1153

TOWNS.

46(1) (Wis.) St. 1915, § 776, giving electors
of town authority to vote to raise money for re-
pair and building of roads or bridges, or either,
and for support of poor, and defraying all other
charges and expenses of town, does not con-
template expenditure of town money for drain-
age system,-Town of Humboldt v. Schoen, 163
N. W. 177.

Series No. 548.-McHenry County v. Brady,
163 N. W. 540.

TRESPASS.

See Animals, 95, 100; Injunction, 48.
I. ACTS

CONSTITUTING TRESPASS
AND LIABILITY THEREFOR.

10 (Mich.) That there may be in privately
owned pond fish which are not private proper-
ty and that state may control fishing therein,
does not justify trespass by one who enters pond
without license from owner for purpose of fish-
ing.-Winans v. Willetts, 163 N. W. 993.

(Mich.) One who enters privately owned
pond without license from owner to fish there-
in, is trespasser, whether or not he enters prem-
ises from highway.-Winans v. Willetts, 163 N.
W. 993.

TRESPASS TO TRY TITLE.

61 (S.D.) A taxpayer may restrain unau- See Ejectment.
thorized expenditures of public money.-Swen-
son v. Split Rock Civil Tp., 163 N. W. 563.

In taxpayer's action to restrain township
from expending money for establishing high-
ways along section lines as shown by resurvey,
the other landowners should be made parties
upon defendants' request that true location of
lines may be established in manner binding up-
on all interested.-Id.

In taxpayer's action to restrain township of-
ficials from expending moneys for establishment
of highways on section lines as shown by re-
survey and involving boundary of various
farms, only owners of such lands need be
joined, and lienholders are not necessary par-
ties.-Id.

TRACTION ENGINE.

See Exemptions, 45.

TRADE FIXTURES.

See Fixtures, 15.

TRANSCRIPTS.

See Costs, 256; Criminal Law, 1120.

TRANSFER OF CAUSES.

See Appeal and Error, 353, 418.

TRANSPORTATION.

See Intoxicating Liquors, 138.

TREASURERS.

See Corporations, 301.

See Aliens,

TREATIES.

13.

TRIAL.

See Continuance; Costs; Criminal Law,
629-864; Jury; New Trial; Venue.
For trial of particular actions or proceedings,
see also the various specific topics.
For review of rulings at trial, see Appeal and

Error.

I. NOTICE OF TRIAL AND PRELIMI-
NARY PROCEEDINGS.

4 (Iowa) Where in conversion, no objection
was made under Code, § 3749, to a motion to
try an equitable issue first, an objection two
months afterwards as to the time of filing a
cross-petition, and that such issue was not one
not triable in the law action, held insufficient.
-Duffy v. Hardy Auto Co., 163 N. W. 370.

· Where defendant has failed to object in time
to a foreclosure of a common-law lien on the
trial of an equitable issue, he cannot present
the question on the trial.-Id.

III. COURSE AND CONDUCT OF
TRIAL IN GENERAL.

28(2) (N.D.) Refusal to permit jury to in-
spect premises held not an abuse of discretion
in view of the length of time which had elapsed
since the accident.-Chambers v. Minneapolis,
St. P. & S. S. M. Ry. Co., 163 N. W. 824.

IV. RECEPTION OF EVIDENCE.
(A) Introduction, Offer, and Admission of
Evidence in General.

42 (Mich.) Where it was shown that witness
to execution of will resided out of state and she
had testified in probate court, and no real issue
was made as to execution of will, there was no
error in failing to require that such witness
be produced.-In re Walsh's Estate, 163 N. W.
70.

(B) Order of Proof, Rebuttal, and
opening Case.

Re-

2 (N.D.) Const. U. S. art. 1, § 10, cl. 1,
forbidding a state to enter into treaty, etc., was
not violated by obtaining consent of authorities
of another state or nation to construction of 62(2) (Mich.) In a suit on benefit policy
drain for surface waters which otherwise would in which defendant's witness testified to state-
be allowed to flow across national boundary.-ments of deceased, both that a criminal abortion
McHenry County v. Brady, 163 N. W. 540. had been performed and of a "miscarriage"
7 (Neb.) Treaties should be construed liber-caused by work, rebuttal evidence to show
ally in order that justice may be done to citizens improbability of criminal abortion on date fixed
or subjects of the treaty parties.-Fischer v. held properly admitted.-Gilchrist v. Mystic
Sklenar, 163 N. W. 861.
Workers of the World, 163 N. W. 10.

(N.D.) Action of drain commissioners of
two counties in securing outlet in Manitoba (C) Objections, Motions to Strike Out, and
Exceptions.
for drain constructed under Rev. Codes 1905,

§§ 1821, 1822, as amended by Laws 1907, c. 93,75 (Iowa) Party cannot permit testimony to
and in obtaining license from municipality in be given by one or more witnesses without ob-
that province, did not violate treaty between jection, and then insist that same proof by
United States and Canada known as Treaty another competent witness is incompetent.-

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

Stutsman v. Des Moines City Ry. Co., 163 N.
W. 580.

133(2) (Mich.) In action for injuries sus-
tained in automobile collision, plaintiff's coun-
sel's question to juror, on voir dire, whether he
represented an insurance company, was not re-
versible error, being sufficiently cured by re-
marks of court.-Snyder v. Mathison, 163 N. W.
104.

75 (Minn.) Defendant, who had called out
conversations between a third party and plain-
tiff's president, could not be heard to object to
whole of conversations.-George Gorton Ma-
chine Co. v. Grignon, 163 N. W. 748.
76 (Iowa) Objection to testimony of defend-133(6) (Neb.) Aggravated
ant's witness of rental value of farm, made only
after other witnesses had testified and defendant
had rested, and containing a motion to direct
verdict, and consisting of motion to strike, on
the ground that witness' cross-examination dis-
closed he had not sufficient knowledge, is too
late.-Franke v. Kelsheimer, 163 N. W. 239.

79 (Iowa) Where objection has once been
made in proper and timely way, it is not waived
by failing to repeat objection each time similar
evidence is offered.-Stutsman v. Des Moines
City Ry. Co., 163 N. W. 580.

82 (Iowa) If testimony was competent and
material for any purpose, there was no error in
overruling general objection thereto.-Stuts-
man v. Des Moines City Ry. Co., 163 N. W.

580.

misconduct of

counsel, in stating prejudicial facts outside of
the record and in urging a disregard of the law,
require reversal of judgment for his client, not-
withstanding court's reprimand and direction
that jury base their findings on evidence and in-
structions.-Hansen v. Mallett, 163 N. W. 145.

VI. TAKING CASE OR QUESTION
FROM JURY.

(A) Questions of Law or of Fact in Gen-

eral.

139(1) (Minn.) The trial judge will not be
required to submit a case to the jury if but
one verdict could be allowed to stand.-Baxter
v. Brandenburg, 163 N. W. 516.

140(1) (Mich.) Though portions of witness'
testimony were inconsistent with one of his an-
swers, jury must determine what credit should
Co. v. Sewell Cushion Wheel Co., 163 N. W. 5.
be given his testimony.-B. F. Goodrich Rubber

92 (Mich.) Where plaintiff fully cross-ex-
amined defendant's expert witness after testi-
mony was received without objection by plain-
tiff, refusal to strike witness' testimony on plain-142 (Wis.) If there is any credible evidence
tiff's motion was proper.-B. F. Goodrich Rub- from which reasonable inferences may be drawn
ber Co. v. Sewell Cushion Wheel Co., 163 N. in support of the claim of either party, the
W. 5.
court cannot decide the controversy as a matter
of law. Reul v. Wisconsin Northwestern Ry.
Co., 163 N. W. 189.

V. ARGUMENTS AND CONDUCT OF
COUNSEL.

(D) Direction of Verdict.

1082 (Minn.) In action for injury when 169 (Neb.) The court should instruct to find
struck by defendant's automobile, there was for defendant when evidence is not sufficient to
no error in permitting plaintiff's counsel before sustain verdict for plaintiff.-Pollock v. Pear-
the jury was impaneled, but in the presence of son, 163 N. W. 329.
the jurymen, to examine defendant as to wheth-173 (Iowa) In an action for negligence
er he carried liability insurance.-Archer v.
Skahen, 163 N. W. 784.

114 (Mich.) Statement by counsel in argu-
ment of an undisputed fact is not objectionable.
-Paul v. De Carrie, 163 N. W. 67.

114 (Mich.) In action against railroad for
injuries at a highway crossing, argument of
counsel on extent of injuries, possible remedies,
negligence, and measure of damages, held im-
proper.-Daly v. Pere Marquette R. Co., 163 N.
W. 883.

114 (Neb.) Under Rev. St. 1913, § 7717,
statement of plaintiff's counsel in suit against
two joint tort-feasors that one had settled, and
terms thereof, was prejudicial, as tending to ad-
mit negligence as against other defendant.-
Tankersley v. Lincoln Traction Co., 163 N. W.
850.

15(1) (Mich.) It was improper for counsel
to say when the jury returned to the room that
the opposing counsel had asked another directed
verdict, and that, since the plaintiff was still in
the room, the motion must have been denied.
Daly v. Pere Marquette R. Co., 163 N. W. 883.
~~119 (Mich.) After court has ruled that
plaintiff's decedent was contributorily negligent
as matter of law, it is error for plaintiff's coun-
sel to argue to jury question of contributory neg-
ligence. Halloran v. Michigan Ry. Co., 163 N.
W. 1009.

119 (N.D.) In trial in county court, it was
error for plaintiff's attorney to state to jury
that defendant had appealed from justice court,
and had made all the costs of the action.-Steen
v. Neva, 163 N. W. 272.

against an insurance company for failing to is-
sue an accident policy, it was not error to di-
rect a verdict for defendant at the close of all
the evidence, although such motion had been
overruled at the close of plaintiff's testimony.
Glendy v. National Travelers' Benefit Ass'n,
163 N. W. 352.

177 (Iowa) While as a general rule, where
both parties move for directed verdict, it is not
true that questions become mixed questions of
law and fact for the court, evidence held to
warrant the court in disposing of the case after
such motions without jury.-Murray v. Brother-
hood of American Yeomen, 163 N. W. 421.

VII. INSTRUCTIONS TO JURY.
(A) Province of Court and Jury in Gen-

eral.

→191(3) (Minn.) In subcontractor's action to
recover for excavation work, statement in charge
as to amount of overhaul held, in absence of ex-
ception at time, to be merely statement of plain-
tiff's claim, and not direction to jury.-Dawson
v. Northwestern Const. Co., 163 Ñ. W. 772.

201 (Mich.) Statement in instructions of
testimony of disagreeing witnesses with caution-
ary advice not calculated to exalt the contention
of either party is not objectionable.-Paul v.
De Carrie, 163 N. W. 67.

(B) Necessity and Subject-Matter.
207 (Neb.) Where it is necessary to use
photographs of place of accident taken two years
thereafter, and after material changes, court
should insure defendant a fair trial by charging
as to extent of their use. Tankersley v. Lin-

123 (Mich.) In assumpsit by trustee in bank-
ruptcy against purchaser of goods from bank-coln Traction Co., 163 N. W. 850.
rupts, argument of plaintiff's attorney, comment-
ing on failure of defendant's attorney to put de-
fendant on stand, held not reversible error,
though plaintiff had called defendant as witness
under statute.-Buell v. Siderman, 163 N. W.
881.

(C) Form, Requisites, and Sufficiency.

234(7) (Mich.) In proceeding to establish
claim against estate of decedent, instruction de-
fining burden of proof, taken in connection with
other language used, held not to require greater

degree of evidence than preponderance in favor, was within line of his duties and was required
of claimant, and was not error.-Hampton v.
Van Nest's Estate, 163 N. W. 83.

241 (Iowa) It is not safe for trial courts
to instruct in the language of opinions or to
adopt instructions appearing therein, as in-
structions are approved only with reference to
exceptions urged.-Liddle v. Salter, 163 N. W.
447.

under the circumstances, and that he violated
no part of spirit of his oath.-Hampton v. Van
Nest's Estate, 163 N. W. 83.

Court should not countenance or tolerate any
act or conduct by court officers, that might in-
fluence conduct of any member of jury in favor
of either party.-Id.

314(1) (Mich.) Statement to jury on failure
243 (Mich.) Where court correctly charged to agree held not improper as coercing a ver-
that one furnishing plans for a building was dict.-Holtquist v. O'Connell, 163 N. W. 53.
an independent contractor, it was inconsistent 315 (Minn.) Where plaintiff, if entitled to
to charge that owner should furnish correct anything, was entitled to 10 per cent. of selling
plans.-Bayne v. Everham, 163 N. W. 1002. price of land, amounting to $1,250, and jury
returned verdict for $600, defendant can assail
the verdict.-Alden v. Sacramento Suburban
Fruit Lands Co., 163 N. W. 133.

244(2) (Iowa) It is undesirable practice for
trial court to select one or few matters of ev-
idence for special reference in charge.-Anfen-
son v. Banks, 163 N. W. 608.

where

IX. VERDICT.
(A) General Verdict.

244(3) (Mich.) An instruction in a will con-
test that, if testatrix made a contract mentioned
in will, such fact tended to support will, held
not reversible error because commenting on im-337 (Neb.) In an action for damages for
portance of part of evidence.-In re Warring's
Estate, 163 Ñ. W. 50.

244(2) (Mich.) In trover for cattle distrain-
ed, charge, considered as whole, held not er-
roneous, as giving undue prominence to testi-
mony of defendant's wife, without calling atten-324 (Minn.) Under Gen. St. 1913, § 7812,
tion to fact that contradictory testimony of relating to the reception and entry of verdict,
plaintiff's hired man was corroborated.-Spiegel of counsel was returned to the clerk and there-
a sealed verdict, instructed by consent
v. Straw, 163 N. W. 4.
after opened by court in jury's absence and
recorded the proceeding was irregular and
ground for a new trial.-Klemmer v. Biersdorf,
163 N. W. 527.

(D) Applicability to Pleadings and Evi-
dence.

fraud inducing plaintiff's purchase of all of the
stock of an oil company, verdict for plaintiff in
a certain amount held not responsive to the law
as given in the court's instructions.-King v.
Day, 163 N. W. 150.

251(2) (Iowa) In real estate broker's action
for commissions, entire charge held to suffi-345 (Mich.) That a verdict was received by
ciently instruct jury that a counterclaim, to the clerk of the court in the absence of the
which plaintiff made no defense, based upon a presiding judge was a mere irregularity in prac-
promissory note executed by plaintiff, was ad- tice, which was waived, where counsel had con-
mitted in pleadings.-Johnson v. Buckley, 163 sented during the trial that the verdict should be
so received.-Miller v. Young, 163 N., W. 27.
TRIAL DE NOVO.

N. W. 342.

251(8) (Neb.) Where petition in employé's
action for injury alleged facts amounting to ac-
tionable negligence in one particular, instruction
to find against employer if he was guilty of any
act of numerous acts of negligence was errone-
ous.-Shick v. Johnson, 163 N. W. 300.

Charge in employé's action for injury describ-
ing alleged acts of employer not counted upon
as negligence justifying a recovery, so that jury
on proof thereof might infer that they should
find against employer, was erroneous.-Id.

(E) Requests or Prayers.
255(1) (N.D.) Error cannot be assigned for
failure to give instructions not requested.
Ruddick v. Buchanan, 163 N. W. 720.

See Appeal and Error, 895.

TROVER AND CONVERSION.
See Chattel Mortgages, 170.

II. ACTIONS.

(C) Evidence.

40(1) (Mich.) Evidence in an action for con-
version of sheep, which defendant let out and
looked after for plaintiff for several years, held
to sustain a verdict for plaintiff.-Miller v.
Young, 163 N. W. 27.

(E) Trial, Judgment, and Review.

261 (Iowa) There was no error in refus-
ing requested instruction which by indirection
attempted to impeach plaintiff's moral charac-67 (Mich.) Under the evidence in an action
ter, where credibility of witness had not been
regularly attacked.-Stutsman v. Des Moines
City Ry. Co., 163 N. W. 580.

It was not erroneous to refuse a requested
instruction which apparently withdrew from ju-
ry an issue not suggested by record.-Id.

(G) Construction and Operation.
295(1) (Mich.) In action against saloon
keeper and surety for damages to plaintiff when
her husband, to whom saloon keeper had been
forbidden to sell, fell into hot pond and suffer-
ed burns from which he died, charge, taken as
entirety, held not such that jury was misled into
awarding plaintiff recovery though her husband
was not intoxicated when he fell.-Holtquist
v. O'Connell, 163 N. W. 53.

VIII. CUSTODY, CONDUCT, AND DE-
LIBERATIONS OF JURY.

305 (Mich.) Where affidavits on motion for
new trial were conflicting, evidence held to sus-
tain finding that presence of sheriff in jury room

for conversion of sheep, held not error to in-
struct that, if defendant let out his own sheep
to a third person instead of plaintiff's, but in
her interest, as and for her flock, she would be
entitled to recover.-Miller v. Young, 163 N.
W. 27.

TRUST DEEDS.

See Mortgages.

TRUSTS.

See Evidence, 278; Wills, 91.

I. CREATION, EXISTENCE, AND VA-
LIDITY.

(A) Express Trusts.

44(1) (Mich.) In suit by relatives of dece-
dent claiming under his deed of trust, evidence
held to show that decedent was competent to
make and that he intelligently did make instru-
ments in question.-Wilcox v. Hubbell, 163 N.
W. 497.

233 (Minn.) Under Recording Act, an as-
signment of subsequent purchaser's equitable ti- See Physicians and Surgeons, 22.
tle to a bona fide purchaser was protected
against such subsequent purchaser's earlier ex-
ecuted, but later recorded, contract, pledging

land for payment due original vendor.-Shrai- See Master and Servant, 177, 192.
berg v. Hanson, 163 N. W. 1032.

person fraudulently signs her name, and her See Drains, 32.
purported acknowledgment is fraud, such mort-
gage is invalid, and not lien, even in hands of
innocent purchaser.-Yusko v. Studt, 163 N. W.
1066.

242 (Minn.) In action for specific perform-
ance of contract to sell realty, the burden of
proving that plaintiff was a bona fide purchaser See Indians.
within the Recording Act, and not affected by
a previous unrecorded instrument, was upon
him. Shraiberg v. Hanson, 163 N. W. 1032.

244 (Minn.) Evidence held not to sustain a
finding that plaintiff, suing for specific per-
formance of a contract for sale of realty, was a
bona fide purchaser within the Recording Act.-
Shraiberg v. Hanson, 163 N. W. 1032.