Volume 132 — South Western Reporter

• Appeal from District Court, Wharton County; Wells Thompson, Judge. Action by Hahn Bros. & Co. against the Kincheloe Irrigating Company, in which A. W. Hahn and another intervened. From a judgment for interveners, defendant appeals.

<p>Insubanc® (§ 668*) — Action on Policy — Question for Jury.</p> <p>In an action on a policy providing in its iron-safe clause that the “last preceding inventory” of the stock should be preserved so that the amount of loss in case of fire might be determined, it was, under the evidence, a question for the jury whether the inventory of stock that was made just prior to the assured’s alleged acceptance of the policy, or whether the inventory taken prior to the date on which the policy was received by assured was the “last preceding inventory,” the former inventory being the preceding one if the policy was not' accepted until when alleged, otherwise the latter was the last preceding inventory.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1760; Dec. Dig. § 668.*]</p>

<p>1. Appeal and Error (§ 1002*) — Verdict — Conclusiveness.</p> <p>A verdict on conflicting evidence and under proper instructions will not be disturbed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>2. Appeal and Error (§ 1040*) — Harmless Error — Rulings on Pleadings.</p> <p>The error, if any, in sustaining exceptions to the petition so far as it seeks to recover attorney’s fees on a note, is harmless when plaintiff failed to recover anything.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4097; Dec. Dig. § 1040.*]</p> <p>3. Contracts (§ 54*) — Consideration.</p> <p>An agreement by an attorney with other attorneys employed to assist him that they could collect from the client a specified fee for their exclusive use, leaving open the question of his fee, whereby the other attorneys abandoned their right to a share in a larger ■ sum _ which the client had originally agreed to pay, is supported by a sufficient consideration.</p> <p>[Ed. 'Note. — For other cases, see Contracts. Cent. Dig. §§ 233-239; Dec. Dig. § 54.*]</p>

' Appeal from District Court, Grayson County; B. L. Jones, Judge. Action by C. C. McCarthy against Sylvester Barnes, executor of Mrs. Kate Tibbs, deceased, in which James P. Haven was made a party. From a. judgment for plaintiff ■against defendant Sylvester Barnes, as executor, and against James P. Haven, defendant Barnes appeals.

<p>1. Pleading (§ 205*) — General and Special Demurrer — “Special Demurrer.”</p> <p>A demurrer to the whole petition on the ground that it does not set out a cause of action “in a logical and legal form” should be regarded as a general demurrer, as a “spécial demurrer” is one pointing out defects in a pleading in such a manner that they may be amended.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-510,; Dec. Dig. § 205.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6573, 6574.*]</p> <p>2. Telegraphs and Telephones (■§ 65*) — Action — Demurrer — Specification of Defects.</p> <p>A demurrer to a petition against a telegraph company for failure to deliver a death message, in that the petition failed to allego facts connecting the alleged negligence of the defendant with the absence of the addressee at the funeral of plaintiff’s husband, and alleged consequential injury to plaintiff, was objectionable for failure to point out specifically the defects in the petition complained of.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 65.*]</p> <p>3. Telegraphs and Telephones (§ 65*) — Messages — Failure to Deliver — Petition —Demurrer.</p> <p>A petition alleged that plaintiff’s father promised to be present in the event of the illness and death of plaintiff’s husband, and that, if the messages delivered to defendant telegraph company had been promptly delivered, plaintiff’s father would have assisted her in nursing her husband and would have been present at his funeral, and would have been a great comfort to her in such case. It also alleged that the failure to deliver the messages deprived her of the comfort her father would have been to her at the funeral, and that she was left alone among strangers to bury her husband, "and by reason thereof she suffered great grief and mental anguish. Held, that the petition was not demur-rable for failure to allege facts connecting defendant’s negligence with the absence of plaintiff’s father at the funeral and consequent injury to her.</p> <p>[Ed. Note. — For other eases, see Telegraphs and Telephones, Dec. Dig. § 65.*]</p> <p>4. Telegraphs and Telephones (§ 65*)— Death Message — Failure to Deliver — Petition.</p> <p>Allegations of a petition against a telegraph company for negligence in failing to deliver, a death message to plaintiff’s father, the addressee, relating to information given by the father to defendant at H. as to where he could be found, should a death message arrive, and the, promise of the agent to forward it to the father provided it arrived after he had left to go to his daughter to assist her in caring for her sick husband, were proper as indicating that, if diligence had been used in the delivery of the last message, the addressee would have been intercepted in his journey and would have been present at the husband’s funeral.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 65.*]</p> <p>5. Telegraphs and Telephones (§ 66*) — Death Message — Failure to Deliver-Negligence — Evidence.</p> <p>In an action against a* telegraph company for failure to deliver a death message to plaintiff’s father, by reason of which he was unable to attend the funeral of plaintiff’s husband, evidence held to sustain a finding that defendant was negligent; that it had actual knowledge of the character of the message; and that plaintiff would probably suffer mental anguish ,from a failure to deliver it.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 66.*]</p>

<p>1. Continuance (§ 7*) — Statutory Right— First Application — Effect.</p> <p>A party’s first motion for continuance, though in full compliance with the statute, does not entitle the moving party to a continuance as of right, the only effect being that the full compliance with the statute destroys the presumption, which otherwise an appellate court will entertain, that the trial court had not abused its discretion.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent. Dig. § 18; Dec. Dig. § 7.*]</p> <p>2. Continuance (§ 46*) — Application—Sufficiency— Absence of Witnesses.</p> <p>An application for a first continuance on the ground of the absence of witnesses is insufficient where it fails to show why the witnesses are absent, or that the reason is unknown, and further shows that such witnesses were employés of the applicant, that the case had previously been set for trial for the day on which it was called, but not that the witnesses had been notified of that fact, so that a denial on such a showing is no abuse of discretion.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent Dig. § 133; Dec. Dig. § 46.*)</p> <p>3. Appeal and Eirbob (§ 1043*) — Harmless Ebbob — Denial of Continuance.</p> <p>Any error in denying defendant a continuance for the absence of witnesses who were employés of the defendant was harmless, where two of such witnesses were present and testified for plaintiff, and the others were residents of the county, the trial having lasted three days, and it also appearing that their testimony would have been merely cumulative, and in relation to matters as to which there was no serious contest.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4121; Dee. Dig. § 1043.*]</p> <p>4. Appeal and Ebbob (§ 1051*) — Harmless Ebbob — Admission of Evidence.</p> <p>Admission of opinion evidence by one not an expert to the distance in which a train could be stopped held harmless error, where the same evidence was introduced by the other side.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4166; Dec. Dig. § 1051.*]</p> <p>5. Master and Servant (§ 270*) — Relevancy — Admissibility—Dependence on Other Matters.</p> <p>In an action against a railway company for the death of a section boss, who was billed going to work on his hand ear, the place of the accident being on a curve, there was evidence that it was impossible to see around the curve. Weld that, because of the fact, it was proper to admit rule No. 479 of the defendant, which required engineers to sound the whistle in founding curves where the view is obscured.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 270.*]</p> <p>6. Master and Servant (§ 141*) — Master’s Liability fob Injuries to Servant — Modes of Work.</p> <p>It is the duty of a railroad to make and enforce proper rules for the safety, of its em-ployés.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 283; Dec. (Dig. § 141.*]</p> <p>7. Evidence (§ 514*) — Opinions — Experts— Speculative Evidence.</p> <p>In an action for the death of a seetionman killed on a curve in a cut by a passenger train while trying to get a hand car off the track, evidence given by an experienced engineer as to the dangers to a rapidly moving train in collision with a hand car under such circumstances is not open to objection as speculative, except as all expert evidence is speculative.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2323; Dec. Dig. § 514.*]</p> <p>8. Trial (§ 252*) — Instructions — Applicability to Evidence.</p> <p>In an action against a railway company for wrongful death, which occurred through defendant’s running over plaintiff’s intestate, an eyewitness testified that the train did not seem to slow up, etc., and other evidence was admitted that the hand car could be seen 1,400 feet away, while th# engineer testified that he put on the emergency brake, but no evidence that passengers were jarred was offered. Weld, that an instruction that there was no evidence that the engineer failed to adopt all reasonable means at his command to avoid injury was not applicable to the evidence, and properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 602, 603; Dee. Dig. § 252.*]</p> <p>9. Appeal and Eeror (§ 1067*) — Review — Harmless Error — Instruction Refused.</p> <p>In an action for wrongful death of plaintiff’s intestate, which occurred while he was. attempting to remove a hand car from the tracks-in front of an approaching train, defendant was refused an instruction to the effect that it was his duty to exercise a high degree of care to remove such hand car. This instruction was refused. Weld, harmless error because it conflicted with defendant’s theory that there was no danger to the train from a collision with a hand car, so that deceased should have sought a place of safety and not have tried to move it from the track, and because an instruction similar to it was given in behalf of plaintiff.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dee. Dig. § 1067.*]</p> <p>10. Trial (§ 260*) — Instructions—Refusal-Error Cured by Other Instructions.</p> <p>It is not error to refuse an instruction eliminating a certain issue where other parts of the court’s charge have eliminated such issue.</p> <p>[Ed. Note.1 — For other cases, see Trial, Cent. Dig. §§ 651, 652; Dec. Dig. § 260.*]</p> <p>11. Tbial (§ 253*) — Instructions—Applicability to Evidence — Excluding Defenses.</p> <p>In an action against a railway company for the wrongful death of plaintiff’s intestate, run down by a train, it was sought to charge him with contributory negligence in removing a hand car from in front of an approaching train. The plaintiff sought to rebut the theory of contributory negligence by claiming that it was the deceased’s duty to attempt to remove this hand car to save the lives of persons on the train. Held, that an instruction which ignored this contention was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613, 616; Dec. Dig. § 253.*]</p> <p>12. Trial (§191*) — Instructions—Weight of Evidence.</p> <p>In such a case an instruction which assumed that the deceased in attempting to remove the hand car was negligent was properly refused, because it was upon the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 420.; Dec. Dig. § 191.*]</p> <p>13. Master and Servant (§ 137*) — Injuries to Servant — Operation of Railroad — Persons on Track — Train Behind Schedule —Duty.</p> <p>Where a train is behind its schedule and will not naturally be expected, the engineer owes other servants of the company a duty to exercise ordinary care to discover them if on the track.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 267, 269, 274; Dec. Dig. § 137.*]</p> <p>14. Negligence (§ 74*) — Contributory Negligence — Acts in Emergency — Saving Life..</p> <p>It is not contributory negligence for a party to expose himself to risk in endeavoring to save the lives of others, provided his conduct is not rash or reckless,</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 102; Dec. Dig. § 74.*]</p> <p>On Motion for Rehearing.</p> <p>15. Negligence (§ 74*) — Contributory Neg-ligenoe — Acts in Emergency — Emergency Caused by Party Injured — Saving Life.</p> <p>Where a party’s own negligence causes such a condition that the negligence of others is about to injure innocent third parties, that person is not guilty of contributory negligence if he run risks to save the lives of the imperiled third parties,</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 102; Dec. Dig. § 74.*]</p>

<p>1. Evidence (§ 434*) — Parol Evidence to Bar a Whitten Instrument — Feaud — Mortgages.</p> <p>Where it is claimed that a contract and a chattel mortgage executed in pursuance thereof were induced by fraud of plaintiff, all the facts and circumstances leading up to and connected with the transaction are admissible on the issue of the fraud, and either party may adduce evidence to show the existence and nonexistence of fraud.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005 — 2020; Dec. Dig. % 434.*]</p> <p>2. Contracts (§ 99*) — Validity — Fraud — Evidence — Relevancy.</p> <p>In an action to enforce a contract, defendants maintained that the contract was entered into upon the false representations of the plaintiff that a certain tract of land was in proper condition to raise a crop of rice, evidence that the contract was entered into for the purposes of securing certain water privileges held relevant, as showing nonexistence of fraud.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 99.*]</p> <p>3. Landlord and Tenant (§ 79*) — Action— Plaintiffs — J oinder.</p> <p>In an action on a contract by which plaintiff assigned to defendants a lease of a tract of land, in consideration of defendant’s agreement to deliver to plaintiff 500 barrels of rice out of the crop raised on the land and on adjoining lands in defendant’s possession, it was not necessary that plaintiff’s cotenant under the lease should join as plaintiff; he not being a party to the contract sought to be enforced.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 79.*]</p> <p>4. Landlord and Tenant (§ 79*) — Actions— Defenses.</p> <p>Neither was it any defense that plaintiff was indebted to his lessor for rent of the land, so long as the lessor asserted no landlord’s lien on the crop grown on the land, especially as-no such lien could be asserted; no crop having been raised.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 79.*]</p> <p>5. Trial (§ 260*) — Instructions Covered by Charge Given.</p> <p>A requested instruction which is covered by charges already given is properly refused.</p> <p>[Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>6. Trial (§ 327*) — General Verdict — Effect.</p> <p>A general verdict for plaintiff is against all defendants, and determines all the issues in plaintiff’s favor, touching his right to the relief sought.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 76Sy2-770; Dec. Dig. § 327.*]</p>

<p>Pleading (§ 236*) — Appeal and Error (§ 959*) — Amendment oe Answer — Discretion oe Court.</p> <p>The statute providing that no amendment shall be filed after announcing ready for trial is directory, leaving it to the discretion of the court as to whether such amendment may be filed, which is reviewable only in cases of abuse.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 601; Dec. Dig. § 236;* Appeal and Error, Cent. Dig. §§ 3825-3833; Dec. Dig. § 959.*]</p>

<p>Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Action by J. L. Zumwalt against the Texas Central Railroad Company. Judgment for defendant was reversed by the Court of Civil Appeals, and defendant brings error.</p>

Error from Court of Civil Appeals of Second Supreme Judicial District. Action by R. N. Henson and others against the Texas & Pacific Railway Company, in which defendant filed a cross-action against the Ft. Worth Belt Railway Company. Judgment of the Court of Civil Appeals (121 S. W. 1127), affirming a judgment for plaintiff and affirming a judgment sustaining a plea of privilege to be sued in another county by the cross-defendant, and defendant brings error.

<p>1. Homicide (§ 310*) — Assault with Intent to Kill — 1Trial—Instructions.</p> <p>Defendant was tried for assault with intent to commit murder, and the court charged that “an assault becomes aggravated when committed with a deadly weapon under circumstances not amounting to an intent to murder or maim,” and that, if there was a reasonable doubt as to the defendant’s intent to murder or maim, the defendant was guilty of no higher offense than aggravated assault. Held, that the use of the word “maim,” in conjunction, with murder, had a tendency to confuse the jury, for if it was believed that defendant’s intent was not to murder, but to maim, the jury would have been obliged to convict, and hence the instructions taken together were reversible error.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.*]</p> <p>2. Words and Phrases — 1“Maiming.”</p> <p>“Maiming” is to deprive a person of some member of his body.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 5, pp. 4275-4276.]</p> <p>3. Homicide (§ 89*) — “Assault with Intent to Muedee” — Shooting.</p> <p>To shoot at another is not necessarily an assault with intent to murder.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 115-118; Dec. Dig. § 89.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 541-542, vol. 8, p. 7583.]</p>

<p>Homicide (§ 250*) — Manslaughter — Evidence.</p> <p>In a prosecution for homicide, evidence held to sustain a conviction of manslaughter.</p> <p>[Ed. Note. — For other cases, see Homicide, Dec. Dig. § 250.*]</p>

<p>Appeal from. District Court, Washington County; Ed. R Sinks, Judge.</p> <p>Action by Ignac Dykowski against William Schwantkowsky and another. Judgment for the plaintiff, and the defendants appeal.</p>

<p>1. Trial (§ 191*) — Instructions — Assumption of Facts.</p> <p>Where it appears that a horse ran into a train which was on the crossing, the act of the horse was the proximate cause of the injury, and the court in an instruction was warranted in assuming it.</p> <p>[Ed. Note. — For other eases, see Trial, Dec. Dig. § 191.*]</p> <p>2. Railroads (§ 425*) — Operation—Injuries at Crossing — Proximate Cause op Injury.</p> <p>Where a horse ran into a railroad train on a crossing, the fact that such train is going at a rate of speed greater than allowed by municipal ordinances does not make such speed the proximate cause of the injury, neither does the fact that, if it had not been for such speed, the train would not have been at that particular point, make the speed the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1527-1533; Dee. Dig. § 425.*]</p> <p>3. Railroads (§ 447*) — Operation—Injuries at Crossing — Instructions.</p> <p>An instruction which assumes that the act of the injured animal was the proximate cause of injury at a crossing, and states that if the defendant could not have avoided the injury by ordinary care, etc., a verdict should be returned for it, is not erroneous, as disregarding the burdens of ordinary care which are imposed on defendant.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Dec. Dig. § 447.*]</p>

<p>1. Municipal Corporations (§ 957*) — Taxation — Constitutional Limitation.</p> <p>Const, art. 8, § 9, after various amendments, provided that the state tax on property, exclusive of a school tax, should not exceed 35 cents on $100, and that no county seat or town shall levy more than 25 cents on the $100 for city purposes, and not to exceed 15 cents for roads and bridges on $100 valuation, except for the payment of debts incurred prior to the amendment, September 25, 1883, and for the erection of public buildings, streets, etc., not to exceed 25 cents on $100 in any one year. Rev. St. 1895, art. 486, as amended by Acts 31st Leg. c. 23, provides that the city or town council may levy 25 cents on $100 valuation for current expenses, and may levy an additional 25 cents on $100 for the construction of public buildings, etc., and by ordinance levy a tax not exceeding 15 cents on $100 for the construction of roads and bridges, with the power to issue coupon bonds, etc. Held, that this statute was valid, and not in conflict with the Constitution.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2015-2022; Dec. Dig. § 957.*]</p> <p>2. Constitutional Law (§ 48*) — ‘Construction— Judicial Authority and Duty — Constitutionality.</p> <p>Where the Legislature has passed an act, they affirm its constitutionality; and the courts should not declare it unconstitutional, unless it clearly and unequivocally appears to be so.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48 ;* Statutes, Cent. Dig. § 56.]</p>

Action by Jesse H. Jones and others against W. I-I. Smith and others. There was a judgment of the Court of Civil Appeals affirming a judgment for plaintiffs, and defendant W. H. Smith brings error.

<p>1. Criminal Law (§ 1094*) — Appeal—Record —SUFFICIENCY.</p> <p>Where the record contains neither bill of exceptions nor statement of facts, the judgment of the lower court must be affirmed.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. § 1094.*]</p> <p>2. Criminal Law (§ 1081*) — Appeal—Notice of Appeal.</p> <p>Where the record fails to show that notice of appeal was given, the court is without jurisdiction, and the appeal must be dismissed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2722-2724; Dec. Dig. § 1081.*]</p>

Kittrell, Judge. Action by W. E. Armstrong against E. F. Simms and another. From a judgment of dismissal, rendered on sustaining a general demurrer to the petition, plaintiff appeals.

<p>Limitation op Actions (§ 127*) — Amendment —New Cause of Action.</p> <p>The first amended petition in an action for an architect’s services alleged that defendant employed plaintiff to prepare plans and assist him in procuring bids for a building on certain property, and to superintend its construction “in the event a contract for its construction was made,” and that for said services defendant agreed to pay plaintiff 5 per cent, of the amount of the lowest bid received, and, if such bid was not as low as defendant thought desirable and any of plaintiff’s time was consumed in showing the bidder how he could reduce the bid, defendant should pay plaintiff an additional sum. The second amended petition was the same as the first, except that it omitted the quoted phrase. Held, that the second amended petition did not allege a new cause of action so as to be barred • by limitation; the omission of the quoted words, if effective at all, merely enlarging plaintiff’s claim under the same contract, which was permissible.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]</p>

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Action by R. S. Pope against the Weath-erford Machine & Foundry Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant (§ 8*) — Contracts or Employment — Construction.</p> <p>Defendant’s agent • testified that, when he employed plaintiff, he told him he should be paid $95 a month, and, if he gave satisfaction, the agent would keep him for a year, and that witness would be the judge of that. Held, that the evidence supported the conclusion that the employment was to be for a year, and that the employer did not reserve the right to terminate the same, regardless of substantial cause.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 8-10, 17; Dec. Dig. § 8.*]</p> <p>2. Trial (§ 260*) — Request to Charge — Instructions Given.</p> <p>It is not error to refuse an instruction where the material portion thereof has been ■given in the court’s charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>Appeal from Wharton County Court; J. R. Bowen, Judge.</p> <p>Action by Minnie S-IcDow against W. T. Eldridge. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading (§ 406*) — Objections to Pleading — Waiver.</p> <p>A general demurrer and special exceptions to the petition are to be considered waived, the record being silent as to any action by the court thereon.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1355-1365; Dec. Dig. § 406.*]</p> <p>2. Carriers (§ 177*) — Connecting Carriers— Injury to Shipment — Liability.</p> <p>Where a shipment over connecting lines , is on a through bill of lading issued by one of them both are equally liable to the shipper for any damages to the shipment through the negligence of either.</p> <p>[Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 775-803; Dec. Dig. § 177.*]</p> <p>3. Pleading (§ 376*) — Issues—Matters to be Proved — Admissions.</p> <p>Plaintiff need not introduce evidence of the appointment of a defendant as receiver, defendant’s pleadings fully setting out, the facts showing his appointment, and that he was acting under such appointment.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dec. Dig. § 376.*]</p> <p>4. Pleading (§ 428*) — Objections to Evidence for Defects in Pleadings.</p> <p>Defendant having waived, by not invoking action on, his exceptions to the petition as too indefinite and uncertain as to items of damage may not raise objection to such defects by objection to evidence.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1433-1436; Dec. Dig. § 428.*]</p>

A. Wilcox, Judge. Trespass to try title by the State of Texas against Ira B. Davidson. Judgment for defendant, and plaintiff appeals. The nature and result of this suit are stated as follows in appellant’s brief: “This is an action in trespass to try title, brought by the state of Texas, as plaintiff, against Ira B. Davidson, as defendant, involving eight sections of land of 640 acres each, situated in El Paso county, and fully described in plaintiff’s petition.

L. Moore, Judge. Action for rape by Addie Altman, by W. Altman, her next friend, against Fritz Ecker-mann. From the order sustaining a general demurrer to the petition, plaintiff appeals.

On motion by the City National Bank of Wichita Falls to affirm on certificate a judgment rendered in its favor against Charles Givens, and denying the City National Bank of Decatur and 0. H. Smith any recovery in that case, which motion was opposed by C. H. Smith and the City National Bank of Decatur.

<p>1. Criminal Law (§ 1090*) — Appeal—Rulings on Application poe Continuance-Bill oe Exceptions.</p> <p>Refusal of a continuance cannot be reviewed, in the absence of bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2812; Dec. Dig. § 1090.*]</p> <p>2. Criminal Law (§ 1090*) — Appeal—Rulings on Admission oe Evidence — Bill oe Exceptions.</p> <p>Rulings on the admission of evidence cannot be reviewed, in the absence of bill of exceptions.</p> <p>[ESd. Note. — For other cases, see Criminal Law, Cent. Dig. § 2816; Dec. Dig. § 1090.*]</p> <p>3. Criminal Law (§ 1090*) —Appeal — Remarks oe Prosecuting Attorney — Review.</p> <p>Remarks of the county attorney, stated as grounds of a motion for new trial, without any verification or bills of exception, cannot be considered on appeal.</p> <p>[Ed. Note. — For other .cases, see Criminal Law, Cent. Dig. § 2819; Dec! Dig. § 1090.*]</p>

<p>Appeal from District Court, Orange County; W. B. Powell, Judge.</p> <p>Albert Bazanno was convicted of manslaughter, and he appeals.</p>

<p>1. 'Criminal Law (§ 829*) — Instructions— Repetition.</p> <p>Requested instructions, on matters covered by instructions already given, need not be given.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]</p> <p>2. Homicide (§ 284*) — Evidence oe Death-Instructions.</p> <p>Pen.’ Code 1895. art. 654, declaring that no person shall be convicted of homicide, unless the body of deceased, or portions of it, are found and sufficiently identified to establish the fact of death of the person charged to have been killed, is a rule of evidence and limitation on the. quantum of proof, and need not be charged to the jury.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 584; Dec. Dig. § 284.*]</p> <p>3. Homicide (§ 284*) — Evidence oe Death— Instbuctions.</p> <p>The substance of Pen. Code 1895, art. 654, declaring that, no person shall be convicted of homicide unless the body of deceased, or portions of it, are found and sufficiently identified to establish the fact of death of the person charged to have been killed, is covered by instructions, on a trial for killing W., that the jury must find the fact of the killing of W. beyond a reasonable doubt, and unless they believe beyond a reasonable doubt that W. was dead, and that defendant killed him, they must acquit, and by an instruction on circumstantial evidence and alibi.</p> <p>[Ed. Note. — For other cases, see Homicide, Dec. Dig. § 284.*]</p>

C. Funderburk, Judge. Action by W. P. Denson and others against J. D. Taylor and others to restrain a sale of property under an execution issued on a judgment. From an order refusing a temporary injunction, plaintiffs appeal.

Action by Temple D. Smith and others against Ernst Marschall and wife, in which the defendant named filed a counterclaim. Judgment for plaintiffs, and defendants appeal. On motion to withdraw submission and dismiss appeal, in which O. R. Setter and J. H. Tallichet, claiming an interest in the recovery as appellants’ attorneys of record, resisted the motion.

Error from District Court, Bowie County; P. A. Turner, Judge. Action by Mrs. Minerva Winfield and others against Mrs. Estella Rilling and others. From a judgment in favor of defendants, plaintiffs bring error.

<p>Appeal from Waller County Court; J. D. Harvey, Judge.</p> <p>Action by Lance Owens against the Agricultural Insurance Company of Watertown, New York. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trial (§ 191*) — Instructions — Assumption op Pact.</p> <p>In an action against a carrier for negligent delay in transporting grain, an instruction that the jury might also find for plaintiff for its damage, if any, for being deprived of the use of the wheat which it had contracted to sell, if the jury found that any of the wheat had been sold by plaintiff, was erroneous, as assuming that the carrier had notice of the special damage accruing and to accrue to plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-481; Dec. Dig. § 191.*]</p> <p>On Rehearing.</p> <p>2. Appeal and Error (§ 1140*) — Reversal-Curing Error — Remittitur.</p> <p>Where a judgment was reversed on appeal because of error in an instruction with reference to special damages; the judgment will be affirmed on plaintiff remitting such damages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4465; Dec. Dig. § 1140.*]</p>

<p>Appeal from District Court, Hill County; W. C. Wear, Judge.</p> <p>Action by W. W. Carpenter against the Trinity & Brazos Valley Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Justices oe the Peace (§ 159*) — Appeal-Time eob Piling Appeal Bond.</p> <p>Under Rev. St. 1895, art. 1670, providing that the party appealing from a justice’s court shall within 10 days from the judgment file with the justice a bond, the 10-day period runs from the date of overruling a motion for a new trial, and not from the date of the entry of the judgment.</p> <p>[Ed. Note. — Por other eases, see Justices of the Peace, Cent. Dig. § 558; Dec. Dig. § 159.*]</p> <p>2. Justices oe the Peace (§ 150*)— Appeal-Presentation oe Questions ' in Tbial Court — Motion eob New Trial.</p> <p>It is not necessary for an application in justice’s court for a new trial on the ground •of insufficiency of the evidence to support the judgment to he sworn to in order for the losing party to prosecute an appeal from the judgment, nor that the notice of the motion be given his adversary.</p> <p>[Ed. Note. — Por other cases, see Justices of the Peace, Cent. Dig. § 515; Dec. Dig. § 150.*]</p>

<p>Abatement and Revival (§ 4*) — Pendency of Other Suit.</p> <p>In' an action to foreclose a chattel mortgage, a plea in abatement that a suit by defendant against plaintiff for cancellation of the notes secured and for damages for breach of the contract of sale of the property described in the mortgage was pending was properly overruled ; the common-law doctrine as to effect of another action not prevailing in Texas.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 25-38; Dec. Dig. § 4.*]</p>

M. Pearson, Judge. Action by W. B. Chambers and others against W. C. Cook and others. From the judgment plaintiffs appeal and defendants file cross-assignments of error.

<p>1. Telegraphs and Telephones (§ 38*) — Delivery op Messages — Delay—Nature op Message — Relationship to Sendee.</p> <p>A telegram reading: “May Harris, * * * Johnnie burned, very bad, come at once. Signed J. W. Harris” — put the telegraph company on notice that death might probably result from the injury referred to therein, and of the existence of relationship between the sendee and the person injured, and of the fact that the former would probably desire to attend the burial of the person injured, in the event of his death.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.*]</p> <p>2. Telegraphs and Telephones (§ 65*) — Delivery oe Message — Delay—Pleading.</p> <p>A petition in an action against a telegraph company for damages for delay in delivering a telegram, preventing plaintiff from attending her brother’s funeral, etc., and for mental anguish sustained from, her inability to be with him before his death, alleged that the brother died the night of April 3d, and was buried April 5th, and that if the telegram had been promptly delivered, plaintiff would have reached home on April 4th, in time to attend the funeral. A special exception was taken to the petition on the ground that it did not appear therefrom that the injury for which recovery was sought was the proximate result of the negligence alleged. Held, that the exception was, in effect, a general demurrer to the petition and was properly overruled, since to have sustained it would have denied recovery for plaintiff’s failure to reach home in time to attend the funeral, for which plaintiff was entitled to recover under the petition, as well as for the other damages claimed.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54, 55; Dee. Dig. § 65.*]</p> <p>3. Appeal and Error (§ 1040*) — Harmless Error — Overruling Demurrer.</p> <p>There being no evidence to sustain the allegations of the petition relating to damages for plaintiff’s failure to be with her brother before his death, and that issue not having been submitted to the jury, it was improbable that the jury were influenced thereby, so as to injure defendant, even if the special exception was improperly overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4098; Dec. Dig. § 1040.*]</p> <p>4. Telegraphs and Telephones (§ 38*) — Delay in Delivery — Excuses.</p> <p>A telegraph company’s failure to deliver a telegram promptly could not be excused on the ground that the sendee resided beyond its free delivery limits, where no demand was made of its agent at the sending and receiving offices for the payment or guaranty of payment of extra charges for delivery.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.*]</p> <p>5. Evidence (§ 471*) — Opinion Evidence-Conclusions.</p> <p>In an action against a telegraph company for damages for delay in delivering a telegram, preventing plaintiff from attending her brother’s funeral, at another point, plaintiff was properly allowed to testify as to the time the train left the receiving station on the evening she would have started home, if the telegram had been promptly delivered.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>6. Telegraphs and Telephones (§ 66*) — Delay in Delivery — Actions — Sufficiency of Evidence.</p> <p>In an action for damages from delay in delivering a telegram preventing plaintiff from going home to attend her brother’s funeral, the competent testimony held to show the time when the train departed, which plaintiff could have taken on the day she would have gone home had the telegram been promptly delivered.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dee. Dig. § 66.*]</p> <p>7. Appeal and Error (§ 1051*) — Harmless Error — Admission of Evidence — Facts Otherwise Established.</p> <p>In an action for damages from delay in delivering a telegram, preventing plaintiff from attending her brother’s funeral, any error in permitting testimony by plaintiff as to the connections and time of leaving of a train she would have taken for home had she received the telegram promptly, on the ground that she had no personal knowledge of such facts, was harmless, where other competent and uncontro-verted evidence established such facts, as testified to by plaintiff.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>8. Evidence (§ 69*) — Presumptions—Orderly Conduct of Business — Operation of Railroad.</p> <p>Where train schedules were proven, it is presumed, in absence of contrary evidence, that trains were operated in compliance therewith.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 90; Dec. Dig. § 69.*]</p> <p>9. Telegraphs and Telephones (§ 74*)— Messages — Delay in Delivery — Action— Instruction — Burden of Prooi^-Request.</p> <p>Where, in an action against a telegraph company for damages from delay in delivering a telegram, preventing plaintiff from attending her brother’s funeral, defendant did not introduce any evidence to rebut plaintiff’s prima fa-cie case, an instruction that the burden was upon plaintiff to establish her right to recover by a preponderance of the evidence, and that if she had failed to do so, the jury should find for defendant, was sufficient, so that the court properly refused a requested charge for defendant, that plaintiff could not recover unless the jury found that she would have arrived home earlier than she did arrive, if the message had been promptly delivered, even if the words, “earlier than she did arrive,” were properly used instead of, “in time to have attended the funeral.”</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. § 74.*]</p> <p>10. Telegraphs and Telephones (§ 66*)— Messages — Delay in Delivery — Action-Sufficiency of Evidence — Negligence.</p> <p>In an action against a telegraph company for damages for delay in delivering a telegram, preventing plaintiff from attending her brother’s funeral, evidence held to sustain a finding of negligent delay in delivering the telegram after it reached the receiving station.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 63; Dec. Dig. § 66.*]</p> <p>11. Telegraphs and Telephones (§ 66*)— Messages — Delay in Delivery — Action-Sufficiency of Evidence — Damage.</p> <p>In an action against a telegraph company for damages for delay in delivering a message, preventing plaintiff from attending her brother’s funeral, evidence held to sustain a finding that defendant’s negligent delay in delivery at the receiving point prevented plaintiff from attending her brother’s funeral.</p> <p>[Ed. Note. — For other cases, see Telegraphs and ^Telephones, Cent. Dig. § 63; Dec. Dig. §</p>

<p>Appeal from District Court, Hill County; W; C. Wear, Judge.</p> <p>Action by Ed Washington against the Planters’ Gin Company. From a judgment for plaintiff, defendant appeals.</p>

<p>■1. Schools and School Districts (§ 40*)— Addition of Territory — Petition — Collateral Attack.</p> <p>Where a petition to add territory to a school district alleged that the signers were a majority of the persons qualified to vote for members of the Legislature within the territory proposed to be added, whether such signers constituted a majority was a question for the determination of the school board, and their affirmative finding could not be collaterally attacked.</p> <p>[E'd. Note. — For other cases, see Schools and School Districts’, Cent. Dig. § 70; Dec. Dig. § 40.*] '</p> <p>2. Schools and School Districts (§ 40*)— Territory — Addition—De Facto Annexation — Defective Petition.</p> <p>Where a school board had statutory authority to extend the boundaries of the district on a petition duly filed -for the purpose, the fact that the petition purported to have been sworn to the day after the board granted the prayer thereof, and that a copy of the resolution passed by the board, containing a description of the property added, was not filed for record in the county clerk’s office, were mere irregularities which would not render the proceeding void, in a>suit by owners of portions of the land embraced in the added territory.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 70; Dec. Dig. § 40.*]</p> <p>3. Schools and School Districts (§ 40*)0— Annexation of Territory — De Facto Annexation.</p> <p>Such proceedings at least constituted a de facto annexation of the property attempted to be added, which could only be questioned by the state in a direct proceeding to set it aside.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 70; Dee. Dig. •§ 40.*]</p> <p>4. Schools and School Districts (§ 37*)— Annexation of Territory — Resolution-Failure to File — Hearing Nunc .Pro Tünc.</p> <p>Where the trustees of a school district failed to file a resolution, containing a description of territory added to the district, for record with the county clerk, such omission was a failure to perform a ministerial duty, which could be cured by a nunc pro tunc order.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Dee. Dig. § 37.*]</p> <p>5. Schools and School Districts (§ 101*)— Addition of Territory — Tax Levy.</p> <p>Where, prior to the addition of territory to a school district, it had voted a tax of 20 cents on the $100 of property situated in the district, for school purposes, which rate had been levied and collected for several years, without any further election to determine the rate of assessment, such rate ipso facto became applicable to territory added to the district; the owners of the property annexed having taken no steps to bring about an election to vote off the tax, as authorized by Sayles’ Ann. Oiv. St. Supp. 1906, p. 410, B 63-65.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 252; Dec. Dig. § 101.*]</p> <p>6. Schools and School Districts (§ 102*)— Taxes —Levy — Addition of Property — Curing Irregularities Nunc Pro Tunc.</p> <p>Where proceedings to add territory to a school district were proper except for the nonperformance of certain ministerial acts, which were curable nunc pro tunc, the property added to the district, was not, by such irregularities, exempted from liability for taxes levied for school purposes therein prior to the correction thereof.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 252; Dec. Dig. % 102.*]</p> <p>On Motion for Rehearing.</p> <p>7. Schools and School Districts (§ 37*)— Annexation of Territory — Resolution— Petition.</p> <p>Where a board of school trustees granted -a petition to add certain territory to the district, the proceedings were not void because the resolution of the board did not give the boundaries of the annexed territory, which were fully set out in the petition, which could be looked to to determine the facts.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 67; Dee. Dig. § 37.*]</p>

<p>1. Guardian and Ward (§ 26*) — Death of Guardian — Effect—Guardian’s Account-Jurisdiction to Settle.</p> <p>On death of a guardian, the ward’s relation to the estate of his former guardian was that of debtor and creditor, so that on the appointment of another guardian by the probate court it was without jurisdiction to adjudicate the matters between the ward and the estate of the former guardian.</p> <p>[Ed. Note. — Eor other cases, see Guardian and Ward, Dec. Dig. § 26.*]</p> <p>2. Guardian and Ward (§ 177*) — Termination of Guardianship — Release of Estate-Jurisdiction of Probate Court.</p> <p>After the death of a guardian, the probate court is without power to release the estate of the deceased guardian and his bondsmen from their liability on the deceased guardian’s bond.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Dec. Dig. § 177.*]</p> <p>3. Guardian and Ward (§ 177*) — Death of Guardian — Guardian’s Estate — Release: by Ward After Arriving at Age — Effect.</p> <p>Where the day after a ward became 21 he was induced to release the estate of his deceased guardian from liability without consideration, and without understanding his rights, to the-knowledge of the deceased guardian’s surety, such release was not binding on him in favor of such surety, though executed to procure a settlement of the estate of his deceased guardian and a division of the property.</p> <p>[Ed. Note. — For other cases, see Guardian and-Ward, Dec. Dig. § 177.*]</p> <p>4. Guardian and Ward (§ 173*) — Guardian’s Surety — Liabilities of ward — Set-Off.</p> <p>Where a guardian was primarily liable on-his bond to his ward, and on- the guardian’s death indebted to the ward the guardian’s estate was administered, and a portion of the proceeds paid to the ward as a distributee, the guardian’s surety was entitled to set off such amount against its liability for a devastavit committed by the guardian.</p> <p>[Ed. Note. — For other cases, see Guardian and-Ward, -Dec. Dig. § 173.*]</p>

<p>1. Statutes (§ 61*) — Title and Subjects of Acts — Construction.</p> <p>Where an act contains a single provision which is broader than the title, the court may not narrow and change the ordinary meaning of the words employed in the act so as to sustain it as to cases falling within the title.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 196; Dec. Dig. § 61.*]</p> <p>2. Statutes (§§ 64, 117*) —Title and Subjects of Acts — Partial Invalidity.</p> <p>Acts 31st Leg. c. 47, entitled “An act to regulate the presentation and collection of claims for personal services or for labor rendered, or for overcharges in freight, etc., against any person or corporation doing business in this state, and providing -a reasonable amount of attorney’s fees to be recovered, in cases where the amount of such claims shall not exceed $200,” etc., and in section 1, permitting a recovery of attorney’s fees in all suits on the same character of claims without regard to the amount thereof, violates Const, art. 3, § 35, providing that no bill shall contain more than one subject which shall be expressed in its title, etc., and since the act refers to all claims of the character therein specified collectively, and in the same language, it cannot be held valid as applicable to claims not in excess of $200, but is void in its entirety.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 195; Dec. Dig. §§ 64, 117.*J</p>

<p>Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.</p> <p>Tom Davis was convicted of murder, and appeals.</p>

<p>Appeal and Error (§ 20*) — Jurisdiction-Amount Involved.</p> <p>Plaintiff sued on an open account for $105.-36, and defendant claimed by cross-action a debt for $166.82. Tbe case, as disclosed by the record, was first tried in the county court. Held that, the amount in controversy being below the original jurisdiction of the county court, it was without jurisdiction, and henee the Court of Civil Appeals could acquire no jurisdiction by appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 81-87; Dec. Dig. § 20.*]</p>

<p>1. Trial (§ 256*) — Instruction—Requests— Necessity.</p> <p>Where an instruction is not erroneous, but merely lacks completeness, a party complaining must request a charge supplying the deficiencies.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 62S-641; Dec. Dig. § 256.*]</p> <p>2. Negligence (§ 139*) — Instructions.</p> <p>Where the court made the liability of a defendant depend on the want of ordinary care, which was adequately defined, that the charge did not completely define negligence was not error.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 371-377; Dec. Dig. § 139.*]</p> <p>3. Negligence (§ 134*) — Proof — Circumstantial Evidence.</p> <p>Negligence may be proved by circumstantial evidence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 272; Dec. Dig. § 134.*]</p> <p>4. Evidence (§ 113*) — Value — Market Value.</p> <p>"While a single sale of a. chattel may hot make a market, it does not require any great number- to give market value to similar chattels in a specified locality.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.*]</p>

M. Holland, Judge. Action by W. G. McIntyre and another against A. D. Emerson. A judgment for defendant in justice’s court was affirmed in the county court, and. plaintiffs and their sureties on the appeal bond to the county court appeal.

<p>1. Guardian and Ward (§ 163*) — Settlement of Estate — Collateral Attack.</p> <p>While funds in the hands of a guardian to his ward’s credit is a trust fund, and may be pursued and claimed by the ward, she cannot do so by collateral attack of the judgments and orders of the county court settling the matter of the guardianship, and settling his estate after his death; the county court in matters of probate being a court of general jurisdiction.</p> <p>■ [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 544; Dec. Dig. § 163.*]</p> <p>2. Bills and Notes (§ 534*) — Action—Attorney’s Fees — Evidence.</p> <p>The provision in a note for payment of 10 per cent, attorney’s fees if the note is placed in the hands of an attorney for collection is one of indemnity, and not for liquidated damages, and therefore the maker is liable only for the fees agreed to be paid by the holder of the note to his attorney, or, in the absence of such agreement, for reasonable fees; so that, in the absence of any proof on the matter, it is error to include any amount for fees in the judgment in an action on the note.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. § 534.*]</p> <p>3. Bills and Notes (§ 534*) — Action—Attorney’s Fees — Evidence.</p> <p>In an action on a note for the balance thereof, after deducting the net amount realized by sale under a trust deed given to secure it, that from the proceeds of the sale the trustees named in the deed of trust paid the attorney as a fee a certain sum, less than 10 per cent, of the sum so collected, was in effect payment by the holder of the note, so as to make its deduction from the amount arising from the sale proper under the provision of the note for payment of 10 per cent, attorney’s fee in case of the note being placed in the hands of an attorney for collection.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. § 534.*]</p>

<p>1. Statutes (§ 184*) — Construction—Legislative Intent.</p> <p>The court in determining the scope of a •statute must consider the evil intended _ to be remedied in connection with the law as it previously existed.</p> <p>[Ed. Note. — For other cases, see Statutes, Oent. Dig. § 262; Dec. Dig. § 184.*]</p> <p>2. Appeal and Error (§ 339*) — Time poe Appeal — Injunction—Final Judgment.</p> <p>Acts 30th Leg. c. 107, § 2, as amended by Acts 31st Leg. c. 34, § 2, authorizing an appeal from an order granting, refusing, or dissolving a temporary injunction, affords a speedy remedy by immediate appeal from such an order not previously allowed by law, irrespective of the final determination on the merits, and an appeal from a final judgment dissolving a preliminary injunction and dismissing the suit is not affected thereby, but is regulated by the statute regulating appeals generally.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 339.*]</p>

<p>Appeal from District Court, Colorado County; M. Kennon, Judge.</p> <p>Action by Mack Simmons against the Western Union Telegraph Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Duval County; W. B. Hopkins, Judge.</p> <p>Action by R. B. King against the Texas Mexican Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Red River County; Ben H. Denton, judge.</p> <p>Action by the Red River National Bank against E. C. Bray and others. Judgment for defendants, and plaintiff appeals.</p>

H. Buck, Judge. Action by J. R. True and others against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. • The only difference between the testimony and pleading upon the trial from which the present appeal was taken, and the testimony and pleading upon the trial from which the former appeal was taken, is as to the statement made by True to appellant’s operator at Ryan concerning the prompt delivery of the telegram.

<p>Appeal from District Court, Brazos County; J. C. iScott, Judge.</p> <p>Suit by Joe Groginsky against William Koppe. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Titus County; P. A. Turner, Judge. Application by Bill Cobb for a writ of habeas corpus to secure bail. Prom a judgment refusing bail, relator appeals.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge. Lum Mackey was convicted of robbery, and he appeals.</p>

<p>Appeal from District Court, Nacogdoches County; James I. Perkins, Judge. Action by the Bank of Garrison against P. W. Malley and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Bosque County Court; P. S. Hale, Judge. Action by L. D. Shrader against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Menard County Court; J. D. Scruggs, Judge. Action by Samuel Zettlemoyer against J. W. Ellis. From a judgment for defendant, plaintiff appeals.</p>

C. Buford, Judge. Action by G. F. Sheppard against E. L. Walker and others, prosecuted by plaintiff’s surviving wife and children upon his death. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge. George Howard was convicted of burglary, and he appeals.</p>