Volume 135 — South Western Reporter

<p>Clerks of Courts.(§ 35*) — Excessive Fees— Accounting.</p> <p>A county clerk, who collected excessive fees and paid them to the county, was estopped from asserting that they were illegal, and the county could not be required by him to credit the same to him on an accounting, on the remote possibility that the persons paying them might demand their return.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. § G2; Dec. Dig. § 35.*]</p>

<p>Appeal from District Court, Wood County; R. W. Simpson, Judge.</p> <p>Walter La Grone was convicted of murder, and appeals.</p>

<p>Appeal from Ellis County Court; J. T. Spencer, Judge.</p> <p>Will Drake was convicted of crime, and he appeals.</p>

<p>Appeal from District Court, Williamson County; C. A. Wilcox, Judge.</p> <p>Jasper Riggins was convicted of violating the local option law, and he appeals.</p>

<p>Appeal from Criminal District Court, Harris County; Norman G. Kittrell, Acting Judge.</p> <p>John Williams was convicted of burglary, and appeals.</p>

<p>Appeal from District Court, Burleson County; Ed. R. Sinks, Judge.</p> <p>John Parker was found guilty of manslaughter,- and appeals.</p>

Habeas corpus by William Stein to obtain his discharge from conviction for violating the stock law alleged to be in force in justice precinct No. 6, in Fayette county, Tex.

<p>Appeal from Shelby County Court; Edgar W. Hooker, Judge.</p> <p>Habeas corpus by Rogers Cooks. From an order remanding relator to custody, be appeals.</p>

<p>Appeal from District Court, Wood County; R. W. Simpson, Judge.</p> <p>Action by Victor Boecanero against the Consumers’ Lignite Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Assignments (§ 50*) — Equitable Assignment.</p> <p>A deposit in a bank in the name of a purchaser of land of a sum to be checked in payment therefor was a special deposit, so that the drawing of a check thereon was an equitable assignment of the fund to the seller; and, hence be had no lien on the land for the amount of the deposit, though it was garnished before the check was paid.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 99-105; Dec. Dig. § 50.*]</p> <p>2. Bills and Notes (§ 306*) — Rights oe In-dorser oe Check — Recovery Over Against Original Parties.</p> <p>A bank, other than the drawee bank, cashing check drawn on a special deposit, was entitled to recover the amount thereof from the maker and payee; the deposit having been garnished by the maker’s creditors while in the hands of the bank with which it was deposited.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 727; Dec. Dig. § 306.*]</p> <p>3. Bills and Notes (§ 306*) — Liability oe Maker to Indorser.</p> <p>The rule permitting judgment over against the maker in favor of the indorser, where the latter is compelled to pay an indorsed check, does not authorize a judgment over against the purchaser of land who gave a check on a special deposit made in his name for the purpose of paying for the land, which was afterward garnished in favor of the seller, upon rendition of judgment against him in favor of the bank cashing the check, the seller already being the equitable owner of the amount deposited.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 727; Dec. Dig. § 306.*]</p> <p>4. Bills and Notes (§ 302*) — Liability op •Indorser to Maker.</p> <p>The purchaser in such case would be entitled to judgment over against the seller for any amount he was compelled to pay to the bank cashing the cheek.</p> <p>• [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 622, 643-646; Dec. Dig. § 302.*]</p> <p>5. Subrogation (§ 33*) — Limitation to. Creditor’s Rights.</p> <p>Since the seller of land has no lien on it to secure the amount of a check drawn on a special deposit, made to meet the check given for the land, the acceptance of the check by him being an equitable assignment of the fund, the bank which cashed the check would have. no. lien thereon, though the amount deposited was garnished by the purchaser’s creditors while in the hands of the bank with which it was deposited.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 97; Dec.’ Dig. § 33.*]</p> <p>6. Bills and Notes (§ 68*) — Checks—Acceptance.</p> <p>A telegram sent by the drawee bank in answer to an inquiry whether it would pay a check drawn by E. on’ it in a certain sum, “E. .has deposited with us $1,790 to pay check drawn by” him, was not an acceptance of such check by the drawee bank.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 110-115; Dec. Dig. § 68.*]</p>

<p>1. Fraud (§ 47*) — False Representations— Note Fraudulently Obtained — Transfer —Solvency of Maker.</p> <p>Plaintiff alleged that he was fraudulently induced to execute a note to defendant in payment of the first premium of a life insurance policy, the consideration of which had failed, but that, defendant having transferred the same to an innocent purchaser before maturity, judgment had been recovered against plaintiff thereon in favor of such purchaser, which was in full force, whereupon plaintiff sought to recover the amount of such judgment as damages against defendant. Held, that the petition was not de-murrable for failure to allege that plaintiff was solvent, both for the reason that solvency would be presumed, and also because the fact that plaintiff was insolvent, if true, would not negative damages, as a matter of law, by the recovery of a judgment against him.</p> <p>I Ed. Note. — For other cases, see Fraud, Cent. Dig'. § 42; Dec. Dig. § 47.*]</p> <p>2. Pleading (§ 245*) — Amendments—Discretion-Statutes.</p> <p>Sayies’ Ann. Giv. St. 1897, art. 1188, forbidding amendments after announcement of ready for trial, is directory only; and hence the court, in the exercise of sound discretion, may permit such an amendment, where it seems necessary to attain the ends of justice.</p> <p>[Ed. Note. — For other cases, see Pleading, Gent. Dig. §§ '653-675; Dec. Dig. § 245.*]</p> <p>3. Pleading. (§ 245*) — Amendments—Discretion.</p> <p>The court did not abuse its discretion in permitting an amendment, after announcement of ready for trial, and after the taking of testimony had begun, to meet a'variance in the initials of the payee of a note which was the basis of the action.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 653-675; Dec. Dig. § 245.*]</p> <p>4. Evidence (§ 357*) — Letters—Authority of Writer.</p> <p>Where letters offered in evidence were otherwise admissible, it was no valid objection that the writer stated that he had no authority except in an advisory capacity.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 357.*]</p>

<p>Appeal from District Court, Dimmit County; J. P. Mullaly, Judge.</p> <p>Action by L. A. Kerr and others against B. P. Kingsley and wife. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Statutes (§ 64*) — Partial Invalidity-Terms of Court.</p> <p>Acts 31st Leg. (Laws 1909, c. 8), reorganizing the Thirty-Second judicial district, though it deprived Borden county of one of the two terms of a year for the year 1909, required by Const, art. 5, § 7, and hence was so far invalid, is not invalid further than the constitutional requirement demands, and after the time for holding the two terms in Borden county under the prior law has passed, terms of court are properly held in accordance with the act of 1909, since the act will no longer deprive any county of its two annual terms.</p> <p>[Ed. Note — For other cases, see Statutes, Dec. Dig. § 64.*]</p> <p>2. Carriers (§ 30*) — Interstate Commerce-Rates — Publication of Notice.</p> <p>Under section 6 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat 380, as amended by Act March 2, 1889, c. 382, § 1, 25 Stat. 855 [U. S. Comp. St. 1901, p. 3156]), providing that the Interstate Commerce Commission shall from time to time prescribe the measure of publicity which shall be given to the rates, for common carriers to publish, and the places of publication, it is not sufficient that the rates were filed' with the Interstate Commerce Commission, but they must be on file at the station or with the agent of the common carrier, in order to justify a rate of such carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 30.*]</p> <p>3. Carriers (§ 230*) — Loss or Injury to Goods — Damage to Horses — Instructions.</p> <p>It was not error, in an action against a carrier for damages to horses, to refuse to instruct the jury that if defendants transported such horses on the first through train going in the _ direction of their destination, that would be in compliance with their obligation under the law, as the carrier’s negligence was a conclusion of fact.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 230.*]</p> <p>4. Trial (§ 260*) — Instructions—Requests— Instructions Already Given.</p> <p>Requested charges covered by the main charge are properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>5. Trial (§ 253*) — Instructions—Ignoring Evidence.</p> <p>In an action against a carrier for damages to horses, the refusal of an instruction requested by defendant, that the law presumed that the bad condition of the horses when delivered at the destination was caused by the last carrier handling them, was not erroneous, where there was evidence tending to overcome this presumption.</p> <p>[Ed. Note. — For other cases, see Trial, Dee. Dig. § 253.*]</p> <p>6. Appeal and Error (§ 1050*) — Harmless Error — Admission oe Evidence.</p> <p>In an action against a carrier for damages to horses, an answer of a witness as to a question of time to make a shipment of less than a full train load, from Pecos, Tex., to Atchison or Kansas City, Kan., being indefinite, was not prejudicial to defendants.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1050.*]</p>

<p>Commerce (§ 61*')— Interstate Commerce-Constitutional Law.</p> <p>Sayles’ Ann. Civ. St. Supp. 1897-1904, arts. 4502c-d-e, providing for penalties against railroads for each day freight is held after payment or tender of freight charges, or holding Height for collection of excess of freight tkere-on, is in conflict with Act Cong. Feb. 4, 1SS7, c. 104, 24 Stat. 379 (U. S. Comp. .St. 1901, p. 3154), regulating- interstate commerce, and as to interstate shipments of freight is void.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 61.*]</p>

<p>Appeal from Bexar County Court; P. H. Shook, Judge.</p> <p>From an order revoking Bias Hernandez’s liquor license, he appeals.</p>

■ Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge. Action by Smith Johnson against the Grand Temple and Tabernacle of the Knights and Daughters of Tabor of the International Order of Twelve. From a judgment for plaintiff, defendant appeals.

<p>1. Partition (§ 77*) — Actual Partition of PORTIONABLE PROPERTY — NECESSITY OF Sale.</p> <p>Rev. St. 1895, art. 8618, provides that in a partition suit the property shall be divided into as many shares as there are persons. Articles 3611 and 3621, as amended in 1905 by Gen. Laws, c. 68, provide that the court before entering a decree of partition shall determine ■whether the property, or any part thereof, is susceptible of partition, and, if it is so susceptible, 'a partition shall be decreed of the whole or of that part”susceptible, and commissioners shall be appointed to make the partition, and, if the whole or a part 'of the property is not susceptible of partition, a sale shall be decreed. In an action for partition of a city lot, a portion of the lot was set apart to plaintiffs, who were husband and wife, but the court found that the balance of the property was not susceptible of partition and set it apart to the defendants, and accorded them the right of sale, if they so desired. Eeld, that the decree was correct and in conformity to the statute, and a defendant could not complain thereof, in the absence of a prayer in his pleading for a sale, and in the absence of a showing that the portion set apart to plaintiffs was not a fair allotment.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 211-223; Dec. Dig. § 77.*]</p> <p>2. Partition (§ 77*) — Decree—Determination of Susceptibility of Property to Partition.</p> <p>In an action for partition under Rev. St. 1S95, arts. 3611 and 3621, as amended in 1905 by Gen. Laws, c. -68, providing that the court shall determine before entering a decree for partition whether the property, or any part thereof, is susceptible to partition, and, if so, then a partition shall be decreed of the whole or that part susceptible of partition, and commissioners shall be appointed to make the partition, and, if the whole or a part of the property is not susceptible of partition, a sale shall be decreed, a general finding by the court in its decree that a portion of the property allotted to the defendants was not susceptible of partition was sufficient, without a recital of the testimony upon which such finding was based.</p> <p>[Ed. Note. — Fpr other cases, see Partition, Cent. Dig. §§ 211-223; Dee. Dig. § 77.*]</p> <p>8. Appeal and Error (§ 907*) — Review-Presumption — Evidence to Support Finding.</p> <p>AVhere a decree in partition contained the requisite findings of fact, without a recital of the evidence on which such findings were based, it must be presumed on appeal that the finding was based on the testimony, where it is not claimed that there was, in fact, no testimony introduced.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2911; Dec. Dig. § 907.*]</p> <p>4. Appeal and Error (§ 172*) — Presentation of Questions in Lower Court — Provisions of Decree.</p> <p>In an action for partition in which the decree awarded the defendants a portion of the property in common, after finding that the same was not susceptible of partition, and accorded to the parties the right to a sale of such portion, if they so desired, and a defendant, neither in his pleading nor by request to the court, asked that such sale be ordered, he cannot object to such decree on appeal, on the ground that it did not contain an order of sale.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1074; Dec. Dig. § 172.*]</p>

<p>Appeal from District Court, Grayson County; B. L. Jones, Judge.</p> <p>Action by J. W. Coker against the Galveston, Harrisburg & San Antonio Railway Company and another. Judgment for plaintiff, and defendant named appeals.</p>

Prosecution by the State against W. C. Ward & Sons and others for violating an act of the Thirtieth Legislature approved April 18, 1907 (Acts 30th Leg. c. 138), known as the Baskin-McGregor law. From a judgment for defendants, plaintiff appeals.

M. Walthall, Judge. Certiorari by Melissa T. Comstock against Alice Lomax and others. Judgment for defendants. Plaintiff appeals. This case was here on appeal once before and remanded. Lomax v. Comstock, 60 Tex. Civ. App. 340, 110 S. W. 762.

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by Morton J. Smith against Mrs. Cornelia Sanger. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, El Paso County ; A. M. Walthall, Judge.</p> <p>Action by. .Veneranda Schwingle against C. C. Keifer and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Haskell County; C. C. Hughes, Judge.</p> <p>Action by'E. C. Aycock against the Mis•souri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant .-appeals.</p>

<p>1. Insukance (§ 750*) — Mutual Benefit Societies — Forfeiture—Nonpayment of Assessments.</p> <p>Where the constitution and laws of a mutual benefit society provided that nonpayment of a monthly assessment before the first day of the succeeding month should forfeit the certificate without action by the association, and at the time deceased was taken sick he was in default and had been returned by the local secretary as delinquent, and no effort was made to pay such delinquent assessments prior to his death, the certificate was forfeited.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1895; Dec. Dig. § 750.*]</p> <p>2. Insurance (§ 754*) — Mutual Benefit Association-Nonpayment of Assessments— Secretary — Duty.</p> <p>Where the rules of a mutual benefit society did not require its secretary to go to the homes of members to collect assessments, his previous custom, of which the Supreme Lodge had no ' notice, in so doing was a mere courtesy, on which no rights could be based.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 754.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth. Foree, Judge.</p> <p>Action by the Embree-McLean Carriage Company against Charles Bybee. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Boundaeies (§ 54*) — Subveys — Conclusiveness.</p> <p>In the absence of proof to the contrary,, it will be presumed that a survey was actually made .on the ground by the surveyor as stated in the field notes, and, when the footsteps of the original surveyor can be found and identified, they should be followed.</p> <p>[Ed. Note. — For other cases, see Boundaries,. Cent. Dig. §§ 268-277; Dec. Dig. § 54.*]</p> <p>2. Boundaeies (§ 3*) — Subveys — Cornees- •and Lines.</p> <p>In an older survey, where there is a call for an unmarked corner or line where the same-can be easily found, it will have the dignity of a call for an artificial object, and will control á call for distance.</p> <p>. [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 1A-19; Dec. Dig. § 3.*]</p> <p>3. Boundaeies (§ 8*) — Subveys—Method of - Establishing.</p> <p>In an action tó establish a survey, the -east line was in dispute. The evidence showed that the survey began at the southeast corner of an elder survey. The northwest corner and the southwest corner of the disputed survey were defined on the ground by the original bearing trees. Held, that the proper manner of establishing the eastern line of su.ch survey was by running a line east from the northwest comer of the survey in dispute to the southeast corner of the elder survey, as established, by intersecting the south and east line of said survey from the known comers thereof, though it gives the survey in dispute an excess over the field notes, and then by running the line west from such southeast corner of the elder survey to the known northwest comer of the survey in dispute, and then south to its known southwest corner, then east the number of varas called for, thence north to the place of beginning, so that the survey will be run in accordance with its calls except that the calls for distances will be disregarded, which calls will be controlled by the calls for the bearing trees at the northwest and southwest corners of the survey.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 66-76; Dec. Dig. § 8.*]</p>

C. Douglas, Judge. Trespass to try title by O. B. Jackson against Guy L-efevre, with cross-action by the defendant. Judgment for the plaintiff, and the defendant appeals.

<p>Appeal from District Court, Newton County; C. B. Martin, Special Judge.</p> <p>Action by J. E. Lafferty against Alvin Stevenson. From a judgment in part for plaintiff, he appeals.</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by Zaeh Lamar Cobb against August Reese and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, McLennan County; Marshall Surratt, Judge.</p> <p>Action by Maud Ellison against the Bankers’ Reserve Life Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Evidence (§ 317*) — Declarations by Third Persons — Admissibility.</p> <p>In an action for the price of material, declarations in defendant’s absence by a third person not shown to have been his agent that it was understood between him and plaintiff’s manager that defendant was to pay were inadmissible.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 117A-1192; Dec. Dig. § 317.*]</p> <p>2. Trial (§ 251*) — Issues—Submission.</p> <p>The only issue being whether an owner agreed to pay the price of materials sued for, it was error to submit any question about defendant having notice that plaintiff had not been paid when he settled with the contractor.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>3.Trial (§ 296*) — Instructions—Conflicting Instructions. '</p> <p>While instructions should be construed together, one cannot be looked to to cure misleading tendency of another, where they are irreconcilable.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 705; Dec. Dig. § 296.*]</p>

<p>Error from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by James Park against the Houston Electric Company. From a judgment for plaintiff, defendant brings error.</p>

<p>3..Malicious Prosecution (§ 72*) — Action—■ Probable Cause — Instruction.</p> <p>A chattel mortgage was given upon property described as “all the household furniture, dishes, linens, silver, and chinaware and everything in the house * * * or that may be put in to use as household furnishings any time hereafter until this mortgage has been settled,” with a general lien on the mortgaged property. In an affidavit by the mortgagee charging the mortgagor with unlawfully disposing of mortgaged personal property, the property was described as “one lot of fruit saucers, one lot of twelve dinner plates, one dozen goblets, one floor rug,” etc., and plaintiff’s action for _ malicious prosecution was based on this affidavit. There' was evidence that the property described in the affidavit had 'been located in the house after the execution of the mortgage. Held, that the general description in the mortgage was sufficient to include any property of the kind referred to therein, and that the jury would have been warranted in finding that the mortgage created a lien on the property' described in the affidavit, and hence an instruction on probable cause to the effect that the mortgage covered only the goods specifically described therein was error.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173; Dec. Dig. § 72.*]</p> <p>2. Chattel Mortgages (§ 124*) — Property Subject to Mortgage — After-Acquired Property.</p> <p>While a mortgage of goods which the mortgagor does not own at the time the mortgage is executed is void at law, unless after the mortgagor’s subsequent acquisition of the goods some act be done indicating a purpose to treat them as within the terms of the mortgage, equity will give effect to a mortgage upon personal property under a general description when it is clear that the parties when executing the mortgage intended that it should become subject to- the mortgage when acquired by the mortgagor.</p> <p>[Ed. Note. — For othei- cases, see Chattel Mortgages, Cent. Dig. §§ 208, 209; Dec. Dig. § 124.*]</p> <p>3. Specific Performance (§ 77*) — Chattel Mortgages (§ 33*) — Agreement to Execute Mortgage — Equitable Mortgage.</p> <p>Where one agrees to execute a mortgage on certain property, and at the time he is called upon to perform the agreement has the ability to do so, he will either be compelled to execute it, or, in a suit to enforce the lien equity, will enforce the agreement as a mortgage.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 212; Dec. Dig. § 77;* Chattel Mortgages, Cent. Dig. § 17; Dec. Dig. § 33.*]</p> <p>4. Malicious Prosecution (§ 22*) — Want of Probable Cause — Advice of Prosecuting Officer — Statement of Facts as Known.</p> <p>Where a person in good faith communicates to a prosecuting officer all .the facts ~as known to him concerning the offense to be prosecuted, he is not liable to damages in a civil suit by the accused if the officer makes a mistake in determining whether there is probable cause for prosecution.</p> <p>[Ed. Note. — For other eases, see Malicious Prosecution, Cent. Dig. §§ 45 — 48; Dec. Dig. § 22.*]</p> <p>5. Evidence (§ 271*) — Admissibility— Self-Serving Declarations.</p> <p>Where the mortgagor of personal property, after removing some of it from the house in which it was located and selling a part of it, presented a written self-serving statement to the mortgagee, such statement is inadmissible in an action for malicious prosecution against the mortgagee for having accused the mortgagor of unlawfully disposing of the mortgaged property.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1104; Dec. Dig. § 271.*]</p> <p>6. Evidence (§ 242*) — Admissibility — Malice — Statement of Third Person.</p> <p>Where a person employed by the mortgagee of personal property to find things claimed to be missing tells the mortgagor that, unless she puts the things back, she is going to be put in jail, this statement of the agent, in the absence of the defendant and without a showing that he was authorized by defendant to make such statement, is not admissible in an action by the mortgagor for malicious prosecution to show the motive of the defendant.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 893-907; Dec. Dig. § 242.*]</p> <p>On Rehearing.</p> <p>7. Judgment (§ 713*) — Conclusiveness — Questions Concluded — Sufficiency of Evidence.</p> <p>The court is not precluded by holding that evidence is sufficient to sustain the findings of a court sitting without a jury, to the effect that certain property was not included in the description of a chattel mortgage, from deciding in a subsequent case between the same parties that the evidence on the same point is sufficient to warrant a jury finding that the property was included, and that an instruction not permitting such finding was error; the former decision that the findings were supported by the evidence not being a holding that the evidence would not have supported a contrary finding.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1234-1241; Dec. Dig. § 713.*]</p> <p>8. Judgment (§ OSS'*) — Former Adjudication —Matters of Evidence Considered.</p> <p>Where the statement of facts in the case in review does not show that the evidence is the same as that in a former case between the same parties, founded upon a different cause of action, the court is not required to compare these statements of fact to see if the evidence is the same, nor authorized to base such conclusion on information so obtained.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1S22-1825; Dec. Dig. § 956.*]</p> <p>9. Appeal and Error (§ 1097*) — Review — Subsequent Appeau — Former Decision as Law of the Case.</p> <p>The question as to whether the court will reconsider upon a second appeal what has formerly been decided in the same case is addressed to the discretion of the court, and the decision of the court on a former appeal is not conclusive in a second appeal in which the evidence is the same.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368; Dec. Dig. § 1097.*]</p>

<p>Appeal from District Court, El Paso County; James R. Harper, Judge.</p> <p>Action by F. H. Reitzer against the Southwestern Portland Cement Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by the J. A. Clopton Realty Company against D. J. Allen and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. COMPROMISE AND SETTLEMENT (§ 12*) — OPERATION and Effect — Claims Against Carriers eor Damages.</p> <p>Settlement or compromise with a connecting carrier for injury to a live stock shipment-on its line did not affect the shipper’s right to recover for damage negligently caused by the-initial carrier.</p> <p>[Ed. Note. — Eor other cases, see Compromise- and Settlement, Dec. Dig. § 12.*]</p> <p>2. Negligence (§ 56*) — Essentials to- Liability.</p> <p>Injury as a proximate result of negligence, as well as such negligence, must be shown to-sustain recovery.</p> <p>[Ed. Note. — Eor other cases, see Negligence; Cent. Dig. §§ 69, 70; Dec. Dig. § 56.*]</p> <p>3. Appeal and Error (§ 1010*) — Review-— J udgment— Conclusiveness.</p> <p>A judgment sustained by evidence- will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal arid Error, Cent. Dig'. §§ 3979-3982; Dec. Dig- §. 1010.*]</p>

<p>Appeal from District Court, McLennan County; Marshall Surratt, Judge.</p> <p>Mandamus by August A. Bu.sch & Co. against T. A. Caufield and others. From a judgment refusing the writ, relators appeal.</p>

<p>Appeal from Presidio County Court; W. W. Bogel, Judge.</p> <p>Action by John A. Pool, Jr., against T. H. Rawls and others. .Judgment for plaintiff, and defendants Rawls and H. E. Craig appeal.</p>

<p>Appeal from Shelby County Court; W. D. White, Judge.</p> <p>Action by L. A. Tyer against the Timpson Handle Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Panola County; W. C. Buford, Judge.</p> <p>Action by N. C. Williams and wife against J. H. McLeroy and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>Insurance (§ 370*) — Waiver of Clauses — Effect.</p> <p>Agreement by fire insurer’s agent, who was empowered to solicit,- issue, and deliver policies, in negotiating for a policy, that an iron-safe clause should not apply, binds insurer, where insured, when the contract was made, had no notice of limitation upon the agent’s authority, though the policy stipulated against his right to waive provisions, and where, when insured accepted the policy, he did not know that the policy differed from the terms agreed upon.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 952-955; Dec. Dig. § 376.*]</p>

<p>Appeal from District Court, Cass County; P. A. Turner, Judge.</p> <p>Action by J. T. Crye against O’Neal & All-day and others. From a judgment for defendants on cross-action, plaintiff appeals.</p>

<p>Appeal' from District Court,' Gonzales County; M. Kennon, Judge.</p> <p>Consolidated actions by G. H. King against John C. Murray. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Bowie County Court; Joe-Hughes, Judge.</p> <p>Action by the Smith Drug Company against J. F. Rochelle. From a judgment denying an application for an injunction, plaintiff appeals.</p>

<p>Error from District Court, Harris County ; W. P. Hamblen, Judge.</p> <p>Action by M. W. Carrico against J. E. Stevenson and others. There was a judgment of dismissal, and plaintiff brings error.</p>

<p>Appeal from District Court, Fannin County ; Ben H. Denton, Judge.</p> <p>Action by W. I-I. Phillips, administrator, against Pat Henry and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Orange County; W. B. Powell, Judge.</p> <p>Action by D. G. Hall against William Wiess. From a judgment for plaintiff, defendant appeals.</p>

<p>1. CONSTITUTIONAL LAW (§ 65*) — DISTRIBUTION of Powers — Legislative Powers— Delegation to Municipality — Initiative and Referendum Clauses.</p> <p>Act approved April 13, 1907 (Sp. Acts 30th Leg. c. 71), enacted a city charter,_ containing initiative and referendum provisions granting authority to the board of commissioners, or city council, to fix and regulate the rates of local telephones, and an ordinance was enacted under the referendum clause fixing the time at which bills for telephone'service should be rendered, and petitioner for habeas corpus, who was manager of a telephone company, was arrested for violation of such ordinance. Bill of Rights, art. 1, § 2, declares that all power is inherent in the people, and prohibits any change destructive of a republican form of government. Const, art. 1, § 29, declares that all powers delegated by the Constitution are excepted out of the general powers of government, and that anything contrary thereto shall be void, and article 1, § 27, reserves to the people the right of petition to those invested with the powers of government. Article 2 makes the Legislature a distinct department of government with powers to enact laws, article 3 amplifies the legislative powers, and article 15 provides for impeachment of state officials. Held that, under the constitutional provisions, considered in connection with the judicial system established by the Constitution, and the principle of republican gov-érnment, the initiative and referendum .clauses' of the act attempting to refer or delegate legislation to the people of the municipality were void, and that the ordinance passed thereunder was void.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 116; Dec. Dig. § 65.*]</p> <p>2. Constitutional Law (§ 65*) — Legislative Powers — Delegation—Submission to Popular Vote — Exceptions.</p> <p>The Legislature cannot delegate its lawmaking power and make the enactment of a law depend upon its acceptance by popular vote, except as the Constitution provides such vote in respect to local option laws and to laws relating to the prevention of stock running at large.</p> <p>[Ed. Note. — For other cases, see Cohstitutional Law, Cent. Dig. § 116; Dec. Dig. § 65.*]</p>

<p>1. Municipal Cobpobations (§ 108*) — Pao - ceedings op Council — Obdinances — Validity — Statutoby Pbovisions.</p> <p>Sp. Acts 30th Leg. c. 71, approved April 13, 1907, enacted a city charter containing initiative and referendum provisions, which by article 2, § 8, subd. 27, empowered the city to regulate and fix charges of local telephones, and by subdivision 7 delegated such power to the board of commissioners or city council, who were required to give notice and grant hearings to parties affected by the regulations, and by article 8, § 1, provided for petition for a proposed ordinance and a submission of it to vote. The board without itself enacting any' ordinance relating to telephone rates or making rules for notice and hearing of a proposed ordinance relating thereto received a petition for a proposed ordinance regulating telephone rates, and submitted it to the people at a special election, at which it received" a majority of votes, and by order of the board was placed with the city ordinances as an enacted ordinance. Held, that the ordinance as enacted was invalid.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 108.*]</p> <p>2. Evidence (§ 31*) — Judicial Notice — Laws op State — Special Law — City Chabteb.</p> <p>The court is required to take judicial notice of the Sp. Acts 30th Leg. c. 71, approved April 13, 1907, enacting a charter for the city of Dallas, as if it were a general law.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 40, 41; Dec. Dig. § 31.*]</p> <p>3. Municipal Cobpobations (§ 57*) — Powebs and Functions in Genebal.</p> <p>An incorporated city has only such power and authority as is granted to it by its charter.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 144; Dec. Dig. § 57.*]</p> <p>4. Municipal Cobpobations (§ 106*) — Obdi-nances — Validity.</p> <p>No ordinance of an incorporated city is valid unless and until the statutory prerequisites to its enactment are substantially complied with.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 221-228; Dec. Dig. § 106.*]</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>O. P. Beaupre applied by writ of habeas corpus to obtain bail. From a denial of the writ, he appeals.</p>

<p>1. Cbiminal Law (§ 1076*) — Appeal — Proceedings to Transfer Cause — Recognizance. '</p> <p>Where a recognizance on appeal in a criminal case does not recite that the appellant was convicted of a misdemeanor, nor state the amount of the punishment imposed by tbe verdict, as required by statute, it is insufficient to confer jurisdiction on the Court of Criminal Appeals, and the appeal will be dismissed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2708-2716; Dee. Dig. § 1076.*]</p> <p>On Motion; for Rehearing.</p> <p>2¡ Ceiminal Eaw (§ 1131*) — Appeal—Dismissal — Reinstatement.</p> <p>Where an appeal in a criminal, case is dismissed because of insufficient recognizance, the application of appellant for reinstatement, accompanied by a recognizance in manner and form as required by law, will be granted.</p> <p>[Ed. Note. — Eor other cases, see Crimina Law, Cent. Dig. § 2985; Dec. Dig. § 1131.*]</p> <p>3. Criminal Law (§ 1102*) — Appeal—Record —Statement of Pacts — Effect of Failure to Pile in Time..</p> <p>Where the statement of facts incorporated in a record on appeal is not filed within the time allowed- by Acts 30th Leg. (1st Called Sess.) c. 7, the statement will be stricken out on motion.</p> <p>[Ed. Note.^For other cases, see Criminal Law. Dec. Dig. § 1102.*]</p> <p>4. Criminal Law (§ 1092*) — Appeal—Record —Bill of Exceptions.</p> <p>Where 'the bills of exceptions are not verified by the signature of the trial judge and do not bear any file marks, they cannot be considered by the Court of Criminal Appeals.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2834-2861; Dee. Dig. § 1092.*]</p> <p>5. Criminal Law (§ 1094*) — Appeal — Af-firmance.</p> <p>Where.there is neither a statement of facts nor bills of exceptions in the record .on appeal, which can be considered, and the information charges a violation of the law, the judg-. ment will be affirmed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. § 1094.*]</p>

<p>Appeal from Johnson County Court; J. B. Haynes, Judge.</p> <p>Jim Paris was convicted of aggravated assault, and appeals.</p>

<p>Criminal Law (§ 1144*) — Appeal—Review— Presumptions.</p> <p>In the absence of a statement of facts on appeal, the presumption is that the court charged the law applicable to the facts produced in evidence.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3016-3037; Dec. Dig. § 1144.*]</p>

<p>Criminal Law (§ 1094*) — Appeal—Record— Affirmance.</p> <p>Nothing being presented for* revision, the record being without a motion for new trial, statement of facts, or bill of exceptions, there must be an affirmance.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. § 1094.*]</p>

<p>Appeal from District Court, El Paso County; James R. Harper, Judge.</p> <p>Ed. Watkins, alias Ed. Liggins, was convicted of burglary, and he appeals.</p>

<p>Bail (§ 65*) — Sufficiency — Misdemeanor Case — Stating Punishment — Dismissal oe Appeal.</p> <p>Motion to dismiss the appeal in a misdemeanor case is well taken; the recognizance not containing the statement, necessary under Code Cr. Proc. 1895, arts. 886-888. to allow the appellate court to take jurisdiction, of the amount of the punishment inflicted.</p> <p>[Ed. Note. — For other cases, see Bail, Cent.' Dig. § 285; Dec. Dig. § 65.*]</p>

A. Stevens, Judge. Application by Rosendo Garcia and others for the probate of the will of Carmen Ben-avides de Garcia, deceased, to which Augus-tin Salinas and others filed objections. From an order admitting the will to probate, objectors appeal.

<p>Appeal from Washington County Court; W. R. Ewing, Judge.</p> <p>Action by Mrs. Hetty Gurry, as administra-trix, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court,. El Paso County; A. M. Walthall, Judge.</p> <p>Action hy R. H. Thorne against T. B. Dock-ery. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal' from Franklin County Court; O. E. Cowan, Judge.</p> <p>Action by Harry Smith and others against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiffs. Defendant appeals.</p>

<p>1. Appeal and Error (§ 387*) — Appeal Bond —Time op Filing.</p> <p>The filing of the appeal bond in the time prescribed by the statute is necessary to give the appellate court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2065; Dec. Dig. § 387.*]</p> <p>2. Carriers (§ 218*) — Shipping Contract-Notice op Claim op Damages.</p> <p>The provision in a contract of shipment of cattle that as a condition to recovery for injury thereto from any cause, including delay, the shipper shall give notice of claim therefor before removing them from the place of destination, does not apply to damages from loss by decline in the market, or to the expense of feed for the cattle after their delayed arrival and till the market day.</p> <p>[Ed. Note. — For other cases, -see Carriers, Cent. Dig. § 947; Dec. Dig. § 218.*]</p> <p>S. Carriers (§ 213*) — Delay in Transportation-Test op Liability.</p> <p>The test of liability of a carrier on the question of delay in transportation of cattle is not whether the run made by it was reasonable, but whether it used reasonable care to transport in a reasonable time; and the reasonable care can be considered from all the circumstances.</p> <p>[Ed. 'Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.*]</p>

<p>Receivers (§ 35*) — -Appointment—Grounds— Notice.</p> <p>Plaintiff and defendant bought a lease of certain improvements, and plaintiff acted as agent in collecting the rents, etc. Defendant afterwards purchased the fee, and a dispute arose as to the rent, and plaintiff brought trespass to try title, and defendant in a cross-action applied for a receiver on the ground that the business relations between plaintiff and himself were not harmonious, and that mutual confidence was destroyed, due to plaintiff’s failure to pay $37.50 ground rent, and because of an affray between plaintiff and himself, which would prevent the proper management of the leased property and produce a loss. Held, that such allegations were not sufficient to warrant the appointment of a receiver without notice, under Rev. St. 1895, art. 1465, because it was not shown that the property was in danger of being lost or materially injured.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 54r-60; Dee. Dig. § 35.*]</p>

County Court; Harvey Walker, Judge. Action between O. V. Brown and another and C. D. Allen and another. From a judgment for the latter, the former appeals.

<p>1. Pleading (§ 293*) — Verification—Plea.</p> <p>A plea to the jurisdiction alleging facts, the truth of which is apparent from the allegations of the petition, need not be verified.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 882½; Dec. Dig. § 293.*]</p> <p>2. Courts (§ 121*) — Jurisdiction—Amount in Controversy.</p> <p>As the county court has no jurisdiction of an action where the amount in controversy is less than $200, that court has no jurisdiction of a suit to restrain execution on a judgment for an amount less than $200.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-426; Dec. Dig. § 121.*]</p> <p>3. Venue (§ 22*) — Residence of Parties — Co-defendants.</p> <p>Under Rev. St. 1895, art. 1194, subd. 17, providing that no person who is an inhabitant of the state shall be sued out of the county of his domicile, a suit to restrain enforcement of a judgment rendered in a county of which the judgment creditor was a resident, brought in another county against such judgment creditor, and the sheriff of the latter county holding in his hands an execution on the judgment, could not be maintained in so far as it sought to restrain proceedings on the judgment.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.*]</p> <p>4. Justices of the Peace (§ 128*) — Judgment-Equitable Relief — Remedy by Appeal.</p> <p>Where a judgment of a justice of the peace was valid on its face, error in disregarding defendant’s plea of privilege cannot be remedied by injunction, as an injunction cannot be made to serve the purposes of an appeal.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 402-407; Dec. Dig. § 128.*]</p> <p>5. Justices of the Peace (§ 97*) — Pleading —Effect of Verification.</p> <p>The mere sending of a plea of privilege to a justice of the peace did not justify the defendant in paying no further attention to the action, and he could not plead ignorance of the rendition of the judgment, as the sworn plea did not prove the facts stated, but only served under the statute as a basis for proof thereof, without which the plea in and of itself was worthless.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 333; Dec. Dig. § 97.*]</p>

<p>Hiq-i-iways (§ 94*) — Road Superintendent-Abandonment of Office — Salary.</p> <p>Plaintiff prior to his appointment as road superintendent informed the commissioners’ court that the law creating the office was obnoxious to the people, and that, if appointed and the court found a way to relieve the people of the law, it would be satisfactory to him. Thereafter he was discharged by the court and turned over the tools he had been given to work with to the various, commissioners, and never performed any service as road superintendent or offered to do so after his discharge, nor claimed any salary until after the expiration of the term for which he was appointed. Held that, while the. agreement as to abolishing his office was not binding on him, his acts after his discharge constituted an abandonment of his office precluding the recovering of subsequent salary.</p> <p>[Ed. Note. — For other cases, see Highways, Dec. Dig. § 94.*]</p>

D. White, Judge. Action by the Hamlin Lumber Company against the Houston East & West Texas Railway Company and others. There was a judgment against the Houston East & West Texas Railway Company, and that defendant appeals.

<p>Principal and Agent (§ 164*) — Ratification.</p> <p>Where M., in fulfillment of his contract with defendant to furnish her lumber with which to build a house, purchased lumber on his own account of plaintiff, and furnished it to defendant, there was no acting by M. as agent of defendant, of which her receiving and use of the lumber would be a ratification, so as to make her liable to plaintiff for the lumber.</p> <p>TEd. Note. — For other cases, see Principal and' Agent, Dec. Dig. § 164.*]</p>

<p>Appeal from District Court, Presidio County ; W. C. Douglas, Judge.</p> <p>Action by Jose Salgado against Jacob Baldwin. From a judgment for plaintiff, defendant appeals.</p>

Goodwin, Judge. Action by G. S. Walker, Jr., and others, against G. W. Grossland, in which J. H. and J. S. Patterson and others, were made defendants. From a judgment for plaintiffs, the last-named defendants appeal.

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by W. L. Edmundson and others against E. L. Guy. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Uvalde County ; R. H. Burney, Judge.</p> <p>Action by Thomas Baker and another against E. B. Ward, First State Bank, and ■others. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Evidence (§ 543*) — Opinion Evidence-Market Value — Competency of Witnesses.</p> <p>Witnesses were competent to testify to the market value of cattle at the time and in the condition they arrived at a particular place, where they were shown to be experienced cattlemen who frequently shipped cattle thereto, and to be acquainted with the market value at such place of such cattle as those in question, which were shipped for pasture and not for sale till the succeeding season.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2356%-2358; Dec. Dig. § 543.*]</p> <p>2. Carriers (§ 228*) — Shipment op Live Stock — Suit por Damages — Evidence.</p> <p>In an action against carriers for delay and rough handling of a shipment of cattle, evidence held sufficient to show that the cattle, in the condition in which they were when they arrived at their destination, had a market value at such time and place.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. § 228.*]</p> <p>3. Evidence (§ 117*) — Relevancy Where Not Followed by Other Evidence.</p> <p>In a suit for damages to a shipment of cattle, a question to witnesses for plaintiff as to what the cattle would have been worth at their destination but for their damaged condition was proper, though not followed up by proof showing the extent of damages, where cattle were shipped within a reasonable time and with ordinary care; that being a proper subject for cross-examination if it was desired to show that without negligence there is some injury to every shipment of cattle.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 136; Dec. Dig. § 117.*]</p> <p>4. Negligence (§ 4*) — Definition op "Ordinary Care.”</p> <p>An instruction defining “ordinary care” to be that degree of care, precaution, or diligence which may properly be expected or required, having regard to the nature of the action and circumstances surrounding the transaction, is correct.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 6; Dec. Dig. § 4.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5029-5042; vol. 8, pp. 7739, 7740.]</p> <p>5. Carriers (§ 228*) — Suit for Injuries to Live Stock — Evidence — Damages — Item for Delay.</p> <p>In a suit against carriers of live stock, held that, under the evidence, there was sufficient proof of an item of damages sued for as a feed bill made necessary by delay.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. § 228.*]</p>

<p>1. Sales (§ 359*) — Action fob Price — Evidence — Sufficiency.</p> <p>Evidence in an action for goods sold held sufficient to sustain a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1056-1059; Dec. Dig. § 359.*]</p> <p>2. Sales (§• 160*) — Substantial Perform - anoe.</p> <p>Where goods are sold by description in a written contract, it is not necessary that the goods delivered shall strictly conform to the description, if there is a substantial compliance with the description.</p> <p>TEd. Note. — Eor other cases, see Sales, Cent. Dig. §§ 391-400; Dec. Dig. § 166.*]</p> <p>3. Sales (§ 182*) — Action for Price — Trial —Question for Jury — Performance.</p> <p>Whether there has been a substantial performance of the terms of a written contract for the sale of goods is generally a question of fact for the jury.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 492-495; Dec. Dig. § 182.*]</p> <p>4. Appeal and Error (§ 1068*) — Harmless Error — Instruction—Error Cured by Verdict.</p> <p>An instruction, in an action for the price of railroad ties, which permits a recovery on the basis of a fair market value, where there is no pleading or evidence of market value, is harmless, where the jury finds a sale at a contract price.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228; Dec. Dig. § 1068.*]</p> <p>5. Railroads (§ 179*) — Action—Findings.</p> <p>Where railroad ties are sold to the "president and owner of a railroad and used in the construction of the road, and the proof, in an action against the president, individually, and the railroad company, shows that the company owes for the ties, the finding of a debt is necessarily a finding that a lien exists against the company, which it is *the duty of the court to declare and enforce.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 601-604; Dec. Dig. § 179.*]</p> <p>C. Sales (§ 52*) — Action for Price — Evidence — Price Paid by Seller.</p> <p>The defendant, in an action for the price of railroad ties, attempted to show that the plaintiff had agreed to take a certain price for a part of the ties, which plaintiff denied, and defendant was then permitted to prove what the seller paid for the ties. Held, that such proof was admissible.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 127; Dec. Dig. § 52.*]</p> <p>7.Appeal and Error (§ 970*) — Review—Reception of Evidence — Discretion of Lower Court.</p> <p>Where a rule has been invoked as to all the witnesses at the beginning of tbe-trial, and has been enforced, tbe court In tbe enforcement of such rule does not err in excluding testimony, even though it would have been competent, since tbe reception of evidence is a matter of discretion for the trial court, and will not be reviewed on appeal, unless there appears a clear case of abuse of such discretion, to tbe injury of tbe complaining party.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3849-3851; Dec. Dig. § 970.*]</p> <p>8. Sales (§ 176*) — Performance—Estoppel.</p> <p>Where the buyer of railroad ties, knowing that the seller is buying and paying for ties for delivery, receives and inspects those delivered and makes a written report to the seller, showing their acceptance, and thereby induces tbe seller to believe that like ties will be accepted, under a written contract, and they are shipped by the seller under that belief, the buyer is estopped from denying that the ties conform to the contract.</p> <p>[Ed. Note. — For other cases, see -Sales, Cent. Dig. § 436; Dec. Dig. § 176.*]</p> <p>9. Sales (§ 181*) — Action for Price — Evidence — Performance—Sufficiency.</p> <p>Evidence, in an action for the price of railroad- ties sold under a written contract, held sufficient to show a substantial performance of the contract by the seller.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 486-491; Dec. Dig. § 181.*]</p> <p>10. Railroads (§ 179*) — Action—Pleading — Variance Between Allegation and Proof.</p> <p>Where the seller of railroad ties alleged, in an action for the price, that they were sold to the individual defendant, who was described as the president of the defendant company, and that they were accepted and used by both defendants, and the evidence showed that the individual defendant was president and owner of the defendant company, and that he ordered the ties and received and accepted them, and placed them on the defendant company’s roadbed, there is no variance between the allegation and proof.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 601-604; Dec. Dig. § 179.*]</p>

<p>Appeal from District Court, Bexar County ; J. L. Camp, Judge.</p> <p>Action by the State against J. L. Berry. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Morris County; P. A. Turner, Judge.</p> <p>Action by Mrs. Beulah Watson and others against the Sullivan-Sanford Lumber Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Hill County; W. C. Wear, Judge.</p> <p>Action by E. B. P. Pool against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Bills and Notes (§ 226*) — Indorsement— Consideration.</p> <p>That, contemporaneously with the execution of certain promissory notes, there was a verbal agreement by the payee to take merehan-dise which the maker had on hand, bought of the payee, -in payment of the notes, and not to demand payment if the agreement to ship the goods, for which no specified time was stipulated, was carried out, and that the payee declared the notes due and attempted to collect them, notwithstanding the shipment by the maker, does not constitute a failure of consideration for an accommodation indorsement, but merely entitles the indorser to such damages as he may have sustained by the breach of the contract.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, 'Dec. Dig. § 226.*]</p> <p>2.- Evidence (§ 441*) — Parol Evidence Affecting Weiting — Promissory Note.</p> <p>In an action on promissory notes, evidence of a contemporaneous agreement that the payee, should take merchandise which the maker had on hand, bought of the payee, in payment of the note, and that payment should not be demanded if the maker should ship the goods as stipulated, no time being fixed for the shipment, was inadmissible, as varying the written contract as to the medium of payment and time of payment.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719-1845, 2030-2047; Dec. Dig. § 441.*]</p> <p>3. Evidence (§ 441*) — Parol Evidence Affecting Writing — Consideration.</p> <p>Though, in general, parol evidence may be allowed to show the consideration of a written contract, where the alleged consideration consists of a contemporaneous agreement entirely at variance with the written contract, evidence thereof is not admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719-1845, 2030-2047; 'Dee. Dig. § 441.*]</p>

<p>* Appeal from District Court, Tyler County; W.. B. Powell, Judge.</p> <p>. Action by Y. A. Collins and others against W. P. Callen. Judgment for plaintiffs, and ■and defendant appeals.</p>

H. Burney, Judge. Action by E. J. Buckingham against J. S. Thompson, in which a writ of sequestration was sued out. From a judgment in part for plaintiff and in part for defendant, and in favor of the sureties on the sequestration bond, plaintiff appealed, and defendant made cross-assignments of error.

<p>1. CONSTITUTIONAL LAW (§ 247*) — EQUAL Protection op Laws — Railroads—Imposition op Penalties.</p> <p>Laws 1901, c. 117, making it unlawful for a railway company to permit Johnson grass to go to seed upon its right of way, and, authorizing the recovery of damages and a penalty by a civil suit, does not deny the equal'protection of the laws guarantied by Const. U. S. Amend. 14, § 1.</p> <p>[Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. § 703; Dec., Dig. § 247.*]</p> <p>2. Damages (§ 160*) — Pleading and Pbooe —Expenses Incurred.</p> <p>Plaintiff in an action under Laws 1901, c. 117, relating to, Johnson grass on railroad rights of way, pleaded as part of, his cause of action the expenditure of money and the performance of labor without' alleging that such expense was reasonable and necessary. No exception was taken to the petition. Held, that plaintiff’s testimony that the labor done and money expended were reasonable and necessary was admissible.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 448; Dec. Dig. § 160.*]</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Suit for an injunction by the Western Union Telegraph Company against McKee Bros. Temporary injunction dissolved on hearing and suit dismissed, and plaintiff appeals.</p>

<p>1. Principal and Agent (§ 22*) — Proof of Agency — Declarations of Agent — Admissibility.</p> <p>The admission of acts, declarations, or statements of an alleged agent for the purpose of proving the agency is erroneous in the absence of other evidence.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*]</p> <p>2. Appeal and Error (§ 1010*) — Review-Findings op Fact — Total Failure op Proof.</p> <p>A finding of fact by the trial judge, wholly unsupported by competent evidence, must be reversed.</p> <p>[Ed. Note. — For other cases, s Error, Cent. Dig. §§ 3979-3982 1010.*] ee Appeal and ; Dec. Dig. §</p>

<p>Error from District Court, Wise County; J. W. Patterson, Judge.</p> <p>Action by J. G. and M. B. Mara against John M. Branch, Sheriff, and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. Dower (§ 84*) — Allotment—Valuation— Effect of Homestead Right.</p> <p>Where the practical effect of a decree was to require a one-third life estate of a widow to be taken from land on which her homestead was located, the homestead rights are not to be taken into account in the valuation of the life interest which the widow is entitled to have set apart to her in the separate estate of her deceased husband, as that right is a possessory •one only and forms no part of the distributive share to be allotted in partitioning the estate.</p> <p>■ [Ed. Note. — For other cases, see Dower, Cent. Dig. §§ 322-324; Dec. Dig. § 84.*]</p> <p>2: Appeal and Error (§ 1054*) — Harmless Error — Admission of Evidence.</p> <p>Error in the admission of evidence in a trial by the court is not ground for reversal, where there is sufficient competent evidence to support the court’s findings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 4186; Dec. Dig. § 1064.*]</p>

Wilcox, Judge. Action by the State against Jose L. Gal-lardo and others. Judgment for defendants, and plaintiff appeals.

<p>1. Judgment (§ 725*) — Conclusiveness—Particular Actions — Partition—Statutes.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 3607, provides that the petition for partition shall state the share or interest of claimants so far as known to the petitioner and a description of the property; article 3610 provides that the court shall determine the share or interest of each claimant in the land; and article 3625 provides that the decree confirming partition shall vest the title in each party to whom a share has been allotted, to such share as against the other parties, their heirs and assigns, as effectually as a full warranty deed of such parties could vest the same. Plaintiff, in trespass to try title, was a minor at the death of her father, and was entitled to one-half of the community property and to all of her father’s separate estate, subject to the life interest and homestead rights of her stepmother; and by her guardian she then petitioned for partition, claiming an undivided one-half interest in all the property, including the separate estate, and erroneously alleging that she was an equal owner of such property with her stepmother. An actual partition was made, as prayed, and confirmed, and the parties took possession of the shares allotted them, and after the stepmother’s death plaintiff claimed reversion in her share and against her heirs. Held, that the decree of partition was res judicata as to plaintiff’s rights and interests in the property involved.</p> <p>[Ed. 'Note. — For other cases, see Judgment, Cent. Dig. § 1255; Dec. Dig. § 725.*]</p> <p>2. Judgment (§ 526*) — Construction — CONSTRUCTION with Reference to Proceedings.</p> <p>Judgments should be construed like other writings, and a proper interpretation is aided by having recourse to the pleadings for a statement of their rights and claims.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 969; Dec. Dig. § 526.*]</p> <p>3. Judgment (§ 713*) — Conclusiveness—Matters Concluded — Extent of Estoppel — Matters Which Might Have Been Litigated.</p> <p>A judgment is conclusive not only as to the very questions which were decided, but of all subsidiary issues which must necessarily have been determined preliminary to its rendition.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1234-1241; Dec. Dig. § 713.*]</p> <p>4. Judgment (§ 747*) — Conclusiveness—Particular Actions — Partition.</p> <p>A judgment of partition operates by way of estoppel on the parties to the suit and prevents any of them from again litigating any of the issues then presented for decision, and which unnecessarily entered into the judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1284-1296; Dec. Dig. § 747.*]</p>

<p>Appeal from El Paso County Court; Albert S. Eylar, Judge.</p> <p>Action by Felix Dominguez against the Texas & Pacific Railway Company.</p>

<p>Error from District Court, Pecos County; W. C. Douglas, Judge.</p> <p>Action -by Sidney P. Allen and another against the Ft. Stockton Irrigated Lands Company and others. There was a judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Dallas County; E. B. Muse, Judge. Action by Griffiths & Co. against M. W. Johnson and wife and action by Sumner & McCreight against M. W. Johnson and others consolidated. From the judgment, Johnson and wife bring error.

<p>1. Appeal and Error (§§ 548, 265*) — Record —Statements op Facts — Effect of Absence.</p> <p>In absence of a statement of facts in the record or of exceptions to the conclusions of facts found, the appellate court cannot review a finding.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2434, 1536-1551; Dec. Dig. §§ 548, 265.*]</p> <p>2. Brokers (§ 53*) — Commissions—Cause of Sale.</p> <p>A broker is not entitled to commissions for the sale of land unless he was the procuring cause of the sale.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.*]</p> <p>3. Brokers (§ 57*) — Commissions—Terms of Sale.</p> <p>A sale of land by a broker must have been made according to the terms upon which he was authorized to sell to entitle him to commissions.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. § 57.*]</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by T. I. Smith against the Mecca Fire Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by the Texas Fidelity & Bonding Company against W. J. Cagle and others. From a judgment refusing to grant an injunction, plaintiff appeals.</p>

<p>Appeal from Angelina County Court; J. T. Maroney, Judge.</p> <p>Action by J. K. Lee against the Houston East & West Texas Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Boundaries (§ 3*) — Field Notes — Marked Line of Older Survey.</p> <p>Where an unmarked line of an older survey is called for and it can be identified with certainty, it will supersede a call for distance.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 25-29; Dec. Dig. § 3.*]</p> <p>2. Boundaries (§ 3*) — Marked Line — Stream.</p> <p>Where, notwithstanding a call for a river or a marked line of an ordej: survey, it is shown by other evidence that the survey did not reach the stream or ,the marked line, the call for the river or line will yield.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 25-29; Dec. Dig. § 3.*]</p> <p>3. Boundaries (§ 33*) — Calls — Bearing Trees — Presumptions—‘ ‘Marked Line. ’ ’</p> <p>Where bearing trees are called for at the eastern end of a northern boundary line of a survey and a stake at the western terminus, there is a presumption that the line was actually surveyed, and the corners identified by the bearing trees and the stake making the line a “marked line.”</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. § 33.*]</p> <p>4. Boundaries (§ 3*) — Marked Line — Objects — Necessity of Calls.</p> <p>Where a marked line of an adjacent survey is called for, and such line can be ascertained with accuracy, but there is no evidence as to how the survey was actually made, and a controversy arises as to whether course and distance o'r the marked line shall prevail, objects found on the ground may be considered as indicating the footsteps of the surveyor, though there are no calls for such objects in the grant.</p> <p>[Ed. Note. — For other cases, see Boundaries, Dec. Dig. § 3.*]</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by J. A. Coggin against Felix Martinez and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Action by William Cameron & Company, Incorporated, against O. S. Houston, and others. From the judgment, said Houston appeals.</p>

<p>1. Public Lands (§ 175*) — Surveys—Determination or Boundary.</p> <p>Kev. St. 1895, art. 4147, provides that all streams so far as they retain an average width of 80 feet shall be considered navigable streams, and shall not be crossed by the lines of any survey. Held, that a contention that a survey is void on account of crossing a navigable stream is not available against a patent issued by the state on the part of one claiming under a junior grant.</p> <p>[Ed. Note. — For other cases, see Public Lands. Cent. Dig. §§ 555-570; Dec. Dig. § 175.*]</p> <p>2. Public Lands (§ 175*) — Surveys—Determination.</p> <p>The statute is merely directory, and, though a stream was within the statutory definition, the fact that a line of a survey crossed it would not render the survey illegal or void.</p> <p>[Ed.. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.*]</p> <p>3. Adverse Possession (§ 40*) — Actions to Recover Real Estate.</p> <p>Where one had no title or color of title to certain land, limitations of three years could not be set up in his behalf.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Dec. Dig. § 40.*]</p>

<p>Appeal from District Court, Anderson County; B. F. Gardner, Judge.</p> <p>Action by Robert Alexander against the International & Great Northern Railroad Company and T. J. Freeman, receiver. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Judgment (§ 656*) — On Demurrer — Dismissal — Finality.</p> <p>A judgment sustaining a demurrer and dismissing the case is as conclusive as a judgment on the merits.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1167; Dec. Dig. § 656.*]</p> <p>2. Pleading (§ 189*) — “Demurrer”—Office.</p> <p>The office of a “demurrer” is to admit the facts as alleged, but to declare them insufficient on which to predicate a cause of action or defense.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 189.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1982-1985.]</p> <p>3. Mandamus (§'28*) — Subjects of Relief-Judicial Discretion.</p> <p>Mandamus will not lie to an inferior court to compel performance of a duty requiring exercise of judicial discretion.</p> <p>[Ed. Note — For other cases, see Mandamus, Cent. Dig. § 64; Dec. Dig. § 28.*]</p> <p>4. Mandamus (§ 39*) — Subjects of Relief-Judicial DISCRETION.</p> <p>Trial judge’s determination -whether a petition states a good cause of action involves judicial discretion not controllable by mandamus.</p> <p>[Ed. Note. — Eor other cases, see Mandamus, Cent. Dig. § 84; Dee. Dig. § 39.*]</p> <p>5. Mandamus (§ 53*) — Subjects of'Relief-Judicial Discretion.</p> <p>Mandamus does not lie to compel a trial judge to vacate a judgment of dismissal and to try an election contest on. the merits.</p> <p>[Ed. Note. — For other cases, see Mandamus, Gent. Dig. §§ 102-107; Dec. Dig. § 53.*]</p>

<p>1. Appeal and Error (§ 907*) — -Bill op Exceptions — Statement of Facts.</p> <p>Where a bill of exceptions failed to contain a statement of facts, and the judgment was one that could have been legally rendered under the pleadings, it will be presumed that every fact necessary to sustain the judgment was proven on the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3673-3678; Dec. Dig. § 907.*]</p> <p>2. Appeal and Error (§ 548*) — Bill of Exceptions — Statement of Facts.</p> <p>Where no statement of facts accompanies the record, the Supreme Court cannot revise errors raised by assignments attacking the charge.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2440; Dec. Dig. f 548.*]</p>

<p>Appeal from District Court, Montgomery County; L. B. Hightower, Judge.</p> <p>Action by E. F. Howard against the Gulf, Colorado & Santa F6 Railway Company. From the judgment, plaintiff appeals. On appellee’s motion to strike the statement of facts.</p>

<p>1. Appeal and Error (§ 837*) — Review — Matters Considered.</p> <p>In determining whether overruling a demurrer to an amended petition was error, a supplemental petition and a trial amendment can be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3278; Dec. Dig. § 837.*]</p> <p>2. Cancellation of Instruments (§ 37*)— Fraud — Pleading—Suffiency.</p> <p>A petition to partially cancel a conveyance to plaintiffs’ stepfather stated a good cause of action, and was not insufficient as failing to show any fraud preventing plaintiffs from reading the deeds, where it alleged that plaintiffs having’ special confidence in defendant, depended upon him to have the deeds prepared, and relying on his assurance that they were prepared according to a contract whereby they agreed to sell certain land to him, signed and acknowledged the deeds without reading them; that defendant fraudulently had the land in controversy included in the deeds; that there was no consideration for the deeds as to such land; that the officer taking the acknowledgments was employed by defendant and did not explain the deeds to plaintiffs, etc.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-81; Dec. Dig. § 37.*]</p> <p>3. Deeds (§ 68*) — Validity—Assent of Parties.</p> <p>Ordinarily a deed cannot be rescinded solely because the parties’ minds never met, but plaintiff must be reasonably free from negligence.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 149-155; Dec. Dig. § 68.*]</p> <p>4. Acknowledgment (§ 56*) — Certificate— Conclusiveness.</p> <p>To impeach facts stated in an acknowledging officer’s certificate, it is not essential that fraud on his part or collusion between him and the person perpetrating the fraud be alleged.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 301, 302, 315; Dec. Dig. § 66.*]</p> <p>5. Cancellation of Instruments (§ 42*)— Amendment — 'Cancellation of Deeds.</p> <p>In a suit to partially cancel a conveyance of land to plaintiffs’ stepfather on the ground that it was obtained through his fraud, it was not error to permit plaintiff to set up a supplemental petition and trial amendment, alleging that the officer who took the acknowledgments was employed by defendant; that he did not fully explain the deed nor inform plaintiffs that the deeds covered the land involved; that the certificates of acknowledgment were false so far as they stated or implied that plaintiffs were so informed; that such failure constituted fraud, especially as to the plaintiffs who were married women; that defendant knew plaintiffs were not so informed, etc.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 91-95; Dec. Dig. § 42.*]</p> <p>6. Cancellation of Instruments (§ 24*)— Conditions Precedent — Tender — Necessity.</p> <p>In a suit to partially cancel a conveyance to plaintiffs’ stepfather on the ground of his fraud, it was not necessary for plaintiffs to offer to refund any part of the money received; that being the price of the remaining land.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 33-38; Dec. Dig § 24;* Deeds, Cent. Dig. § 212.]</p> <p>7. Husband and Wife (§ 275*) — Community —Improvements — Compensation — Right to.</p> <p>A second community cannot acquire an interest in land of which the wife is a tenant for life as survivor of the first community, or create a charge against it by placing improvements thereon.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1025; Dec. Dig. § 275.*]</p> <p>8. Deeds (§ 211*) — Fraud in Procurement-Evidence — Sufficiency.</p> <p>Evidence held to sustain a finding that defendant procured through fraud a deed from his stepchildren covering more land than they had agreed or intended to convey.</p> <p>TEd. Note. — For other cases, see Deeds, Cent. Dig. §§ 641-646; Dec. Dig. § 211.*]</p> <p>9. Trial (§ 256*) — Instructions—Submitting Matters Conjunctively..</p> <p>A charge submitting matters of defense conjunctively is not affirmatively erroneous; the defect being one of omission which should be corrected by a request for instructions submitting the matters disjunctively.</p> <p>[E'd. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>10. Trial (§ 260*) — Instructions — Matter Covered.</p> <p>An instruction, in an action to partly cancel a conveyance, that, though plaintiffs did not know that the land involved was included in the deeds, if their lack of understanding arose from failure to use ordinary care, they could not recover, was properly refused as having been sufficiently covered by an instruction that, if plaintiffs signed the deeds without reading them and in so doing failed to use the degree of care that an ordinarily prudent person would have used, they were negligent and could not recover.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>On Motion for Rehearing.</p> <p>11. Appeal and Error (§ 172*) — Review-Objections Not Raised Below.</p> <p>An objection that a judgment appealed from ordering partition is erroneous as divest-¿ng one of the appellants of an interest cannot be considered where her right to an interest was not put in issue or passed upon below.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1070-1078; Dec. Dig. 172.*]</p>

<p>Error from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by F. M. Robinson and others against J. W. Young and another. Judgment for plaintiffs, and Young brings error.</p>

<p>1. Evidence (§ 157*) — Best Evidence — Absence of Pact from Record.</p> <p>Evidence by a witness who had examined a record that a certain fact was not there recorded is not inadmissible on the ground that the record is the best evidence.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 462; Dec. Dig. § 157.*]</p> <p>2. Appeal and Error (§ 1'050*) — Harmless Error — Admission of Evidence.</p> <p>Erroneous admission of evidence over objection is harmless, where similar evidence is received from other witnesses without objection.</p> <p>[Ed. Note. — For other cases,_ see Appeal and Error, Cent. Dig. §§ 4Í53-4160; Dec. Dig. § 1050.*]</p> <p>3. Trial (§ 256*) — Injury to Servant — Instructions.</p> <p>In an action for injuries to a railroad employe from a defective stirrup on a freight car, the court charged that, if the company had competent car inspectors and they had prior to the time of the injury inspected the cars, including the one on which plaintiff was injured, in such manner as car inspectors of ordinary prudence would have done under the circumstances, and failed to find the defective condition of the stirrup, then the finding should be for defendant. Held, that the charge was not erroneous for failing to require that such inspection should have been within a reasonable time before the accident, in the absence of a request for a more specific charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>4. Trial (§ 228*) — Instructions—Form and Requisites.</p> <p>Where the court might properly have included three separate facts, each of which would warrant a verdict for the defense, in one instruction and have charged that a finding of either would call for a verdict for defendant, the fact that each was made the basis of a separate instruction is not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 509-512; Dec. Dig. § 228.*]</p>

Error from District Court, Jefferson County; L. B. Hightower, Jr., Judge. Quo warranto by the State to oust the Oriental Oil Company of its charter and recover a franchise tax. From a judgment for the State, defendant brings error.

Bend County; Wells Thompson, Judge. Action by Joseph Poutra against John Martin and wife. Defendants filed a plea in re-convention, and from a judgment in favor of defendants on their plea in reconvention plaintiff appeals.

<p>1. MORTGAGES (§ 38*) — DEED ABSOLUTE IN Form.</p> <p>The testimony of the plaintiff in trespass to try title that he explained to his father, who conveyed the land to him, that when it was sold and the debts were paid that he was to get the balance, shows that the deed, which was absolute on its face, was a mortgage.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. Dig. § 38.*]</p> <p>2. Homestead (§ 115*) — TRAnseer — Mortgage.</p> <p>Where a mortgage by means of a deed absolute on its face was placed on a homestead, it was void so far as the homestead is concerned.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 183-190; Dec. Dig. § 115.*]</p>

Petition for scire facias by Helen Zapp and another for entry of a judgment nunc pro tunc and to revive the same. Prom a judgment awarding the petitioners the relief sought, Kate Coleman, the judgment debtor, appeals. In 1898 Helen Zapp and her husband, Hugo Zapp, recovered a money judgment against Winnie Clark, now Kate Coleman, in the district court of McLennan county. In 1902 an execution was issued upon that judgment and levied upon certain personal property.

Action by Charles Wolf against L. J. Sahm and others. From a judgment of dismissal with costs against plaintiff, he appeals. On January 2, 1906, a judgment, reciting service by publication, was rendered in the district court of Travis county in favor of appellant, Chas. Wolf, against L. J. Sahm, the unknown heirs of L. J. Sahm and their unknown heirs and legal representatives for survey No. 164 in district No. 3, in Menard county, Tex.

<p>Error from District Court, Maverick County; W. C. Douglas, Judge.</p> <p>Action by Fleming & Davidson against George Rohleder and others. Judgment for defendants, and plaintiff brings error.</p> <p>Plaintiffs in error, hereinafter called “plaintiffs,” brought this suit kgainst defendants in error, George and Sieg Rohleder, and J. K. Wilson and Ferd Dolch, hereinafter called “defendants,” to eDjoin them from hunting in their pastures of about 150,000 acres inclosed by wire fences and having therein about 6,000 steers, which were being fattened for market when the suit was instituted. As the sufficiency of plaintiffs’ petition to entitle them to the relief sought is not questioned here, we assume, pro hac vice, without raising or inquiring into the question, whether it states grounds entitling them, to the equitable relief prayed for, that it does. In this view we are relieved from a full recitation of its allegations. Suffice to say that it alleges plaintiffs’ ownership and possession of the land, its inclosure and use by them as a pasture, in.which they were pasturing about 6,000 head of steers for market; that defendants were threatening and preparing to. enter their premises with a number of other parties unknown to them to camp and hunt thereon for wild game with dogs, rifles, and shotguns, without plaintiffs’ permission and against their protest; that in camping and hunting therein defendants would frighten plaintiffs’ steers- and keep them from fattening, cause them to lose flesh, become wild, and decrease in value, and would, in shooting in the pasture with long-ranged rifles, with which they were equipped in preparation for their contemplated hunting excursion on plaintiffs’’ premises, in all probability shoot, wound,, and kill a number of plaintiffs’ steers, without their being able to ascertain who of the defendants, or the persons accompanying them on their prospective hunt, inflicted such injuries to their cattle; that defendants contemplated camping near tlie streams running through their pasture and fishing in them, which would also scare their steers and keep them from obtaining drinking water, necessary to their keeping in good condition, thereby preventing them from fattening and causing them to lose flesh and deteriorate in value; that defendants would, in building camp fires in plaintiffs’ pastures, burn and consume much of their wood, depriving them of its value; that fire from their camp fires would likely be communicated to and spread over the grass growing in their pastures, destroying the same and render their land unfit for pasturage, to plaintiffs’ great damage and irreparable injury; that plaintiffs are without an adequate remedy at law to redress the injuries and damages which would inure to them from defendants’ contemplated trespass upon their said land; and that unless they are enjoined and restrained therefrom plaintiffs will suffer great and irreparable injuries. A temporary writ of injunction was issued, as prayed for, which, upon the coming in of defendants, was dissolved. The plaintiffs having dismissed the case as to the defendants Wilson and Dolch, and upon hearing the case, as against the other two defendants, upon its merits, judgment final was entered denying plaintiffs the relief prayed for, from which judgment this appeal is prosecuted. The trial judge, before whom the case was tried without a jury, filed his conclusions of fact and law upon which the judgment is predicated.</p>

<p>1. VENDOR AND PURCHASER (§ 196*) — RIGHT to Rent — Conveyance by Lessor.</p> <p>A conveyance of land in the possession of a lessee gives to the grantee the rents subsequently accruing.</p> <p>[Ed. Note. — For' other cases, see Vendor and Purchaser, Cent. Dig. §§ 404-^406; Dec. Dig. § 196 ;* Landlord and- Tenant, Cent. Dig. § 80S.]</p> <p>2. Appeal and Error (§ 843*) — Rulings on Pleadings — Review.</p> <p>The court, in reviewing the sustaining of a special exception to a part of a pleading, will only look to such part of the pleading, and will not consider testimony cited in connection with the assignment of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 843.*]</p> <p>3. Insane Persons (§ 61*) — Conveyances — Validity.</p> <p>A deed of an insane person is voidable only.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 93-99; Dec. Dig. § 61.*]</p> <p>4. Insane Persons (§ 61*) — Conveyances — Invalidity — Parties Entitled to Attack.</p> <p># Strangers and persons who are merely privies in an estate of an insane grantor may not avoid the deed, which is merely voidable.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 96; Dec. Dig. § 61.*]</p> <p>5. Insane Persons (§ 61*) — Conveyances — Rents — Liability of Lessee.</p> <p>A lessee may not avoid payment of rent to a grantee of the lessor, accruing subsequent to the conveyance, by showing that the lessor was at the time of the conveyance insane.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 96; Dec. Dig. § 61.*]</p> <p>6. Limitation of Actions (§ 24*) — Written Obligations — Actions for Rent.</p> <p>A written lease is a written obligation, and, when passing to a third person by a conveyance of the land by the lessor, an action by the grantee for rents subsequently accruing is on the written obligation and is not barred in two years.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 112-117; Dee. Dig. § 24.*]</p> <p>7. Landlord and Tenant (§ 230*) — Transfer of Leased Premises — Action by Grantee for Rent.</p> <p>Where a grantee of a lessor suing the lessee for rent subsequently accruing pleaded the deed as' transferring the lease, the allegation in the petition that a part of the rent was orally reserved by the lessor was merely an admission of her right and a disclaimer by the grantee that far, notwithstanding the deed, and the grantee could recover the rent except that orally reserved.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 230.*]</p> <p>8. Appeal and Error (§ 1033*) — Harmless Error — Erroneous Instructions.</p> <p>A party may not complain on appeal of an instruction more favorable to him than warranted by law under the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4056; Dec. Dig. § 1033.*]</p> <p>9. Trial (§ 333*) — Action for Rent — Petition — Verdict.</p> <p>Where' the petition in an action for rent alleged that all the rents called for in the lease as due on July, 1906, until the termination of the lease on December 1, 1907, were due. a verdict for the full amount of rent from July 1, 1906, to December l," 1907, ' was sufficient, •though the petition erroneously stated in one place that the lease terminated October 1, 1905.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 784; Dec. Dig. § 333.*]</p>

<p>Error from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by the Huttig Sash & Door Company against O. F. Freeman and others. Judgment for plaintiff, and defendant Freeman brings error.</p>

<p>Appeal from Tarrant County Court; Chas. T. Prewett, Judge.</p> <p>Action by A. W. Samuels against J. G. Ilamill and another. From a judgment, for plaintiff, defendants appeal.</p>

<p>1. Carriers (§ 215*) — Shipment of Live Stock — Commencement.</p> <p>A shipment of live stock begins when the cattle are received by the carrier in its pens preparatory to transportation.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. § 215.*]</p> <p>2. Carriers (§ 218*) — Carriage op Live Stock — Contracts—Obligations.</p> <p>Though a contract requires the shipper of live stock to load, unload, feed, water, and attend to stock at his own expense and risk while in the’ yards awaiting shipment, and while in the cars or at feeding or transfer points, it is the duty of the carrier to furnish the shipper with the opportunity and facilities for properly watering the stock during transportation.</p> <p>[Ed. Note. — For other, cases, see Carriers, Cent. Dig. § 928; Dec. Dig. § 218.*]</p> <p>3. Carriers (§ 211*) — Carriage of Live Stock — Liability of Carrier.</p> <p>The statute requiring the carrier to feed and water stock while in its custody as such implies that the carrier must be informed of the conditions rendering it necessary to feed and water, and ordinary care only is required, and the carrier’s conduct to constitute negligence depends on the surrounding circumstances, and, where cattle are brought to the carrier for shipment in apparently good condition, the carrier is not liable for failing to furnish opportunities to water them, unless it is notified of the necessity thereof.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.*J</p> <p>4. Carriers (§ 230*) — Carriage of Live Stock — Liability of Carrier.</p> <p>Where a shipper of live stock notified the carrier of his desire to water the stock while in the pens awaiting transportation and the stock needed watering, the jury could find that the failure of the carrier to provide reasonable facilities for watering'the stock was actionable negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 230.*]</p> <p>5. Carriers (§ 229*) — Carriage of Live Stock — Measure of Damages.</p> <p>The measure of damages for live stock dying as the result of injuries caused by the negligence of the carrier is their market value at the place of destination at the time they should have arrived there.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 904; Dec. Dig. § 229.*]</p> <p>On Motion for Rehearing.</p> <p>6. Carriers (§ 219*) — Carriage of Live Stock — Liability of Initial Carrier.</p> <p>A contract by the initial carrier of an intrastate shipment limiting its liability to its own lines is valid, though Rev. St. 1895, arts. 331a, 331b, make carriers jointly liable where the connecting carrier acquiesces in the contract made by the initial carrier, so that the employés of a connecting carrier were not within a petition charging negligence of the em-ployés of the initial carriel-.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 219.*]</p> <p>7. Carriers (§ 230*) — Carriage of Live Stock — Liability of Initial Carrier.</p> <p>Where, in an action against the initial carrier of an intrastate shipment of live stock, under a special contract limiting its liability to its own line, the petition demanded damages for injuries caused by the jolting and jerking of the cars by the rough handling of defendant’s em-ployés, and the testimony as to the damages by the operation of the cars by the initial carrier did not identify the extent of the damages from that’cause, it whs error to submit to the jury the issue of such damages.</p> <p>[Ed. Note — For other cases, see Carriers, Dec. Dig. § 230.*]</p>

<p>1. TRIAL (§ 340*) — Verdict— Correction by Court.</p> <p>Any corrections in the form of verdict must be made and the consent of the jury obtained, before its discharge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 795, 796; Dec. Dig. § 340.*]</p> <p>2. Trial (§ 340*) — Verdict—Record.</p> <p>Where the jury returned an ambiguous verdict which was copied into the record, without calling attention to the defect, it and not an ex parte affidavit which alleged that the jury assented to a certain interpretation of it will be taken as the true verdict for Sayles’ Ann. Civ. St. 1897, art. 1323, requires verdicts to be written, and courts cannot change the forms of verdicts without the consent of the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 795, 796; Dec. Dig. § 340.*]</p> <p>3. Trial (§ 333*) — Verdict.</p> <p>Where a verdict was returned assessing plaintiff’s “damages at the sum of $150.00, One Hundred and B0/ioo,” it was ambiguous, and the court had no authority to enter a judgment for $150.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 78-A-786; Dec. Dig. § 333.*]</p> <p>4. Trover and Conversion (§ 36*) — Actions —Damages—Evidence—Admissibility.</p> <p>Where one whose timber has been wrongfully converted and manufactured into lumber claimed damages equal to the value of the manufactured lumber, evidence that the defendant did not willfully commit the trespass was admissible, 'for it showed the intention of the defendant, and hence was material in the assessment of damages.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 222; Dec. Dig. § 36.*]</p> <p>5. Appeal and Error (§ 560*) — Record — Statement op Fact.</p> <p>As Acts 31st Leg, e. 89, require statements of fact to be in narrative form, one in the form of questions and answers will be stricken out, even in the absence of objection, save in an exceptional case.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 560.*]</p>

<p>Appeal from District Court, Bexar County; Edward Dwyer, Judge.</p> <p>Suit for divorce by Bernhard Lohmuller against Elsie Lohmuller. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hays County;. L. W. Moore, Judge.</p> <p>Action by B. A. Harper, executor, against Mrs. Roxie M. Martindale and others. From-, the judgment, plaintiff appeals.</p>

<p>1. Appeal and Error (§ 387*) — Appeal Bond —Time for Filing.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 1387, providing that, if the judgment is rendered at a term of a county or district court which may continue more than eight weeks, the appeal bond must be filed within 20 days after notice of appeal if the appellant resides in the county, and 30 if he resides without, a failure to file the bond within the time required prevents the appellate court from acquiring jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. § 3S7.*]</p> <p>2. Appeal and Ebbob (§ 387*) — Appeal Bond —Time of Filing.</p> <p>Where one appealing from a judgment rendered at a term, which continued more than eight weeks, failed to file the bond within the time required by Sayles’ Ann. Civ. St. 1897, art. 1387, and sought to excuse his failure because the term at which judgment was rendered was not authorized by law, the appeal will be dismissed, for, if the term was unauthorized by law, the appeal must be dismissed, and, if authorized, the bond was not filed in time.</p> <p>[Ed. Nate. — For other cases, see Appeal and Error, Cent. Dig. §§ 2004-2070; Dec. Dig. § 387.*]</p>

Seeligson, Judge. Action by C. B. Waters against R. A. Wiseman and others. From the judgment, defendant named appeals, making plaintiff and codefendants appellees.

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by John Ashton against the City of San Antonio. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by B. M. Green against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Seeligson, Judge. Action by Carl Kopplin against the San Antonio Traction Company, J. P. Haynes, and Elizabeth B. Moore and J. H. Savage, executors of G. Bedell Moore, and cross-action by Moore & Savage, executors, against J. P. Haynes. Judgment for plaintiff against Moore & Savage, executors, and in favor of ■the other defendants; and judgment for J. P. Haynes in the cross-action, and Moore & Savage, executors, appeal.

<p>1.Electricity (§ 15*) — Injuries Incident to Production — Licensees.</p> <p>A telegraph company and a power company maintained separate wires in the streets of a city. At one point the wires of the two companies were in dangerous proximity to each other. A lineman of the telegraph company, to repair a defect in the telephone wires, swung a platform from a messenger wire of the telephone company so that the platform rested on the light wires, and he received an electric shock from the light wires while on the platform. The two companies had equal rights to maintain the wires in the streets. The dangerous proximity of the wires of the two companies was known to the vice principal of the power company. The employés of the two companies used with the acquiescence of the com-Danies the poles of either when necessary to make repairs. Held, that the lineman was at least a licensee, so that the power company owoed him the duty of exercising ordinary care to prevent the sending of electric currents through its wires while he was at work making the repairs.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 8; Dec. Dig.%§ 15.*]</p> <p>2. Electricity (§ 19*) — Injuries Incident to Production — Negligence—Evidence.</p> <p>In an action against an electric power company for injuries to a telephone lineman receiving an electric shock by coming in contact with light wires while repairing telephone wires, evidence held to justify a finding of actionable negligence in causing the light wires to become charged while the lineman was at work.</p> <p>[Ed. Note. — For other eases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]</p> <p>3. Electricity (§ 19*) — Injuries Incident to Production — Assumption ox Risk — •Question for Jury.</p> <p>Whether a lineman of a telephone company, injured by an electric shock from the wires of an electric power company while repairing a telephone cable, assumed the risk of injury, held, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]</p> <p>4. Electricity (§ 19*) — Injuries Incident to Production — Negligence—Evidence.</p> <p>In an action against a power company for injuries to a lineman of a telephone company by coming in contact with live wires of the power company, evidence that frequently, prior to the accident, the companies used the same poles for wires, and that there were many places, in addition to the place where the lineman was injured, where the telephone company’s wires were down close to the power company’s wires, was admissible to meet the issue raised by the power company that the lineman was a trespasser on its property.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]</p> <p>5. Evidence (§ 544*) — Opinion Evidence— Oompetency of Witness.</p> <p>One having a long experience in electrical work is not competent to give his opinion whether one could be permanently injured by a shock of electricity which did not manifest itself by a mark on the body, for the question calls for the knowledge of a medical expert.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2356; Dee. Dig. § 544.*]</p> <p>6. Appeal and Error (§ 1058*) — Harmless Error — Erroneous Exclusion of Evidence.</p> <p>Where a witness having long experience in electrical work stated fully, so far as his knowledge extended, the effect of electric shocks on a human being, the error, if any, in excluding his opinion as to whether one could be permanently injured by a shock of electricity which did not manifest itself by a mark on the body, was not prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4209-4206;. Dec. Dig. § 1058.*]</p> <p>7. Damages (§ 132*) — Personal Injuries— Excessive Damages.</p> <p>One 25 years old earning $60 per month, with a life expectancy of 38.81 years, was injured by electric shock. Before the accident he was strong and healthy, but since that time he had been an invalid unable to work. A physician testified that he was a nervous wreck and suffered a great deal, and that his injuries were permanent, so that he would never be able to do any physical labor. Held, that a verdict of $12,000 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent.' Dig. § 374; Dec. Dig. § 132.*]</p>

<p>Appeal from District Court, Milam County; J. C. Scott, Judge.</p> <p>Action by T. E. Neeley against the Supreme Lodge Knights of Pythias. From a judgment for plaintiff, defendant appeals.</p>

Denton, Judge. Action by R. N. Compton, as administrator of Ridge Paschal, deceased, against Frank W. Hatch and others. From a judgment, for plaintiff, for insufficient relief, he appeals. This was an action of trespass to try title commenced and prosecuted by appellant, as administrator of the estate of Ridge Paschal, deceased, against appellees D. P. Whitley, R. C. Graves, E. A. Dillon, and Frank W. Hatch.

<p>1. Nuisance (§ 76*) — Public Nuisance-Special Annoyance and Discomfort.</p> <p>An individual plaintiff, who establishes a right to recover for the depreciation in the market value of his property by the maintenance of a public nuisance, may allege and recover in the same action damages for special annoyance and discomfort to himself and family.</p> <p>[Ed. Note. — Por other eases, see Nuisance, Cent. Dig. §§ 185-188; Dec. Dig. § 76.*]</p> <p>2. Appeal and Error (§ 742*) — Assignments of Error — Proposition Accompanying Assignment.</p> <p>Where assignments of error are grouped and presented by a single proposition, which differs from any of the assignments, they are not properly presented, and cannot be considered, since each assignment must be sustained or overruled as a whole.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

<p>Appeal from Wood County Court; R. M. Smith, Judge.</p> <p>Action by T. J. Braddy against the Missouri, Kansas & Texas Railway Company of Texas. From ■ a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Williamson County Court; T. J. Lawhon, Judge.</p> <p>Action by W. G. Smith against A. A. Gunn. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Jones County; C. C. Higgins, Judge.</p> <p>Action by Mary F. Daughtrey and others against E. A. McCoy. Judgment for defendant, and plaintiffs appeal.</p>

<p>Bills and Notes (§ 539*)-— Actions — Conflicting Findings.</p> <p>In an action on a note, where the jury found that defendant delivered the note to a third person, to be held by him until the payee, a mercantile company, should organize and deliver to defendant a certain amount of its stock, at which time the note should be delivered, that by fraudulent misrepresentations to such third person and without defendant’s authority H. procured the note and delivered it to plaintiff’s predecessor as collateral security, that the mercantile company never organized, that the cashier of plaintiff’s predecessor, when he took the note, did not know the circumstances under which it was held by the third person, but did know that the company had not been organized, that H. was not an agent or officer of such company, and that the note sued on was not indorsed to plaintiff’s predecessor by H., as agent or officer of the company, and -also made conflicting findings that the note was made payable to the mercantile company, a proposed corporation, and that it was made payable to such company, a partnership, of which H. was a member, with a further finding that the bank did not purchase the note before maturity, for a valuable consideration, and in due course, either from the corporation or from the partnership, the conflict in the findings requires reversal of the judgment for plaintiff.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1911-1913; Dec. Dig. § 539.*]</p>

<p>Appeal from District Court, McLennan ■County; Marshall Surratt, Judge.</p> <p>Action by M. L. Hargrove, against the Citizens’ Railway Company. Prom a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Kaufman County; J. S. Woods, Special Judge.</p> <p>Action by the Watkins Land Company against Charles Temple and another. Judgment for defendants. Plaintiff appeals.</p>

<p>Error from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by Otho S. Houston against the Darnell Lumber Company. Prom a judgment for defendant, plaintiff brings error.</p>

<p>Appeal from District Court, Smith County; R. W. Simpson, Judge.</p> <p>Action by J. A. Pope against the St. Louis Southwestern Railway Company of Texas. From a judgment for defendant, plaintiff appeals.</p>

S. Shipp, Judge. Action by Levi Anderson against Frank Sapp. From a judgment of the county court dismissing the appeal of defendant from a judgment of the justice’s court, defendant appeals.

<p>Appeal from District Court, Clay County;. A. I-I. Carrigan, Judge.</p> <p>Trespass to try title by William Taylor-against M. E. Lippincott and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Robertson County; J. C. Scott, Judge.</p> <p>Action by Harry Field against T. J. Freeman, receiver. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court,- Falls County; Richard I. Munroe, Judge.</p> <p>Action by Mark Brown against the Missouri, Kansas & Texas Railway Company of Texas and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Falls County Court; W. E. Hunnicutt, Judge.</p> <p>Action by James G. Taylor and others against the International & Great Northern Railroad Company and others. From a judgment in favor of plaintiffs, defendants appeal.</p>

<p>Error from District Court, Wise County; J. W. Patterson, Judge.</p> <p>Action by Abe Block & Company against V. S. Largent. From a judgment for defendant, plaintiff brings error.</p>

O. Higgins, Judge. “Not to be officially reported.” Action by D. H. Bell & Co. against T. A. Williams. Ed Rountree was made a party, and Williams pleaded over against him. From a judgment for plaintiff against Williams, and a judgment for Williams against Rountree, the latter appeals.

<p>1. Deeds (§ 211*) — Validity—Evidence.</p> <p>In a suit to cancel a deed on the ground of fraudulent representations, evidence held insufficient. to warrant a-judgment for plaintiff.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-649; Dec. Dig. § 211;* Cancellation of Instruments, Cent. Dig. § 102.]</p> <p>2. Appeal and Ebbob (§§ 518, 520*) — Record —Contents.</p> <p>The overruling of a motion for a continuance and the overruling of exceptions to the answer cannot be reviewed on appeal, where the record contains no bill of exceptions or other legal showing that the orders complained of were made.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2342^-2366; Dec. Dig. §§ 518, 520.*]</p> <p>3. Appeal and Error (§ 500*) — Record—Review.</p> <p>Assignments of error as to the admission and exclusion of evidence cannot be reviewed, where there are no bills of exceptions showing such rulings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 500.*]</p>

<p>Error from District Court, Jones County; O. C. Higgins, Judge.</p> <p>Action by the First State Bank of Hamlin against the Mecca Fire Insurance Company (Mutual) of Waco. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Hall County; S. P. Huff, Judge.</p> <p>Trespass to try title by Lyman M. Hill, as executor, against Jackson Collier. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.</p> <p>Action by George W. Littlefield and others against the Eastern Railway Company of New Mexico and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Hemphill County; E. P. Greever, Judge.</p> <p>Action by H. O. Caylor against the Southern Kansas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

Hardison, Judge.- Action by Henry D. McDonald against P. A. Mabee. Prom a judgment in favor of defendant, plaintiff appeals. Appellant, by his petition filed on the 5th of June, 1909, sought a recovery against ap-pellee on a promissory note alleged to have been executed by appellee and one D. P. Hol-lon on March 6, 1891, for the sum of $300, with interest and attorney’s fees, if collected by law. Hollon was alleged to be wholly insolvent, and was not made a party to the suit.

<p>1. Carriers (§ 321*) — Passengers — Action for Injuries — Instructions.</p> <p>In an action against a street railroad company for injuries to a passenger while he was attempting to board a car, an instruction held to properly present the issues on the pleadings and evidence.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1326-1337; Dec. Dig. § 321.*]</p> <p>2. Trial (§ 191*) — Instructions — Assumption of Pacts.</p> <p>Where plaintiff, an intending passenger, alleged that he signaled the car to stop, and on its slowing down he stepped on the running board, when the car was started with a jerk, and he was injured, an instruction that if defendant, “as plaintiff stepped aboard, said running board,” violently started the car, etc., was not objectionable as intimating- that plaintiff had not reached the running hoard when the car was started.</p> <p>[Ed. Note. — For other cases, see Trial,. Cent. Dig. §§ 420-431; Dec. Dig. § 191.*]</p> <p>3. Carriers (§ 321*) — Passengers — Action for Injuries — Issues — Proof and Variance.</p> <p>Where the plaintiff, in an action against a street railroad company for injuries, alleged and testified that he had gotten safely aboard the running board, when the car was suddenly and violently started, a requested instruction attempting to make an issue as to whether plaintiff got safely aboard the car is properly refused as not conforming to the pleadings and issues.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1326-1337; Dec. Dig. § 321.*]</p> <p>4. Carriers (§ 287*) — Passengers — Commencement of Relations.</p> <p>Where a person, without giving any signal, attempts to board a street car at a place where it slows down for a switch but does not stop, the car company’s servants owe him no duty as a passenger.</p> <p>[Ed. Note. — Por other eases, see Carriers, Cent. Dig. § 1151; Dec. Dig. § 287.*]</p>

Swayne, Judge. Action by John P. Daggett and others against Josephine M. Barre and others. Appeal by plaintiffs from a judgment sustaining a demurrer to the petition. The appeal is from the ruling of the court in sustaining demurrer to the petition of the plaintiffs in the suit. The suit was in trespass to try title to certain lands. The appellants and appellees are brothers and sisters, and are children of C. B. Daggett, Sr., and his wife, Mary Daggett.

N. Browning, Judge. Action by Ben T. Ansley and others, doing business as the Ansley Realty Company, against John B. Pope and others. Judgment for plaintiffs, and defendants appeal.

<p>Boundaries (§ 46*) — Resurvey—Rights of Parties.</p> <p>Where there was an excess of land in a block over the acreage embraced in the original field notes, and all but one of the owners of a tier of sections signed an agreement for a resurvey and adjustment of boundaries, one of the signers could not recover a strip from another in conformity to the resurvey, where thereby the latter would lose a portion of the land embraced in the original field notes of his land, because of his inability to obtain any land from the one who refused to sign.</p> <p>[Ed. Notes. — For other cases, see Boundaries, Cent. Dig. §§ 249-251; Dec. Dig. § 46.*]</p>

<p>Principal and Surety (§ 16*) — Creation of Relation.</p> <p>The maker of a note secured by mortgage does not become a mere surety as to the note because, when he afterwards conveys the mortgaged property to R., he informs the payee thereof, and tells it that it must look to R. as the principal obligor, and to himself as surety only; the payee not consenting or agreeing thereto.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 35; Dee. Dig. § 16.*]</p>

<p>Error from District Court, Wood County; R. W. Simpson, Judge.</p> <p>Trespass to try title by W. B. Teagarden against the R. B. Godley Lumber .Company and others. Prom a judgment for plaintiff, defendants bring error.</p>

<p>Appeal from Colorado County Court; J. J. Mansfield, Judge.</p> <p>On motion to certify to Supreme Court.</p>

<p>Appeal from District Court, Grayson County; B. L. Jones, Judge.</p> <p>Action by A. J. Gibson and wife against the St. Louis, San Francisco & Texas Rail-' way Company, From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by Mary Berger against M. W. Kirby, administrator, and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Mitchell County; Jas. L. Shepherd, Judge.</p> <p>Action by S. Minna Hyman and others against W. R. Felker. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Williamson County Court; T. J. Dawlion, Judge.</p> <p>Action by W. F. Casey against A. A. Mc-Neill and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>1. Evidence (§ 197*) — Handwriting — Comparison — Basis.</p> <p>An extrinsic document not relevant to any of the issues in an action on a note, though containing defendant’s genuine signature, both admitted and proved, was inadmissible as a basis for comparison of handwriting to prove that the note sued on was signed by defendant, which he denied.</p> <p>[Ed. Note. — -For other cases, see Evidence, Cent. Dig. §§ 681, 68iy2 1 Dec. Dig. § 197.*]</p> <p>2. Evidence (§ 197*) — Handwriting — Comparison.</p> <p>The rule that it is not competent to prove handwriting by comparison is applicable, except that the jury may examine papers already before them in the case to determine for themselves whether the writing in controversy is genuine.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 681, 681%; Dec. Dig. § 197.*]</p> <p>3. Trial (§ 260*) — Requested Charge — Instructions Given.</p> <p>It is not error to refuse a requested charge fairly embraced in the instructions given.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>Appeal from District Court, Cass County; P. A. Turner, Judge.</p> <p>Action by the Four States Grocer Company against the Atlanta National Bank and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. LANDLORD AND TENANT (§ 63*) — LANDLORD’S Title — Estoppel op Tenant to Dispute.</p> <p>While, as a general rule, a tenant cannot dispute the title of his landlord, yet, the tenant, after repudiating the tenancy and restoring possession to the landlord, may sue for such premises and show that he has the superior title thereto.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 159-176; Dec. Dig. § 63.*]</p> <p>2. Homestead (§ 169*) — Termination—Renting prom One with no Title Thereto.</p> <p>A wife cannot be deprived of her homestead by her husband, without her knowledge or consent, accepting a lease of it from a person who has no title thereto.</p> <p>[Ed. Note. — For other cases, see Homestead, Dec. Dig. § 169.*]</p> <p>3. New Trial (§ 5*) — Appeal and Error (§ 1151*) — Erroneous Taxation op Costs.</p> <p>Error in taxing costs by the trial court would not be ground for new trial, but- should be corrected by motion to retax the costs; and, if such error appear from the record on appeal, judgment would be reformed, and not reversed, on that account.</p> <p>[Ed. Note. — For other cases, see New Trial, Dec. Dig. § 5;* Appeal and Error, Dec. Dig. § 1151.*]</p> <p>4. Judgment (§ 535*) — Construction—Taxation op Costs.</p> <p>Where other parties were originally joined as defendants and plaintiffs dismissed as to them, and the judgment of dismissal adjudged all costs, incurred as against such parties, against plaintiffs, and the petition upon which the case was tried made only one other person defendant, a provision of the judgment that “all costs in this behalf incurred” did not mean the costs incurred in the prosecution of the suit against defendants, as to which it was dismissed, but only those incurred as against the remaining defendant.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. § 535.*]</p> <p>On Motion for Rehearing.</p> <p>5. Taxation (§ 789*) — Tax Title — Evidence.</p> <p>To show title under a tax deed, one must put in evidence, not only the judgment and sheriff’s deed, but also the order of sale.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 789.*]</p> <p>6. Adverse Possession (§ 12*) — Fraudulent Representations.</p> <p>Where one in possession of land when he signed a lease contract purporting to lease such land to him from another, if he knew the contract was a lease, was induced to sign it by the untrue representations of the other that he had purchased the land at a sheriff’s sale, which representation, however honestly; made, amounted to a legal fraud, and his act in signing the contract was in fraud of the homestead rights of his wife, who knew nothing about it, limitations did not. run in favor of such other person, who had no* other title, so as to give him title to the land by adverse possession.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Dec. Dig. § 12.*]</p>

<p>Appeal from Hunt County Court; J. W, Manning, Judge.</p> <p>Action by J. W. Kelley against the Planters’ & Merchants’ National Bank. Judgment for defendant, and plaintiff appeals.</p>

Action by J. Mayrant Smith against the Postal Telegraph Cable Company of Texas. There was a judgment for plaintiff which was reversed by the Court of Civil Appeals (124 S. W. 733), and on error to the Supreme Court the cause was returned to the Court of Civil Appeals for further action, to be certified to the Supreme Court (133 S. W. 1041) and in obedience the following judgment ordering a reversal was certified to the Supreme Court.

Error from Court of Civil Appeals of Fifth Supreme Judicial District. Action by J. Mayrant Smith against the Postal Telegraph Cable Company of Texas. There was a judgment for plaintiff which was reversed by the Court of Civil Appeals (124 S. W. 733), and on error to the Supreme Court the record was returned to the Court of Civil Appeals for further action to be certified again to the Supreme Court (133 S. W. 1041).

<p>Criminal Law (§ 1182*) — Appeal and Error —Necessity op Bill op Exceptions.</p> <p>Where the record of a criminal appeal contains neither a bill of exceptions nor a motion for a new trial, and where the indictment properly charges the offense, the judgment of conviction will be affirmed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1182.*]</p>

<p>Appeal from McLennan County Court; Tom L. McCullough, Judge.</p> <p>J. E. South was convicted of vagrancy, and he appeals.</p>

<p>Appeal from Comanche County Court; J. M. Reiger? Judge. Dell Franklin was convicted of preventing another from engaging in a useful occupation by threats, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Ed. Sewell, Special Judge. John Thomas was convicted of burglary, and he appeals.</p>

<p>Appeal from Milam County Court; John Watson, Judge. Action by John T. Baldbridge and others against C. D. Gustavus and others. From a judgment for plaintiffs, the defendant Gustavus appeals.</p>

B. Thomas, Judge. W. J. Overcash was arrested on a charge of homicide. He resorted to habeas corpus to obtain bail. On being remanded to custody, he appeals.

<p>Appeal from District Court, Cooke County; Clem B. Potter, Judge. Action by S. H. Peery against the Missouri, Kansas & Texas Railway Company of Texas and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>On motion for rehearing.</p>