P. Ry. Co. (Mo. App.) 92.

In an action against a street railway company
for malicious prosecution of a passenger under
complaint of a conductor, the error in admit-
ting evidence of ratification of the conductor's
act held harmless.-Dwyer v. St. Louis Transit
Co. (Mo. App.) 303.

Error in the admission of testimony held
harmless, where substantial justice is done.-
Schrodt v. City of St. Joseph (Mo. App.) 543.

Where defendant did not attempt to rebut the
prima facie case made by the introduction of a
tax bill sued on, the introduction of other evi-
dence by plaintiff, though error, was not ground
for reversal.-City of St. Joseph v. Pitt (Mo.
App.) 544.

Where, in an action tried by the court, the
judgment was sustained by evidence, it will
not be reversed for the erroneous admission of

a witness' opinion.-Chicago, R. I. & T. Ry.
Co. v. Halsell (Tex. Sup.) 15.

In a suit to enjoin as a threatened nuisance
the location of a cemetery adjacent to plain-
tiffs' lands, admission of certain testimony held
reversible error, though the court told the jury
not to consider it.-Elliott v. Ferguson (Tex.
Civ. App.) 56.

Erroneous admission of evidence, which was
"considered" by the court, held not rendered
harmless by the fact that the trial was to the

§ 20.

Harmless error relating to in-
structions.

Under Rev. St. 1899, § 865, refusal to give
correct instruction requested by appellant held
not cause for reversal.-Brown v. St. Louis
Transit Co. (Mo. App.) 310.

Where the jury awarded compensatory dam-
ages only, an error in an instruction on the sub-
ject of punitive damages was not prejudicial to
defendant. Spengler v. St. Louis Transit Co.
(Mo. App.) 312.

In action against street railroad for injuries
to plaintiff and damages to his carriage and
horses, resulting from collision with car, charge
held not objectionable as introducing new ele-
ment of negligence.-Story v. St. Louis Tran-
sit Co. (Mo. App.) 992.

that might be awarded held harmless, in view
An erroneous instruction as to attorney's fees
of the judgment and admission of the parties.
Santa Fé St. Ry. Co. v. Schutz (Tex. Civ.
App.) 39.

Where the court assumed that a servant who
was injured was guilty of contributory negli
gence, the refusal of an instruction submitting
that question to the jury was not error.-Chi-
cago, R. I & T. Ry. Co. v. Williams (Tex. Civ.
App.) 248.

In an action against a city for injuries caused
by a defective street, a charge on actual knowl
edge of the defect held harmless.-City of Dal-
las v. Muncton (Tex. Civ. App.) 431.

Charge that street railway company is not an
insurer of the safety of its passengers held not
prejudicial to the company.-El Paso Electric
Ry. Co. v. Harry (Tex. Civ. App.) 735.

In an action against a carrier for injuries to
plaintiff's wife by collision, the court did not err
in instructing that the liability was not de-
clusive, and there was no attempt to rebut it-
nied, where the evidence of negligence was con-
Northern Texas Traction Co. v. Lewis (Tex.
Civ. App.) 894.

§ 21. Determination and disposition of

cause.

Where a judgment is reversed on defendant's
appeal, and the cause remanded to the circuit
court, with directions to set aside all its orders
and decrees and to dismiss the cause, a judg
ment, from which plaintiff appealed, refusing
to modify a decree, must also be reversed as a
matter of course.-Heidbreder v. Superior Ice &
Cold Storage Co. (Mo. Sup.) 469.

Where, in a suit to restrain a trespass, the
judgment was reversed on the merits by the
appellate court, without reference to plaintiff's
damages, and the cause was remanded for e
try of judgment, the trial court had no ar
thority to set the case for trial for determina-
tion of plaintiff's damages.-State ex rel. Met-
ropolitan Land Co. v. Douglass (Mo. App.) 87.

Where an injunction is dissolved, under Rev.
St. 1899, §§ 3639, 3640, and an order dissolving
it is reversed on appeal, and judgment direct-
ed for plaintiff, the trial court has no author-

ity in the matter, except to enforce the man-
date. State ex rel. Metropolitan Land Co. v.
Douglass (Mo. App.) 87.

In action against a street railroad for injuries
resulting from car colliding with plaintiff's
horse, on which he was riding, any error in
charging on measure of damages as to medical
treatment and medicines held curable on appeal
by remittitur.-Brown v. St. Louis Transit Co.
(Mo. App.) 310.

Misnomer of railroad in action against it
held an imperfection, within Rev. St. 1899, §§
672, 673, so that appellate court will make cor-
rection to true name.-Brassfield v. Quincy, O.
& K. C. R. Co. (Mo. App.) 1032.

§ 1. Civil liability.

Statement of rule as to liability, where de-
fendant struck plaintiff, thinking he was strik-
ing another in self-defense.-Crabtree v. Daw-
son (Ky.) 557.

One recklessly and wantonly striking another,
though thinking he is striking a third person in
self-defense, held liable for exemplary, as well as
compensatory, damages. Crabtree v. Dawson
(Ky.) 557.

An instruction, where plaintiff struck defend-
ant, thinking he was striking N. in self-defense,
that, to excuse him from liability, he must have
used "due" care and diligence to ascertain whom
he was about to strike, held insufficient.-Crab

tree v. Dawson (Ky.) 557.

An instruction specifically calling the jury's
attention in detail to the facts testified to by
defendant and relied on to excuse his conduct
held erroneous.-Crabtree v. Dawson (Ky.) 557.
2.. Criminal responsibility.

APPLIANCES.

Evidence held sufficient to support a convic-
tion for assault and battery.-State v. Cole-
man (Mo. App.) 1096.

In a prosecution for assault, where the court
submitted to the jury the issues of aggravated
and of simple assault, the verdict and judgment
should have specified the grade of crime.-Win-
zel v. State (Tex. Cr. App.) 187.

APPLICATION.

Of payment, see "Payment," § 1.

APPROPRIATION.

For payment of municipal debts, see "Munic-
ipal Corporations," § 10.

ARGUMENT OF COUNSEL.

Cure of misconduct by instructions, see "Trial,"
$ 10.

Harmless error, see "Appeal and Error," § 18.
Harmless error in criminal prosecution, see
"Criminal Law," § 28.

In civil actions, see "Trial," § 3.

In criminal prosecutions, see "Criminal Law,"
$$ 16, 17.

Objections and exceptions for purpose of re-
view, see "Appeal and Error," § 4; "Crim-
inal Law," § 26.

Preservation in record of objections for pur-

was

-

committed premeditatedly. — Winzel
State (Tex. Cr. App.) 187.

V.

Evidence held not to support a conviction of
aggravated assault.-McAfee v. State (Tex. Cr.
App.) 376.

On a prosecution for assault, evidence of at-
tempts to have intercourse at prior times held
inadmissible.-Livingston v. State (Tex. Cr.
App.) 1111.

ASSESSMENT.

Of compensation for property taken for public
use, see "Eminent Domain," § 3.

Of damages, see "Damages," § 5.
Of expenses of public improvements, see "Mu-
nicipal Corporations," $$ 5, 6.
Of tax, see "Taxation," § 3.

ASSETS.

Of estate of decedent, see "Executors and Ad-
ministrators," § 1.

ASSIGNMENT OF ERRORS.

ARMY AND NAVY.

ASSIGNMENTS.

See "Bail."

ARREST.

Illegal arrest, see "False Imprisonment."

ASSAULT AND BATTERY.

Assault with intent to kill, see "Homicide," 88
3, 8, 12-14.

Assault with intent to rob, see "Robbery."
Assessment of damages for, see "Damages,"
§ 5.

Disqualification of judge to try action for, see
"Judges," § 2.

On passenger, see "Carriers," § 10.

rights, or instruments.

See "Bills and Notes," § 4; "Insurance," §§
3, 10.

Corporate shares, see "Corporations," § 2.
Property of bankrupt, see "Bankruptcy," § 2.
§ 1. Requisites and validity.

An assignment of funds to accrue under a con-
tract between the assignor and a third person
held enforceable in equity, though such funds
had no actual existence at the time of the as-
signment.-Johnson v. Donahue (Tenn.) 360.

ASSIGNMENTS FOR BENEFIT OF
CREDITORS.

See "Bankruptcy," § 2.

ASSUMPSIT, ACTION OF.

See "Money Received"; "Use and Occupation."

ASSUMPTION.

the insufficiency of the indictment.-State v.
Boehm (Mo. Sup.) 477.

The bail bond of one accused as an accomplie
in the larceny of $50, fixed at $750, held ex-
cessive. Ex parte Barnett (Tex. Cr. App.) 378
A criminal appeal will be dismissed, where

ATTACHMENT.

See "Execution"; "Garnishment."
Against partnership, see "Partnership," § 3.
Appealability of orders in, see "Appeal and
Error," § 2.

Exemptions, see "Exemptions"; "Homestead."
For absent jurors, see "Jury," § 1.
Priority between attachment and landlord's
lien, see "Landlord and Tenant," § 6.
Reversal in part on appeal or writ of error,
see "Appeal and Error," § 21.
Time for filing bill of exceptions, see "Excep-
tions, Bill of," § 2.

§ 1. Levy, lien, and custody and dis-
position of property.

A substantial compliance with the statute is
all that is required in making an attachment
levy on corporate stock.-Scott v. Houpt (Ark.)

1057.

2. Claims by third persons.

Where a landlord claims property levied on as
that of his tenant under a transfer in satisfac-
tion of his landlord's lien, if he fails to show
a valid transfer, he may yet claim the property
under his lien.-Groesbeck v. Evans (Tex. Civ.
App.) 430.

A pleading filed by a claimant to property at-
tached as that of claimant's tenant held to be
sufficient on demurrer.-Groesbeck v. Evans
(Tex. Civ. App.) 430.

ATTENDANCE.

Of juror, see "Jury," § 1.

ATTORNEY AND CLIENT.

Action by attorney for services to decedent's
estate, see "Executors and Administrators,"
§ 5.
Argument and conduct of counsel at trial in
civil actions, see "Trial," § 3.
Arguments and conduct of counsel at trial in
criminal prosecutions, see "Criminal Law,"
§§ 16, 17.

Attorneys as public officers, see "District and
Prosecuting Attorneys."
Attorney's fees in actions for divorce, see "Di-
vorce," § 4.

Cure of misconduct of counsel by instructions,
see "Trial," § 10.

Harmless error as to attorney's fees, see "Ap-
peal and Error," § 20.
Harmless error in argument of counsel, see
"Appeal and Error," § 18.
Harmless error in argument of counsel in crim-
inal prosecution, see "Criminal Law," § 28.
Inclusion of attorney's fees in mechanic's lien,
see "Mechanics' Liens," § 1.

Objections and exceptions to argument of coun-
sel for purpose of review, see "Appeal and
Error," § 4.

AUTHORITY.

Of agent, see "Principal and Agent," § 1.
Of justice of the peace, see "Justices of the
Peace," § 1.

BAIL.

§ 1. In criminal prosecutions.

Under Rev. St. 1899, § 2554, a surety in a re-
rognizance held not relieved from liability by

amount of punishment assessed, as required by
Code Cr. Proc. 1895, art. 887.-Saufly v.
State (Tex. Cr. App.) 709.

Under Code Cr. Proc. art. 309, subd. 3 (Will-
son's St. Supp. 1897-1900, p. 92, c. 4), a bail
bond stating that defendant is charged with
embezzlement, without stating the amount er-
bezzled, held insufficient.-Nichols v. State (Tex.
Cr. App.) 1113.

Code Cr. Proc. art. 308 (Willson's St. Supp.
A recognizance held to state, as required by
ged with a felony.-Nichols v. State (Tex. Cr.
1897-1900, p. 91, c. 4), that appellant was char-
App.) 1113.

A bail bond held to sufficiently designate the
time, place, and court before which defendant
was to appear.-Nichols v. State (Tex. Cr.
App.) 1113.

nizance on appeal from a conviction for misde-
Under Code Cr. Proc. 1895, art. 887, a recog
meanor held fatally defective, because not con-
cluding with the words "in this case."-Mallard
v. State (Tex. Cr. App.) 1114.

§ 2.

Assignment, administration, and
distribution of bankrupt's estate.
to believe," within Bankr. Act July 1, 1898, c.
"Ground to believe" held equivalent to "cause
541, § 60, subd. "b." 30 Stat. 562 [U. S. Comp. St.
1901, p. 3445].-Edwards v. Carondelet Milling
Co. (Mo. App.) 764.

Evidence in action by trustee in bankruptcy
to recover alleged preference held insufficient to
show that defendant or its agent had reasonable
cause to believe the debtor was insolvent at the
time of the alleged preference.-Edwards v.
Carondelet Milling Co. (Mo. App.) 764.

subds. "a," "b," 30 Stat. 562 [U. S. Comp. St.
Under Bankr. Act July 1, 1898, c. 541, § 60.
ing to recover a preference, to prove actual fact
1901, p. 3445], burden held to be on trustee, su-
of insolvency at time of alleged preference.-
Edwards v. Carondelet Milling Co. (Mo. App.)
764.

An assignment made within four months of
a debtor's adjudication as a bankrupt held not
thereby invalidated in favor of creditors whose
debts accrued after the debtor's discharge.-
Johnson v. Donahue (Tenn.) 360.

§ 3. Rights, remedies, and discharge of
bankrupt.

Where a court of bankruptcy had permitted
plaintiff to foreclose a trust deed, it was imma-