4. Appear and error, § 1088*—necessity that brief refer to pages of abstract where rulings complained of appear. Where no reference is made in the brief to the pages of the abstract on which alleged erroneous rulings appear, they will not be considered on appeal.5. Instructions, § 120*—when properly refused as not conforming to evidence. An instruction that the jury, in determining what facts were proven, should consider all the evidence before them, together with all the circumstances of the transaction in question, held properly refused, in that it did not limit the circumstances to be considered to those shown by the evidence.6. Evidence, § 457*—when testimony at former trial not competent. Testimony of a present witness given on a trial is not competent evidence on a subsequent trial.7. New trial, § 61*—when properly denied. Refusal to grant a new trial on the ground that the defendant was taken by surprise because the plaintiff testified differently than he did on a former trial, and that the defendant did not have time to obtain a transcript of such former testimony for use in impeachment held proper.
