Instructions excluding from consideration of jury material issues based on evidence held erroneous. Knapp v. Chicago, K. & N. R. Co. (Neb.) 656.

A court may not give an instruction assuming existence of facts where the evidence is conflict

ing, and submit question of existence to jury. -Morton v. Harvey (Neb.) 808.

Where court has given instruction assuming existence of certain facts as to which the evi

dence is conflicting, further instruction that jury should not be affected by the instruction does not cure the error.-Morton v. Harvey (Neb.)

808.

An instruction held to involve a misdirection, and not a mere omission.-Dinnie v. Johnson (N. D.) 612.

An instruction that the jury must be convinced of the truth of defendants' claim by a preponderance of the evidence, before they can find in their favor, held proper where defendants had the burden.-Kuenster v. Woodhouse (Wis.) 165.

A charge correct in itself as far as it goes is not erroneous by reason of its omission to instruct on a point which might properly have been the subject of an instruction, but in relation to which none was asked.-National Bank of Merrill v. Illinois & W. Lumber Co. (Wis.) 185.

It is not error to refuse to give an instruction whose substance has already been given.-National Bank of Merrill v. Illinois & W. Lumber Co. (Wis.) 185.

A submission of three questions in one to the jury, as a special verdict, held error.-Dugal v. City of Chippewa Falls (Wis.) 878.

It is not error to refuse interrogatories the answer to which cannot affect the general verdict.-Nodle v. Hawthorne (Iowa) 1062.

A verdict held not void for coercion and restraint of the jury by an instruction of the court.-Stevenson v. Detroit & M. Ry. Co. (Mich.) 247.

Under Gen. St. 1894. § 5380, permitting jury to return special verdict held discretionary.Morrow v. St. Paul City Ry. Co. (Minn.) 303. Request for special finding held not covered by one granted.-Rudiger v. Chicago, St. P., M. & O. Ry. Co. (Wis.) 169.

A court need not require a special finding by jury as to fact which it has right to assume.-Rudiger v. Chicago, St. P., M. & O. Ry. Co. (Wis.) 169.

In accident case, held error to refuse defendant's request to submit certain questions as to physical facts directly put in issue by the pleadings, within Rev. St. § 2858.-Lee v. Chicago, St. P., M. & O. Ry. Co. (Wis.) 714. § 7. Trial by court.

TROVER AND CONVERSION.

§ 1. Acts constituting conversion, and liability therefor.

Where, after a levy of execution, defendant takes forcible possession from custodian, levying officer may bring action for trover.-Vanosdall v. Hamilton (Mich.) 9.

In trover by owner of crop raised on shares against third person for conversion of the crop. held, that there had been no division, and that the share of such owner had been unlawfully converted.-Avery v. Stewart (Minn.) 560.

TRUSTEE PROCESS.

See "Garnishment."

TRUSTS.

Conveyances in trust for creditors, see “Assignments for Benefit of Creditors.' Secret trusts, see "Fraudulent Conveyances," § 1. Trust deeds, see "Chattel Mortgages."

8 1. Creation, existence, and validity. A trust held not to result where the husband purchased property with the wife's funds.Shupe v. Bartlett (Iowa) 455.

Facts held not to constitute a constructive trust in favor of a wife against a husband.Shupe v. Bartlett (Iowa) 455.

An assignee held not bound to account for a loan to his assignor as a trust fund belonging to the wife of the lender in the hands of his assignor.-Jewell v. Clay (Iowa) 511.

Where two advanced the price of land, and the deed was taken in the name of one. a resulting trust will not arise, where the sum furnished by each is not proved.—Culp v. Price (Iowa) 848.

Code 1873, § 1934, requiring trusts in real property to be created in writing, does not apply to trusts resulting by operation of law.-Culp v. Price (Iowa) 848.

Evidence held not sufficient to show that land purchased in the name of a son was in fact paid for by the father, in order to raise a resulting trust.-Culp v. Price (Iowa) 848.

Land purchased and paid for by a father, but the title to which was taken in the name of his son, will be in trust for the father, unless intended as an advancement.-Culp v. Price (Iowa) 848.

Under Revision 1860, § 2213, receipt for money subsequently invested in land held to create no trust therein, where not executed in the same manner as a deed of conveyance.-Cornelison v. Roberts (Iowa) 1028.

The fact that a husband, jointly bound with his wife to furnish the consideration for a conveyance, furnished more than his share, on the wife becoming incompetent, held not to create a resulting trust in his favor.-Burkhardt v. Burkhardt (Iowa) 1069.

§ 8. Waiver and correction of irregularities and errors.

Error in admitting evidence held cured by striking it out and directing jury to disregard it.-Boyce v. Barker (Mich.) 692.

Misconduct of a juror is waived where the party, with knowledge of it, awaits the result

Where land is conveyed by deed of warranty, a contemporaneous parol agreement that grantee should have a half interest, and on sale of land pay grantor half the proceeds, was unenforceable.-Cameron v. Nelson (Neb.) 771.

Where trust in land was void because not in writing, a promise to pay half of the proceeds, being dependent on the trust, could not be enforced.-Cameron v. Nelson (Neb.) 771.

To create a trust fund out of which trustee may make disbursements, the trustor must

have some right to, or interest in, the fund.-] Fisher v. Donovan (Neb.) 778.

A member of a benefit association has no such interest in the proceeds of a certificate therein that he can create a trust in favor of his creditors.-Fisher v. Donovan (Neb.) 778.

Holder of sheriff's certificate of sale by fraud, preventing owner from redeeming and taking sheriff's deed, held an involuntary trustee, under Rev. Codes. § 4263.-Prondzinski v. Garbutt (N. D.) 1012.

Rev. St. §§ 2071-2077, abolishing uses and trusts, held not to apply to conveyances of a partner's interest to the firm, induced by fraud. -Weirich v. Dodge (Wis.) 906.

§ 2. Establishment and enforcement of trust.

Evidence in action to establish resulting trust in land held insufficient.-Cornelison v. Roberts (Iowa) 1028.

Where trustee under trust deed with power to sell at foreclosure bids in trust property in his own name for the use of beneficiaries, with their consent. he is not liable to account for the money for which the property was bid in. -Mareck v. Minneapolis Trust Co. (Minn.) 428. Bill for an accounting against a trustee held to state facts sufficient to constitute a cause of action.-Floberg v. Joslin (Minn.) 557.

Owner of trust property held not entitled to preference over general creditors of insolvent trustee.-Morrison v. Lincoln Savings Bank & Safe-Deposit Co. (Neb.) 655.

§ 3. Liabilities on trustees' bonds.

The county has no power to discharge surety on trustee's bond by taking new bond with other sureties.-Richter v. Leiby's Estate (Wis.) 745.

Evidence held to establish jurisdiction of county court to appoint trustee.-Richter v. Leiby's Estate (Wis.) 745.

tions. Payment by the borrower of the lender's necessary expenses in making the loan, in addition to legal interest, does not constitute usury. Iowa Savings & Loan Ass'n v. Heidt (Iowa) 1050.

Where interest allowed by law at place of performance of contract is higher than that of the place of delivery, the parties may stipulate for a higher rate, without incurring the penalties of usury.-Ames v. Benjamin (Minn.) 230.

Evidence held insufficient to show attempt to evade the usury law. Ames v. Benjamin (Minn.) 230.

Plea of usury in contract evidenced by note in suit held sufficient against attack by demurrer during trial.-First Nat. Bank v. Pennington (Neb.) 1084.

VACATION.

Of courts, see "Courts," § 2.
Of highways, see "Highways," § 1.

Vacating particular proceedings. Of judgment, see "Judgment," §§ 3, 7. Sale on execution, see "Execution," § 5.

§ 1.

Construction and operation of contract.

A contract held not to be a lease, but a land contract.-Jackson v. Phillips (Neb.) 683.

Contract for sale of real estate construed. and held to give an option for its purchase. and that failure of the purchaser to make payments specified gave seller no cause of action.-Darr v. Mummert (Neb.) 767.

§ 2. Modification or rescission of contract.

Where a purchaser refuses to make payments as agreed, and refuses to vacate, he affirms the contract, and cannot recover back payments already made, for defects in title.-Corbett v. Schulte (Mich.) 947.

83.

Rights and liabilities of parties. A husband jointly bound with his wife, to whom property had been conveyed to furnish the consideration, held not entitled to the whole property because he furnished more than his share.-Burkhardt v. Burkhardt (Iowa) 1069.

Facts held sufficient notice of occupation under a contract for the removal of timber to put a reasonably prudent purchaser of the land on inquiry.-Oconto Co. v. Lundquist (Mich.) 950.

Where surety on bond of receiver knew all the facts relating to an illegal sale of land. and thereafter purchased the same, he stood in the place of the receiver, and was not a bona fide purchaser.-Donahue V. Quackenbush .(Minn.) 430.

One purchasing land in possession of a third person, under written contract with a vendor. assumes the obligations of such contract.-Murphey v. Illinois Trust & Savings Bank (Neb.) 1102.

Where contract between occupant of land sold and vendor that the latter should pay for improvements made by occupant rests in parol purchaser is not bound, if without notice.-Murphey v. Illinois Trust & Savings Bank (Neb.) 1102.

A purchaser held charged with notice of an unrecorded agreement referred to in a deed and given in consideration of it.-Town v. Gensch (Wis.) 893.

§ 4. Remedies of vendor.

defendant seeks to recoup his damage for plainWhere, in an action for the price of land. tiff's fraudulent representations as to value. defendant is not estopped from setting up the fraud by the fact that he received the deed and paid part of the price with knowledge of the fraud.-Morman v. Harrington (Mich.) 242.

Evidence held sufficient to warrant submitting to the jury the question of vendor's fraud in inducing the sale.-Morman v. Harrington (Mich.) 242.

In an action for the price of land to which the defense was vendor's fraudulent representations as to value, it was not error to permit defendant to ask plaintiff what he paid for the land.-Morman v. Harrington (Mich.) 242.

An elevator company held an innocent bailee of wheat belonging to another person than the one that deposited it.-Towne v. St. Anthony & D. Elevator Co. (N. D.) 608.

wheat by an elevator company held the value The measure of damages for conversion of at the time of demand, and not at the time it received the wheat from a person other than the owner.-Towne v. St. Anthony & D. Ele

VENUE.

§ 1. Nature or subject of action. Gen. Laws 1885, c. 169, providing that certain actions relating to realty shall be brought in the county where the subject is situated. else the court shall have no jurisdiction, was not impliedly repealed by Gen. Laws 1895, c. 28. amending Gen. St. 1894, § 5188.-Kretzschmar v. Meehan (Minn.) 41.

§ 2. Domicile or residence of parties. In determining whether action is properly brought against defendant served in a certain county, so that other defendants may be served therein, the question is whether he is a bona fide defendant, and whether his interest is adverse to plaintiff.-Barry v. Wachosky (Neb.) 1080. $ 3. Change of venue or place of trial. A district court cannot, on its own motion, transfer a cause for trial from one county to another.-Lefferts v. Bell (Neb.) 680.

Defendant warehouse company issuing receipt conditioned that property should be at risk of owner as to loss from certain causes held not to exempt the warehouseman from liability for damages caused by its own negligence.-Minnesota Butter & Cheese Co. v. St. Paul ColdStorage Warehouse Co. (Minn.) 977.

WARRANTY.

On sale of goods, see "Sales," § 6.

WATERS AND WATER COURSES. § 1. Natural water courses.

A riparian owner on a stream navigable only for the purpose of floating logs has an appurtenant right to build a dam, provided it does not obstruct the floating of logs.-Kretzschmar v. Meehan (Minn.) 41.

Defendant held to have no right to construct booms in the Mississippi river, the effect of which would be to produce log jams, causing the water to overflow riparian lands above high-water mark.-Gravel v. Little Falls Imp. & Nav. Co. (Minn.) 217.

§ 2. Conveyances and contracts.

Conveyance by a riparian owner of right to erect booms construed, and held to give grantee the right to overflow grantor's land so far as was necessary to enjoy the grant.-Gravel v. Little Falls Imp. & Nav. Co. (Minn.) 217.

§ 3. Public water supply.

Waterworks company operating under franchise from city in distributing water held not responsible as a warrantor of the purity of the water distributed.-Green v. Ashland WaterCo. (Wis.) 722.

Knowledge of impurities in water furnished by water company held to preclude recovery by consumer injured by its use.-Green v. Ashland Water Co. (Wis.) 722.

A waterworks company knowing of impurities in the water furnished customers, and failing to notify them of the danger, held liable to a customer injured thereby without contributory negligence.-Green v. Ashland Water Co. (Wis.)

722.

Use of water furnished by water company, with knowledge of its impurities, held to preclude recovery by person injured thereby.Green v. Ashland Water Co. (Wis.) 722.

WAYS.

|Private rights of way, see "Easements." Public ways, see "Highways."

WEIGHTS AND MEASURES.

Gen. St. 1894, § 7675, making action of weighmaster in weighing wheat conclusive, held not constitutional, but the weighing can be impeached only where party complaining was free from fault.-Vega S. S. Co. v. Consolidated Elevator Co. (Minn.) 973.

WELLS.

WIDOWS.

Rights under statutes of descent and distribution, see "Descent and Distribution," § 1.