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crime of assault with Intent to kill,
without malice, and this is the only
matter for your determination; the
other two counts being withdrawn
from your consideration. » ♦ •
*Malice/ as above used, means the in-
tentional doing of a wrongful act
without just cause or excuse," — and a
subsequent charge that if defendant
purposely and intentionally made an
assault on the prosecuting witness,
and shot him with intent to kill, he
was guilty of an assault with Intent
to kill, were not objectionable as
contradictory, and as, when taken to-
gether, authorizing the jury to find
malice to be an ingredient of the of-
fense. State V. Moore, 68 S. W. 358,
168 Mo. 432. A charge directing an
acquittal if the jury believed accus-
ed's story, and a charge that. If there
was any doubt after weighing the tes-
timony, they must give accused the
benefit of it, are not inconsistent.
State V, KroU, 93 A. 571, 87 N. J.
Law, 330. An instruction that, before
the jury could acquit, they must find
defendant was laboring under such a
defect of reason from disease of the
mind as to not know — that is, as not
to have sufficient mental capacity to
know — the nature and quality of the
act he was doing, or, If he did know
it, that he did not know he was doing
wrong, and an instruction that, before
the jury could acquit on the ground
of Insanity, it must appear defendant
was affected with insanity to such a
degree as to create an uncontrollable
impulse to do the act charged by
overriding his reason and judgment,
are not inconsistent, though from the
vague language used the jury might
reasonably infer that defendant had
the burden of establishing his Insan-
ity. State V. Crowe, 102 P. 579, 39
Mont. 174, 18 Ann. Cas. 643. An in-
struction on manslaughter that "in-
sulting words or gestures or an or-
dinary assault and battery so slight
as to show no intention to inflict pain
or injury are not deemed adequate
cause" is proper, and not contradio

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what rule of law shall control the case,'* and because it cannot

tory of a further instruction that
"any condition or circumstance which
is capable of creating and does create
sudden passion, such as anger, rage,
sudden resentment, or terror render-
ing the mind incapable of cool reflec-
tion, whether accompanied by bodily
pain or not, is deemed adequate cause,"
eta Davis v. State, 124 S. W. 104, 57
Tex. Or. R. 545. On a prosecution for
robbery an instruction that if the
property was feloniously taken, and
was received into the possession of de-
fendant shortly thereafter, any failure
of defendant to account for such pos-
session was a circumstance tending to
show his guilt and he was bound to
explain the possession in order to
remove the effect thereof, was not In
conflict with another instruction that
possession of stolen pn^erty, unex-
plained, was not, of itself, sufBcient
to Justify a conviction, but was a cir-
cumstance to be considered in con-
nection with other testimony. Peo-
ple V. Wilson, 67 P. 322, 135 Cal. 331.
An instruction that the Jury are the
exclusive Judges of the weight of the
testimony and the credibility of the
witnesses is not inconsistent with a
charge that a conviction cannot be
had on the imcorroborated testimony
of the accomplice. Barrett v. State,
115 S. W. 1187, 55 Tex. Cr. R. 182.

Iiuitniotions on character of ac«
oiucd. An instruction that evidence
tending to show accused's bad char-
acter is not tvidence that accused is
guilty of the offense charged is not
inconsistent with an Instruction that
good character does not excuse crime
but that the Jury may consider evi-
dence of good character in determin-
ing the guilt or innocence of accused.
State V. Priest, 114 S. W. 949, 215 Mo.
1. Where the court, at the request
of defendant, instructed the Jury that,
if defendant has proved a good char-
acter as a man of peace, such good
character may be suflScient to cause
a reasonable doubt of his guilt,
though no such doubt would have ex-
isted without such proof; and that
proof of good character was relevant
to the question of guilt, to be con-
sidered with the other facts in the

case, it was held that an addition by
the court that, if the Jury believed
defendant guilty, then proof of such
good character would be of no avail
to him, did not conflict with the pre-
vious instruction. State v. Levigne,
30 P. 1084, 17 Nev. 435.

Injitractions upon, dmnkenness
of aconsed as affoctln« Intent.
Where, in a prosecution for assault
with intent to kill, defendant claimed
that he was too drunk at the time
to form an intent, and the court
charged that drunkenness in itself
was no defense, but that, if defendant
was so completely intoxicated that he
was incapable at the time of forming
an intent, he could not be found
guilty, and another instruction charg-
ed tliat, if the liquor had merely in-
flamed defendant's passion while he
was still able to distinguish right
from wrong and knew at the time he
was doing wrcMig, drunkenness would
be no defense, it was held that such
instructions were not objectionable as
inconsistent. State v. Yates, 109 N.
W. 1005, 132 Iowa, 475.

InBtmctions on reasonable
donbt. Where, at the request of the
state the Jury were instructed that a
doubt, to authorize an acquittal,
should be a reasonable doubt, fairly
arising from the evidence as a whole,
and that a mere possibility that the
defendant might be innocent would
not warrant an acquittal, and at the
request of the accused the Jury were
instructed that it is not enough to
Justify a verdict of guilty that there
may be a strong suspicion, or even a
strong probability, of the guilt of de-
fendant ; that the law requires proof
by legal and credible evidence, — such
as, when all considered, produces a
clear conviction of the defendant's
guilt beyond a reasonable doubt ; that
if the Jury entertain any reasonable
doubt as to whether defendant was
excusable and Justified in the acts
complained of, or if any one of the

72 Fowler v. Wallace, 31 N. E. 53,
131 Ind. 347 ; W. B. Johnson & Co. v.
Central Vermont Ry. Co., 79 A. 1095,
84 Vt. 486.

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usually be determined from the verdict which of the inconsistent
instructions has been followed.'^ Such rule applies, even although
one of the instructions is incorrect, and the other is a correct in-
struction, given to remedy the first'*

§ 428. Specific applications of rule

An instruction that all men, sane or insane, "act from motive."
and that, if the accused had no motive, it might be considered as
a circumstance in favor of his plea of insanity, is self-contradic-
tory.'* So, in a prosecution for homicide, instructions on the is-
sue of insanity based solely on the "right and wrong test'* are in
irreconcilable conflict with others based on that test as modified
by the "irresistible impulse test." '• So a charge that, if the jury
have a doubt arising from the evidence or lack of evidence as to all
the material allegations of the indictment, they will give the defend-
ant the benefit thereof and find him guilty of such degree of crime
as from the evidence beyond a reasonable doubt they believe him
to be guilty of, and that he should be acquitted if he is guilty of
no crime, is erroneous, as, if the jury have a reasonable doubt as
to all the material facts, they cannot convict the defendant of any
degree of crime."

§ 429. Submitting opposing theories of case

Instructions which correctly state the law are not contradictory
merely because the application of each instruction to the case de-
pends upon the view which the jury may take of the evidence.'*
Instructions stating the law applicable to opposite theories of the
case often become necessary, because one party tries his case on
one theory of the law and the evidence, while the other party tries
his side of the case upon a different theory ; '• and while, in some
jurisdictions, a plaintiff cannot go to the jury on two distinct and
entirely contradictory grounds, and it is error to submit a case to

jury, after having considered aU the 14, 134 Ark. 575 ; Rector v. Robins,

evidence, and after a consnltation 86 S. W. ©67, 74 Ark. 437 ; City of

with his fellow jurymen, entertains Lincoln v. Heinzel, 134 lU. Api>. 439.

a reasonable doubt, accused should ^5 Blume v. State, 56 N. E. 771, 154

be acquitted, it was held that such in- Ind. 343.

struct! ons were not conflicting. State instate v. Keerl, 75 P. 362, 29

V. Moore, 56 S. W. 883, 156 Mo. 204. Mont. 508, 101 Am. St Rep. 579.

78 Gardner v. Metropolitan St. Ry. ^t Cook v. State, 35 So. 665, 46 FUu

Co., 122 S. W. 1068, 223 Mo. 389. 18 20.

Ann. Cas. 1166; Kelly v. Lewis In v. 78 city of Richmond v. Gentry, 68

Co., 133 P. 826, 66 Or. 1, Ann. Cas. S. E. 274, 111 Va. 160.

1915B, 568: Weld-Neville Cotton Co. to Kelm v. Gilmore & P. R, Co., 131

V. Lewis (Tex. Civ. App.) 163 S. W. P. 656, 23 Idaho. 511; Hendrix v.

667. Coming, 214 S. W. 253. 201 Mo. App.

74 Harkrider v. Howard, 203 S. W. 555.


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the jury on conflicting theories, and tell them that they may, if
the evidence warrants, find for the plaintiflf on either theory,*® in
other jurisdictions a plaintiff may rely upon inconsistent grounds
of recovery, and where he may prevail upon either he can have
both submitted to the jury, such submission being in the alterna-
tive and making it plain that a recovery may be had upon only

§ 430. Effect of such instructions as ground for reversal

The giving of conflicting instructions is ground for the reversal
of a judgment,** where they are calculated to mislead the jury as
to matters material to the issues,** or leave them in doubt as to
the law,** unless the evidence is such that the jury could not have
been misled,** or unless the appellate court is satisfied that the
appellant was not injured by the error,** and in some jurisdictions
the giving of conflicting instructions is generally presumed to prej-
udice the party complaining.*'

Where, however, no harm has come from such conflict to the
party complaining thereof,** and the jury has not been misled.

«oAn(Jerson v: Oscamp (Ind. App.)
85 N. E. 707 ; WincheU v. Latham (N.
Y.) 6 Cow. 682.

«i Texas & P. Ry. CJo. v. Matkin,
107 Tex. 125, 174 S. W. 1098, affirm-
ing judgment (av. App.) 142 S. W.

ETldenoe supporting onlj one
tkeory.. Tbe presentation of two in-
consistent theories of plaintiffs case
to the jury, on one of which he was
entitled to recover, and on the oth-
er of which he could not recover with-
out a disregard of all the evidence in-
troduced by him, was reversible er-
ror. Behen v. St. Louis Transit Co.,
85 S. W. 34®, 186 Mo. 430.

8 2Cal. Clark v. McElvy, 11 Cal.

FUu Florida East Coast Ry. Co.
V. Jones, 62 So. 898, 66 Fla. 51.

111. Illinois Linen Co. v. Hough,
91 111. 63.

Ind. Watts V. Chicago & B. I. R,
Co., 104 N. B. 42, 61 Ind. App. 51;
Summerlot v. Hamilton, 121 Ind. 87,
22 N. E. 973.

Mo. Carder v. Primm, 60 Mo. App.
423 ; Prank v. Grand Tower & C. Ry.
Co., 57 Mo. App. 181.

N. Y. Clarke v. Schmidt, 104 N.
B. 613,. 210 N. Y. 211, reversing judg-

ment 132 N. Y. S. 1124, 148 App. Div.

Tex. Trinity & Brazos VaUey Ry.
Co. V. Lunsford (Civ. App.) 160 S. W.

Vm. Powhatan Lime Co. v. Af-
fleck's Adm'r» 79 S. E. 1054, 115 Va.
643; Norton Coal Co. v. Hanks*
Adm'r, 62 S. E. 335. 108 Va. 521.

88 Illinois Match Co. v. Chicago, R.
I. & P. Ry. Co., 95 N. B. 492, 250 III.
396, reversing judgment 153 111. App.
568: Cummings v. Holland, 130 111.
App. 315; Pendleton v. Chicago City
Ry. Co., 120 lU. App. 405; State v.
Dudley, 91 N. B. 605, 45 Ind. App.
674 ; Canton Lumber Co. of Baltimore
City V. Miller, 76 A. 415, 112 Md. 258.

«* Steele v. Michigan Buggy Co.,
95 N. E. 435, 50 Ind. App. 635.

«5 Escambia County Electric light
& Power Co. v. Sutherland, 55 So. 83,
61 Fla. 167.

«« Randall v. Northwestern Tel. Co.,
54 Wis. 140, 11 N. W. 419, 41 Am. Rep,

8T Producers* Coal Co. v. Mifliin
Coal Mining Co., 95 S. E. 948, 82 W.
Va. 311.

88 Nuckolls V. Gaut, 12 Colo. 361,
21 P. 41.

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such inconsistency will not constitute ground for reversal.** Thus
inconsistency between different instructions is harmless error,
where the inconsistency arises from error in the instruction in
favor of the appellant** and the court may present the various
phases of the case suggested by the evidence or the contentions of
the parties, although they are inconsistent with each other, when
from the instructions as a whole the jury cannot be misled.*^

J. Singling Out or Giving Undue Prominence to Particular

Facts or Matters

SingUng out matters as invasion of province of jury, see, ante, | 44.

§ 431. General rule

It is improper to single out a particular issue or defense, so as
to impress the jury with the idea that it is the controlling one, or
to lead them to attach undue prominence to such issue or de-
fense,** or to emphasize the theory of one party as compared with

8»Carrlngton v. Pacific Mall S. S.
Co., 1 CaL 475; Bobbins v. Roth, 95
111. 464; Garey v. Sangston, 64 Md.
51, 20 A. 1034; Maier v. Massachu-
setts Ben. Ass'n, 107 Mich. 687, 65
N. W. 552; Jansen v. Williams, 36
Neb. 869, 55 N. W. 279, 20 L. B. A.

»o Williams v. Southern Pac. R. Co.,
110 Cal. 457. 42 P. 974 ; Graybeal v.
Gardner, 140 lU. 337, 34 N. E. 528,
affirming 48 111. App. 306 ; Hillebrant
V. Green, 93 Iowa, 661, 62 N. W. 32.

•1 Votaw V. McKeever, 92 P. 1120,
76 Kan. 870.

92 Fla. Jacksonville Electric Co. v.
Adams, 39 So. 183, 50 Fla. 429, 7 Ann.
Cas. 241.

m. Zoeller v. Court of Honor, 168
HI. App. 562.

Neb.. Rising v. Nash, 48 Neb. 597,
67 N. W. 460.

Ohio. Lake Shore & M. S. Ry. Co.
V. Whidden, 23 Ohio Cir. Ct. R. 85.

Tex. Munsey v. Marnet Oil & Gas
Co. (Civ. App.) 199 S. W. 686; Van
Geem v. Cisco Oil Mill (Civ. App.) 152
S. W. 1108 ; Huber v. Texas &, P. Ry.
Co. (Civ. App.) 113 S. W. 984; Bu-
chanan V. Missouri, K. & T. Ry. Co.
of Texas, 107 S. W. 5.52, 48 Tex. Civ.
App. 299 ; Dallas & O. C. El. Ry. Co.
V. Harvey (Civ. App.) 27 S. W. 423.

Instmotions held not improper

within mlo. Where in an action for
the death of a trolley car passenger
who jumped from the car on a par-
rallel track in front of an approaching
car on that track to avoid danger of
a collision by another car running
into the car on which he was riding,
the theory of plaintUT was that de-
fendant had negligently placed dece-
dent in a perilous position, and the
theory of defendant was that dece-
dent had not been placed in a posi-
tion of imminent peril, an instruction
that the basis of the action was neg-
ligence which could not be presumed
from the mere fact that deced^it was
run over by a car, but that before
plalntifP could recover he must prove,
not only that defendant was negligent,
but that the negligence charged was
the proximate cause of decedent's
death, was not objectionable as di-
recting the attention of the Jury to
the count of the declaration charging
negligence in the operation of the car
which struck decedent Adamson's
Adm'r v. Norfolk & P. Traction Co.,
69 S. E. 1055, 111 Va. 556. In an ac-
tion for injuries to plaintiff's wife in
alighting from a car, where the de-
fendant pleaded contributory negli-
gence, in that she left the car on the
side opposite the depot, and that she
attempted to leave it with a lot of

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the theory of his adversary,®^ and instructions, objectionable be-
cause of such emphasis, are properly refused, however correct
they may be as legal propositions.**

It is improper to give an instruction which singles out, and calls
undue attention to, a particular part of the testimony or a partic-

bundles and packages in her arms,
rendering her unable to use the rail-
ing, whereby she was caused to lose
her balance and fall, special instruc-
tions on the subject of contributory
negligence conformable to these phas-
es, given in addition to a charge in
general terms on contributory negli-
gence, were not erroneous as giving
undue prominence to the issue. Ram-
ble V. San Antonio & G. R. R., 100 S.
W. 1022, 45 Tex. Civ. App. 422.
^Vhere the court stated in the gen-
eral charge that the burden of proof
was on plaintiff to establish the ma-
terial allegations of his petition, the
giving of a special charge that, if a
passenger is injured while alighting
from a train, he cannot recover there-
for, unless it is shown by a preponder-
ance of evidence that the injury was
caused by the failure of the company
to exercise the proper degree of care,
was not objectionable as giving undue
prominence to the rule of law ex-
pressed. Ramble v. San Antonio &
G. R. R., 100 S. W. 1022, 45 Tex. Civ.
App. 422. The court not having told
the jury on whom the burden of proof
rested to prove whether insured met
his death in a violation, or attempted
violation, of law, but only that to
find for defendant they must believe
that insured, without justification and
in violation of law, made an assault
to murder K., and in the course of the'
difficulty was shot, plaintiff was en-
titled to a charge that such burden
was on defendant; so that giving
plaintiffs* charge that the burden was
on defendant to show that insured
met his death in a violation, or an
attempted violation, of law, could not
be complained of as giving undue
prominence to the necessity of defend-
ant making such showing by a prepon-
derance of the evidence. Woodmen
of the World v. McCoslin, 126 S. W.
.«^4. 59 Tex. Civ. App. 574. Where,
in an action against an iron compa-
ny for Injuries' to plaintiff while em-

ployed in the construction of a build-
ing, one of the issues was whether the
building was being constructed by the
iron company or by a realty company
organized by the same persons that
owned and controlled the iron com-
pany, and there was evidence that
before plaintiff's injury the officers
and stockholders of the iron company
determined to organize the realty
company, but that the realty company
was not incorporated until after a
building permit had been issued for
the building on which plaintiff was
injured, the permit being taken out
by the agent of the iron company, an
instruction that the realty company
was not incorporated until a date
specified, which was the date shown
by the evidence as the date of the in-
corporation, was not objectionable as
giving undue prominence to the date
of the incorporation of the realty com-
pany. Kim V. E. E. Southern Iron
Co., 124 S. W. 45, 140 Mo. App. 451.

»» Weiss V. Bethlehem Iron Co. (C.
C. A. Pa.) 88 F. 23, 31 C. C. A. 363;
In re Townsend's Estate, 97 N. W.
1108, 122 Iowa, 246; St. Louis South-
western Ry. Co. of Texas v. Terhune
(Tex. Civ. App.) 81 S. W. 74 ; Barton
v. Stroud-Gibson Grocer Co. (Tex.
Civ. App.) 40 S. W. 1050.

»*I11.. Slack V. Harris, 65 N. B.
669, 200 m. 96, aflarming judgment
101 111. App. 627.

Mass. Kenny v. Town of Ipswich,
59 N. E. 1007, 178 Mass. 368.

Minn. Fransen v. Falk Paper Co.,
160 N. W. 789, 135 Minn. 284.

N. H. Davis V. Concord & M. R.
R., 44 A. 388, 68 N. H. 247.

R. I. Reynolds v. Narragansett
Electric Lighting Co., 59 A. 393, 26
R. I. 457.

Tex. Jacksonville Ice & Electric
Co. V. Moses, 134 S. W. 379, 63 Tex.
Civ. App. 496.

Wis. Watson v. Milwaukee & M.
R. Co., 57 Wis. 332, 15 N. W. ^\68.

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ular part of the evidence,** or at least the giving of such an in-

•5U. S. (C. O. A., Ark.) Western
Coal & Milling^ Co. v. Berberich, d4
F. 32S, 36 C. C. A. 364; (C. C. A.
Colo.) TrumbuU v. Etickson, 97 F.
891. 38 C. C. A. 536; (C. C. A. Minn.)
Minneapolis General Electric Co. v.
Cronon, 166 F. 651, 92 0. C. A. 345,
20 L. B. A. (N. S.) 816.

Ala. Birmingham Ry., Light &
Power Co. v. Kyser, 82 So. 151, 208
Ala. 121; Minor v. Coleman, 74 So.
841, 16 Ala. App. 5; Dillworth v.
Holmes Furniture & Vehicle Co., 73
So. 288, 15 Ala. App. 340; Stinson v.
Faircloth Byrd Co., 57 So. 143, 3 Ala.
App. 607; Western Union Telegraph
Co. V. Robbins, 56, So. 879, 3 Ala. App.
234 ; Duncan v. St Louis & S. F. K,
Co., 44 So. 418, 152 Ala. 118; Aber-
crombie v. Fourth Nat. Bank, 39 So.
606 ; Birmingham Ry. & Electric Co.
V. Mason, 39 So. 590, 144 Ala. 387,
6 Ann. Cas. 929; Central of Georgia
Ry. Co. V. Larkins, 37 So. 660, 142
Ala. 375; Louisville & N. R. Co. v.
Jones, 30 So. 586, 130 Ala. 456; Pear-
son V. Adams, 29 So. 977, 129 Ala.
157 ; Decatur Car Wheel & Mfg. Co.
V. Mehaffey, 29 So. 646, 128 Ala. 242 ;
LouisviUe & N. R. Co. v. Orr, 26 So.
35, 121 Ala. 489; WUliamson v. Ty-
son, 105 Ala. 644, 17 So. 336 ; Wads-
worth V. Williams, 101 Ala. 264, 13
So. 755; Steed v. Knowles, 97 Ala.
573, 12 So. 75.

Ark. St. Louis Southwestern Ry.
Co. V. Aydelott, 194 S. W. 873, 128
Ark. 479; Western Coal & Mining
Co. V. Jones, 87 S. W. 440, 75 Ark.

Ga. Stiles v. Shedden, 58 S. B. 515,
2 Ga. App. 317.

ni. Ilelbig V. Citizens' Ins. Co.,
84 N. E. 897, 234 lU. 251, affirming
Judgment Citizens* Ins. Co. v. Helbig,
138 111. App. 115; Fnnston v. Hoff-
man, 83 N. E. 917, 232 111. 360; Wick-
es V. Walden, 81 N. E. 798, 228 III.
56; Chicago Anderson Pressed Brick
Co. V. Reinneiger, 140 III. 334, 29 N.
E. 1106, 33 Am. St Rep. 249; Pro-
tection Life Ins. Co. v. Dill, 91 lU.
174; Martin v. Johnson, 89 111. 537;
Hatch V. Marsh, 71 IlL 370; M. H.
Boals Planing Mill Co. v. Cleveland,

O., C. & St. L. Ry. Co., 211 m. App.
125; McCormick v. Deckor, 204 HL
App. 554; Trainer v. Baker, 196 HI.
App. 216; Ballah v. Peoria Life Ass*n,
159 111. App. 222 ; Harvey v. McQuirk,
158 IlL App. 50 ; Ventriss v. Pana Coal
Co., 155 111. App. 152 ; Karkowski v.
La Salle County Carbon Coal Co., 154
111. App. 399, Judgment affirmed (1911)
93 N. B. 780, 248 HI. 195; Fisher v.
City of Geneseo, 154 111. App. 288;
Gash V. Home Ins. Co. of New York,
153 lU. App. 31; Penney v. John-
ston, 142 HL App. 634; Aygam v.
Rogers Grain Co., 141 IlL Aw). 402;
Hughes V. Hughes, 133 HL App. 654;
Trustees of Schools, etc., St Clair
County V. Yoch. 133 lU. App. 32;
Long V. Long, 132 111. App. 409 ; Pur-
cell V. McKeel. 129 111. App. 428;
Turner v. Lord & Thomas, 124 IlL
App. 117 ; Springfield Consol. Rv. Co.
V Gregory, 122 lU. App. 607; Turner
V. Rlghtor, 120 111. App. 131; Beyer
V. Martin, 120 lU. App. 50; Chicago
City Ry. Co. v. Lowltz, 119 HL App.
360, Judgment affirmed 75 N. B. 755,
218 HI. 24; New Ohio Washed Coal
Co. v. Hindman, 119 IlL App. 287:
Scott V. Snyder. 116 IlL App. 393;
Chicago Hydraulic Press Brick Co. v.
Campbell, 116 111. App. 322 ; Hart v.
Carsley Mfg. Co., 116 111. App. 1.59, re-
versed 77 N. E. 897, 221 IlL 444, 112
Am. St Rep. 189, 5 Ann. Cas. 720:
Munford v. Miller, 7 111. Aw>. 62:
Anderson v. Warner, 5 111. App. 416;
Wright V. Bell, 5 IlL App. 352 : Hutoh-
chlnsoii V. Grain, 3 111. App. 20.

Ind. North v. Jones, 100 N. E2. 84.
53 Ind. App. 203.

Iowa. Haman v. Preston, 173 N.
W. 894, 186 Iowa, 1292; In re Evd-
eth's Will, 157 N. W. 257, 177 Iowa,
736; Whitman v. Chicago Great
Western Ry. Co., 153 N. W. 1023, 171
Iowa, 277; Kelly v. Chicago, R, I. &
P. Ry. Co., 114 N. W. 536, 138 Iowa,
273, 128 Am. St. Rep. 195.

Kan. Honick v. Metropolitan St
Ry. Co., 71 P. 265, 66 Kan. 124.

Ky, Steams Coal & Lumber Co. v.
WUliams, 186 S. W. 931, 171 Ky. 46;
Bennett v. Knott, 112 S. W. 849;
Drake v. Holbrook, 92 S, W. 297, 28

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Ky. Law Rep. 1319 ; South Covington
& O. St. Ry. Co. V. SdiUling, 89 S. W.
220, 28 Ky. Law Rep. 809; Louisville
Ry. Co. V. Hartman's Adm'r, 83 S. W.
670, 26 Ky. Law Rep. 1174; Crab-
tree V. Dawson, 83 S. W. 557, 119 Ky.
148, 26 Ky. Law Rep. 1046, 67 L. R.
A. 566, 115 Am. St. Rep. 248; Louis-
ville & N. R. Co. V. Banks, 83 S. W.
627; Ohio R. Co. v. Finney, 15 Ky.
Law R^. (abstract) 29; Kentucky
Tobacco Ass'n v. Ashley, 5 Ky. Law
Rep. (abstract) 184.

Md. Safe-Deposit & Trust Co. v.
Berry, 49 A. 401, 93 Md. 560 ; Higgins
V. Grace, 59 Md. 366.

MaM. Quinlan v. Hugh Nawn
Contracting Co., 126 N. E. 369, 236
Mass. 190; Neafsey v. Szemeta, 126
N. E. 368, 235 Mass. 160; O'Brien v.
Shea, 95 N. E. 99, 208 Mass. 528,
Ann. Cas. 1912A, 1030; 0*Leary v.

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