It is not error to refuse a requested instruc- tion covered by the instructions given by the court.-International & G. N. R. Co. v. Glover (Tex. Civ. App.) 515.
Where a charge given at a party's request em- braces the substance of another requested charge, the party cannot complain of the refusal to give the latter charge.-International & G. N. R. Co. v. Glover (Tex. Civ. App.) 515. $ 10. Objections and exceptions. The apparent assumption of a fact by an in- struction, being a defect of form, held to call for a special exception.-McElvaney v. Smith (Ark.) 981.
Construction and operation. In an action for injuries to a servant, instruc- tion held in conflict with, and not to cure the error in, other instructions. Grayson-McLeod Lumber Co. v. Carter (Ark.) 597.
In an action for injuries at a crossing, error in an instruction held not cured by other in- structions. St. Louis, I. M. & S. Ry. Co. v. Hitt (Ark.) 911, 990.
An erroneous instruction is not cured by subsequent correct ones, which do not refer to it or in terms attempt to modify it.-City of Cleburne v. Gutta Percha & Rubber Mfg. Co. (Tex. Civ. App.) 300.
A charge must be read as a whole to deter- mine whether it is on the weight of the evidence or confusing.-Missouri, K. & T. Ry. Co. of Texas v. Criswell (Tex. Civ. App.) 373.
In an action against a carrier for death of plaintiff's wife from its negligence and that of another carrier, an instruction held erroneous, as excluding liability for negligence of the lat- ter. Hardin v. St. Louis Southwestern Ry. Co. of Texas (Tex. Civ. App.) 440.
Charitable trusts, see "Charities." Conveyances in trust for creditors, see "As- Combinations to monopolize trade, see "Mo- nopolies," & 1. Estoppel to assert invalidity of trust deed, exe- signments for Benefit of Creditors." Secret trusts, cuted by corporation, see "Corporations," § 2. Trust deeds, see "Chattel Mortgages"; "Mort- "Fraudulent Conveyan- ces, § 1. gages.'
8 1. Creation, existence, and validity.
by parol, the evidence is insufficient, unless "it is full, clear, and convincing."-Tillar v. Henry Though a constructive trust may be proved (Ark.) 573.
structive trust of land purchased at a foreclo- sure sale.-Tillar v. Henry (Ark.) 573. Evidence held insufficient to establish a con-
sufficient to set aside a deed for fraud and es- tablish a resulting trust.-McNutt v. McNntt A mere preponderance of parol proof held in- (Ark.) 589.
setting aside a deed and establishing a result- Evidence held insufficient to sustain a decree 589. ing trust for fraud.-McNutt v. McNutt (Ark.)
In an action for injuries to an inexperienced servant, an instruction limiting the master's duty to instruct to latent dangers held cured by established by clear and satisfactory evidence. subsequent instruction.-Wood v. Texas Cotton-Crosby v. Henry (Ark.) 949. *Constructive trusts resting in parol must be Product Co. (Tex. Civ. App.) 496.
It is not proper to predicate error on a por tion of a paragraph in a charge, and sever it from the preceding part of the paragraph. Texas Cent. Ry. Co. v. Miller (Tex. Civ. App.)
sulting trust, evidence held to support a finding that defendant bought the property as trustee for plaintiff, and plaintiff paid for it.-Crosby In a suit to procure the declaration of a re- v. Henry (Ark.) 949.
A special verdict in a suit to determine the existence of a lien held sufficient basis for a judgment declaring a lien on the property for which the note in controversy Featherstone v. Brown (Tex. Civ. App.) 470. was given.- 13. Waiver and correction of irregu- larities and errors. Where plaintiff alleges that she boarded a car for the purpose of becoming a passenger, de- fendant cannot complain, after verdict, of in- structions submitting to the jury to find wheth-Kessner v. Phillips (Mo. Sup.) 66. er she was a passenger.-Corum v. Metropolitan St. Ry. Co. (Mo. App.) 143.
former, held to raise a resulting trust, notwith- *Payment of price by one for land bought by standing the statute of frauds.-Crosby v. another, who orally agreed to hold it for the Henry (Ark.) 949.
ter, was the actual purchaser of the property, On an issue as to whether a father, in whose name title to property was taken, or his daugh- cellor that the father was the purchaser.- Bendy v. Mudford (Ark.) 999. evidence held to support a finding of the chan-
TRIAL OF RIGHT OF PROPERTY. See "Attachment," § 2.
TROVER AND CONVERSION.
1. Acts constituting conversion and liability therefor.
Demand and refusal are evidence of conver- sion-Newman v. Mercantile Trust Co. (Mo. Sup.) 6.
In order to maintain trover for shares of stock, plaintiff must have been the owner of
A deed held not to create a spendthrift trust.
Spendthrift trusts are recognized in Missouri. -Kessner v. Phillips (Mo. Sup.) 66.
In a suit by heirs to declare and establish a resulting trust in land, the evidence considered, and held to show that defendant purchased the land partly with money furnished by plaintiff's intestate, taking the title in his own name, and payment.-Stevenson v. Smith (Mo. Sup.) 86. that intestate had, and died with, an interest therein corresponding to the amount of her
furnished by the beneficiary, a resulting trust will be declared for a proportionate share of Where only a part of the purchase money is the land bought.-Stevenson v. Smith (Mo. Sup.) 86.
ticular words are necessary; but there must In order to constitute a direct trust, no par- • Point annotated. See syllabus.
Purchasers at sale on execution, see "Exe- cution," 4.
Questions presented for review in suit to fore- close vendor's lien, see "Appeal and Er- ror," § 2.
Right of purchaser to reformation of deed, see Requirements of statute of frauds, see "Frauds, Statute of," § 2.
"Reformation of Instruments," § 1.
Sale of public lands, see "Public Lands." Specific performance of contract, see "Specific Performance."
§ 1. Requisites and validity of contract. Contract for purchase of land held valid.— Morris v. Green (Ark.) 565.
Statement of a vendor as to fertility of land held one of fact, which under circumstances warranting it may be relied on by the pur- chaser. Oneal v. Weisman (Tex. Civ. App.) 290.
§ 2. Performance of contract.
Where an agreement secured is simply one for the payment of money, a forfeiture incur- red by its nonperformance will be relieved against on payment of the debt, interest, and costs.-Morris v. Green (Ark.) 565.
Vendor under contract for purchase of land held estopped from insisting on letter of con- tract.-Morris v. Green (Ark.) 565.
A purchaser held liable for interest on the price from the day he received actual possession of the land.-Ewell & Smith v. Jackson's Adm'r (Ky.) 1047, 1135.
3. Rights and liabilities of parties. The reduction in the purchase price in a pur- chase from the vendor by an heir of the de- ceased original purchaser from the purchase price agreed to be paid by him, held to inure to the benefit of the other heirs of the original pur- chaser. Tillar v. Clayton (Ark.) 972.
A purchaser, taking possession of land under a verbal contract of purchase, has the burden of proving payment of the purchase price in an action to foreclose the vendor's lien.-Tillar v. Clayton (Ark.) 972.
*Neither a purchaser taking possession of land under a verbal contract of purchase nor his heirs can dispute the title while the pur-
In contract of national bank, see "Banks and chase money remains unpaid, when sued to fore- Banking," § 2.
Vacating particular proceedings.
See "Judgment," §§ 3, 5.
Partition sale, see "Partition," § 1. Sale on execution, see "Execution," § 4.
Evidence as to value, see "Damages," § 5. Hearsay evidence of, see "Evidence," § 6. Limits of jurisdiction, see "Appeal and Er- ror," & 1.
Representations as to value of property sold, see "Sales," § 1.
Between pleading and proof in criminal prosecu- tions, see "Indictment and Information," § 3.
VENDOR AND PURCHASER.
See "Brokers"; "Deeds," § 1; "Sales."
close the vendor's lien.-Tillar v. Clayton (Ark.) 972.
A vendor, in order to secure a decree fore- closing his vendor's lien, held required to make a proper deed.-Tillar v. Clayton (Ark.) 972.
In an action on a note given for the price of land, the answer held merely a denial that plaintiff had made defendant a good title, and not to a denial that he had accepted a warranty deed.-Fitzpatrick v. Vincent (Ky.) 1073.
Grantee, who assumed vendor's lien notes, held not entitled to judgment in trespass to try title as against the holder of the notes without paying the same.-Diffie v. Thompson (Tex. Civ. App.) 381.
Holder of vendor's lien notes, to whom the land was conveyed by the maker, held entitled to the payment of such notes before his su- perior right to the land could vest in a grantee who assumed the same.-Diffie v. Thompson (Tex. Civ. App.) 381.
Superior title to land conveyed by deed re- mains in the grantor until the discharge of in- cumbrances reserved by the deed.-Diffie v. Thompson (Tex. Civ. App.) 381.
* Point annotated. See syllabus.
One who forecloses a vendor's lien held to possess only such rights as the judgment gives
him.-Wall v. Club Land & Cattle Co. (Tex. See "Guardian and Ward." Civ. App.) 534.
Change of as affecting duty of clerk to transmit record, see "Clerks of Courts." Statement of in information, see "Indictment and Information," § 1.
Of particular actions or proceedings. Against carrier, see "Carriers," § 1. Criminal prosecutions, see "Criminal Law," § 4. For causing death, see "Death," § 1.
§ 1. Change of venue or place of trial. Any objection to change of venue from cir- cuit court of Jackson county, under Rev. St. 1899, § 822, held waived.-Haxton v. Kansas City (Mo. Sup.) 714.
Directing verdict in civil actions, see "Trial," § 4.
In civil actions, see "Trial," § 12. In criminal Law," § 15. prosecutions, Review on appeal or writ of error, see "Ap-
peal and Error," § 21.
Setting aside, see "New Trial," § 1.
Of affidavit for continuance, see "Continuance." Of information, see "Indictment and Informa- tion," § 1.
Of pleading, see "Pleading," §§ 6, 8
VICE PRINCIPALS.
See "Master and Servant," § 6.
See "Schools and School Districts," § 1.
Evidence of damages for breach, see "Dam- ages,
On sale of goods, see "Sales," §§ 1, 5, 7.
§ 1. Natural water courses. WATERS AND WATER COURSES.
a certain number of acres off from one side of Where a deed described the land conveyed as a government subdivision, the purchaser was not entitled to accretions lying between the land described and a river.-Perry v. Sadler (Ark.) 832.
Where defendant contracted to convey to
plaintiff a certain named tract of land, con- ler (Ark.) 832. taining a certain number of acres more or less and bounded on one side by a river, plaintiff held to take title to accretions.-Perry v. Sad-
§ 2. Artificial ponds, reservoirs, channels, dams, and flowage. One negligently constructing dam and em- have occurred in the absence of the obstruc- bankment, in and adjacent to stream held not excused from liability for additional damages caused thereby during an overflow which would tions.-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.
In action against railroad for injury to crops and realty by overflow, fact that sediment would not tend to injure plaintiff's land held immaterial.-Gulf, C. & S. F. Ry. Co. v. Har- bison (Tex. Civ. App.) 452;' Same v. Wetherly (Tex. Čiv. App.) 456; Same v. Oates (Tex. Civ. App.) 457.
Mandatory injunction against railroad, com- manding removal of dam and construction of
As affecting liability of carrier, see "Car- culverts and sluices in embankment, held suffi- riers," 1.
Of liability as indorser of bill or note, see "Bills and Notes," § 4.
Of objections to particular acts or proceedings. See "Pleading," § 8; "Trial," § 13.
Change of venue, see "Venue," § 1
Of rights or remedies.
See "Homestead," § 5; "Insurance," § 2.
Of breach of warranty on sale of goods, see "Sales," § 5.
Of condition in railroad ticket, see "Car- riers," § 5.
Of tender of cattle by connecting carrier, see "Carriers," § 2.
ciently specific, under Sayles' Ann. Civ. St. 1897, art. 4436.-Gulf, C. & S. F. Ry. Co. v. Harbison (Tex. Civ. App.) 452; Same v. Weth- erly (Tex. Civ. App.) 456; Same v. Oates (Tex. Civ. App.) 457.
In action against railroad for injury to crops and realty by construction of dam, evidence as to effect of overflows subsequent to removal of portion of dam held admissible.-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.
See "Descent and Distribution"; "Executors and Administrators."
of kin only.-Levi v. Fidelity Trust & Safety Vault Co. (Ky.) 1083.
Under a will, a nephew of testator, to whom was paid his mother's share of the estate, Charitable bequests and devises, see "Chari-held to take absolutely, so that on his death
Construction and execution of trusts, "Trusts." Harmless error in will contest, see "Appeal and Error," § 25. Legacy and tion," § 3.
succession taxes, see "Taxa-
Opinion evidence in will contest, see "Evi- dence," § 9.
§ 1. Requisites and validity.
In a will contest, evidence held sufficient to sustain a verdict finding that a will admitted for probate was the result of undue influence. -Dausman v. Rankin (Mo. Sup.) 696.
Undue influence, sufficient to invalidate a will, must be such as amounts to overpersuasion, coercion, or force, destroying the free agency and will power of the testator.-Dausman v. Rankin (Mo. Sup.) 696.
Undue influence may be inferred from facts and circumstances, from the relation of the parties, and from testator's mental condition.- Bradford v. Blossom (Mo. Sup.) 721.
Under Rev. St. 1895, art. 5335, an instru- ment in the form of a deed, not written by the grantor, and attested by one witness, cannot be probated as a will.-McLain v. Garrison (Tex. Civ. App.) 484.
Under Rev. St. 1895, art. 632 (556), an in-
strument in the form of a deed, to take effect at the grantor's death, held not testamentary in character, but a deed.-McLain v. Garrison (Tex. Civ. App.) 484.
Under Sayles' Ann. Civ. St. art. 5337, a will held revoked by a subsequent conditional holographic will.-Dougherty v. Holscheider (Tex. Civ. App.) 1113.
*Under Sayles' Ann. Civ. St. arts. 5335, 5336, letters held to constitute a will.-Dough- erty v. Holscheider (Tex. Civ. App.) 1113.
*A will, to become effective only on the happening of a contingency, is a contingent will, and, in case the contingency does not arise, it is revoked.-Dougherty v. Holsch- eider (Tex. Civ. App.) 1113.
*Where a testator intended to dispose of his property in case of the happening of an event named, the will is conditional.-Dougherty V. Holscheider (Tex. Civ. App.) 1113.
*Letters written by decedent held to con- stitute a conditional will.-Dougherty v. Hol- scheider (Tex. Civ. App.) 1113.
§ 2. Probate, establishment, and annul-
On an issue as to whether a will was brought about by fraud and undue influence, held, that the question was one for the jury.-Bradford v. Blossom (Mo. Sup.) 721.
In a suit to set aside a judgment admitting a will to probate, the burden is upon plaintiffs to establish the invalidity of the will.-Franklin v. Boone (Tex. Civ. App.) 262.
In a will contest, an instruction held not to take from the consideration of the jury the question whether the will had been altered. Franklin v. Boone (Tex. Civ. App.) 262.
Under a will giving the property to testator's wife, with power to distribute "to her rela- tions and to my relations," held, she was not required to distribute the property among next
his property passed under the law of descent. -Barret v. Gwyn (Ky.) 1096.
Where realty is devised to testatrix's hus- band, with direction that after his debts and funeral expenses are all paid the remainder of the tract shall go to others, the devisee takes only a life estate in the land devised, with re- mainder over.-Carson v. Carson (Tenn.) 175. § 4. Rights and liabilities of devisees and legatees.
The doctrine of election under a will held not applicable in regard to lands owned by testator and widow by entirety.-Walker v. Bobbitt (Tenn.) 327.
Under Shannon's Code, §§ 4146, 4147, that portion of a husband's personal property as to which he died intestate held to have passed to his distributees, to the exclusion of his widow. -Walker v. Bobbitt (Tenn.) 327.
See "Affidavits"; "Depositions"; "Evidence." Absence of, as ground for continuance, see "Continuance"; "Criminal Law," § 14. Experts, see "Evidence," § 9. In action against carrier, see "Carriers," § 2. Instructions as to credibility, see "Trial," § 6. Perjury, see "Perjury." Opinions, see "Evidence," § 9.
*On a trial under Cr. Code Prac. § 156, on the issue of the sanity of one indicted for crime, the wife of the accused is not a competent wit- ness.-Commonwealth v. Woelfel (Ky.) 1061.
In a criminal case, certain testimony of an attorney held not erroneous, on the theory that State v. Cummings (Mo. Sup.) 706. it related to confidential communications.-
*Rev. St. 1899, § 4652, relative to the incom- petency as witnesses of parties to transactions with deceased persons, held not to preclude the surviving party to a contract from testifying to conversations had with the party seeking to en- force the contract.-Weiermueller v. Scullin (Mo. App.) 1008.
written by decedent to defendant's wife, and by On a trial for homicide, contents of letters her shown to defendant, held privileged com- munications by wife to husband, and inadmissi- ble.-Cole v. State (Tex. Cr. App.) 341.
Code Cr. Proc. 1895, art. 774, held not to render a wife incompetent to testify to an ex- clamation made by her husband immediately after committing a homicide.-Cole v. State (Tex. Cr. App.) 341.
A witness held incompetent to testify to transactions with a decedent (Sayles' Rev. Civ. St. 1897, art. 2302).-Jones v. Day (Tex. Civ. App.) 424.
A defendant, who disclaimed any interest in the notes in controversy, held competent to tes- tify as to transactions with plaintiff's ancestor. -Jones v. Day (Tex. Civ. App.) 424.
In a suit by a trustee in bankruptcy to re- cover property, a witness, who is not a party, held not incompetent to testify to a conversa- tion had with the bankrupt's wife, since de- ceased, under Sayles' Ann. Civ. St. art. 2302.— Shelley v. Nolen (Tex. Civ. App.) 524.
Under Kirby's Dig. § 3088, held not error to *Point annotated. See syllabus.
cross-examine accused as to attempts to silence testimony against him.-Corothers v. (Ark.) 585. The court, in controlling the cross-examina--Newman v. Commonwealth (Ky.) 1089. tion of accused, is vested with discretionary power. Corothers v. State (Ark.) 585. The trial judge held entitled to examine wit- facts.-Arkansas Cent. R. Co. v. Craig (Ark.) he not indicating his opinion of the
State nation of defendant, tending to insinuate that In a prosecution for murder, cross-exami- he was testifying untruthfully, was improper.
*It was not an abuse of discretion to permit the commonwealth to recall defendant and prove by him that he had been in the penitentiary. McQueen v. Commonwealth (Ky.) 1047.
In condemnation proceedings, certain ques- tions to a witness on cross-examination in re- gard to the value of the property held proper.- Union Ry. Co. v. Hunton (Tenn.) 182.
he had resided some time before trial is ad- *Evidence that the reputation of a witness for truth and veracity was bad at places where the time of trial, but for only a short time be- missible, in connection with similar testimony as to his reputation at a place where he resided at fore. Craft v. Barron (Ky.) 1099.
held admissible, under Rev. St. 1899, § 4680, concerning impeachment of witnesses.-State v. Proof of former conviction for misdemeanor Heusack (Mo. Sup.) 21.
Under Rev. St. 1899, § 4680, state, on pros- ecution for crime, held entitled to cross-examine defendant as to previous conviction for crime. -State v. Heusack (Mo. Sup.) 21.
Where counsel stated that he did not hope to obtain anything by certain cross-examination that he was about to enter upon, there was no error in refusing to permit him to go on withness.-State v. Forsha (Mo. Sup.) 746. it.-Union Ry. Co. v. Hunton (Tenn.) 182.
In homicide, held competent for the state to contradict certain testimony of defendant's wit-
In a prosecution for murder, certain cross- examination held proper.-Long v. State (Tex. Cr. App.) 203.
In a prosecution for murder, held not an abuse of discretion to recall a state's witness and ask him if he was armed on the occa- sion of the shooting.-Upton v. State (Tex. Cr. App.) 212.
had pleaded guilty to a charge of assault with Where a witness admitted that he had plead- ed guilty to a common assault, it was proper to show, as affecting his credibility, that he intent to kill.-State v. Forsha (Mo. Sup.) 746.
tradict testimony of another witness. Fields v. Missouri Pac. Ry. Co. (Mo. App.) 134. Certain testimony held incompetent_to_con-
the trial prosecutrix stated that defendant raped her held error.-Nolen v. State (Tex. Cr. App.) In a prosecution for seduction, the limitation to contradiction alone of evidence that prior to
Leading questions should not be permitted, where witness understands English sufficiently to answer questions intelligently.-Craddick v.242. State (Tex. Cr. App.) 347.
In a criminal case, there was no error in re- quiring a witness for defendant to detail all the occupations and businesses which he had been following for several years.-Sexton v. State (Tex. Cr. App.) 348.
3. Credibility, impeachment, contra- diction, and corroboration. *Certain testimony held to contradict witness as to immaterial matter, and to be improper. -Hinson v. State (Ark.) 947.
*Impeachment of witness on collateral mat- ter held inadmissible.-Hot Springs St. Ry. Co. v. Bodeman (Ark.) 960.
In ejectment for a mining claim, certain affi- davits filed in United States Land Office held competent to impeach a witness who testified that only a small part of certain development work was applied on another claim than the one in question.-White River Min. & Nav. Co. v. Langston (Ark.) 971.
In a prosecution for homicide, defendant held not entitled to prove that one of the govern- ment witnesses was a "coke fiend," for the purpose of affecting her credibility.-Williams v. United States (Ind. T.) 334.
*Where a defendant in a criminal prosecu- tion testifies as a witness, the state has a right to attack his character for truthfulness; but in such case the court should instruct that the evidence is only to be considered for purposes of impeachment.-Newman v. Commonwealth (Ky.) 1089.
In a criminal prosecution, a question to an impeaching witness held improper.-Newman v. Commonwealth (Ky.) 1089.
In a prosecution for murder, it was improp- er for the prosecuting attorney, on examination of defendant, to ask him if it was not a fact that people generally talked about his being jealous of deceased.-Newman Commonwealth (Ky.) 1089.
unless the witness has testified to something injurious to the state.-Reyes v. State (Tex. Cr. App.) 245. The state cannot impeach its own witness,
his credibility.-Tally v. State (Tex. Cr. App.) On a prosecution for crime, evidence of de- fendant's intoxication is inadmissible to affect 339.
mit defendant to be asked, on cross-examina- In a criminal case, it was not error to per- to which he answered in the affirmative.-Sex- tion, if he had not been indicted for adultery two or three times in the county of the trial, ton v. State (Tex. Cr. App.) 348.
tain testimony of a witness, on cross-examina- tion, as tending to show her interest in the In a criminal case, held proper to admit cer- case.-Sexton v. State (Tex. Cr. App.) 348.
In a criminal case, held not error to permit a witness to testify that defendant was drink- ing a night he was at witness' house.-Sexton v. State (Tex. Cr. App.) 348.
testimony of his own witness, he cannot im- peach him.-Franklin v. State (Tex. Cr. App.) Where a defendant is not surprised by the 357.
of one of his witnesses upon the examining trial to impeach him, where it was substan- Defendant could not introduce the evidence tially the same as the verbal evidence of the witness.-Franklin v. State (Tex. Cr. App.) 357.
In a prosecution for murder, evidence that a witness for the state, whom the defendants had attempted to impeach, had made a state- ment out of court similar to his testimony on trial, held competent.-Franklin v. State (Tex. Cr. App.) 357.
WORK AND LABOR.
Counterclaim in action for work and materials, see "Set-off and Counterclaim," § 1.
* Point annotated. See syllabus.
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