Volume 133 — South Western Reporter

<p>1.Burglary (§ 35*) — Evidence—Admissibility.</p> <p>In a prosecution for burglary of a hank, testimony of witnesses as to seeing three men on the' railroad track north of the town where the burglary occurred approaching the town on the evening before, and as to their resemblance to the three persons accused of the burglary, one of whom was the defendant, was admissible.</p> <p>[Ed. Note. — For other cases, see Burglary, Cent. Dig. § 38; Dec. Dig. § 35.*]</p> <p>2. Criminal Law (§ 361*) —Evidence—Admissibility.</p> <p>In a prosecution for burglary, where it was shown that about a mile from the place of the burglary there was discovered a place where parties had eaten a lunch, and there was found a bottle marked Jersey Cream Whisky, a tin can marked Van Camp’s Pork and Beans, and a number of cigarette stumps, testimony of the sheriff as to defendant’s habits while in jail, as to whether he ate Van Camp’s Pork and Beans, drank Jersey Cream Whisky, and smoked cigarettes, was admissible.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802, S03; Dec. Dig. § 361.*]</p> <p>3. Criminal Law (§ 424*) — Evidence—Acts of Conspirators — Possession of Fruit of Crime.</p> <p>In a prosecution for burglary, evidence of possession by one of the co-conspirators of the fruit of the crime is admissible against defendant.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. § 424.*]</p> <p>4. Criminal Law (§ 1169*) — Appeal — Review-Harmless Error.</p> <p>In a prosecution for burglary, any error in the admission of evidence of a remark of defendant as to where he bought a diamond, was harmless, where other testimony showed that he was in possession of a diamond, and had one when arrested.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3137-3143; Dec. Dig. § 1169.*]</p> <p>5. Criminal Law (§ 422*) — Evidence—Declarations of Accomplice.</p> <p>In a prosecution for burglary, testimony that an alleged accomplice of defendant introduced defendant to witness was admissible.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 984-988; Dec. Dig. § 422.*]</p> <p>6. Burglary (§ 36*) — Evidence—Admissibility.</p> <p>In a prosecution for burglary, testimony by the officer who arrested defendant' that he found on the premises occupied by the defendant three pistols and a lot of cartridges hidden in the bam was admissible.</p> <p>[Ed. Note. — For other cases, see Burglary, Cent. Dig. § 90; Dec. Dig. § 30.*]</p> <p>7. Criminal Law (§ 424*) — Evidence—Acts OF CO-CONSPIRATORS.</p> <p>In a prosecution for burglary, evidence of the finding of a bank book at the home occupied by defendant and two co-conspirators with defendant, showing a deposit of $800 by one of the conspirators in a certain bank, was admissible.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. § 424.*]</p> <p>On Rehearing.</p> <p>8. Burglary (§ 41*) — Evidence — Suffj. ciency.</p> <p>In a prosecution for burglary, evidence held insufficient to identify defendant as one of the persons to whom the incriminating evidence referred.</p> <p>[EM. Note. — For other cases, see Burglary, Cent. Dig. § 99; Dec. Dig. § 41.*]</p> <p>McCord, J., dissenting.</p>

<p>1. Criminal Law (§ 1099*) — Appeal — Record — Proceedings on Motion for New Trial.</p> <p>Testimony on a motion for a new trial, filed after the adjournment of the term of court at which appellant was convicted, cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1099.*]</p> <p>On Motion for Rehearing.</p> <p>2. Criminal Law- (§ 1174*) — New Trial — Grounds — Misconduct of Jurors.</p> <p>Where, on reference by a juror to the fact that defendant had not testified, another juror stated that they could not consider this matter for any purpose, and it was not considered, and the trial court concluded that no injury was shown, defendant having received the lowest penalty, such reference by the juror was not ground for reversal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3170-3178; Dec. Dig. § 1174.*]</p>

<p>1. Appeal and Error (§ 1012*) — Findings— CONOLUSIVENESS.</p> <p>A judgment based on the findings of the court, supported by evidence, will not be disturbed unless the findings are manifestly against the preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992; Dec. Dig. § 1012.*]</p> <p>2. Landlord and Tenant (§ 123*) — Lease— Property Included — Evidence.</p> <p>Evidence held to support a finding that a lease of a described dwelling in a city, and the yards and outhouses belonging thereto, included a barn.</p> <p>[Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. § 436; Dec. Dig. § 123.*]</p> <p>3. Estoppel (§ 1*) — Nature op Estoppel.</p> <p>Estoppel precludes one from denying a fact which has been admitted or determined by matter of record or by deed, or which he has by an act in pais induced another to believe and act on to his prejudice.</p> <p>[Ed. Note. — For other cases, see Estoppel, Dee. Dig. § 1.*]</p> <p>4. Estoppel (§ 78*) — Right op Tenant — Es-toppel.</p> <p>A lessor in a lease of a described dwelling in a city, and the yards and outhouses belonging thereto, denied the right of the lessee to use a barn on the premises, and began to use water from a hydrant in the barnyard. The lessee in possession paying for the water complained, and the parties agreed that the lessor should pay the ' lessee a specified sum per mouth and thereby reimburse the lessee for the amount that would become due for water used by the lessor. The lessor thereafter continued to use the water and paid the lessee a specified sum monthly during the term of the lease. Held, that the lessee was not estopped from insisting that the bam was included in the lease.</p> <p>[Ed. Note. — For other eases, see Estoppel, Cent. Dig. §§ 204-210; Dec. Dig. § 78.*]</p> <p>5. Damages (§ 1885. Damages (§ 188⅜) — Evidence — Sufficiency.</p> <p>Where, in an action by a lessee for the rental value of a bam on the leased premises wrongfully withheld by the lessor, the evidence fixed the value of the use of the bam at $15 per month, a finding that the value of the use was $9 per month was sustainable, as against the objection .that the court did not regard the evidence as credible.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 511; Dec. Dig. § 188.*]</p> <p>6. Landlord and Tenant (§ 129*) — Payment of Kent — Eight to Recover Value of Property Wrongfully Withheld by Lessor.</p> <p>A lease of a dwelling, and yards and outhouses thereto belonging, stipulated for a monthly rental in a lump sum, in advance, and provided for forfeiture of the lease on nonpayment of the rent. The lessee paid the full rent, though the lessor wrongfully withheld a bam included in the lease. The lessee °at all times claimed the right to use the4 bam and the lessor at times promised to give the lessee the use thereof, and at other times refused to do so. Held, that the payment of the rent did not prevent the lessee from subsequently suing for the rental value of the barn, because the payment of the rent without deducting the rental value of the barn was not voluntary.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant? Cent. Dig. §§ 450-457; Dec. Dig. § 129.*]</p> <p>7. Payment (§ 87*) — Recovery of Payments — Voluntary Payments — “Compulsory Payment.”</p> <p>A payment is deemed “compulsory” when made to free property from an actual and existing duress imposed on it by the party to whom the money is paid, or to prevent a seizure by a party armed with apparent authority to seize the property.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 283-287; Dec. Dig. § 87.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1376, 1377.] ■</p>

<p>Appeal from Travis County Court; R. E. White, Judge.</p> <p>Action by Carl Hyltin against Julius Johnson. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Burleson County; Ed. R. Sinks, Judge.</p> <p>Action by Julius Baumann against Herman Wilhelm'. Judgment for plaintiff. Defendant appeals.</p>

Kittrell, Judge. Action by Mrs. Mollie Lindow and husband, for herself and as next friend of minor children, against Theodore Keller and others, in which H. N. Atkinson intervened. From a judgment for plaintiffs and intervener, defendants appeal. Mrs. Lindow filed her petition in the ordinary form of trespass to try title, claiming an undivided half of a 160-acre tract of land, against Theodore Keller and Rudolph Spurli, alleging that defendants owned the other half.

<p>1. Appeal and Ebb or (§ 394*) — Appeal Bond — Extent op Appeal.</p> <p>Where an appeal bond given by an intervening creditor in receivership proceedings on an appeal intended to be an appeal from an order dismissing intervener’s petition during the proceedings, and from a final order of distribution, does not refer to the order dismissing the petition, there is no appeal from such order.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 394.*]</p> <p>2. Judgment (§ 650*) — Judgment Against Receiver — Scope—Finality.</p> <p>A secured creditor intervened in receivership proceedings begun in 1905, and from a decree upon his claim made June 27, 1908, appealed, and on November 25, 1908, the Court of Civil Appeals reversed that decree, with instructions to the district court, after provisions as to interest and attorney’s fees, to make the balance of the principal due to intervener a charge on the general fund, and, in pursuance of such instructions, the district court entered a judgment on February 10, 1909, making the balance of the principal a charge on the general fund, and entitling intervener to share as an unsecured creditor in the remaining assets. The property had been sold and the sale confirmed in 1909, and on June 29, 1909, a final decree of distribution was made, from which intervener appeals. Eeld, that the adjudication of the district court, entered February 10, 1909, under the instructions of the Court of Civil Appeals, was a final adjudication settling the rights of the intervener with reference to its share in the funds in the hands of the receiver.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. § 650.*]</p> <p>8. Corporations (§ 566*) — Receivership Proceedings — Decree op Final Distribution —Statutes—“Remaining Assets.’’</p> <p>A final adjudication in receivership proceedings, after provisions made for interest and attorney’s fees, adjudged that the balance remaining due on the principal due an intervening creditor should be a charge on the general fund, and that the creditor should be entitled to share as an unsecured creditor in the remaining assets. There was then in the hands of the receiver a fund representing the net assets derived by him from his operation of the corporation’s property which had come into his hands, and also a fund derived by him from the proceeds of the property of the Company. Thereafter a final decree of distribution awarded to such creditor a share in the general fund and in the remaining assets, but denied to it any share in the net earnings fund. Eeld, that, in view of Rev. St. 1895, art. 1490, providing that all claims against any corporation at the time of the appointment of a receiver, shall be paid out of the earnings of such corporation while in the hands of a receiver to the exclusion of mortgage action, the “remaining assets” did not include the net earnings fund.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 566.*]</p> <p>4. Corporations (§ 566*) — Classes op Creditors — Statutes—Vendor’s Lien.</p> <p>Rev. St. 1895, art. 1490, providing that claims against a corporation at the time of the appointment of a receiver shall be paid out of the receivership earnings to the exclusion of mortgage action, refers to any form of security which is in effect and substance a mortgage and includes a vendor’s lien to secure notes given by the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 566.*] .</p> <p>5. Corporations (§ 566*) -v- Secured Creditors — When Status Fixed — Statutes.</p> <p>Under article 1490, Rev. St. 1895, providing that all claims existing against a corporation at the time of the appointment of a receiver shall be a lien on the earnings of the receivership to the exclusion of mortgage action, the status of a secured creditor is fixed at the date of the receivership or when by intervention it resorts to mortgage action, and the fact that it holds an unsatisfied balance when the foreclosure is completed does not change its status.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 566.*]</p> <p>6. Corporations (§ 566*) — Secured Creditors — Mortgagees — Statutes — Construction.</p> <p>Rev. St. 1895, art. 1490, relating to the status of creditors of a corporation in receivership, extends to all corporations and to any creditor insisting on mortgage security.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 566.*]</p>

<p>Appeal from Harris County Court, A. E. Amerman, Judge.</p> <p>Action by W. D. Cleveland & Sons against J. O. Ross and another. Judgment for plaintiffs, and defendant Ross appeals.</p>

<p>Appeal from District Court, Travis County ; Chas. A. Wilcox, Judge.</p> <p>Action by the State against the Texas Channel & Dock Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Master and Servant (§ 243*) — Injuries to Servant — Contributory Negligence — Violation oe Rule.</p> <p>Evidence that a railroad rule required a blue flag or a blue light at each end of a train or car under or about which were workmen; that an employé was injured by the movement of a line of cars under one of which he was working; that he had failed to display the required signals; that he was daily given a blank form on which he wrote his name and made out a report, on which forms were printed an instruction that if his duties required him to go around, under, or on cars in any track, to protect himself with blue signals; and that he had attended the schools till he advanced into the grade in which he used the third reader, and continued until he had read a portion of that book, though he testified that he did not know of the rule and could not read, and did not know the purpose of the blue signals except that when he had a car jacked up they were used to prevent any car of locomotive from being run against it to prevent knocking the car down— showed, him guilty of contributory negligence as a matter of lawl</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 759-775; Dec. Dig. § 243.*]</p>

Error from District Court, Harris County; Norman G. Kittrell, Judge. Action by Mike Beck against the Texas Company and another. From a judgment for plaintiff against the Texas Company, defendants bring error.

<p>1. Master and Servant (§ 217*) — Assumption op Risk.</p> <p>Plaintiff was employed by a packing company to work on a sausage grinder, and had worked about a month and a half before he was injured. The day before he was injured the machine was not working well, and plaintiff and the foreman took the machine apart and' took the knives out, and, after seeing that they were dull, the foreman put them back, and plaintiff went on with his work. The machine did not feed well, and plaintiff pushed the meat down upon the knives with his hands, and was familiar with the way in which the conveyor cut the meat and drew it into the machine, and knew that, if his hand came in contact with the conveyor, it would he drawn into, the machine. His hand was caught by the conveyor while pressing the meat down and drawn into the machine. Held, that his injuries were-caused from a risk which he assumed as incident to the employment, and for which his employer was not liable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574r-600; Dec. Dig. § 217.*]</p> <p>2. Master and Servant (§ 217*) — Assumption op Risk — Knowledge op Danger.</p> <p>A master is not liable for an injury to a servant who knows that the machinery he is operating is defective and dangerous, and who, though protesting, continued to use it, in the absence of an express promise by the master to-repair the defect.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574H50O; Dee. Dig. §.• 217.*]</p>

<p>1. Appeal and Error (§ 1067*) — Harmless Ebeob — Failure to Submit Issues.</p> <p>In an action for breach of contract to furnish cars for the shipment of stock, where the evidence failed affirmatively to show that there was any contract for shipment to M. and showed that plaintiff tendered his stock for shipment to N., error in failing to submit the question whether the demand and contract were for cars to be used in shipping to M. was harmless, especially where it appeared that the freight rate to both points was the same, and that whether the contract was for shipment to M. or N. had nothing to do with the delay in furnishing cars.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.*]</p> <p>2. Carriers (§ 207*) — Carriage op Stock-Contract to Furnish Cars — Action por Breach.</p> <p>Where a shipper contracts to furnish cars for shipment of stock, he may recover for breach of the contract though the shipment was to be made beyond the limits of the state.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 207.*]</p> <p>3. Carriers (§ 229*) — Carriage op ' Stock-Injury During Transportation — Measure op Damages.</p> <p>The measure of damages for injuries to a shipment of cattle during transportation, whether they are for immediate market or to be held for feeding and fattening and thereafter to be sold on the market, is the difference between the market price in the condition in which they were delivered and what their market price would have been at destination if proper care had been exercised during their shipment and in an action for such damages, evidence as to what a part of the cattle in question sold for three or four months after the time of shipment at a different market was inadmissible.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 963, 964; Dec. Dig. § 229.*]</p> <p>On Rehearing.</p> <p>4. Witnesses (§ 406*) — Conteadiotion—Com-petency oe Evidence.</p> <p>In an action against carriers for breach of a contract to furnish cars for shipment of cattle, resulting in depreciation in their value, where plaintiff had testified on direct examination that the cattle had been loaded in cars at the rate of about 30 head to each car, and that such cattle, shipped from the shipping point at that time of the year to the state where his were shipped, usually got fat in about 90 days, but that his cattle did not get fat within that period, it was not error to exclude testimony sought to be elicited on cross-examination that about three or four months after the cattle were shipped, plaintiff- had shipped part of them to market at different times in ears containing 23, 24, and 26 head each, as tending to disprove plaintiff’s contention that his cattle had not fattened within 90 days, "in the absence of evidence showing the size and character of the cars used in shipping the cattle over defendant’s line as compared to those subsequently used in shipping the cattle to market, and of the relative compactness of the cattle in the cars in each of such shipments.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. § 406.*]</p> <p>5. Appeal and Error (§ 1048*) — Harmless Error — Exclusion oe Evidence..</p> <p>Even if the exclusion of such evidence was technically erroneous,' it was harmless, where there was no conflict in the evidence as to the appearance and condition of the cattle when they were shipped to market.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4160; Dec. Dig. § 1048.*]</p> <p>6. Evidence (§ 642*) — Expert Testimony-Physical Condition op Cattle.</p> <p>In an action against carriers for breach of a contract to furnish cars for shipment of cattle, resulting in their reaching destination in a damaged condition, it was not error to exclude testimony of a stockman in the employ of one of the carriers, who had charge of the cattle and who had examined them a few days after their arrival at destination, as to whether there was anything in their physical condition that would indicate that they had received rough treatment in transportation, where he knew nothing about their condition prior to or at the time of their shipment, especially where he admitted that one could not, by judging of the appearance of cattle, tell much about whether they had had a hard trip or not.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. - Dig. § 2355; Dec. Dig. § 542.*]</p> <p>7. Evidence (§ 539½*) — Expert Testimony-Railroading.</p> <p>A witness accompanying one of the shipments having testified that while on a side track, they waited for five trains to pass them, it was not error to exclude testimony of an experienced railroad man that it would have been quicker to wait than to require the five trains to take the siding, where such witness was not with the side-tracked train and knew nothing of the relative position of the trains nor the location, capacity, or accessibility of the side track, and the hypothetical question submitted to him did not embrace such matters.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2350-2352; Dec. Dig. § 539⅜.*]</p> <p>8.Evidence (§ 553*) — Examination—Hypothetical Questions — Sufficiency.</p> <p>A hypothetical question propounded to an expert witness should embrace sufficient facts to enable him to give an intelligent answer.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.*]</p>

Harper,- Judge. Action between O. B. Bell and others and J. P. Casey, Jr. Judgment for Bell and others, and Casey appeals. Motion by appellant to file transcript.

<p>1. Witnesses (§ 159*) — Competency—Actions by Executor — Transactions with Decedent.</p> <p>In an action by an executor on a note made by defendants to decedent in payment of bar fixtures purchased by two of defendants, testimony by defendants that certain of the property purchased was never received, and that no credit was given defendants for the value thereof, and that the notes were given after part of the property was delivered, was incompetent under Rev. St. 1895, art. 2302, because relating to a transaction with plaintiff’s testator.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 664, 669, 672; Dec. Dig. § 169.*]</p> <p>2. Evidence (§ 474*) — Opinion Evidence-Value — Qualifications op Witness.</p> <p>It was error to permit a witness to testify as to the value of a set of ivory checks and a check rack sold as a part of bar fixtures, where he had never seen the checks or rack, and was not shown to be qualified to testify as to their value.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 2215, 2218; Dec. Dig. § 474.*]</p> <p>3. Trial (§ 333*) — Verdict.</p> <p>In an action on a note for $300, given for property purchased, defendants counterclaimed for the value of a part of the property purchased but not delivered, a verdict for defendants should fix the amount of the counterclaim, and it ivas error to render judgment against plaintiff for $100, where the jury merely found “for the defendants and the value of the checks and rack,” the property claimed not to have been delivered, “at $400.”</p> <p>TEd. Note. — Por other cases, see Trial, Cent. Dig. §§ 784, 786; Dec. Dig. § 333.*]</p>

<p>Limitation of Actions (§ 46*) — Accrual of Right of Action — Covenants.</p> <p>Where the owner of two lots covered by a deed of trust sold one of them on August 7, 1903, the grantee assuming the payment of the entire mortgage debt, the grantor’s cause of action against the grantee for failure to pay the mortgage did not arise until foreclosure of the trust deed on the lot retained, and hence the four-year statute of limitations did not begin to run until sale on such foreclosure.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 252; Dec. Dig. § 46.*]</p>

<p>Gifts (§ 25*) — Paeol Gift of Land — Im-PKOVEMENTS.</p> <p>A parol gift of land, followed by no permanent or valuable improvement on the land in the life of the donor, vests no title.</p> <p>[Ed. Note. — For other cases, see Gifts, Cent. Dig. §§ 4-3-48; Dec. Dig. § 25.*]</p>

<p>1. A-pur; at. and Errob (§ 714*) — Review — Statement of Facts.</p> <p>The statement of facts sent to another Court of Civil Appeals on a former appeal being no part of the record on the present appeal, quotations from it cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2960; Dee. Dig. § 714.*]</p> <p>2. Sates (§ 359*) — Action foe Price — Sufficiency.</p> <p>Evidence in an action for the balance due on the price of cotton seed held to sustain a verdict for plaintiff.</p> <p>[Eld. Note. — For other cases, see Sales, Dec. Dig. § 359.*]</p>

<p>Error from Mitchell County Court; A. J. Coe, Judge.</p> <p>Action by C. W. Simpson against the Mecca Fire Insurance Company of Waco, Tex. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Sutton County ; J. W. Timmins, Judge.</p> <p>Action by E. E. Vander Stueken against R. J. Owens and others. Judgment for plaintiff, and the defendants appeal.</p>

County Court; C. C. Funder buck, Judge. Proceeding by the State to condemn the land of T. J. Hutchinson for a state railroad right of way. From a judgment awarding damages, the State appeals.

Trespass to try title by the J. S. Brown Hardware Company and Charles J. Stubbs, as the company’s trustee in bankruptcy, against T. E. Catrett and wife. Judgment for defendants, and the plaintiff trustee appeals.

<p>1. Evidence (§ 317*) — Hearsay.</p> <p>On a claim against a carrier for damages for depreciation in value of two car loads of cotton seed by delay,. testimony of a witness that he weighed practically all the seed, with a statement of the weight of each car load, was not hearsay, though he also testified that sometimes a clerk would weigh a wagon load of the seed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]</p> <p>2. Evidence (§ 318*) — Hearsay.</p> <p>In a suit against a carrier for damages by delay in a shipment of cotton seed, testimony of a witness for plaintiff, as to the weight of the seed at its destination, based entirely on accounts of sales, was hearsay.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. § 318*1</p> <p>3. Appeal and Ebeob (§ 1051*) — Harmless Error — Hearsay—Evidence oe Facts Otherwise Proven. ..</p> <p>.. Error in permitting hearsay evidence of weights of goods was harmless., where accounts of sales showing the weights ’ were introduced in evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>4. Carriers (§ 104*) — Delay in Delivery-Evidence.</p> <p>In an action against a carrier for delay in delivery of shipments which the consignor ordered diverted from its original destination, evidence held, to show that the delay was not from any fault of the consignor in failing to deliver original bills of lading in ordering the diversion.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 104.*]</p>

<p>Appeal from District Court, Colorado County ; M. Kennon, Judge.</p> <p>Action by Walter F. Brown against Mrs. Maud Paschall and others. • Judgment for plaintiff. Defendants appeal.</p>

<p>1. Good Will (§ 6*) — Sales — Contract — Construction.</p> <p>A provision in a contract for the sale of a cotton gin and gristmill to three partners that the sellers should not directly or indirectly reengage in the same business at the same place while the purchasers operated the gin is not construed as binding only so long as the purchasers remained partners, and hence the admission of another partner or the formation of a corporation to conduct the business would not impair the restriction against the sellers.</p> <p>(Ed. Note. — For other-cases, see Good Will, Dec. Dig. § 6.*]</p> <p>2. Pleading (§ 214*) — Demurrers—Allegations — Admissions.</p> <p>On a demurrer the allegations of the petition are taken as admitted for the purpose of determining the demurrer.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. I 534; Dec. Dig. § 214.*]</p> <p>3. Monopolies (§ 12*) — Trusts—Statutes.</p> <p>An agreement by the seller of a cotton gin and gristmill not to re-engage in that business so long as the purchasers operated it was not in violation of Laws 1903, c. 94, defining a “trust” as a combination of capital, skill, or acts of two or more persons, and prohibiting combinations to abstain from engaging in or continuing in business.</p> <p>[Ed. Note. — For other cases, see Monopolies, Gent. Dig. § 10; Dee. Dig. § 12.*]</p>

<p>1. Divorce (§ 147*) — Action — Weight of Testimony — Testimony of Party.</p> <p>The weighing of the testimony of a party to a divorce action is governed by the same considerations as that of other witnesses, the credibility of such witness being for the jury in view of the interest of the witness and other circumstances tending to weaken or strengthen his testimony.</p> <p>[Ed. Note. — Por other cases, see Divorce, Dec. Dig. § 147.*]</p> <p>2. Divorce (§ 184*) — Findings—Conclusiveness— Review.</p> <p>If the jury determined that the testimony of a party to a divorce action was credible, and based. their verdict thereon, the Court of Civil Appeals cannot disturb their verdict, especially where it was approved by the trial court.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 570-573; Dec. Dig. § 184.*]</p> <p>3. Appeal and Error (§ 742*) — Statements— Necessity.</p> <p>A proposition under an assignment of error which was not followed by a statement as required by the court rules need not be considered by the Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>4. Appeal and Error (§ 1058*) — Harmless Error — Exclusion of Evidence — Cumulative Evidence.</p> <p>Any error in excluding testimony offered by defendant which was substantially the same as that given by plaintiff could not have prejudiced defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4195, 4200-4206; Dec. Dig. § 1058.*]</p> <p>5. Appeal -and Error (§ 699*) — Record—Instructions — Necessity. '</p> <p>An assignment of error to the giving of instructions will not be considered on appeal where the instructions or the part thereof claimed to be objectionable are not set out in the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2940; Dec. Dig. I 699.*]</p> <p>6. Divorce (§ 27*) — Grounds —Cruelty'— Charges of Unchastity.</p> <p>A charge by a husband of adultery or un-chastity against the wife may be such cruelty as to authorize a divorce, though the charges do not have the effect of seriously impairing the physical health of the wife.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. § 69; Dec. Dig. § 27.*]</p> <p>7. Divorce (§ 306*) — Fees — Expenses of Children.</p> <p>Plaintiff took with her when leaving defendant’s bed and hoard some of the minor children, leaving some of them with defendant, and supported the children she took for several years from her own earnings. Neither party had any separate estate, and the community estate was sold and was equally divided between them. While the parties lived apart defendant resided in the house belonging to the community and had use of the land upon which it was located. Defendant is an old man and not in robust health. Held, that it would be unjust to charge defendant upon granting a divorce to plaintiff with the amount expended by her in supporting the minor children, taken with her.</p> <p>[Ed. Note. — For other cases, see Divorce, Dec. Dig. § 306.*]</p> <p>8. Divorce (§ 225*) — Costs — Attorney’s Fees.</p> <p>Nor would it be just under such circumstances to allow the wife a reasonable attorney’s fee expended in a divorce action.</p> <p>TEd. Note. — Ifor other cases, see Divorce, Cent. Dig. §§ 647-650; Dec. Dig. § 225.*]</p>

<p>1. Damages (§ 216*) — Instructions—Personal Injuries — Computation of Damages— “Sickness.”</p> <p>In an action for personal injuries, a charge to allow plaintiff compensation for any sickness, physical or mental pain* that he suffered, and for the reasonable value of any time he has lost was erroneous, because the term “sickness” embraces physical and mental pain and loss of time,_ and the charge was calculated to cause a finding for double damages.</p> <p>[Ed. Note. — Eor other cases, see Damages,0 Cent. Dig. §§ 548-555; Dec. Dig. § 216.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6502, 6503.]</p> <p>2. Damages (§ 210*1 — Instructions — Damages Limited by Allegation.</p> <p>Where a plaintiff’s petition in an action for personal injuries claimed six months’ lost time, and his evidence showed a loss of time equal to about one-half of six years, an instruction allowing recovery for loss of time shown by the evidence was erroneous.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 537; Dec. Dig. § 210.*)</p> <p>3. Damages (§ 210*) — Decrease in Ability to Earn — Necessity to Allege.</p> <p>In an action for personal injuries, the plaintiff’s petition itemized his damages with the amounts and then prayed for an aggregate amount of damages equaling the sum of the various items and for general relief, but did not allege damages for lessened capacity to earn money. Therefore a charge allowing recovery therefor was erroneous.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 537; Dec. Dig. § 210.*]</p> <p>4. Railroads (§ 351*) — Accident at Crossing — Instructions.</p> <p>In an action for injuries received at a railroad crossing by being struck by a car in making a running switch, an instruction that if plaintiff should, in the exercise of ordinary care, have kept a lookout for the approach of the car by which he was struck, and failed to do so, and thereby helped to cause his injury, the jury should find for defendant, though defendant’s agents failed to exercise ordinary care, but that if, just before the cars reached the crossing, the same appeared to be together, and that plaintiff was watching the crossing as the locomotive was crossing over it, not knowing that the ear had been uncoupled therefrom and moving on another track, and failed to see whether any car was moving on the track that he was on, and under such circumstances exercised ordinary care, he would not be guilty of any negligence preventing recovery if defendant was guilty of negligence, was properly given.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1193-1215; Dec. Dig. § 351.*]</p>

<p>1. Master and Servant (§ 246*) — Injuries to Servant — Rescue of Fellow Servant.</p> <p>In a servant’s action for injuries in endeavoring to save a fellow servant’s life, it must appear that such fellow servant was in a perilous position through the master’s negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 792; Dec. Dig. § 246.*]</p> <p>2. Master and Servant (§ 278*) — Injuries to Servant — Negligence — Sufficiency of Evidence.</p> <p>In a servant’s action for injuries while attempting to protect a fellow servant, evidence held insufficient to show that defendant was negligent respecting such fellow servant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 278.*]</p>

<p>Appeal from Tarrant County Court; John L. Terrell, Judge.</p> <p>Otto Ehrhardt was convicted of crime, and he appeals.</p>

<p>1. Perjury (§ 11*) — False Testimony — Materiality.</p> <p>False testimony, to be the subject of perjury, must be material.</p> <p>[Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 38-54; Dec. Dig. § 11.*]</p> <p>2. Perjury (§ 25*) — Indictment—Requisites.</p> <p>An indictment for perjury at the trial of a third person charged with passing a forged instrument, which alleges that accused testified on the trial that he was with the third person in another county on a designated date, and that the statement was material and was false, is fatally bad, for failing to affirmatively show the materiality of the testimony, by showing 'that the testimony was in defense of an alibi that the third person was not in the county on the day on which it was alleged he passed the instrument.</p> <p>[Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 82^89; Dec. Dig. § 25.*]</p>

Harper, Judge. Action by Paula Rodriguez, as next friend of Miguel Dira, against the Mexican Central Railway Company and another. From a judgment for plaintiff, the defendant named appeals.

<p>Appeal from McLennan County Court; Tom L. McCullough, Judge.</p> <p>Action by Maria Smith against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

P. Hamblen, Judge. Action by Abbott Cockrell and another against the Houston Packing Company and others. From a judgment sustaining a general demurrer interposed by defendant named, after the dismissal of the action, as against codefendants, plaintiffs appeal.

<p>1. Infants (§ 11*) — Removal of Disabilities —Proceedings.</p> <p>The function devolving on district courts in proceedings to remove the disabilities of a minor is a special authority to the judge as a commissioner, and not to the court, and no such presumptions are indulged in favor of the order in such proceedings in case of collateral attack as in favor of an ordinary judgment.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 12; Dec. Dig. § 11.*]</p> <p>2. Wills (§ 418*) — Presumptions in Favor of Validity — Admission of Will to Probate.</p> <p>It is presumed in favor of a judgment of a probate court admitting to probate the will of a minor that the court found that the minor lived in the county in which proceedings were had, and judgment rendered in the district court, for the removal of the disabilities of the minor.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 901; Dec. Dig. § 418.*]</p> <p>3. Wills (§ 440*) — Construction—Intention of Testator — Meaning of Language.</p> <p>In interpreting a will, every effort is to be made to determine the intention of the testator from all the provisions taken together, disregarding arbitrary rules of construction, and the intention, thus ascertained, if lawful, must be carried out.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 956; Dec. Dig. § 440.*]</p> <p>4. Contracts (§ 170*) — Construction—Practical Construction by Parties.</p> <p>In ascertaining the meaning of an instrument, the construction by the parties by their conduct is important.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 753; Dec. Dig. § 170.*]</p> <p>5. Wills (§ 76*) — Persons Entitled — Effect of Will.</p> <p>Where a will contained no devise or bequest, but only defined the duties of the executor and guardian of the children of testatrix, the property descended under the statute of distribution.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 195; Dec. Dig. § 76.*]</p> <p>6. Guardian and Ward (§ 20*) — Management of Property — Powers Under Will.</p> <p>A will appointing one as executor and guardian of the children of testatrix, and directing him to take charge of her children and worldly effects, and, after her debts were paid, to raise and educate her children as if they were his own, and making no devise or bequest, gave him no power to hold the estate as an entirety after the older children became of age- or married till the youngest was raised and educated, appropriating to the support of the youngest whatever portion of the inheritance of the others migllt, in his judgment, be proper.</p> <p>[Ed. Note. — For other cases, see Guardian and ^Ward, Dec. Dig. § 20.*]</p> <p>7. Guardian and Ward (§ 11*) — Supervision by Court — Provision in Will.</p> <p>A provision of a will after appointing one executor and guardian of the children of testatrix that the courts shall have no further control or jurisdiction than to probate the will, if intended to provide that he should not as guardian be subject to the jurisdiction of the courts, must fail for want of power in the testatrix.</p> <p>, [Ed. Note. — For other cases, see Guardian and .Ward, Cent. Dig. §§ 34-39; Dec. Dig. § 11.*]</p> <p>8. Guardian and Ward (§ 137*) — Accounting — Persons Entitled.</p> <p>Where one named in a will as executor and guardian of the children of testatrix took oath of both offices on admission of the will to probate, and, after affirmance of the judgment admitting the will to probate, renewed the oath as guardian, but not as executor, having probably paid the debts out of cash on hand, and took possession of the property as guardian, and lent out money, taking notes payable to himself as guardian, and in this capacity sued to collect them, he was acting as guardian, and as such was liable to account to the executor of one of the children.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Dec. Dig. g 137.*]</p>

H. Harrison, Judge. Garnishment proceedings by the French Market Grocery Company, a judgment creditor of Ray Miller, against the Silsbee State Bank. From a judgment of the county court against the garnishee, it appeals. This court certified a question to the Supreme Court. 132 S. W. 465.

<p>1. Sales (§ 233*) — Right of Buyer — Actions Against Third Person — Sufficiency of Evidence.</p> <p>In an action against defendant railroad company for the conversion of a car load of onions which plaintiff claimed to have purchased from the owner’s agent when it was found that they were not in condition to be forwarded to final destination by defendant’s resale of the onions before their delivery to plaintiff, evidence held to raise the issue of whether the person selling the onions-to plaintiff had authority to do so, and did in fact make the sale, and of whether such fact was known to defendant before it had them sold.</p> <p>[Ed. Note. — Por other cases, see Sales, Dec. Dig. § 233.*]</p> <p>2. Sales (§ 226*) — Contracts—Passing of Title — Condition Precedent.</p> <p>Where plaintiff, upon purchasing a car load of freight from the owner, which was being transported on defendant’s line, executed a bond to defendant guaran tying payment of any freight charges due, the actual payment of such charges which were the-consideration of the sale was not a condition precedent to passing of title to plaintiff; title passing upon plaintiff's notification to defendant that he would pay the charges pursuant to his agreement with the owner.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 226.*]</p>

P. Pool, Judge. Action by G. A. Levi and others against J. M. Pickering and others. There was a directed verdict for defendants, and plaintiffs appeal.

<p>Appeal from Bexar County Court; P. H. Shook, Judge.</p> <p>' Action by W. H. Watlington against C. H. McShan. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading (§ 228*) — Petition—Requisites.</p> <p>A petition must be considered in all of its parts to determine whether it ⅛ subject to special exceptions.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.*]</p> <p>2. Master and Servant (§ 258*) — Injury to Servant — Petition—iSueitciency.</p> <p>A petition in an action for injuries to a switchman by cars running off the end of a switch track, which alleges that the cars should have been stopped and that the employés in charge of the switch engine were signaled to stop, but they failed to do so, is sufficient as against the special exception that it fails to allege in what way the employés failed to obey the signals.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 833; Dec. Dig. § 258.*]</p> <p>3. Trial (§ 192*)— Instructions —Assumption oe Fact.</p> <p>The court in its instructions may assume the existence of a fact conclusively shown by the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432 — 434; Dec. Dig. § 192.*]</p> <p>4. Damages (§ 132*) — Personal Injuries— Excessive Damages.</p> <p>A switchman 31 years of age, earning $100 a month, received a permanent injury to his left foot, rendering him unable to work. He sustained injuries to his stomach, causing constant and severe pain for several weeks, and physicians testified that the indications were that there were adhesions and lacerations in the stomach, and that the condition was bad, permanent, and progressive, and would undermine his health. His right foot was injured, and his face, nose, and mouth were cut. Held. that a verdict of $20,000 reduced by the trial court to $15,000 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*]</p>

M. Milam, Judge. Action by Johnson & Johnson 'and Parr & Arnim against the Galveston, Harrisburg & San Antonio Railway Company and others. Judgment for plaintiffs against the defendants, except the Illinois Central Railway Company and another, with judgment in favor of the Galveston, Harrisburg & San Antonio Railway Company over against the other defendants, except the Illinois Central Railway Company and another. Defendants except.

Error from District Court, Harris County; Norman G. Kittrell, Judge. Action by Frank Frantz and others against A. R. Masterson and others. From a judgment for defendants, plaintiffs bring error.

<p>1. Appeal and Ebeob (§ 1040*) — Habjiless Ekrob — Ejkeoneous Rulings on Pleadings.</p> <p>The error, if any, in overruling a special demurrer to allegations of the petition is harmless where the court does not submit to the jury any issue raised by the allegations.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089 — 4105; Dec. Dig. § 1040.*]</p> <p>2. Tbespass to Tby Title (§ 6*) — Bubden of Peoof.</p> <p>A plaintiff in trespass to try title must show title in himself, and defendant need not produce any title where plaintiff develops none in himself.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9; Dec. Dig. § 6.*]</p> <p>3. Boundabies (§ 37*) — Evidence op Title.</p> <p>In trespass to try title to a strip of land plaintiff introduced in evidence deeds under which defendant claimed, which deeds described the land as a lot of a city block fronting on a designated street. According to the position of the block as indicated by monuments erected by the city after plaintiff and a remote grantee of defendant had acquired their respective tracts, the strip was a part of plaintiff’s lots. The undisputed evidence did not show that the block had been correctly fixed as to its original position by the monuments, but there was evidence indicating that one of the lines of the block as it originally existed was some distance from the place fixed by the monuments. At the time the deceased husband of plaintiff purchased, the locality was in the brush, and the husband had his lots surveyed and built a fence on the lines then given him. Held that, though the deeds in defendant’s chain of title referred to a city block, the deeds were not conclusive between the parties as to the true boundary line between their lots.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.*]</p> <p>4.Advebse Possession (§ 12*) — Colob op Title.</p> <p>Deeds are unnecessary to support the 10 years’ statute of limitations.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ G5, 66, 387-393; Dec. Dig. § 12.*]</p> <p>5. Adverse Possession (§ 43*) — Tacking Possession.</p> <p>Where the privity between an occupant of land and a third person was that of vendor and purchaser, the latter was entitled to the benefit of the adverse possession by the occupant.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent Dig. §§ 213-225; Dec. Dig. § 43.*]</p> <p>6. Evidence (§ 273*) — Declarations — Possessor oe Land.</p> <p>Declaration's of one in possession of land that he is claiming it as his own are admissible as giving character to his possession, but the declarations are not competent when they relate to a previous possession.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. | 273;* Adverse Possession, Cent. Dig. § 670.]</p> <p>7. Trial (§ 85*) — Evidence — Ob jections — Requisites.</p> <p>Where a part of the testimony of a witness was admissible, an objection to the whole thereof was properly overruled.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 223-225; Dec. Dig. § 85.*]</p>

<p>Vendor and Purchaser (§ 231*) — Notice-Records.</p> <p>Under Rev. St. 1895, art. 4607, providing that an instrument shall be deemed recorded from the time of deposit for record, a deed filed by the county clerk is notice to subsequent purchasers, though not transcribed upon the records, and though the fee for filing was not paid.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dec. Dig. § 231.*]</p>

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p> <p>Action by the Haskell National Bank against J. L. Baldwin. From a judgment of the Court of Civil Appeals affirming a judgment for plaintiff (124 S. W. 443), defendant brings error.</p>

<p>1.Exchange oe Property (§ 13*) — Personae PROPERTY — Pleading.</p> <p>Where, in an action for the price of fencing, defendant pleaded that when the order for the fencing was executed, and as a part thereof, plaintiff executed an order for trees to be delivered by a certain nursery to constitute payment for the fencing, but that when the trees were tendered plaintiff refused to accept a delivery thereof, such defense was not fatally defective for failure to allege that defendant was part owner of the order for the fruit trees; it not appearing that such order was payable to the nursery, or to any other than defendant.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 25; Dec. Dig. § 13.*]</p> <p>2. Appeal and Error (§ 736*) — Assignments op Error — Plurality of Subjects.</p> <p>An assignment of error complaining of separate and distinct rulings of the court is improper.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3028; Dec. Dig. § 736.*]</p> <p>3. Evidence (§ 465*) — Parol Evidence — Orders for Goods — Exchange.</p> <p>Where reciprocal orders for different goods were given by buyer and seller at the same time, parol evidence was admissible to show that the delivery of goods under one of the orders was to operate as an extinguishment of liability for a delivery of goods under the other.</p> <p>[Ed. Note. — F'or other cases, see Evidence, Cent. Dig. § 2144; Dec. Dig. § 465.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Henry Hatcher and others against the City of Dallas and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Principal and Surety (§ 190*) — Remedies op Surety — Payment op Note — Epfect. ,</p> <p>A surety who pays a note upon which he and his principal are bound discharges it, and cannot enforce it against the principal, his recourse being upon the implied contract of reimbursement, and, in an action by him, a recovery of attorney’s fees and extraordinary interest provided for in such a note is improper.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Dec. Dig. § 190.*]</p> <p>2. Jury (§ 28*) — Right to. Trial by Jury.</p> <p>Where a defendant at a previous term demanded a trial by jury and paid the fee, it was improper at a subsequent term and in his and his attorney’s absence for the court, upon a statement by the plaintiff’s attorney that the defendant would waive a jury, to pass on the action himself.</p> <p>[Ed. Note. — For other cases, ° see Jury, Dec. Dig. § 2S.*J</p>

<p>1. Appeal and Error (§ 389*) — Affidavit in Lieu of Appeal Bond — Describing-Judgment.</p> <p>Under the statute allowing one unable to pay the costs of appeal or give bond therefor to appeal' on making strict proof of such inability before the county judge of the county where he resides, or before the trial court, an affidavit not identifying the judgment appealed from is insufficient to confer jurisdiction on the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2072-2076; Dec. Dig. § 389.*]</p> <p>2. Appeal and Error (§ 389*) — Affidavit in Lieu of Appeal Bond — Amendment on Appeal.</p> <p>The appellate court has no authority to permit amendment of the affidavit of inability to pay or secure costs, on which appeals may be taken without bond, it being insufficient to confer jurisdiction on the appellate court, because not identifying the judgment appealed from.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Dec. Dig. §> 389.*]</p>

<p>1. Carriers (§ 287*) — Carriage of Passengers — Taking up Passengebs — Cabe Required.</p> <p>A brakeman who undertook to assist a passenger to board the train was 'bound to •exercise toward her that high degree of care that would have been exercised by a very competent, cautious, and prudent person, under the same circumstances.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1154-1166; Dec. Dig. § 287.-J</p> <p>2. Cakkieks (§ 318*) — Caeeiage of Passengers — Personal Injuries — Proximate Cause.</p> <p>Evidence that a brakeman, who undertook to assist a passenger to board the train, released his hold of her arm after she placed her foot upon the step before she could get 1 her balance, and as she fell back caught her in the small of the back, causing painful and seri■ous injuries, was sufficient to justify a finding that such injuries, or similar ones, might rea■sonably ha.ve been anticipated as a probable result of the act.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Dec. Dig. § 318.*]</p> <p>•3. Carriers (§ 305*) — Carriage of Passengers — Personal Injury — Proximate Cause.</p> <p>To authorize a recovery by a passenger for ■personal injuries, it is not necessary that the ■exact injuries received should have been foreseen as a probable result of the negligent áct of ■the carrier’s servant, but only that a reasonably prudent man, in view of all the facts, would have anticipated some like injury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1132, 1136-1139, 1245-1246; Dec. Dig. § 305.*]</p> <p>4. Trial (§ 261*) — Instructions—Request — Erroneous Request.</p> <p>Where the court charged that before the jury find for plaintiff they must find that the negligence of the defendant’s servant was the proximate cause of the injuries suffered, it was not the duty of the court to correct an inaccurate requested charge as to proximate cause, and reduce it to proper form, nor to, prepare a correct one, though the requested charge may have been sufficient to direct the attention of the court to the question involved.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent Dig. §§ 660, 671, 675; Dec. Dig. § 261.*]</p> <p>5. Damages (§ 208*) — Questions for Jury-Mental Suffering.</p> <p>In an action for .injuries to a passenger, evidence that she suffered from severe bearing down pains and excessive menstrual flow, and that she was probably injured internally to an unknown extent, was sufficient to authorize submission to the jury of mental suffering as an element of damages.</p> <p>[Ed. Note. — Eor other cases, see Damages, Dec. Dig. § 208.*]</p> <p>6. Carriers (§ 318*) — Carriage of Passengers — Personal Injuries — Evidence—Sufficiency.</p> <p>In an action for injuries to a passenger, evidence held to sustain a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. |§ 1307-1314; Dec. Dig. § 318.*]</p>

<p>Public Lands (§ 173*) — Purchase—Forfeiture — 1Temporary Absence.</p> <p>Rev. St. 1895, art. 4218Z, provides that a failure of the purchaser to reside upon the land purchased from, the state will forfeit the purchase, excepting a necessary and temporary absence for not more than six months in one year to earn money with which to pay for the land. Hold, that where a purchaser, after remaining in actual possession thereon for 10 days, went to an agricultural college to take a course in veterinary surgery under contract with other persons who paid his expenses and agreed to pay him more than double what ho had been receiving when he returned with his certificate from the college, his purpose being to earn an increased salax-y to pay for the land, and his intent being to return to the land, which he did, in good faith, being'absent less than 2½ months, his absence was within the article and did not work a forfeiture of his purchase.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 549; Dec. Dig. § 173.*]</p>

<p>Error from District Court, Upshur County; R. W. Simpson, Judge.</p> <p>Action by W. A. Bauknight against the St. Louis Southwestern Railway Company of Texas. From a judgment for the defendant, plaintiff brings error.</p>

<p>1. Animals (§ 50*) — Running at Large — Ditty of Landowner.</p> <p>Since at common law animals were not permitted to run at large, and landowners were not required to inclose their land to prevent trespasses thereon in order to recover for resulting injuries, one permitting his animals to roam at large was deemed negligent so as to make him responsible for resulting damages, but the common-law rule has been modified in Texas so as to permit domestic animals to run at large, except in territory which has adopted statutory restrictions, so that landowners must erect reasonably sufficient fences to prevent trespasses by stock, and an owner who knows of the propensities of hisLstock for breaking inclosures must restrain such stock and is liable for damage caused by their breaking through fences, if he permits them to run at large.</p> <p>[Ed. Note. — For other cases, see Animals, Dec. Dig. § 50.*]</p> <p>2. Animals (§ 50*) — Running at Large — Stock Laws — Operation — “Lawful Pence.”</p> <p>Sayles’ Ann. Civ. St. 1897, art. 2496, requires every farmer, etc., to make a sufficient fence at least five feet high, which shall be hog-tight, around his cleared land. Article 2497 permits one injured by the trespass of cattle or other stock to complain to a justice of the peace, who shall appoint two freeholders to ascertain the sufficiency of the fence and the damages, and, if it appears that the fence was sufficient, the owner of the stock shall be liable for the damages. Article 2498 authorizes the impounding of trespassing stock for a second offense when the owner of the premises 'deems it necessary for his protection. Article 2499 exempts the stock owner from liability if the fence be insufficient. Sayles’ Ann. Civ. St. 1897, art. 4998, as amended by Acts 1901, c. 123, provides that any fence in a locality which has statutory restrictions upon the running at large of stock which is sufficient to keep out ordinary stock permitted to run at large under the chapter shall be deemed a lawful fence, and requires all such fences to be four feet high. Held, that the statutes were enacted to give landowners complying with their requirements as to fences a special remedy for damages by trespassing stock, irrespective of negligence.</p> <p>[Ed. Note. — For other cases, see Animals, Dec. Dig. § 50.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4027, 4028.]</p> <p>3. Animals (§ 55*) — Running at Large — Actions — Petition — Construction — Negligence.</p> <p>The petition in an action for damages to growing crops from trespassing stock alleged that the premises were situated in a subdivision where hogs,- etc., were prohibited from running at large, and were inclosed by a lawful fence under the statute when the trespasses occurred, and described the stock law district by metes and bounds, and further alleged that, in the event that plaintiff’s fence was not in strict compliance with the statute, nevertheless it was sufficient to keep out all stock sought to be excluded of an ordinary disposition, and not of a fence-breaking nature. Held, that the petition alleged a common-law liability based on the stock owner’s negligence in knowingly permitting vicious animals to run at large, as well as the statutory liability based upon plaintiff’s maintenance of a “lawful fence,” within the statute.</p> <p>[Ed. Note. — For other cases, see Animals, Dec. Dig. § 55.*]</p> <p>4. Appeal and Error (§ 1042*) — Harmless Error — Rulings on Pleadings — Striking Petition.</p> <p>Error in an action for injuries caused by trespassing stock in striking an allegation of the petition to the effect that, even if plaintiff’s fence was not strictly a “lawful fence” within the statute, it was sufficient to keep out all stock of an ordinary disposition and not of a fence-breaking nature, on the ground that plaintiff could not recover unless his fence was a “lawful fence,” was not prejudicial to plaintiff, unless he was thereby prevented from introducing evidence as to the kind and" quality of his fence.</p> <p>TEd. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4116-4114; Dec. Dig. § 1042.*]</p> <p>5. Animals (§ 55*) — Running at Large — Actions for Damages — Issues — “Lawful Fence.”</p> <p>Where the petition in an action for damages by trespassing stock did not allege that plaintiff’s fence was of any particular kind, but merely that he had inclosed his premises with a lawful fence, plaintiff was not bound to prove that his fence was of any particular kind, but merely to show that it was sufficient to protect his premises from ordinary stock.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. § 178; Dec. Dig. § 55.*]</p> <p>6. Animals (g 55*) — Running at Large — Actions for Damage — Issues—Evidence.</p> <p>Plaintiff in an action for damage to crops from trespassing stock was entitled to have submitted the issue whether his cultivated fields were surrounded by a fence sufficient to exclude cattle of ordinary disposition and not of a fence-breaking nature only in the event that the evidence warranted a finding that defendant was negligent in permitting his stock to run at large, in view or their fence-breaking propensities, etc.</p> <p>[Ed. Note. — For other cases, see Animals, Dec. Dig. § 55.*]</p> <p>7. Animals (§ 55*) — Running at Large — Action foe Damage — Admission of Evidence.</p> <p>Where, in an action for damage to crops by trespassing stock, the pleadings put in issue the disposition and habits of the cattle by alleging that plaintiff’s fence was sufficient to protect the premises against stock not of a fence-breaking nature, evidence that witness had land inclosed with various kinds of fences, and that defendant’s cattle had never broken though such fences, though they had run at large in the vicinity, was admissible to rebut the allegation that the cattle were prone to break fences.</p> <p>[Ed. Note. — For other cases, see Animals, Dec. Dig. § 55.*]</p>

<p>Error to Court of Civil. Appeals of Fifth Supreme Judicial District.</p> <p>Action by J. Mayrant Smith against the Postal Telegraph-Cable Company of Texas. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Master and Servant (§ 202*) — Injuries to Servant — Liability oe Master — Scope oe Employment.</p> <p>A corporate employer is not liable for injuries to a new employé inflicted by its officers and employés while attempting, in sport, to lay the new employé across a barrel for the purpose of paddling him, as an initiation into the service, though the custom of initiating all new officers and employés had existed for years with the knowledge and acquiescence of the officers and managers; the act both of the officers and of the employé? being wholly without the scope of their authority.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 202.*]</p> <p>2. Master and Servant (§ 96*) — Injuries to Servant — Knowledge oe Danger.</p> <p>An employer may become liable for negligently exposing a servant to a hidden danger, known to the master and unknown to the serv-an]:, which is incurred by the latter in doing the work which he is employed to do, although the danger arise from the conduct of strangers.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 96.*]</p>

<p>1. Telegraphs and Telephones (§ 65*) — Pleading — Contract.</p> <p>A petition in an action for damages caused by a failure to promptly deliver a telegram announcing the sickness of plaintiff’s brother, alleging that the telegram was delivered to the defendant’s agent for transmission addressed to plaintiff, without any allegation as to payment for its transmission and delivery, or that the defendant bound itself to deliver the message, or that there was any contract between said parties as to the delivery of the message, is de-murrable.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 65.*]</p> <p>2. Telegraphs and Telephones (§ 65*)— Pleading — Petition.</p> <p>A petition for damages for mental anguish caused by failing to promptly deliver a telegram, so that plaintiff was prevented from reaching his brother’s side before he died, without stating that, if the telegram had been delivered, he would have done so, is demurrable.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 65.*]</p> <p>3. Negligence (§ 4*) — “Due Care” — “Due Diligence” — “Ordinary Care.”</p> <p>“Due care,” “due diligence,” and “ordinary care,” are convertible terms, and mean the same thing — [citing 3 Words and Phrases, 2222, and 6 Words and Phrases, 5035]. ,</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 6; Dec. Dig. § 4.*]</p>

<p>1. Appeal and Euro» (§ 500*) — Review—Insufficient Record.</p> <p>Exceptions to the answer are not reviewable, where the record does not show that the trial judge’s attention was called to them, or that he made any ruling thereon.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2295-229S; Dec. Dig. § 500.*]</p> <p>2. Appeal and Error (§ 1033*) — Right to Complain — Favorable Judgment.</p> <p>A party appealing from a substantial judgment in his favor and not objecting to the amount thereof is not entitled to complain of rulings at the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]</p>

Error from District Court, Tom Green County; J. W. Timmins, Judge. Action by McKenzie & Ferguson against the Gulf, Colorado & Santa FS Railway Company. Judgment for defendant, and plaintiffs bring error. On motion to strike out bill of exceptions.

<p>1.Landlord and Tenant (§ 79*) — Subles-see.</p> <p>Where plaintiff was not a party to a lease made to defendant by plaintiff’s lessee, and neither lease provided for payment of rent by defendant to plaintiff, defendant was a sublessee and not an assignee of the original lease.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 244-253; Dec. Dig. 79.*]</p> <p>2. Landlord and Tenant (§ 209*) —Rent — Persons Entitled.</p> <p>Since there is no privity of estate or contract between an original lessor and a sublessee, and such privity is not created by the surrender of the premises to the sublessee, the original lessor cannot sue for rent from the sublessee under the latter’s contract with the original lessee.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 833; Dec. Dig. § 209.*]</p> <p>3. Landlord and Tenant (§ 80*) — Subletting — Illegal Purpose.</p> <p>Where a lease authorized the lessee to sublet without the lessor’s consent, that the lessee sublet the premises for an illegal purpose, did not prevent the lessor from recovering rent under the original lease unless he participated in the sublease or sanctioned it with knowledge of its illegal character.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 80.*]</p>

<p>1. Carriers (§ 76*) — Loss or Goods — Person Entitled to Sue.</p> <p>The consignor of goods as the party to the contract of shipment may sue the carrier for their destruction in transit, though he has sold them, and indorsed and delivered the bill of lading.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 265; Dee. Dig. § 76.*]</p> <p>2. Caeeiebs (§ 159*) — Bill of Lading — Stipulation AS TO PRESENTING CLAIM.</p> <p>Stipulation in a 'bill of lading that no action for destruction of the goods can be sustained unless notice of the claim be given the earlier “before the expiration of” 90 days from accrual of the claim contravenes Rev. St. 1895, art. 3379, which, while authorizing a requirement of notice as a condition to action, provided the stipulation be reasonable, provides that “any such stipulation fixing the time within which such notice shall be given at a less period than 90 days” shall be void.</p> <p>[Ed. Note. — Por other cases, see Carriers, Dec.Dig. § 159.*]</p> <p>3. Carriers (§ 131*)— Action foe Loss of Goods — Presenting Claim — Pleading.</p> <p>The answer in an action, against a -carrier for destruction of goods in transit, pleading violation of a stipulation against main- - tenanee of such an action unless notice of the claim be given within a certain time, should allege that plaintiff consignor knew of the destruction at the time thereof; the goods having been in the carrier’s possession.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. § 573; Dec. Dig. § 131.*]</p> <p>4. Caeeiebs (§ 138*) — Loss of Goods — Liability — Cotton at Compress.</p> <p>Delivery to a compress by a railroad company under the regulations of the Railroad Commission, requiring a railroad, when requested by the shipper of cotton, to deliver it to the nearest compress on the line of its route for compressing, being at a point between that of shipment and that stipulated by the bill of lading for delivery to the consignee, does not change its liability for the cotton while at the compress from that of common carrier, as it existed at common law, which Rev. St. 1895, art. 32.0, prevents its limiting to that of warehouseman; but, under article 323, providing that the railroad company shall be liable as common carrier from the commencement of the trip till the goods are delivered to the consignee, at the point of destination, the compress is its agent; and it can relieve itself of liability for the burning of the cotton at the compress, under its stipulation against liability for fire, only by pleading and proving that its negligence, or that of its servants, did not contribute to such loss.</p> <p>[Ed. Note. — Por other cases, see Carriers, Dec. Dig. § 138.*]</p> <p>5. Caeeiebs (§ 125*) — Loss of Goods — Liability — Insurance ey Shipper.</p> <p>A fire policy obtained by a shipper on goods shipped, reciting the release by assured of the carrier from liability under its bill of lading, and the waiver by the insurer of any right of subrogation against the carrier, constitutes no defense to a claim of the shipper against the carrier for the burning of the goods, there being no such privity between it and the parties to the contract of insurance, with reference thereto, as to authorize it to receive any benefit from it as against insured.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 552-556; Dec. Dig. § 125.*]</p> <p>6. Caeeiebs (§ 151*) — Limiting Liability.</p> <p>Even if the carrier could be considered a party to the contract of insurance, consisting of a fire policy taken out by a shipper on goods shipped, reciting the release by assured of the carrier from liability under its bill of lading, and the waiver by the insurer of any right of subrogation against the carrier, it would be an indirect way of limiting its liability as a common carrier as existing at common law, and so would be ineffective as against the shipper’s claim against it for the burning of the goods through its negligence.</p> <p>[Ed. Note. — Por other cases, see Carriers, Dec. Dig. § 151.*]</p> <p>7. Caeeiebs (§ 118*) — Freight—Cotton—Delivery — Possession by Compress.</p> <p>Railroad Commission Regulations, § 7, provides that, when cotton is tendered to a railroad on a compress platform on the track of the railroad, it shall be the duty of the railroad to take charge of and receipt for the cotton in the same manner and on the same terms as it would receive, and receipt for the cotton if tendered at any other place assigned by it for such transaction, provided, however, that the shipper or the compress company shall in such cases assume the additional risk of insurance involved by such act of the railroad. For cotton so tendered the railroad issued a bill of lading, providing that each carrier over whose route cotton was to be carried thereunder should have the privilege of, at its own cost, compressing the same in accordance with the rules and regulations of the railroad commission. Meld,, that through the compress company, as its agent, the railroad had possession of the cotton, so that its liability therefor as common carrier attached.</p> <p>[Ed. Note.' — Por other cases, see Carriers, Dee. Dig. § 118.*]</p> <p>8. Carriers (§ 118*) — -Loss oe Goods — Liability — Cotton at Compress.</p> <p>A carrier required • by the Railroad Commission regulations, when requested by the shipper of cotton, to deliver the cotton to the nearest compress on the line of its route for compression, hut not required to deliver it to any other compress, having, at the request of the shipper, noted on the bill of lading that it was to be compressed at another compress, and there delivered it, is none the less liable for it as a common carrier while in the possession of the compress, though the shipper was interested in such compress, as such delivery must still be deemed a part of the railroad’s duty as a common carrier; it having by its bill of lading reserved the right to have the compressing done at its cost.</p> <p>’ [Ed. Note. — Por other eases, see Carriers, Dec. Dig. § 118.*]</p>

<p>1. Specific Performance (§ 55*) — Contracts Enforceable — Contract in Yiolation of Law.</p> <p>■Where the purchaser of state school lands had only occupied it for a year when he sold it, when the statute required an actual residence of three years in order to give title, and his ven-dee did not actually take possession and reside thereon, the latter cannot compel specific performance of the original purchaser’s agreement to convey; such agreement being collusive for the purpose of defrauding the state by obtaining the land without the requisite residence.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 173-176; Dec. Dig. § 55.*]</p> <p>2. Specific Performance (§ 114*) — Pleading —Statute of Frauds — Avoidance of Bar— Possession.</p> <p>Allegations of the petition, in an action for specific performance of an oral agreement to convey, that plaintiff had erected permanent and valuable improvements upon the land, as stated, and has had possession of said land as contemplated by said contract and has run his cattle, etc., upon it, and that defendant had never fenced the land off from plaintiff’s occupancy thereof, or refused him the possession thereof, did not allege exclusive possession of the land by plaintiff, so as to take the contract out of the statute of frauds.</p> <p>[Bd. Note. — For other cases, see Specific Performance, Dec. Dig. § 114.*]</p> <p>3. Appeal and Error (§ 154*) — Right of Review — Waiver.</p> <p>Plaintiff in a suit for specific performance, and, in the alternative, for damages, for failure to convey, waived his right to specific performance by proceeding to trial on the count for damages after specific performance -was denied, and by only appealing from the part of the judgment denying specific performance and accepting the judgment for damages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 958; Dec. Dig. § 154.*]</p>

<p>Appeal from Uvalde County Court; T. M. Milam, Judge.</p> <p>Action by Jeff Stidham against Mrs. S. E. Laurie. From a judgment of dismissal, plaintiff appeals.</p>

<p>1. Master and Servant (§§ 206, 217*) — Risks Assumed by Employé.</p> <p>An employer is not liable for injuries resulting from dangers incident to the employment, or from dangers of which the employé knows or by using ordinary circumspection could' know.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 550, 574-600; Dec. Dig. §§ 206, 217.*]</p> <p>2. Master and Servant (§ 238*) — Injury to Employé — Negligence.</p> <p>An employer is not liable for injury to an employé, while unloading a heavy object, by pulling it ofE a truck, caused by it falling on him after he slipped on a bolt which lay on the floor, where a safer method of unloading was available and the presence of the bolt was easily discoverable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 743-748; Dec. Dig. § 238.*]</p> <p>On Motion for Rehearing.</p> <p>3. Master and Servant (§ 235*) — Employé’s Rights — Inspection.</p> <p>Generally, an employé need not inspect the premises on which he works, but he may not ignore obvious dangers or those ordinarily incident to his employment.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. §</p> <p>4.Master and Servant (§ 107*) — Safety of Premises.</p> <p>In determining the proper condition of premises, as affecting their safety to employés, the character of the work, situation of the premises, and working conditions should be considered.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202; Dec. Dig. § 107.*]</p> <p>5. Master and Servant (§ 278*) — Injury to Employé — Negligence — Evidence — Sue-eioiency.</p> <p>In an action for injury to an employé while unloading a heavy object by pulling it off a truck, caused by it falling on him, after he slipped on a bolt on the floor, evidence held to show that the place was reasonably safe.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954-972; Dec. Dig. § '278.*]</p>

Error from District Court, Panola County -, W. C. Buford, Judge. Action by M. J. Whitfield against Rhoda Vinson. Judgment for plaintiff, and defendant brings error. On October 16, 1886, Sam Vinson executed a note for $110, due November 1, 1889, payable to Beauchamp or bearer, bearing 12 per cent, interest from date. Appellee claims to have become the purchaser of this note, for a valuable consideration, before maturity.

Error from District Court, Nacogdoches County; James I. Perkins, Judge. Action by the Weeks Drug Company against the Williamsburgh City Fire Insurance Company. There was a judgment for plaintiff, and defendant brings error.

<p>1. Sales (§ 124*) — Contracts—Rescission.</p> <p>A buyer under an express or implied warranty who seeks to rescind and recover hack the price must within a reasonable time return or offer to return the goods, unless they are wholly worthless.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 303-312; Dee. Dig. § 124.*]</p> <p>2. Carriers (§ 59*) — Bill of Lading — Bona Fide Purchaser.</p> <p>A seller under a warranty drew a draft on the buyer for the price, and with the bill of lading indorsed it to a bank in the ordinary course of business, and the bank gave the seller credit on its books for the amount of the draft, less the usual discount. The bank had no notice of any noncompliance with the contract on the part of the seller. Held, that the bank was an innocent purchaser for value, and it did not become a warrantor of the quality and quantity of the goods described in the bill of lading.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. § 59.*]</p> <p>3. Carriers (§• 59*) — Bill of Lading — Bona Fide Purchaser.</p> <p>The bank forwarded the draft and bill of lading to its' correspondent for' collection, with instructions not to surrender the bill of lading until the drajit was paid. The correspondent collected the draft in full, and remitted to the bank a part thereof. After the payment to the correspondent and before the transmission thereof to the bank, the latter was notified of the failure of the seller to comply with the contract of sale, and at that time the bank had in its possession» funds belonging to the seller more than sufficient to satisfy the demands of the buyer for the loss it had sustained. The bank •obtained judgment against its correspondent for the amount it retained. Held, that the bank was not liable to the buyer for the loss sustained, and the seller could not claim the amount ■due to the bank from its correspondent; there being nothing to impeach the good faith of the transaction as between the bank and the seller.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. § 59.*]</p> <p>■4. Appeal and Error (§ 880*) — Questions Review able — Party Entitled to Complain.</p> <p>Where a defendant did not appeal from a judgment against him and a codefendant, the •court on codefendant’s appeal could not disturb • the judgment so far as it affected defendant, though the evidence was insufficient to shstain any judgment against him.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 358443590; Dec. Dig. § 8S0.*]</p>

<p>Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge. Application by V. A. Cook for a writ of habeas corpus. From an order denying application, he appeals.</p>

<p>Appeal from District Court, Milam County; J. C. Scott, Judge. ■Application by Howard Young for writ of ha-beas corpus. From an order denying the application, relator appeals.</p>

<p>Appeal from Tarrant County Court; John L. Terrell, Judge. Monroe Robinson was convicted of aggravated assault, and he appeals.</p>