Where both parties claim from a common
grantor, and plaintiff shows title under an exe-
cution sale, he is not also required to show de-
fendant's title, and the weakness of it. 27 S.
W. 426. reversed.-Simmons Hardware Co. v.
Davis (Tex. Sup.) 62.
Where defendant admits that the field notes
of the survey of plaintiff's land as set forth in
the complaint are correct, he cannot introduce
the surveyor's testimony that a certain rock
is not on the line of an adjoining survey, as
stated in the field notes.-Hartz v. Owen (Tex.
Civ. App.) 42.
Admissibility of field book of a deceased sur-
veyor to contradict testimony that certain marks
on a tree were made by such surveyor when he
laid off an adjoining survey.-Jackson v. Cable
(Tex. Civ. App.) 201.
The record of a previous suit which contains
nothing to indicate that the same parties were
concerned, and the same subject-matter liti-,
gated, is incompetent.-Jackson v. Cable (Tex.
Civ. App.) 201.
One who files a recorded paper three days
before trial, in order to introduce it in evidence,
as provided by Rev. St. art. 2257, is not con-
fined to such paper in proving his title, to the
exclusion of other evidence.-Hendricks v. Huff-
meyer (Tex. Civ. App.) 777.
A deed given to correct a former one is ad-
missible to prove title.-Curdy v. Stafford (Tex.
Civ. App.) 823.
Defendant, who claims the land under a com-
mon source, cannot show a superior outstand-
ing title in a third party.-Pfouts v. Thompson
(Tex. Civ. App.) 904.
Admissibility of evidence of title by limita-
tion, the parties having stipulated that the sole
issue was one of boundary, but reserving the
right to plead and prove the statute of limita-
tions as far as applicable. - Taylor v. Brown
(Tex. Civ. App.) 911.
Where plaintiffs allege H. to be their an-
cestor, testimony of heirship is admissible,
though title by inheritance is not pleaded.-
Hale v. Hensley (Tex. Civ. App.) 1033.
Where the grantor in a defective deed exe-
cutes and delivers a curative deed, the latter is
admissible in evidence in favor of those claim-
ing under it.-Carothers v. Covington (Tex. Civ.
App.) 1040.
The identity of parties to deeds may be
shown by circumstantial evidence in order to
enable defendants to plead stale demand.
French v. Koenig (Tex. Civ. App.) 1079.
See. also, "Appeal"; "Continuance"; "Evidence";
"Judgment"; "Jury"; "New Trial": "Plead-
ing"; "Practice in Civil Cases"; "Witness.'
Conduct of trial in criminal cases, see "Criminal
Law."
Where no objection is made to a witness'
competency, though all the facts are known at
the time, the testimony will not afterwards be
stricken out because relative to a transaction
with a decedent.-Hickman v. Green (Mo.) 440.
The admission of incompetent evidence is
harmless, where there was other competent ev-
idence sufficient to prove the question in issue.
-City of Dallas v. Miller (Tex. Civ. App.) 498.
Where plaintiff exhibits his injured leg to the
jury, the adverse party can have the leg exam-
ined by experts in open court. Haynes v.
Town of Trenton (Mo.) 622.
In an action for nondelivery of a telegram,
plaintiff cannot read to the jury reports of the
supreme court to show for what amounts judg-
ments have been found.-Western Union Tel.
Co. v. Teague (Tex. Civ. App.) 958.
Rulings on motions as to the pleadings must
be excepted to when made.-Wentzville Tobacco-
Co. v. Walker (Mo.) 639.
It is not an abuse of discretion for the court
to hold the jury together after they had de
clared a number of times that they cannot
agree.-Chesapeake & O. Ry. Co. v. Cowherd
(Ky.) 990.
Reception of evidence.
After both sides have closed, the court can
refuse new evidence.-Missouri, K. & T. Ry.
Co. of Texas v. Bless (Tex. Civ. App.) 219.
Where, before the conclusion of the argument
in a case tried without a jury, it is adjourned
for two weeks, a witness may be recalled, if
an opportunity is given to rebut his testimony.—
Reed v. Liston (Tex. Civ. App.) 913.
The order of the introduction of evidence is
in the discretion of the court.-Myers v. Mav-
erick (Tex. Civ. App.) 1083.
Arguments of counsel.
Case in which defendant was entitled to a
new trial, because the court gave plaintiff the
right to the closing argument, after having re
quired defendant to first introduce his evidence.
-O'Connor v. Henderson Bridge Co. (Ky.) 251;
Henderson Bridge Co. v. O'Connor, 1d.
In an action against a railroad company,
counsel must not travel outside the record to
refer to Jay Gould and "modern railroad eco-
nomics."-Williams v. St. Louis & S. F. Ry. Co.
(Mo.) 387.
Where an attorney read a decision, and
couples it with prejudicial remarks, unrebuked
by the court, the judgment will be reversed.-
Dillingham v. Wood (Tex. Civ. App.) 1074.
Instructions.
An instruction making the verdict depend on
the determination of one issue is erroneous, when
there are others which would render the de
cision in favor of one of the parties necessary.
-Feist v. Boothe (Tex. Civ. App.) 33.
Where a charge authorizes a verdict, irre-
spective of defendant's negligence, it is harm-
less if the evidence of negligence is conclusive.
Western Union Tel. Co. v. Motley (Tex. Sup.)
An instruction, though erroneous, if not cal-
culated to mislead the jury when construed with
the rest of the charge, is not ground for revers-
al.-Daniels v. Creekmore (Tex. Civ. App.) 148.
Sufficiency of request for charge to call the
court's attention to a failure to charge as to
the degree of care required of defendant rail-
road company.-Gulf, C. & S. F. Ry. Co. v.
Pendery (Tex. Civ. App.) 213.
Defendant cannot complain of an instruction
which he called for by a request for an instruc-
tion on that aspect of the case.-St. Louis & S.
F. Ry. Co. v. Dodd (Ark.) 227.
Where the petition alleges a partnership which
is not denied under oath, it is not error to as-
sume its existence.-Gulf, C. & S. F. Ry. Co.
v. Wilbanks (Tex. Civ. App.) 302.
It is error to charge that plaintiff must prove
his case to the "satisfaction" of the jury.-
Feist v. Boothe (Tex. Civ. App.) 33.
The fact that citations of reports were pen-
ciled on the instructions sent to the jury room
is not ground for a new trial, unless the jury
had the books in the room, or knew what the
cited cases decided.-Williams v. St. Louis & S.
F. Ry. Co. (Mo.) 387.
In an action for injuries from a defective
sidewalk, an instruction that, in determining
plaintiff's negligence, his familiarity with the Instructions-Objections.
sidewalk, the time of day, and the condition The fact that an instruction given at a former
of the weather should be considered, is argu- trial was not objected to on appeal does not es-
mentative, and on the weight of the evidence.top a party from objecting to the same instruc-
City of Bonham v. Crider (Tex. Civ. App.) 419. tion on another trial. -Haynes v. Town of
It is error to charge the jury to find for plain-Trenton (Mo.) 622.
tiff, if defendant was guilty of any negligence, An objection to instructions in gross can-
he being limited to that charged in the peti- not be considered, if any one of them is correct.
tion.-Dallas & O. C. El. Ry. Co. v. Harvey-Oxley Stave Co. v. Staggs (Ark.) 241.
(Tex. Civ. App.) 423.
Plaintiff's contributory negligence is properly
limited to that charged in the answer.-Dallas
& O. C. El. Ry. Co. v. Harvey (Tex. Civ. App.)
Where a petition in an action for personal
injuries sets forth four grounds of negligence,
it is error to single out one of these in the
charge to the jury.-Dallas & O. C. El. Ry.
Co. v. Harvey (Tex. Civ. App.) 423.
Where the testimony is irreconcilable it is not
error to charge that the jury may disregard the
testimony of any witness whom they believe had
sworn falsely.-Gerdes v. Christopher & Simp-
son Architectural Iron & Foundry Co. (Mo.) 615.
A charge on the weight of evidence is erro-
neous.-Galveston, H. & S. A. Ry. Co. v. Knippa
(Tex. Civ. App.) 730.
The court cannot enlarge the issues made by
the pleadings, or place before the jury issues
raised by irrelevant or impertinent testimony-
Houchin v. McClaugherty (Tex. Civ. App.) 774.
It is error to instruct a jury that they may
draw certain presumptions where there is no
evidence to support them.-Hendricks v. Huff-
meyer (Tex. Civ. App.) 777.
Instructions should be given only on the is-
sues presented by the pleadings, though evi-
dence as to other issues was introduced.-Gulf,
C. & S. F. Ry. Co. v. Scott (Tex. Civ. App.)
827.
Duty of court to assume in its instructions a
fact which was undisputed.-Texas & P. Ry.
Co. v. Moore (Tex. Civ. App.) 962.
In an instruction to find for plaintiff if de-
fendant "had cause to believe," the latter words
mean reasonable grounds to believe.-Louis-
ville & N. R. Co. v. Popp (Ky.) 992.
In determining whether plaintiff is entitled
to have his case submitted to the jury, he should
have the benefit of every reasonable inference
from the evidence.-Ryan v. McCully (Mo.) 533.
- Requests to charge.
The court need not instruct as to any ques-
tions when not requested.-Browning v. Wa-
bash Western Ry. Co. (Mo.) 644.
In the absence of requests for charges which
give a correct and full measure of damages,
a charge that the jury may give such damages
as they think proportioned to the injury re-
sulting from the death of plaintiff's husband is
sufficient.-Galveston, H. & S. A. Ry. Co. v.
Worthy (Tex. Civ. App.) 426.
It is not error to fail to instruct on issues
when no instructions are asked.-Mills v. Haas
(Tex. Civ. App.) 263.
A general objection to the giving of several
instructions will not be considered if any one of
them is good.-Fordyce v. Russell (Ark.) 82.
TROVER AND CONVERSION.
Action by mortgagee, see "Chattel Mortgages."
Where a person to whom cotton has been
taken to be ginned refuses to allow the owner
to take it away until he pays the bill of a third
person, it is a conversion.-Hearn v. Bitterman
(Tex. Civ. App.) 158.
the conversion of a note, which defendant prom-
Evidence and burden of proof in action for
ised to deliver to plaintiff when a certain other
note was paid.-Rash v. Dillon (Tex. Civ. App.)
The measure of the damages is the market
value at the time of the conversion, with inter-
est.-Smith v. Bates (Tex. Civ. App.) 1044.
Sufficiency of petition asking to have defend-
ant declared a trustee for plaintiff as to cer-
tain property, it alleging that he bought her
equity of redemption at a mortgage sale there-
of at her request, but refused to convey to her.
-Leahey v. Witte (Mo.) 402.
No resulting trust arises in an officer's fees
in favor of one paying for official acts.-Wil-
liams v. Ford (Tex. Civ. App.) 723.
The insolvency of a corporation does not trans-
form its assets into a trust fund for the cred-
itors.-Alberger v. National Bank of Commerce
(Mo.) 657.
A trust deed considered, and held to create an
executed dry trust, and vest in the cestui que
trust an equitable fee.-Cornwell v. Orton (Mo.)
536.
Where land is patented to one in trust, with-
out setting out the nature thereof, he holds as
a naked trustee.-Brown v. Harris (Tex. Civ.
App.) 45.
A gift to a son-in-law, of land, in considera-
tion of the grantor's affection for his daughter,
does not create a trust in favor of the daugh-
ter or her heirs.-Higbee v. Higbee (Mo.) 619.
Where land is patented to one in trust, the
nature of which is not determined, the trustee
cannot convey the legal title without the con-
sent of the beneficiary.-Brown v. Harris (Tex.
Civ. App.) 45.
The failure of the court to submit certain is- See "Custom and Usage."
sues to the jury cannot, in the absence of a re-
quest for such charge, be complained of on mo-
tion for new trial.-Lary v. Young (Tex. Civ.
App.) 908.
Failure to submit to the jury the question
whether the person injured was guilty of con-
tributory negligence is not ground for reversal,
where no charge submitting such issue is re-
quested.-Gulf, C. & S. F. Ry. Co. v. Pendery
(Tex. Civ. App.) 213.
Failure to charge on certain issues is not er-
ror if no charge is requested.-Johnson v. White
(Tex. Civ. App.) 174.
What law governs, see "Conflict of Laws."
A stipulation for more than the legal rate of
interest, in consideration for credit given on a
sale of goods, does not render the contract
usurious.-First Nat. Bank v. Mann (Tenn.)
An agreement for a credit of $33.33 for the
use of $100 for one month is void as usurious.-
Wagner v. Jennings (Tex. Civ. App.) 888.
Question whether an agreement by a borrower | quire for him, which he failed to do.-Doughty to employ the lender as broker to sell his cot- v. Cottraux (Tex. Civ. App.) 914. ton, and to pay him a certain commission, can be considered as a subterfuge for avoiding the usury law, the commission agreed to be paid being the usual charge, and the lender being a regular broker.-Blackburn v. Hayes (Ark.) 240.
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VENDOR AND PURCHASER.
See, also, "Deed"; "Frauds. Statute of"; "Fraudulent Conveyances"; "Sale"; "Specific Performance."
On default in installments of the price, the vendor may elect to recover the land, or sue for the balance due.-Hood v. People's Bldg. & Sav. Ass'n (Tex. Civ. App.) 1046.
A judgment for a vendor for the recovery of land will not be reversed, where more than half the price was unpaid, because the contract provided for usurious interest.-Hood v. People's Bldg. & Sav. Ass'n (Tex. Civ. App.) 1046."
Where one in possession of land under a contract of sale agreed to surrender it on nonpayment of the purchase notes, the fact that he afterwards placed revenue stamps on the notes, at
the instance of the holder of them, does not show an abrogation of the agreement to surrender.-Walker v. Cole (Tex. Civ. App.) 882. In an action to recover land in possession of defendant under contract of sale, evidence that he had converted timber of great value is admissible to offset a claim for improvements made by him.-Walker v. Cole (Tex. Civ. App.) 82.
The grantee of one to whom defendant in possession under a contract of sale agreed to surrender the land on default in payment of the price, may, on such default, rescind the contract of sale.-Walker v. Cole (Tex. Civ. App.) 882.
Where an interest in a water ditch is conveyed with lands, and the grantor has no title to the ditch, an abatement in the price will be allowed.-Blanks v. Ripley (Tex. Civ. App.) 732. Where a grantee enters under a deed, relying on a warranty of title therein, he cannot, in the absence of fraud, on purchasing a paramount title, rescind the sale and recover the price.-Lamb v. James (Tex. Civ. App.) 178.
Where the purchaser shows no excuse for default in payments, and does not tender the amount due, seller may forfeit the land.-Pell v. Chandos (Tex. Civ. App.) 48.
Where on default the purchaser does not offer in an action by the vendor to recover the land to pay the sum due, the tender in open court, after the closing of the argument, is properly refused.-Pell v. Chandos (Tex. Civ. App.) 48. Where a purchaser defaults in monthly installments, the vendor may declare a forfeiture, and sue to recover the land.-Pell v. Chandos (Tex. Civ. App.) 48.
In an action for the price of land, the reason why the grantor did not acquire an individual interest as agreed is immaterial. - Doughty v. Cottraux (Tex. Civ. App.) 914.
Action for purchase price of land, in which defendant could set off the value of an outstanding interest, which plaintiff had agreed to ac
The assignment of a promissory note secured by a vendor's lien must, in order to charge a subsequent mortgagee with notice thereof, be recorded.-Patterson v. Tuttle (Tex. Civ. App.) 758.
A vendor's lien is ineffective against a subsequent mortgage unless recorded.-Moran v. Wheeler (Tex. Sup.) 54.
The vendor's lien on land sold by an administrator is not lost by reason of a failure to take a mortgage, or to recite such failure in the deed, if the lien is acknowledged in the purchase-money note.-Cundiff v. Corley (Tex. Civ. App.) 167.
Where one note is taken on the sale of several parcels sold separately, the note reciting that it is "a lien and mortgage" on the lands, there is a lien on each tract for merely the price of such tract.-Cundiff v. Corley (Tex. Civ. App.) 167.
A vendor having a lien may pay delinquent taxes, and recover them as a part of the lien debt.-Brown v. Brown (Mo.) 552.
One who in good faith acquires property without notice of notes secured by vendor's lien thereon is not affected thereby, there being nothing in the notes or the deed to his vendor to indicate the reservation of a vendor's lien.-Taylor v. Callaway (Tex. Civ. App.) 934. Bona fide purchasers.
Evidence bearing on question whether certain persons were bona fide purchasers of certain land.-Jackson v. Waldstein (Tex. Civ. App.) 26.
That a purchaser of a land certificate had no actual knowledge of a prior title does not make him a bona fide purchaser.-Jackson v. Waldstein (Tex. Civ. Ápp.) 26.
A purchaser of a land certificate, who takes it for an antecedent debt, is not a bona fide purchaser.-Jackson v. Waldstein (Tex. Civ. App.) 26.
Evidence examined, and held that the purchaser could not be charged with notice of an unrecorded deed.-Hickman v. Green (Mo.) 440.
Notice to an agent employed to exchange land of an unrecorded deed is not notice to his principal, when the agent is not employed to examine title.-Hickman v. Green (Mo.) 440.
A creditor who takes a mortgage from his debtor holding a legal title to the land is a bona fide purchaser as against the holder of the equitable title.-Watts v. Corner (Tex. Civ. App.) 1087.
In criminal cases, see "Criminal Law."
The maker of a note cannot claim the right to be sued in the county of his residence, if suit is brought in the county of the residence of his codefendant, an indorser. Williams v. City Nat. Bank (Tex. Civ. App.) 147.
Venue of an action by a resident of the state against a railroad company for injuries received in another state. Chesapeake & O. Ry. Co. v. Cowherd (Ky.) 990.
The law in force when an action is instituted controls in determining venue.-Baines v. Jemison (Tex. Civ. App.) 182.
Venue of suit brought against the county for contribution for indebtedness due another county from which it was formed.—Ball v. Presidio County (Tex. Civ. App.) 702.
See, also, "Executors and Administrators."
The proponents of a holographic will are not
incompetent witnesses as to whether the will
is in testator's handwriting, under Rev. St. art.
2248.-Martin v. McAdams (Tex. Sup.) 255.
The proponents of a will are competent wit-
nesses in their own behalf, under Rev. St. art.
2246.-Martin v. McAdams (Tex. Sup.) 255.
Unreasonable and unnatural provisions in a
will may be shown to prove mental incapacity.
-Newcomb's Ex'rs v. Newcomb (Ky.) 997.
A testator who knew his family and his es-
tate, and could dispose of the same in a rational
manner, was of a sound disposing mind.-New-
comb's Ex'rs v. Newcomb (Ky.) 997.
A nonexpert can testify as to the capacity of
a testator.-Newcomb's Ex'rs v. Newcomb (Ky.)
Sufficiency of evidence to establish a prima
facie case from which the jury might infer that
an instrument signed by another than the testa-
tor was in fact executed by him as a will.-Wal-
ton v. Kendrick (Mo.) 872.
Declarations of a testator, after the execution
of his will, as to the manner in which it was
signed, are admissible to establish its execution.
-Walton v. Kendrick (Mo.) 872.
Construction of will as to whether it forbade
the partition of a certain lot at the instance of
the life tenant and one of the remainder-men.-
Sikemeier v. Galvin (Mo.) 551.
Where testator devised property to his wife
for life, or while unmarried, with remainder to
his son, on the death or marriage of the mother,
and provided that if the son die before ma-
turity, and the wife should remarry before such
death, the property should go to others, and the
son died before maturity, and before the re-
marriage of the mother, the latter became the
owner in fee.-McGurry v. Wall (Mo.) 327.
A homestead will not pass under a clause of
a will devising all the testator's "mixed prop-
erty," though not
Schorr v. Etling (Mo.) 395.
Question whether property conveyed to two
sons of testator in fraud of the marital rights
of his wife should bear the whole loss to the
estate resulting from a grant to the wife by
the court of her distributive share in the whole
estate, including such property, in order to en-
able the estate to pay the legacy to another
son. Murray v. Murray (Ky.) 977.
Where a testator devised his property to his
wife, adding, "If she thinks it advisable she can
sell and convey the right of the land," and lim-
its over what remains at her death, the wife
takes an absolute estate.-Bradley v. Carnes
(Tenn.) 1007.
Requiring sole legatee to "pay out of the pro-
ceeds of the property, real and personal," cer-
tain annuities, does not make legatee personally
liable.-Hunkypillar v. Harrison (Ark.) 1004.
Evidence to show acceptance of devise char-
ged with payment of legacies.-Hunkypillar v.
Harrison (Ark.) 1004.
See, also, "Deposition"; "Evidence."
On probate of will, see "Wills."
Where two persons are charged with the same
murder, and no conspiracy is shown, the wife
of one is a competent witness for the other.-
Gill v. State (Ark.) 598.
Defendant's wife may testify as to the in-
jury threatened and admitted by her husband.
-State v. Pennington (Mo.) 1106.
Where, pending trial, defendant becomes in-
sane, plaintiff cannot testify as to conversa-
tions or transactions with him.-Hamilton v.
Starr (Tex. Civ. App.) 587.
A witness may refresh his memory from a
memorandum known to be correct, but made
by another person.-Bowden v. Spellman (Ark.)
The purpose of impeaching testimony is to
warrant the jury to reject the testimony be-
cause not probably true.-Cline v. State (Tex.
Cr. App.) 128.
Defendant cannot be asked, for the purpose
of impeaching him as a witness, if he was not
convicted of the offense for which he is on trial
at a former trial.-Richardson v. State (Tex.
Cr. App.) 139.
Where an indictment against one jointly in-
dicted is dismissed, that he may testify for the
state, the fact should be considered in determin-
ing his credibility.-Gill v. State (Ark.) 598.
Where prosecutrix, in a trial for slander in
imputing unchastity, testifies on direct examina-
tion that she had not been guilty with any one,
defendant could not show the contrary for pur-
pose of impeachment.-McArthur v. State (Ark.)
628.
The state by attempting, in cross-examining
a witness, to show something not referred to
in his direct examination makes the witness
her own, and cannot discredit him.-Shackel-
ford v. State (Tex. Cr. App.) 8.
The veracity of a witness cannot be impeached by evidence of specific past delinquencies.State v. Gesell (Mo.) 1101.
See, also "Attachment"; "Certiorari"; "Execution"; "Garnishment"; "Injunction."
A summons may be served upon the general passenger agent of a railway company when he is the only agent of the corporation residing in the county in which the action is brought.Chesapeake & O. Ry. Co. v. Cowherd (Ky.) 990. Service by plaintiff's attorney is void.-Rutherford v. Moody (Ark.) 230.
Validity on collateral attack of order of publication granted on the unsworn statement of an attorney.-Cruzen v. Stephens (Mo.) 557.
The decision in Haywood v. Russell, 44 Mo. 252, as to time of publication of notices, followed.-Cruzen v. Stephens (Mo.) 557.
Surplusage in an order of publication does not vitiate it.-Cruzen v. Stephens (Mo.) 557. Sufficiency of service of process by publication Fisher, addressed to "Etta R. Fisher and her husband."-Cruzen v. Stephens (Mo.) 557. Admissibility of oral evidence to impeach servwas not "satisfied that process cannot be service by publication, by showing that the court ed."-Cruzen v. Stephens (Mo.) 557.
A return of a writ by a sheriff as served by defendant, a true copy," is insufficient.-Ran"delivering to R., H., and S., the within named dolph v. Schwingle (Tex. Civ. App.) 955. A return may be amended to show that an amended, and not the original, petition was served on defendant.-Canadian & American Mortgage Trust Co. v. Kyser (Tex. Civ. App.) 280.
Wrongful Attachment.
See "Attachment."
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