Volume 136 — South Western Reporter

<p>1. Weapons (§ 17*) — Carrying Weapons — Evidence.</p> <p>Evidence held to support a conviction for unlawfully carrying a pistol.</p> <p>[Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20-33; Dec. Dig. § 17.*]</p> <p>2. Criminal Law (§ 808%*) — Instructions— Sufficiency.</p> <p>Where the court in its instructions properly applied to the facts articles of the Penal Code and Code of Criminal Procedure without quoting any of the articles, the refusal of special charges in the language of the Codes was not erroneous.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1811; Dec. Dig. § 808%.*]</p> <p>3. Weapons (§ 17*) — Carrying Weapons — Evidence — Admissibility.</p> <p>Where, on a trial for carrying a pistol, accused relied on the fact that his father, a constable, had asked him to keep the pistol as he might need accused to help him preserve order, evidence that a third person had a mixed reputation and would fight was properly excluded.</p> <p>[Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20-33; Dec. Dig. § 17.*]</p> <p>4. Criminal Law (§ 956*) — New Trial — Grounds — Sufficiency.</p> <p>Denial of a motion for a new trial on the ground that a juror could not read or write English, not supported by proof, is not erroneous.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. § 956.*]</p> <p>5. Criminal Law (§ 824*) — Instructions — Requests — Necessity.</p> <p>It is not error to fail to charge on a subject where accused does not request any written charges thereon.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.*]</p>

B. Seay, Judge. Application for writ of habeas corpus by Prank Canna for fixing his bail. Prom a judgment fixing bail, he appeals.

<p>Criminal Law (§ 1090*) — Bill of Exceptions — Statement oe Facts — Questions Reviewable.</p> <p>In the absence of a bill of exceptions or statement of facts, the court on appeal cannot review the rulings on the evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2804, 2862; Dec. Dig. § 1090.*]</p>

<p>Appeal from McLennan County Court; Tom L. McCullough, Judge.</p> <p>Action by the William Cameron Company, Incorporated, against the Missouri, Kansas & Texas Railway Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Evidence (§ 183*) — Deeds — Certified Copies.</p> <p>Under the express terms of Rev. St. 1895, art. 2312, a certified copy of a deed is admissible on filing an affidavit that the original cannot be found or procured.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 605-637; Dec. Dig. § 183.*]</p> <p>2. Acknowledgment (§ 10*) — Husband and Wife.</p> <p>A deed by husband and wife is not inadmissible because their acknowledgments were taken on different dates.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. § 61; Dee. Dig. § 10.*]</p> <p>:3. Acknowledgment (§ 37*) — Sufficiency.</p> <p>A deed by D. M. M. and his wife, L. A. M., is not invalidated because the acknowledgment describes her as “L. A. M., wife of-, known to me to be the person whose name is ■subscribed to the foregoing instrument,” etc.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 183, 199-216; Dec. Dig. § 37.*]</p> <p>4. Estoppel (§ 37*) — Estoppel by Deed.</p> <p>In a suit to recover land¡ a deed of trust was not inadmissible as against the grantor therein, because it antedated the deed under which she acquired title, since by executing it she estopped herself to deny title in herself.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 91-98; Dec. Dig. § 37.*]</p> <p>5. Judgment (§ 565*) — Conclusiveness— Judgment Without Prejudice.</p> <p>Where, in a former suit of trespass to try title, defendant reconvened, setting up a trust deed given by plaintiff to secure notes and asking judgment on the notes, and plaintiff dismissed her suit and was given judgment in the cross-action without prejudice to defendant on the cross-bill in any other suit, there was no such final adjudication as to bar a foreclosure of the deed of trust and make it inadmissible in evidence in a subsequent suit against one claiming through the foreclosure to recover the land.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1018; Dec. Dig. § 565.*]</p> <p>6. Mortgages (§ 111*) — Trust Deed.</p> <p>A deed of trust was not inadmissible against the beneficiary who signed it to give additional security.</p> <p>[Ed. Note. — For 'other cases, see Mortgages, Dec. Dig. § 111.*]</p> <p>7. Judgment (§ 956*) — Evidence.</p> <p>It was not error to exclude from evidence instructions refused in another suit, where they were not legitimate on any issue raised in this suit.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1822-1825; Dec. Dig. § 956.*]</p> <p>8. Evidence (§ 317*) — Hearsay.</p> <p>Testimony as to what an outsider told defendant was properly excluded as being hearsay.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]</p>

<p>Appeal from District Court, Bexar County; Edward Dwyer, Judge.</p> <p>Action by Henry Burns against C. W. Cannon. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Randall County; J. N. Browning, Judge.</p> <p>Suit by the General Electric Company against the Canyon City Ice & Light Company and others. From the judgment, plaintiff appeals.</p>

<p>Appeal from District Court, Tarrant County.; Jas. W. Swayne, Judge. '</p> <p>Action by J. M. Goodrich against the Chicago, Bock Island & Gulf Bailway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Action by J. B. Waters & Bro. against T. J. Freeman, receiver. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.</p>

<p>1. ACKNOWLEDGHENT (§ 25*) — MODE OE TAKING — Married Women.</p> <p>The statute .regulating the acknowledgment ’by. married women of deeds is mandatory, and neither the homestead right of a wife nor her separate property may be conveyed except in the manner prescribed.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 133-148; Dec. Dig. § 25.*]</p> <p>2. Acknowledgment (§ 25*) — Mode of Taking — Married Women.</p> <p>Where a wife’s acknowledgment of a deed of the homestead was not taken privily and apart from her husband, and the grantee was present and cognizant of the fact, the deed was void as against the wife.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 133-148; Dec. Dig. § 25.*]</p> <p>3. Appeal and Error (§ 1175*) — Disposition of Case on Appeal.</p> <p>Where a case was fully developed on the facts at the trial, the court on appeal from an erroneous judgment will render the proper judgment.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4588-4596; Dee. Dig. § 1175.*]</p>

<p>Appeal from District Court, Cherokee County; James I. Perkins, Judge.</p> <p>Action by the First National Bank of Rusk against the Rusk Pure lee Company and others. From a judgment for the unnamed defendants, plaintiff appeals.</p>

<p>' Appeal from District Court, Grayson County ; B. L. Jones, Judge.</p> <p>Action by John J. Wilkinson against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, McLennan County; Marshall Surratt, Judge.</p> <p>Action by R. F. Farley against the- Citizens’ Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1.Justices oe the Peace (§ 141*)— Jurisdiction — Appeal.</p> <p>Where a case is appealed from a justice to the county court, the latter is without jurisdiction, unless the justice had jurisdiction, though the amount in controversy may be within the original jurisdiction of the county court.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 472, 473; Dec. Dig. § 141.*]</p> <p>2. Courts (§ 169*) — Jurisdiction—Foreclosure oe Lien.</p> <p>If the value of the property covered by a lien exceeds the limits of the court’s jurisdiction, the court has no power to foreclose the lien, though the amount of the debt secured by it may be within the court’s jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436; Dec. Dig. § 169.*]</p> <p>3. Justices oe the Peace (§ 44*) — Jurisdiction — Foreclosure oe Lien.</p> <p>Where mortgaged property was in excess of $200, a justice of the peace had no jurisdiction of an action to foreclose the lien, although the debt was only $95.55, interest, etc.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. § 44.*]</p>

<p>Appeal from District Court, Val Verde County; W. C. Douglas, Judge.</p> <p>Action by H. Averill against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.</p> <p>Action by J. A. Fisk against W. B. Walker & Sons. From a judgment for plaintiff, defendant appeals.</p> <p>Affirmed.</p>

Action by Bush & Witherspoon Company against the Gulf, Colorado & Santa Fé Railway Company and the Ft Worth & Rio Grande Railway Company, in which each defendant asks judgment over against its co-defendant in case of an adverse judgment. Judgment for plaintiff against both defendants, and for the Ft. Worth Company against the Santa Fé Company, and the latter appeals.

McCullough, Judge. Action by C. H. Cox & Co. against the Southern Pacific Company and another. From a judgment for plaintiff against the defendant named, it appeals.

5. Corporations (§ 423*) — Officers—Acts of Officers — Binding Effect. Appeal from District Court, Bandera County; R. H. Burney, Judge. Action by F. R. Caffall against the Ban-dera Telephone Company and others. From a judgment for defendants, plaintiff appeals.

<p>Carriers (§ 94*)—Freight—Wrongful Delivery—Action—Measure oe Damages— Special Damages.</p> <p>Where the carrier had notice when it received a shipment of cotton that the shipper had then sold it, it was liable in damages for delivery to the consignee of other and inferior cotton for the difference between the value of the cotton delivered to it and that delivered to the consignee, and that the carrier did not know of the exact terms of the sale was immaterial.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 389; Dee. Dig. § 94.*]</p>

<p>Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.</p> <p>Action by Felix Ortiz against T. J. Freeman, receiver of the International & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Ella Hogue and others against Edward T. Harrison, as receiver, etc., and others. Decree for complainants, and defendants appeal.

<p>Appeal from District Court, Collin County; J. M. Pearson, Judge.</p> <p>Action by Olivia A. Staples against T. O. Staples. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by John N. Corbin against Thomas B. Corbin, individually and as executor, etc. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Collin County; J. M. Pearson, Judge.</p> <p>In the matter of the estate of M. L. Gee, deceased. From a judgment of the district court construing a will on appeal from the county court, J. D. Cottrell, administrator, appeals adversely to J. A. Moreman, administrator.</p>

<p>1. Damages (§ 101*) — Personal Injuries— Measure of Damages.</p> <p>In a personal injury action, where there was no evidence that any amount expended or liability incurred by plaintiff for doctor’s bills or medicine was reasonable, it was error to submit such item as an element of damage.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 222-229; Dec. Dig. § 101.*]</p> <p>;2. Damages (§ 216*) — Personal Injuries— Instructions.</p> <p>Where, in a personal injury suit, evidence shows that injuries weie received which were not alleged in the petition, it is affirmative error not to limit the recovery to compensation for injuries alleged, and, where the petition alleged that plaintiff’s left shoulder joint was bruised and inflamed, causing arthritis, add her right hip bruised and lacerated, causing inflammation thereof and injuring the joint, and the muscles and ligaments-of the lumbar region of her back wrenched, her head and right side bruised, and plaintiff testified to an injury to her neck and breast, and that she suffered pain therein, it was affirmative error to charge that, if the jury found for plaintiff, they should find for her such sum as they believed would compensate her for any physical pain, mental suffering, and diminished capacity to earn money, proximately resulting from the accident in question.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dee. Dig. § 216.*]</p> <p>,3. Damages (§ 168*) — Personal Injuries— Evidence.</p> <p>In a personal injury action, it was not error to permit plaintiff to testify as to her weight at different times since the accident.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 480-486; Dec. Dig. § 168.*]</p> <p>4. Carriers (§ 317*) — Carriage of Passengers — Injury. to Passenger — Action—Admissibility of Evidence.</p> <p>In an action by a female passenger against a street railway company for injuries received while alighting from a car, where there was evidence that the car stopped at the corner at which plaintiff had signaled it to stop, and that plaintiff fell from the car after it had started, a city ordinance providing that conductors or drivers shall not allow women or children to leave or enter street cars while in motion was properly admitted.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 317.*]</p>

<p>1. Trial (§ 139*) — Taking Case from the Jury — Direction of Verdict.</p> <p>The evidence to authorize the court to take a question from the jury must be such that there is no room for ordinary minds to differ as to the conclusions to be drawn from it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 338; Dec. Dig. § 139.*]</p> <p>2. Trial (§ 315*) — Conduct of Jury — Manner of Reaching Verdict — Quotient Verdict.</p> <p>A verdict reached by an agreement made beforehand that each juror should write down the amount he would award, and that the total of such amounts should be divided by 12, and the quotient should be the verdict, will be reversed; but, if such result is reached with no agreement had beforehand to abide by it and it is afterwards agreed upon as a verdict, it will be sustained; the test being whether the jury agree to be bound beforehand by such result.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 740; Dec. Dig. § 315.*]</p>

<p>Appeal and Eebob (§ 842*) — Review—Question eob Jury.</p> <p>Where an attorney, through an assignment by his client, claimed to own one-fourth of the judgment recovered, and the evidence did not clearly show whether the assignment vested the attorney with the absolute ownership of one-fourth when the contract was made, or whether it was in futuro, depending upon his performance of the agreement, a question of fact for the jury was raised; their determination being final.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. § 842.*]</p>

Error from District Court, El Paso County; A. M. Walthall, Judge. Action by Zach Lamar Cobb against Theo W. Ardoin and another. There was a judgment for plaintiff, and defendants bring error.

<p>Appeal from District Court, Atascosa County; E. A. Stevens, Judge.</p> <p>Action by Virgil Johnson against T. J. Freeman, receiver of the International & Great Northern Railroad Company, Judgment for plaintiff, and defendant appeals.</p>

B. Powell, Judge. Suit by the Lufkin Land & Lumber Company against J. H. Miller to restrain the enforcement of an execution in which defendant moved to dissolve the injunction or for judgment against plaintiff for $14.03, in the alternative. From a decree perpetuating the injunction and rendering judgment against complainant for the amount demanded, complainant appeals.

<p>Railroads (§ 401*) — Persons on Track — Injuries — Use oe Track by Public —Instructions.</p> <p>Where plaintiff was injured by walking along a side track in a railroad yard by a car being pushed against him, an instruction that plaintiff was a trespasser on the right of way, unless the public had for a long time used the right of way as a footpath, and that such use was acquiesced in by the railroad company, in which case the law implies permission for plaintiff to use its right of way as a footpath, was erroneous as misleading the jury to believe that plaintiff would not be a trespasser on the side track when he was injured, if the public used any part of the right of way.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. § 401.*]</p>

<p>1. Railroads (§ 350*) — Crossing Accidents— CONTRI33UTORY NEGLIGENCE— QUESTION FOR Jury.</p> <p>Plaintiff, passing over a crossing occupied by several tracks, saw an engine with cars coming from the north, and hurried across around the front of an approaching engine, pulling a number of ears, when he saw another engine-with cars coming from the north on another track. Not having time to cross in front of it, he stepped aside for it to pass, and, his attention being drawn to it, he failed to notice that he was standing on another track, and almost immediately he was struck by an engine coming from the south. There was a big crowd of people at the crossing, and it was about dusk. Sold, that it cannot be said that plaintiff was negligent, as the employés on the engine were obliged to keep a lookout for persons in peril.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1169-1172; Dee. Dig. § 350.*]</p> <p>2. Railroads (§ 301*) — Crossings — Rights 03? Public.</p> <p>The use of a street is for the ordinary travel over it, and the right of a railroad to operate its trains across it is subordinate to its use by the general public.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 956; Dec. Dig. § 301.*]</p> <p>3. Railroads (§ 309*) — Crossings — Rights 03? Public — Duty 03? Railroad.</p> <p>In walking over a crossing on a sidewalk constructed for the use of pedestrians one is not a trespasser, and the railway company in operating its trains across such street is required to exercise care proportionate to the risk incident to such use of its track by the public.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 981; Dec. Dig. § 309.*]</p> <p>4. Railroads (§ 274*) — Injuries to Persons at Stations.</p> <p>Where plaintiff was going to defendant’s depot for a lawful purpose, and in crossing a walk over several tracks to reach it, was stiruck by an engine on one of the tracks, he was not a trespasser.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 868-872; Dec. Dig. § 274.*]</p> <p>5. Railroads (§ 312*) — Crossings—Means 03? Controlling Engines.</p> <p>Where several tracks crossed a much-used street leading past a depot, and trains were constantly passing over the crossing, and there was continuous noise and confusion, the hazard was so great as to require that an employé. be stationed on the footboai'ds of switch engines, and be provided with means to at once turn on the lever to the angle cock to stop the engine in case of emergency requiring immediate stoppage to prevent injury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 988-1003; Dec. Dig. § 312.*]</p> <p>6. Railroads (§ 348*) — Crossing Accident— Acts in Emergency — Evidence.</p> <p>In an action for injuries to a pedestrian at a crossing, evidence held not to show such excitement on the part of an employé on the engine whose duty it was to tutn the angle cock to stop the engine so as to excuse his failure to use ordinary care.</p> <p>[Ed. Note. — For other eases, see Railroads, Dec. Dig. § 348.*]</p> <p>7. Railroads (§ 320*) — Duty as to Persons in Peril.</p> <p>When the employés of a railway company discover a person on the track in a position of peril, whether rightfully or wrongfully there it is their duty to use all the means at hand to avoid injury; hence, where plaintiff was caught between tracks at a crossing and struck by an engine, it was not error for the court to require of defendant's employés the exercise of ordinary care, and good faith therein is not sufficient.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1014-1019; Dec. Dig. § 320.*]</p> <p>8. Railroads (§ 351*) — Injuries at Crossings — Instructions.</p> <p>In an action for injuries at a crossing occupied by several tracks, where it appeared that plaintiff was struck by an engine while his attention was attracted by a train on another track, an instruction that if it was reasonably apparent to defendant’s employés, and they believed, that plaintiff would probably not leave the track before the engine reached him, and if they realized his peril in time to have avoided injuring him, and if they failed to use such care with the means at hand as ordinarily prudent persons would have done under like circumstances, and if they were negligent on account of such failure, and such negligence was tile proximate cause of the injury, they should find for plaintiff, was not erroneous as to defendant, as ordinarily it is sufficient for the court to tell a jury that a failure to use such care as a prudent person would have used under the same or similar circumstances would constitute negligence.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1193-1215; Dee. Dig. § 351.*]</p> <p>9. Railroads (§ 351*) — Accident at Crossing —Instructions.</p> <p>In such case an instruction that, on the other hand, if the employés on the engine had realized that plaintiff was in a perilous position, and that he would probably not get off the track in time to avoid being struck by the engine, or if the employés saw plaintiff and realized his danger and peril, and it reasonably appeared to them, and they believed, that he would probably not get off the track, before the engine would reach him, yet if when such em-ployés realized plaintiff’s perilous position, they could not in the exercise of ordinary care, by the use of means which they had at hand avoid injuring plaintiff, or if they exercised ordinary care and used all the means they had at hand to avoid the injury, then in any of these events the finding must be for defendant, was correct.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1193-1215; Dec. Dig. § 351.*]</p> <p>10. Trial (§ 260*) — Instructions—Requests —Repetition.</p> <p>A requested charge which is included in the charge as given by the court is properly refused.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>11. Railroads (§ 351*) — Injuries at Crossing — Instructions.</p> <p>Where the evidence showed that plaintiff while waiting at a crossing for a train to clear the crossing, was oblivious of the approach of a train on the track on which he was standing, and that the employés on the latter train saw plaintiff’s peril and could have avoided injuring him, an instruction requested by defendant that the duty to exercise ordinary care to prevent injury to a person on the track arises only when the trainmen know of his presence and realize his danger, was properly refused, as inapplicable to the facts.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1215; Dec. Dig. § 351.*]</p> <p>12. Railroads (§ 351*) — Injuries at Crossings — Instructions.</p> <p>In an action for injuries at a crossing where plaintiff was caught between tracks and run down by an engine, it was not error for the court to refuse an instruction requested by defendant that if plaintiff was standing on the track in front of a switch engine and the em-ployés on the engine used such means as they deemed adequate and sufficient under the circumstances to prevent injuring him, the verdict should be for defendant, as it would have permitted the jury to find for defendant, notwithstanding such employés might have failed to use that degree of care which should have been employed by persons of ordinary prudence under the particular circumstances, and left it to the employés to determine what means were adequate and sufficient to prevent the injury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1215; Dec. Dig. § 351.*]</p> <p>13. Railroads (§ 348*) — Injuries at Crossings — Evidence.</p> <p>In an action for injuries at a railroad crossing, evidence held sufficient- to support a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*]</p> <p>14. Damages (§ 132*) — Injuries at Crossings — Excessive Damages.</p> <p>$12,500, held not excessive for injuries at a railroad crossing.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-385; Dec. Dig. § 132.*]</p>

<p>1. Bail (§ 65*) — Appeal — Recognizance — Sufficiency.</p> <p>An appeal must be dismissed where the recognizance does not show that accused has been convicted of any offense, or that any punishment has been assessed against him.</p> <p>[Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.*]</p> <p>2. Ceiminal Law (§ 1056*) — Appeal—Questions Reviewable.</p> <p>In a misdemeanor case, accused must except to the instructions at the time, and must ask additional instructions, and, unless he does so, the instructions will not be reviewed on appeal unless radically wrong.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. 2668, 2670; Dec. Dig. § 1056.*]</p> <p>On Further Motion for Rehearing.</p> <p>3. Criminal Law (§ 1133*) — Appeai^Ques-tions Reviewable.</p> <p>Accused in a misdemeanor case may not for the first time raise the question on rehearing that the court erred in not charging on circumstantial evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Lawf Cent. Dig. § 2984; Dec. Dig. § 1133.*]</p>

<p>1. Criminal Law (§ 1076*) — Appeal—Recognizance— Insufficiency.</p> <p>An appeal from a conviction will be dismissed, where the recognizance is insufficient.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2708-2716; Dec. Dig. § 1076.*]</p> <p>2. Criminal Law (§ 1144*) — Appeal—Record —Presumptions.</p> <p>Where there is neither a statement of facts nor bills of exceptions in the record, it will be presumed that the trial judge charged all the law applicable to the facts proved.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Gent. Dig. § 3032; Dec. Dig. § 1144.*]</p>

<p>Appeal from District Court, Trinity County; S. W. Dean, Judge.</p> <p>John Barr was convicted of violating the local option law, and he appeals.</p>

<p>Application by John Barr for a writ of ha-beas corpus. Applicant remanded to certain custody.</p>

<p>Appeal from Bosque County Court; P. S. Hale, Judge.</p> <p>Tom Pyles was convicted of theft, and he appeals.</p>

<p>Appeal from District Court, Madison County; S. W. Dean, Judge.</p> <p>Albert Vaughn was convicted of rape upon a girl under 15 years of age, and appeals.</p>

<p>Appeal from District Court, Tyler County; W. B. Powell, Judge.</p> <p>Action by Mrs. C. L. Holloway and another against H. L. Hall and others. Prom a judgment in favof of certain of the defendants, plaintiffs appeal.</p>

<p>Error from District Court, Jefferson County; L. B. Hightower, Jr., Judge.</p> <p>Action by James S. Jackson against O. D. Granberry and another. There was a default judgment for plaintiff, and defendants bring error.</p>

<p>1. Railroads (§ 484*) — Loss of Property by Pibe — Evidence—Issue.</p> <p>In an action against a railroad company for loss of property by fire set by an engine, the refusal to submit to the jury the issue of negligence on the theory that the company permitted dry grass to accumulate on its right- of way, and that sparks from the engine set fire thereto and spread to and consumed the property, held proper under the evidence.</p> <p>[Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. § 484.*]</p> <p>-2. Appeal and Eekok (§ 1050*) — Harmless Eeeob — Erroneous Exclusion of Evidence.</p> <p>The exclusion of collateral testimony, not -.throwing any light on the issue, is harmless.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4154; Dec. Dig. § 1050.*]</p> <p>3. Railroads (§ 485*) — Pires — Evidence — Instructions.</p> <p>Where, in an action against a railroad company for loss of property by fire set by an engine, witnesses testified that the wire netting .spark arrester used by the company was the most approved appliance in use by railroad companies for the prevention of the escape of fire, and the master mechanic of another railroad - company testified that his road and another had .abandoned the wire netting and used a perforated plate instead, but that neither one was better than the other, a charge requiring the ■company to equip its engine “with one of the most approved spark arresters in use” by rail-ivay companies was not erroneous for failing to require it to equip its engine with the most ; approved spark arrester in use.</p> <p>[Ed. Note. — Por other cases, see Railroads, • Cent. Dig. §§ 1747-1756; Dee. Dig. § 485.*]</p>

<p>1. Judges (§ 45*) — Qualification—Relationship — 1 ‘Parties. ’ ’</p> <p>Const, art. 5, § 11, and Rev. St. 1895, art. 1129, provide that no judge is qualified to try a case in which any party to the suit is related to him within the third degree. Held, that the word “party” was not limited to those named as parties in the pleadings, but included all persons directly interested in the subject-matter and result of the suit, including a purchaser of property sold at a guardian’s sale pursuant to an order of the court.</p> <p>[Ed. Note. — Por other cases, see Judges, Cent. Dig. §§ 208-212; Dec. Dig. § 45.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5202-5213; vol. 8, p. 7747.]</p> <p>2. Certiorari (§ 69*) — Review—Trial De Novo.</p> <p>That a judge of a county court was disqualified to confirm a guardian’s sale of real estate because the purchaser was related to the judge within the third degree was insufficient to require reversal of the order on certiorari, since under Sayles’ Ann. Civ. St. 1897, art. 339, providing that a cause shall be tried de novo in the district court, except that the issues shall be confined to the grounds of error specified in the application for the writ, the district court, though exercising appellate jurisdiction only, would be bound to confirm the sale if otherwise regular, notwithstanding the disqualification of the county judge.</p> <p>[Ed. Note. — For other cases, see Certiorari, Dec. Dig. § 69.*]</p> <p>3. Certiorari (§ 42*) — Petition—Sufficiency.</p> <p>A petition for certiorari 'to review an order of a county judge confirming a guardian’s sale of real property must allege facts which, if true, would require a different judgment on the merits from the order appealed from; any errors in procedure committed on the hearing in the county court being immaterial.</p> <p>[Ed. Note. — For other cases, see Certiorari, Dee. Dig. § 42.*]</p> <p>4. Guardian and Ward (§ 86*) — Ward’s Land — Sale—Description.</p> <p>Where a petition for an order to sell land belonging to a ward contained a sufficient description to identify the property, it was sufficient, especially where the land was ordered sold at private sale.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 340-344; Dec. Dig. § 86.*]</p> <p>5. Guardian and Ward (§ 105*) — Real Estate — Sale—Vacation—Conditions-.</p> <p>Where a ward after becoming of age sued to set aside a sale of her land by her guardian, on the ground that there was no necessity for such sale, and that the order of sale and confirmation thereof was obtained by fraud and duress of the purchasers, she was not required to tender the money paid by the purchasers for the property as a condition to her right to relief; they being entitled to recover the money paid only on an allegation and proof that the money so paid had been used by, or expended for necessaries for, the minor.</p> <p>[Ed. Note. — Eor other cases, see Guardian and Ward, Dec. Dig. § 105.*]</p> <p>6. New Trial (§ 167*) — Petition—Requisites.</p> <p>A petition in an equitable suit for a new trial is insufficient where it does not reallege the cause of action pleaded in the original petition.</p> <p>[Ed. Note. — For other cases, see New Trial, Dee. Dig. § 167.*]</p> <p>7. Appeal and Error (§ 1142*) — Reinstatement oe Cause — Petition—Affirmance.</p> <p>Where an exception to a motion to reinstate a cause after dismissal for want of prosecution was in effect a general demurrer, the fact that it was improperly overruled would not authorize an affirmance of the judgment against plaintiff which was erroneous on the merits, because the motion to reinstate was insufficient as against a general demurrer, as such ruling would deprive plaintiff of the opportunity to amend.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1142.*]</p> <p>8. New Trial (§ 167*) — Reinstatement oe Cause Aeter Dismissal — Jurisdiction. .</p> <p>The trial court has jurisdiction to grant a new trial on equitable grounds, or to reinstate a cause at a subsequent term to that at which the final judgment was rendered.</p> <p>[Ed. Note. — For other cases, see New Trial; Dec. Dig. § 167.*]</p> <p>9. Appeal and Error (§ 20*) — Jurisdiction —Dismissal.</p> <p>A judgment rendered on an insufficient pleading by a court having jurisdiction of the subject-matter is not a judgment beyond the court’s jurisdiction, but a mere erroneous exercise of jurisdiction, and hence an appeal therefrom cannot be dismissed by the appellate court for want of jurisdiction in the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 20.*]</p> <p>10. Election oe Remedies (§ 7*) — Knowledge op Existence — Facts.</p> <p>Where, at the time plaintiff instituted proceedings against her guardian and bondsmen to compel an accounting of the proceeds of real estate, she had no knowledge of facts authorizing the vacation of the sale for fraud and duress, and after obtaining such knowledge she instituted proceedings in that behalf, and did not longer prosecute the former suits, the fact that she failed to dismiss them and permitted them, to remain pending while she litigated her right to a vacation of the sale did not constitute such an election of remedies as precluded the maintenance of the proceeding to vacate.</p> <p>[Ed. Note. — For other cases, see Election of Remedies, Dec. Dig. § 7.*]</p>

<p>1. Vendor and Purchaser (§ 308*) — Action eor Price — Defenses—Adverse Claim:.</p> <p>Where a vendee has accepted a deed with general warranty, he cannot defeat the payment of the price by showing an adverse claim to the land by a third person, but must show that the title has failed in whole or in part, and that there is danger of his eviction, and that he had no knowledge of the alleged defects when he purchased.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 887; Dec. Dig. § 308.*]</p> <p>2. Costs (§ 260*) — Appeal for Delay — Penalties.</p> <p>In an action on vendor’s lien notes, defendant, nearly a year after the service of citation, filed an answer asking that others be made parties on the ground that they claimed some interest in the property. Exceptions being sustained to this plea, no exceptions were taken thereto, and, after judgment for plaintiff and appeal taken, no statement of facts was sent up with the record, nor was there anything in the record to indicate that defendants had any defense, and they filed no briefs. Held, that the appeal was taken for delay requiring an affirmance with damages under Sayles’ Ann. Civ. St. 1897, art. 1024.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. § 987; Dee. Dig. § 260.*]</p>

<p>Appeal from District Court, Harris County ; Charles E. Ashe, Judge.</p> <p>Trespass to try title by J. F. Robinson against T. B. Mitchell and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by A. P. George and others against J. O. Davis and others. From the judgment, certain of defendants appeal.</p>

<p>Appeal and Ebboe (§ 773*) — Failube to File Beiep — Appibmance.</p> <p>Where appellant’s motion for a new trial was stricken, and it filed no brief on appeal, appellee having entered his appearance and filed a brief, his motion to affirm will be granted, in the absence of a fundamental error in the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104r-3110; Dec. Dig. § 773.*]</p>

<p>Appeal from Galveston County Court; Geo. E. Mann, Judge.</p> <p>Action by the Lone Star Cotton Jammers’ & Longshoremen’s Association against P. B. Oliver and another. From a judgment of the county court dismissing defendants’ appeal from a justice’s judgment, they appeal.</p>

<p>Appeal from Harris County Court; A. R. Hamblen, Special Judge.</p> <p>Action by Y. C. Mayes against Thomas C. Edwards. From a judgment for plaintiff, defendant appeals.</p>

D. Hawkins, Judge. Suit by the City of Ennis against the En-nis Waterworks. Prom a judgment for plaintiff, defendant appeals.

<p>1. Judgment (§ 870*) — Revival—Scire Fa-cias — Sufficiency.</p> <p>A scire facias to revive a judgment showing that the judgment was rendered in the district court of a given county in and for a certain district in a numbered cause, giving the date and the names of the parties, and stating that the suit was one involving a boundary question, and that final judgment was rendered in said court directing that a writ of possession issued for the ' land involved as well as execution for all costs, all being the same as in the original judgment, sufficiently identified such judgment, though the land itself was not described.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1617, 1623; Dec. Dig. § 870.*]</p> <p>2. Judgment (§ 870*) — Revival—Soibe Fa-cias.</p> <p>In determining whether a judgment on scire facias sufficiently identifies the judgment sought to be revived, the statements contained in the writ- may be looked to in aid of the judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1632; Dec. Dig. § 870.*]</p> <p>3. Judgment (§ 870*) — Revival—Scire Fa-cias — NATURE OF PROCEEDING.</p> <p>A proceeding to revive a judgment by scire facias is not a new suit, but a continuation of that wherein the judgment was rendered, and the same particularity in such proceeding is not required as in stating a cause of action in the original complaint.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1613 ; Dec. Dig. § 870.*]</p> <p>4. Judgment (§ 870*) — Scire Facias.</p> <p>A judgment on a scire facias to revive a judgment directing that the defendant in the action have its writ of possession for the land .involved, as well as execution for costs, was erroneous, in so far as it undertook to adjudicate and determine the amount of the cost for which an execution was directed to issue.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1631; Dec. Dig. § 870.*]</p> <p>5. Appeal and Ereob (§ 1153*) — Modification of Appeal — Rendering Proper Judgment.</p> <p>That a judgment on a scire facias to revive a judgment erroneously undertook to adjudicate and determine the amount of costs for which execution was directed to issue was not error requiring a reversal, since the appellate court might reform such judgment and render the proper judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507-4512; Dec. Dig. § 1153.*]</p>

<p>1. VENDOR AND PURCHASER (§ 251*) — PURCHASE Price — Security—Vendor’s Lien.</p> <p>In every case of a sale of real estate, where the purchase money is not paid, a lien exists by operation of law in favor of the vendor to secure payment of the price, unless it is otherwise agreed by the parties, either expressly or by acts showing that the lien was not intended to be retained.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 624H335; Dec. Dig. § 251.*]</p> <p>2. Vendor and Purchaser (§§ 206, 281*)— Vendor’s Lien — Waiver.</p> <p>The taking of security on chattels or other things by a vendor, if unexplained, is an implied waiver of a vendor’s lien; but the presumption of waiver from the taking of other things is only an inference of fact, and may be rebutted by evidence that such was not the intention of the parties.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. §§ 266, 281.*]</p> <p>3. VENDOR AND PURCHASER (§ 281*) — VENDOR’S Lien — Burden op Proop.</p> <p>In a suit to enforce a vendor’s lien, the defendant having shown a prima facie waiver by proof of a taking of security, the burden is shifted to the vendor to establish that no waiver was intended.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. § 281.*]</p> <p>4. Triad (§ 194*) — Instructions — Vendor’s Lien — Waiver—Weight op Evidence.</p> <p>In a suit to enforce an alleged vendor’s lien, the court charged that the burden was on plaintiff to show by a preponderance of the evidence that there was an implied lien on the lands described in the petition, and that the lien taken by plaintiff on certain personal property was not intended or understood to be a waiver of the vendor’s lien on the land. Held objectionable, as a charge on the weight of the evidence, in requiring the jury to assume that it was the apparent intention of the parties to release the lien and rely only on the personal property as security, and as singling out the mere act of taking security on personalty, and charging on that in such a manner as to cause the jury to attach undue weight thereto.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 439 — 466; Dec. Dig. § 194.*]</p> <p>6. Triad (§§ 194, 296*)— Instructions — Weight op Evidence.</p> <p>Any charge as to a presumption arising from a given state of facts, except in those cases in which the law raises a conclusive presumption, is a charge on the weight of the evidence, and reversible error, though other parts of the charge may have been correct.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 439-466, 705-718; Dee. Dig. §§ 194, 296.*]</p>

<p>Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.</p> <p>Action by H. J. Cleary against T. J. Freeman, receiver of the International & Great Northern Railroad Company. From a judg-. ment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Eeeoe (§ 1066*) — Review— Haemless' Error — Instructions.</p> <p>In an action against a railroad for injuries to a passenger, though no issue was raised as to plaintiff’s being a passenger, an instruction submitting such issue, even if calculated to cause the jury to conclude that defendant was denying everything, placed the greater burden on plaintiff, and did not injure defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1066.*]</p> <p>2. Caeeiees (§ 303*) — Carriage op Passen-gees — Caee Requieed oe Caeeiees.</p> <p>A railroad must exercise that high degree of foresight as to possible dangers to passengers preparing to alight from a train through the sudden starting thereof, and that high degree of care in providing against them which would be exercised by very careful and competent persons under the same or similar circumstances.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224r-1243; Dec. Dig. § 303.*]</p> <p>3. Teial (§ 295*) — Instructions—Construction as a Whole. -</p> <p>That in a personal injury action the court, in. a paragraph of its charge submitting affirmatively plaintiff’s right of recovery, failed to allude to contributory negligence, was not error where it submitted such issue in submitting defendant’s defenses, as the charge should be considered as a whole.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p> <p>4. Evidence (§ 537*) — Expeet Witnesses— Opinion Evidence.</p> <p>In a personal injury action, it was not error to permit a practicing physician who had treated plaintiff, to express an opinion and make a prognosis as to plaintiff’s condition.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2345, 2346; Dec. Dig. § 537.*]</p> <p>5. Witnesses (§ 400*) — Impeachment — Evidence.</p> <p>In an action against a railroad by a passenger who, while preparing to alight from a train,' was thrown therefrom and rendered unconscious, remaining so until next day, a physician who had testified for plaintiff stated that a few hours after she revived she told him that, if the train moved at the time she fell or if its moving had anything to do with her falling, she did not know it. Held that, under the circumstances, it was not error to permit plaintiff to testify whether she had any conversation with such physician.</p> <p>[Ed. Note. — For other eases, see Witnesses, Dec. Dig. § 400.*]</p> <p>6. Appeal and Eeeoe (§ 1051*) — Review— Haemless Eeeoe — Evidence.</p> <p>In a personal injury action, where defendant did not open up the inquiry as to plaintiff’s health before the accident, but plaintiff and her brother had testified without objection or contradiction that it was good, error, if any, in admitting in rebuttal testimony of other witnesses to the same effect, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>7. Teial (§ 63*) — Oedee op Pboop — DiscreTION OP COUET.</p> <p>It is discretionary with the trial judge whether he will permit original testimony to be introduced in rebuttal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 152; Dec. Dig. § 63.*]</p> <p>8. Evidence (§ 474*) — Opinion Evidence — Competency op Witness.</p> <p>In a personal injury action, witnesses who had been acquainted with and associated with plaintiff and had the opportunity of knowing and did know the condition of her health before the accident were competent to testify on that point.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2197; Dec. Dig. § 474.*]</p> <p>9. Damages (§ 216*) — Personal Injuries— Instructions.</p> <p>In a personal injury action, evidence that plaintiff had suffered continuously from the day of the injury to the time of trial, and that her injuries were permanent, authorized an instruction that the jury on finding for plaintiff might allow her such sum as in cash paid would compensate her for her diminished capacity to labor and earn money, if any, on account of her injuries, and also such sums as would compensate her for the physical and mental pain which she had suffered, and would in the future suffer, as a result of her injuries.</p> <p>[Ed. Note. — For other cases, see Damages, Dec. Dig. § 216.*]</p> <p>10. Trial (§ 260*) — Instructions Covered.</p> <p>In a personal injury action, the refusal of defendant’s requested charges on contributory negligence was not error, where the main charge on such issue was sufficient under the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-650; Dec. Dig. § 200.*]</p> <p>11. Damages (§ 132*) — Injuries to Passengers — Excessive Damages.</p> <p>Where plaintiff, a passenger, was thrown from defendant railroad’s train, and seriously and permanently injured in various parts of her body, and suffered continuously from the day of her injury to the time of trial, a verdict for $15,000 was not so large as to show passion or prejudice on the part of the jury.</p> <p>[Ed. Note. — For other cases, see Damages, Dec. Dig. § 132.*]</p>

<p>Error from District Court, Austin County; L. W. Moore, Judge.</p> <p>Action by E. B. Wilson against Joseph Cocbrane. Judgment for jdaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by L. H. Runge and others against John Buckley and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Wilson County; E. A. Stevens, Judge.</p> <p>Trespass to try title by the Fidelity Cotton Oil & Fertilizer Company against Clarence Martin and others. Judgment for plaintiff for land with an award of a writ of possession to defendants for a building situated thereon, and plaintiff appeals.</p>

O. Buford, Judge. Trespass to try title by Julia A. McLain and others against Alphonso Pate and others. Judgment for plaintiffs, and defendants appeal. The action was in trespass to try title to the M. Carpenter survey, in Panola county, Tex., patented in 1896. The controversy between the parties involved the ownership of the certificate under which the land was located and patented.

<p>Appeal from Harris County Court; A. E. Amerman, Judge.</p> <p>Action by Lillian Melott against the Texas Furniture & Trading Company. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Witnesses (§ 395*) — Corroboration—Admissibility oj? Evidence.</p> <p>In an action against a railroad company for injuries to a servant while climbing into the cab of an engine, where plaintiff had testified that, just before the accident, he had set one of two torches up in the gangway and had the other torch hanging on the thumb of his right hand, and defendant, which had pleaded that plaintiff was negligent in attempting to get on the engine with “torches and other things in his hands,” to impeach plaintiff, put in evidence part of the stenographer’s report of a former trial of the case, showing that he had then testified that “I had them hooked on my thumb,” and “seems like I had one on each thumb,” it was error to refuse to permit plaintiff to introduce part of the stenographer’s report of a previous trial of an action by plaintiff’s father against the same defendant for loss of plaintiff’s services on account of the same accident, which trial had taken place shortly after the accident, showing that plaintiff had then testified that he set one of the torches up in the gangway when he was climbing into the engine, which testimony was the same as plaintiff’s testimony on the present trial; the question whether plaintiff had attempted to climb upon the engine incumbered with torches being a material issue.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.*]</p> <p>2. Trial (§ 252*) — Instructions — Support in Evidence.</p> <p>In an action against a railroad company by its hostler’s helper for injuries received while attempting to climb into the cab of an engine, where it was a material issue whether at the time he had torches in his hands, and there was no evidence that his shoes were muddy, a charge that if the jury believed that plaintiff failed to exercise ordinary care when he attempted to get on the engine and voluntarily went thereon with his gloves and with torches in his hands, and when his gloves or shoes were wet or muddy, they could find for defendant, was objectionable'.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ l>90-612; Dec. Dig. § 252.*]</p> <p>3. Master and Servant (§ 295*) — Injuries to Servani>-Actions — Instructions — Necessity.</p> <p>Defendant having pleaded contributory negligence, embracing a plea of assumed risk, and plaintiff having replied that defendant and its servants, including plaintiff’s foreman, knew of defects in the boiler, tender, and steps of the engine, so as to leave the steps wet, and failed to repair them, and that plaintiff was forced to use such appliances or leave the services, that a person of ordinary care would have remained in the service, and the evidence showing that defendant’s foreman was familiar with the defective conditions existing, it was error to refuse a charge not otherwise given that if the jury believed that plaintiff knew of the defective condition of the locomotive, if it was defective, and any dangers incident thereto, and that defendant and its employe, plaintiff’s foreman, also knew of such defective conditions, if any, and that a person of ordinary care would have remained in the service under these conditions, then the doctrine of assumed risk would not apply, and plaintiff could not be charged with assuming any risk incident to such defects and dangers.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.*]</p> <p>4. Negligence (§ 141*) — Instructions—Contributory Negligence.</p> <p>The issue of contributory negligence being in the case, and the court not having instructed as to the burden of proof on such issue, it was error to refuse a special charge that the burden was upon defendant on the' issue of contributory negligence to show that plaintiff was guilty of contributory negligence.</p> <p>[E!d. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.*]</p> <p>5. Trial (§ 191*) — Instructions — Assumption op Facts.</p> <p>It was not error to refuse a charge that if the jury believed from the evidence that defendant permitted the step on its locomotive, in connection with which the injury resulted, to become old, worn, slick, and unsafe to climb upon, and that plaintiff in attempting to climb into the" gangway of such engine was caused to fall therefrom by his foot slipping off -of the step resulting in his injury, and if they further believed that such old, worn, and slick condition of the step, if it was old, worn, and slick, was the proximate cause of plaintiff’s injuries, if any, they should find for plaintiff, such charge assuming that, if - the engine step was old, worn, and unsafe to climb upon, defendant was negligent as matter of law, while such question was one of fact for the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431; Dec. Dig. § 191.*]</p>

<p>1. Waters and Water Courses (§ 261*)— Irrigation — Contract.</p> <p>A person rented land from an irrigation company, which contracted to furnish sufficient water for irrigation of a rice crop on the land during the year, the company to use due diligence to furnish the water, but not to be responsible for failure to furnish it, - resulting from injury to its canal or accident to its machinery, and that the manner of distributing water to and upon the land should rest entirely with the irrigation company or its manager, who should determine the most efficient and economical distribution, the company or its manager having entire control of the canal and water supply, and to be the sole judge as to when water should be furnished. Held, that if the irrigation company or its manager in good faith supplied to the crop all water deemed necessary by it or its manager to grow the crop, and kept such water upon the crop for such a time’ and in such quantities as the company or its manager in good faith and sound judgment deemed reasonably necessary to produce a reasonable and average yield upon the land, and there was no want of ordinary care on the company’s part in determining what amount of water it considered necessary to such purposes, the lessee could not recover for a lack of water furnished, though he did not receive sufficient to make a full or average yield on the land, but the matter was not committed to the arbitrary, uncontrolled judgment and discretion of the company or agent, but if sufficient water to make a full average yield was not furnished, and it was apparent to the company or its manager that such crop was needing water, and, in spite thereof, it failed or refused to furnish the required quantity, the company could not shield itself from liability for damage to the crop from its lack of water.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 261.*]</p> <p>2. Waters and Water Courses (§ 263*)— Irrigation Contracts — Breach—Action-Evidence.</p> <p>In an action to recover against an irrigation company for failure to furnish water under a contract resulting in damage to plaintiff’s crop of rice, evidence held to show that the crop for the year was short one-third of a sack per acre.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 324; Dec. Dig. § 263.*]</p> <p>3. Waters and Water Courses (§ 261*) — Irrigation — Breach oe Contract — Estoppel by Conduct.</p> <p>Where one leased land from an irrigation company, the contract especially providing that each party should be the owner in fee simple of one-half of the crop, and that the company should furnish irrigation water for- the crop, the lessee by dividing the crop and giving the lessor one-half was not estopped from claiming damages from the lessor for breach of the contract to furnish water; no such intent appearing from the contract.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 261.*]</p> <p>4. Appeal and Error (§§ 917, 518*) — Review —Presumptions—Waiver op Special Exceptions in Pleadings.</p> <p>Special exceptions in pleadings not acted upon by the court will be presumed to have been waived except in case of a general demurrer, and, to show that such special exceptions were acted upon, such action must he shown either by the final judgment or by some order made and entered during progress of the case, and it cannot be done by marking on the pleadings containing such special exceptions the word “sustained” or “overruled.”</p> <p>[Ed. Note. — For other cases, see Appeal and Error, 'Cent. Dig. §§ 3706-3709; Dec. Dig. §§ 917, 518.*]</p> <p>5. Contracts (§ 345*) — Pleading — Terms and Validity oe Contract.</p> <p>Where plaintiff sued for breach of a water contract, and alleged that such contract embraced the. entire contract between the parties, attaching it as an exhibit to his pleadings, and made no objection to the provisions of the water contract, and the answer set up a rent contract between the parties with an averment that both the rent contract and the water contract constituted the entire contract between the parties, whereupon plaintiff set up by supplemental petition that the execution of the water contract was procured by duress, and that all the conditions thereof tending to limit the liability of defendant were void, plaintiff did not abandon the water contract upon which alone he had based his action, so as to plead himself out of court, but merely accepted the case made by the answer with the condition that the provisions in the water contract were not binding upon him because extorted by duresd.</p> <p>[Ed. Note. — For other cases, see Contracts-, Dec. Dig. § 345.*]</p> <p>6. Appeal and Error (§ 730*) — Assignments op Error — Sufficiency.</p> <p>An assignment of error complaining of the refusal to give a special instruction which merely states that the charge “was intended to instruct the jury that the defendant w’as not responsible if the damage, if any, was due to inevitable accident,” is insufficient; the court being- unable therefrom to determine whether the charge was such a one as should have been given, even if the evidence had presented the issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. § 730.*]</p>

<p>1. Justices or the Peace (§ 44*) — Jurisdiction-Amount in Controversy — Proceedings to Recover Rent.</p> <p>Where a suit in the justice’s court having jurisdiction of the amount of $200 is for a debt for rent less than $200, the jurisdiction is not affected by the fact that the property upon which a foreclosure of landlord’s lien is sought exceeds $200 in value.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. § 44.*]</p> <p>2. Landlord and Tenant (§ 252*) — Lien-Statutory Provisions.</p> <p>Where a landlord’s suit for rent and for foreclosure of lien has been begun in a justice’s court within 30 days from the removal of personal property from the leased premises, the lien is fixed against the tenants and their vendees.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1022-1026; Dee. Dig. § 252.*]</p> <p>3. Landlord and Tenant (§ 252*) — Lien-Priorities.</p> <p>The rights of one acquiring interest in personal property as a vendee of the purchaser from the tenants who was not a party to the landlord’s suit for rent and foreclosure of lien are subject to the landlord’s lien for rent accrued and to accrue for the entire term.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1022-1026; Dec. Dig. § 252.*]</p> <p>4. Landlord and Tenant (§ 252*) — Enforcement of Landlord’s Lien — Injunction.</p> <p>An injunction to restrain a sale of personal property to satisfy a landlord’s lien will not be granted at the suit of a vendee of the tenants, who bought with knowledge of the landlord’s lien.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1022-1026; Dec. Dig. § 252.*]</p>

Kittrell, Judge. Action by Chester B. Dorchester, receiver, against the Merchants’ National Bank of Houston, Tex., and another. Prom a judgment for plaintiff against the defendant named, it appeals.

T. Linebaugh, Special Judge. Action by the First National Bank of Victoria against the Kenedy Town & Improvement Company and another. From a judgment for plaintiff against defendant named and for codefendant, the Bailey Mills Company, against defendant named, it appeals.

<p>Appeal from District Court, Duval County; W. B. Hopkins, Judge.</p> <p>Action by E. A. Wilson against the Texas Mexican Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Shelby County; James I. Perkins, Judge.</p> <p>Action by E. A. Blount against the Gulf, Colorado & Santa Fé Railway Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from I-Iunt County Court; J. W. Manning, Judge.</p> <p>Action by J. W. McMakin against Emma Clayton and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Hale County; L. S. Kinder, Judge.</p> <p>Action between C. B. Cox and the Atchison, Topeka & 'Santa Fé Railway Company. From tile judgment, the railway company appeals. Rehearing of motion to strike out a statement of facts.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by X. D. Moore against the Studebaker Bros. Manufacturing Company. From a judgment granting partial relief, plaintiff appeals.</p>

<p>Appeal from Bexar County Court; Phil.. H. Shook, Judge.</p> <p>Action by Frank Talerico against tbe Post, al Telegraph Cable Company of Texas. From - a judgment for plaintiff, defendant appeals.</p>

L. Camp, Judge. Action by Henry Springer and another against E. R. Riley. From a judgment granting insufficient relief, plaintiffs appeal.

<p>1. Trial (§§ 191, 296*) — Instructions—Assumed Facts.</p> <p>In an action for injuries to plaintiff while assisting his father at a railway pumping station, plaintiff’s employment being denied, his father testified that it was understood that plaintiff should help him operate the station until he was familiar with the pump, when he was to be put on as night man. This defendant denied, and the court charged that if the jury believed such an understanding existed between plaintiff’s father and defendant’s foreman, and that plaintiff, with the. foreman’s consent and knowledge, was left by his father in charge of the pump, they should find for plaintiff. Held that a further paragraph that, when “plaintiff entered the employment of defendant, he assumed all the risks,” etc., was objectionable as a charge on. the weight of the evidence as assuming that plaintiff was an employs of defendant when injured, and was not cured by the other instruction.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 705-718; Dee. Dig. §§ 191, 296.*]</p> <p>2. Appeal and Error (§ 1031*) — Prejudicial Error — Presumption — Instructions — Weight op Evidence.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 1317, forbidding- a charge on the facts, is mandatory, so that a charge on the weight of the evidence on a material controverted issue is prejudicial error, unless it affirmatively appears that the defendant was not prejudiced thereby.</p> <p>[Ed. Note. — For other .cases,, see Appeal and Error, Cent. Dig. §§ 4038-4046; 'Dec. Dig. § 1031.*]</p> <p>3. Master and Servant (§ 284*) — Question por Jury — Relationship—Argument.</p> <p>The fact that on other occasions defendant had permitted plaintiff to operate a pump at its water station in the place of plaintiff’s father, who was defendant’s pumpman there, was not sufficient to establish as a matter of law the relation of master and servant between plaintiff and defendant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1004; Dec. Dig. § 284.*]</p> <p>4. Trial (§ 192*) — Instructions—Weight op Evidence.</p> <p>An instruction assuming a fact which is undisputed is not objectionable as on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.*]</p> <p>5. Master and Servant (§ 295*) — Injuries to Servant — Assumed Risk — Instructions.</p> <p>Acts 29th Leg. c. 163, declares that the defense of assumed risks will not be available to a railway company as against a suit by its employs for damages for negligent personal injuries, where a person of ordinary care would have continued in the service with the knowledge of the defect and the danger. Held that, though plaintiff’s alleged employment was disputed, the court properly modified a requested charge on assumed risk by stating that if the jury believed that a person of ordinary care, under all circumstances and situated as plaintiff was, would have continued to operate plaintiff’s pump with knowledge of the danger he thereby incurred, plaintiff should recover; the charge as modified being the only phase of assumed risk that could arise in the case.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; 'Dec. Dig. § 295.*]</p> <p>6. Master and Servant (§ 292*) — Injuries to Servant — Instructions—Construction.</p> <p>In an action for injuries to plaintiff while assisting his father- in operating a pump at a station, defendant denied plaintiff’s employment, and the court charged that if the jury believed that the foreman of defendant’s water service, with authority to employ, hired plaintiff’s father to operate the pump, and it was understood that plaintiff should work with his father until he was sufficiently competent to operate the pump alone, when he was to be given charge of the same at night, and to be placed on. defendant’s pay roll, and that if under such an arrangement plaintiff worked at the pump with his father, and was left in charge thereof with the knowledge and consent of defendant’s foreman, then the jury should find that plaintiff was in defendant’s employ, and was a servant, was not erroneous as in effect charging that the mere granting of permission to plaintiff’s father to teach his son how to run the pump, and agreeing to employ him when he should have become competent, established the relation of master and servant between plaintiff and defendant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1135; Dec. Dig. § 292.*]</p> <p>On Motion for Rehearing.</p> <p>7. Trial (§ 191*) — Instructions — Assumption op Facts — " Ii?” — “When.”</p> <p>Where an instruction charged that “when” plaintiff entered defendant’s employment he assumed all the risks, etc., the word “when” could not be construed as synonymous with “if” to save the instruction from an objection that it assumed an employment.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-435; Dec. Dig. § 191.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3383-33^5; vol. 8, pp. 7437-7440.]</p>

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by Mrs. Minnie Halliburton against the Temple Electric Light Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error (§. 730*) — Assignments-op Ebeoe — Rulings on Instructions.</p> <p>In an assignment directed to the giving or refusal of charges, either the assignment or the statement must give at least so much of the-substance of the charge as will enable the court on appeal to determine whether it is in form and substance proper, and generally it is better-to set out the charge in full.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. §• 730.*]</p> <p>2. Watebs and Watee Courses (§ 54*)— Rights op Ripabian Ownees — Levees.</p> <p>An owner of land hounded by a stream, may make such levees on his own land as will prevent water from overflowing the same, provided he does not materially injure the adjacent owner.</p> <p>[Ed. Note. — For other cases, see Waters and-Water Courses, Dec. Dig. § 54.*]</p> <p>3. Waters and Water Courses- (§ 60*)— Rights op Riparian Owners — Levees.</p> <p>A purchaser of land bounded on a stream, need not submit to injurious effects on his land-by an obstruction to the usual flow of the water in existence at the time of the purchase, unless the adjacent owner creating the obstruction acquired a right from the former owner to-erect the obstruction with its injurious consequences.</p> <p>[Bd. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 60.*]</p> <p>4. Waters and Water Courses (§ 127*)— Obstruction to Waters — Prescription.</p> <p>That a levee obstructing the usual flow of the waters of a stream forming a boundary between adjacent land was allowed to remain for over 25 years without complaint was a bar to equitable relief to enjoin its continuance.</p> <p>[Ed. Note. — For other cases, see Waters and-Water Courses, Dec. Dig. § Í27.*]</p> <p>5. Waters and Water Courses (§ 63*)— Ob structio ns — Actions—Issues .</p> <p>Where the petition in an action for ob-. structing a stream forming the boundary between adjacent tracts was directed to levees-constructed by defendant on his land after the-acquisition by plaintiff of his land, and no levees were shown to have been erected prior to plaintiff’s purchase, except an old _ levee which, had existed without objection for 'more than 25 years, it was not error to limit the jury to the consideration of such levees as were constructed since the construction of the old levee and since the acquisition of the land by plaintiff.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 63.*]</p> <p>6. Waters and Water Courses (§ 61*)— Obstruction to Flow of Water — Equitable Relies.</p> <p>Equity will not interfere at the suit of an owner of land bordering on a stream with a right of the adjacent owner to erect levees on his own land, unless material injury results therefrom.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 61.*]</p> <p>7. Trial (§ 255*) — Instructions — Meaning ob Words.</p> <p>A party desiring a definition of the word “materially,” as used in an instruction relating to material injury to land, must request a special instruction to that effect, or he cannot complain of the failure of the court to define the word.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 639; Dec. Dig. § 255.*]</p> <p>8. Trial (§ 252*) — Instructions —Misleading Instructions.</p> <p>Where, in an instruction for obstructing the natural flow of the waters of a stream by the erection of levees, the evidence showed that cuts had been made through bends of the stream to straighten its course, and in making these cuts embankments had been thrown on defendant’s side of the stream which operated to divert the water, and that some of the work had been done by both parties jointly and other parts of it with plaintiff’s consent, an instruction submitting to the jury the issue as to whether any of the levees were made by consent of or in pursuance of an agreement with plaintiff was not misleading.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 252.*]</p>

Denton, Judge. Action by Lucy Perry against Winfred L. Hume, executrix, and others. From a judgment overruling a demurrer to the petition, defendant named appeals.

<p>Appeal from McClennan County Court; Tom L. McCullough, Judge.</p> <p>Action by W. W. Strieker against the Mecca Fire Insurance Company of Waco, Tex. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Harris county; Norman G. Kittrell, Judge.</p> <p>Action by Amelia O’Leary and. others against the Houston Belt & Terminal Railway Company and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Criminal Law (§§ 1099, 1102, 1092, 1095*)-Appeal — Statement oe Facts — Time oe Filing.</p> <p>The statement of facts and bill of exceptions filed in a prosecution for violating the local option law were filed in the county court on December 5th, court having adjourned on November 5th. Held, that the statement and bill were filed too late, and -will be stricken on motion; it being necessary under Acts 30th Leg. (1st EX. Sess.) c. 7, § 1, that they be filed within 20 days after adjournment, upon procuring an order for that purpose in term.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2876, 2877; Dec. Dig. §§ 1099, 1102, 1092, 1095.*]</p>

<p>1. Caeeiees (§ 262*) — Passengers — Breach OF CONTRACT — DEFECTS IN TICKETS.</p> <p>Where the defect in a passenger ticket arises from the fault of the carrier’s agent, the carrier is liable to the passenger for the damages sustained by the refusal of the conductor to accept the ticket.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 262.*]</p> <p>2. Caeeiees (§ 262*) — Passengers—Defects in Tickets.</p> <p>Where a passenger holding a round-trip ticket, which was good only for return passage, after his identification by signature on the ticket in the presence of an agent of the carrier, who should witness the signature and stamp the ticket, did all he could to perform the conditions imposed on him, but the agent failed to stamp the ticket, and thereafter a conductor placed a stamp thereon, and a subsequent conductor refused to accept the ticket as stamped, the carrier was liable to the passenger for the damages resulting from the conductor’s refusal to accept his ticket and demanding payment of fare under penalty of ejection from the train.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 262.*]</p> <p>3. Carriers (§ 234*) — Passengers—Contract of Carriage.</p> <p>A contract of carriage evidenced by a ticket is governed by the law of the state where made.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 965; Dec. Dig. § 234.*]</p> <p>4. Carriers (§ 259*) — Passengers—Tickets— Contract.</p> <p>A coupon round-trip ticket for carriage by several carriers sold by the initial carrier acting only as agent for the connecting carriers represented in the ticket and not responsible beyond its own line is not a ticket for a continuous trip either going or returning, and is not an entire contract of the initial carrier, nor the joint contract of all the carriers, but the body of the ticket and each coupon constitute a separate contract between the carrier and the particular carrier over which the coupon is good for transportation, and hence a stop-over by the passenger does not invalidate his ticket and coupon good for transportation by a carrier from the point of the stop-over to the end of its line.</p> <p>' [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1033; Dec. Dig. § 259.*]</p> <p>5. Caeeiees (§ 270*) — Passengers—Tickets— Negligence of Carrier.</p> <p>"Where a coupon round-trip ticket issued by the initial carrier was not good for the return passage unless .validated in the manner prescribed, and the initial carrier made the agent of the terminal carrier the agent to prepare the ticket for the return trip, the negligence of the agent was the negligence of the carrier on whose line of road the passenger suffered injury from a refusal of a conductor to accept the ticket, and, where the injury occurred on the initial carrier’s line, it must answer for the consequences thereof.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1064-1066; Dec. Dig. § 270.*]</p> <p>6. Carriers (§ 277*) — Passengers—Refusal to Accept Valid Ticket — Mitigation of Damages.</p> <p>Where a passenger has a ticket good for passage, but the conductor refuses to accept it, and demands payment of fare under penalty of ejection, the passenger’s failure to pay the fare demanded with the view of subsequently settling the question with the carrier could not be considered in mitigation of the passenger’s damages.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 10S2-10S4; Dec. Dig. § 277.*]</p>

<p>1. Costs (§ 246*) — Appeal — Sectjeity eob Payment.</p> <p>Where defendant appeals from a justice’s court to the county court, plaintiff cannot be required to give security for costs.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. § 949; Dec. Dig. § 246.*]</p> <p>2. Pleading (§ 246*) — Amendment — Amendment TO CONEOEM TO PKOOE — VARIANCE IN Plaintiff’s Name.</p> <p>In an action against an express company to.recover on money orders sold to and payable to plaintiff, and paid by the company on forged indorsements, a trial amendment of the complaint to allege that the orders were payable to “Henry” J. Bilkiss, instead of “Harry” J. Bilkiss, is properly allowed.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Dec. Dig. § 246.*]</p> <p>S. Appeal and Ereos (§ 1050*) — Review-Harmless Error — Evidence.</p> <p>While the court cannot say that plaintiff’s signature to citizenship papers made two years before the trial of his action against an express company to recover on money orders sold to and payable to him and paid by the company on his forged signature is so old as to be inadmissible, it is immaterial where there is no evidence that plaintiff had indorsed the orders to the person to whom they were paid.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. § 1050.*]</p> <p>4. Evidence '(§§ 271, 378*) — Private Writ-in gs — Letter s — Identity—Custody .</p> <p>Where plaintiff, in an action against an express company to recover on money orders sold to and payable to himself, and paid by the company on forged indorsements, identified letters written by himself, to which his signature was attached by the person who cashed the orders on forged indorsements, and there was nothing to indicate that plaintiff wrote the letters to be used for any purpose, the letters, having been returned by the person to whom written, are admissible over objection that they were self-serving, and that their custody was unexplained.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Dec. Dig. §§ 271, 378.*]</p> <p>5. Bills and Notes (§ 501*) — Express Company — Payment of Money Order on Forged Indorsement^-Action — Evidence.</p> <p>In an action against an express company to recover on money orders sold to and payable to plaintiff, and paid by the company on his forged indorsement, evidence as to how much money the police may have taken from the person who presented the forged orders is immaterial, where none of it was received by plaintiff.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 501.*]</p> <p>6. Bills and Notes (§ 427*) — Express Money Order — Payment on Forged Indorsement.</p> <p>Where an express company sold money orders to plaintiff, payable to him, and while in possession of one of them bearing plaintiff’s signature negligently paid the orders to a person who forged the signature of plaintiff, the company is liable to the amount so paid, and the negligence of plaintiff in allowing the person by whom they were stolen to have access to his papers is no excuse.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dee. Dig. § 427.*]</p> <p>7. Trial (§ 260*) — Instructions—Request-Instruction Already Given.</p> <p>Where the court, in an action against an express company to recover the amount paid on forged indorsement of plaintiff’s name, instructs that if plaintiff delivered the orders to the person who collected the money, and authorized such person to indorse them, they should find for defendant, the issue raised by testimony that plaintiff had said that he gave or delivered the orders to such person with authority to indorse them fully meets the issue raised by this testimony, and the refusal of a special charge on the same subject excusing defendant from liability in such case is proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>8. Dismissal and Nonsuit (§ 3*) — Voluntary Dismissal as to Part of Cause of Action.</p> <p>In an action against an express company to recover the amount paid on a forged in-dorsement of plaintiff’s name to three money orders sold by the company to him, a dismissal as to one of the orders which had not been presented for payment is properly allowed.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 4; Dec. Dig. § 3.*]</p> <p>9. Appeal and Error (§ 273*) — Record — Questions Reviewable — No Reason Assigned for Objection.</p> <p>Where the bill of exceptions reserved to the dismissal of part of plaintiff’s cause of action assigns no reason for the objection, it is insufficient to raise the point on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 273.*]</p> <p>10. Appeal and Error (§ 1149*) — Disposition of Cause — Modification — Correction of Error in Judgment — Misnomer.</p> <p>Where defendant came in and pleaded to a suit against “Wells Fargo & Co.,” it cannot after verdict, take advantage of the misnomer, and, since the style of the case is no essential part of it, the judgment will be corrected by the appellate court so as to be against Wells Fargo & Co. Express, instead of “Wells Fargo & Co.” as recited in the judgment of the court below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4485; 'Dec. Dig. (1149.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth Force, Judge.</p> <p>Action by Herman Kruegel against R. C. Porter. There was a judgment dismissing the suit, and plaintiff appeals.</p>

<p>1. TRIAL (§§ 255, 256*) — Instructions—Omission to Charge — Request.</p> <p>Failure to charge upon any particular phase of a case is not reversible error unless such a charge was requested, nor is it reversible error where the court gives a requested instruction and fails to charge further as to that phase of the case.</p> <p>[Ed. Note — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. §§ 255, 256.*]</p> <p>2. Assault and .Battery (§ 42*) — Civil Liability — Actton — Question for Jury — Self-Defense.</p> <p>In an action to recover damages for an assault and battery, the question whether defendant acted in self-defense held, under the evidence, for the jury.</p> <p>. LEd. Note. — For other cases, see Assault and Battery, Cent. Dig. § 56; 'Dec. Dig. § 42.*]</p>

<p>1.Gaming (§ 11*) — Dealing in Futures— Delivery.</p> <p>A contract for the sale of cotton was not within the act of 1907 (Acts 30th Leg. c. 86), prohibiting the dealing in futures and future contracts, where the cotton was actually delivered.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. § 19; Dec. Dig. § 11.*]</p> <p>2. Gaming (§ 49*) — Action—Sufficiency oe Evidence — Teems oe Contract.</p> <p>In an action upon a contract for the purchase of cotton, evidence held to show that defendant sold the cotton to plaintiff at the market price, and the parties agreed that, if that grade of cotton advanced before a date following, defendant could, upon demand, collect the difference between the price at the time of demand and that paid at time of sale, and, if no demand was made and the market value was less on such date than the amount paid for it, plaintiff could collect the difference from defendant.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. § 102; Dec. Dig. § 49.*]</p> <p>3. Gaming (§ 11*) — Dealing in Futures-Actual Delivery.</p> <p>Though the cotton was actually delivered at the time of the sale, the agreement was void as a wagering contract, since, except under the option provisions thereof, which constitute the wagering feature, only plaintiff had any real interest in the cotton after its sale and delivery.</p> <p>[Ed. Note. — For other cases, see Gaming, Dec. Dig. § 11.*]</p> <p>4. Gaming (§ 12*) — Legality—Dealing in Futures.</p> <p>Gambling contracts, such as contracts dealing in futures, are contrary to public policy and unenforceable.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. § 22; Dec. Dig. § 12.*]</p>

<p>Appeal from District Court, Wood County; R. W. Simpson, Judge.</p> <p>Action by J. F. Irving against Thomas J. Freeman, as receiver of the International & Great Northern Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from El Paso County Court, Albert S. Eylar, Judge.</p> <p>Action by S. F. Brewton against R. L. Daniel. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.</p> <p>Action by E. G. Olivarri against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bexar County ; Arthur W. Seeligson, Judge.</p> <p>Action by W. R. Eaton against the International Travelers’ Association of Dallas, Texas. Judgment for defendant, and plaintiff appeals.</p>

<p>Public Lands (§ 173*) — Texas School Lands —Abandonment—Evidence—Sufficiency.</p> <p>Evidence held to show abandonment of plaintiff’s residence in a particular county, warranting vacation of his purchase of school land therein.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p>

<p>1. Sales (§ 124*) — Rescission by Buyer— Conditions Precedent — Restoration of Goods.</p> <p>A buyer cannot rescind a sale of goods, unless within a reasonable time after discovering the facts upon which his right to rescind is based he offers to return the property,- or shows it to be without value; and hence where buyer admitted his purchase of an automobile he cannot excuse a failure to offer to return by showing that the machine had no market value, for property may have an intrinsic valúe without a market value.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Uig. §§ 303-312; Dec. Dig. § 124.*]</p> <p>2. Sales (§ 364*) — Remedy of Seller — Action for Price — Instructions.</p> <p>In an action on a note given for the price of an automobile, where the maker of the note sought to rescind the sale for false representations, but did not seek to recover damages or to recover back his first payment, it was improper for the court to advise the jury as to the rights of the parties, in case they found that the maker failed to offer to return the machine within a reasonable 'time, and that it had a value; for if the machine had a value, and the buyer failed to offer to return it within a reasonable time after discovering its defects, he was entitled to no relief.</p> <p>[Ed. Note. — F'or other cases, see Sales, Cent. Dig. §§ 1065-1076; Dec. Dig. § 364.*]</p>

<p>Appeal from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by C. N. Bailey against the Pt. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hunt County; T. D. Montrose, Judge.</p> <p>Action by R. L. Kelley against Ed. D. Steger and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Master and Servant (§ 278*) — Injtjbies to Servant — Negligence.</p> <p>Plaintiff, a bridge carpenter, was riding on a hand car which suddenly slowed up because of dirt on the rails at a crossing, and. plain tiff was struck by the hand car lever and knocked under the car. It was not shown when the dirt got on the track, and the hand car had passed over the crossing the evening before. Plaintiff was the only employs who was thrown from the car. Held, that actionable negligence by the company was not shown.</p> <p>[Ed. Note. — ITor other cases, see Master and Servant, Dec. Dig. § 278.*]</p>

<p>Appeal from District Court, Atascosa County ; E. A. Stevens, Judge.</p> <p>Action by H. G. Martin and others against W. M. Abernethy, County Judge, and others. From a judgment against plaintiffs, they appeal. Affirmed.</p>

<p>1. Appeal and Error (§ 389*) — Proceeding in Forma Pauperis — Affidavit.</p> <p>Under Rev. St. 1895, art. 1401, providing that the court, if in session, or the county judge, shall determine the right of a person to appeal on affidavit of inability to pay costs in lieu of appeal bond,, the making of the affidavit before the clerk and filing it with him is not sufficient to give the appellate court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2072-2076; Dec. Dig. § 389.*)</p> <p>2. Appeal and Error (§ 389*) — Proceedings in Forma Pauperis — Affidavit — New Bonds.</p> <p>The statute allowing new appeal bonds to be filed is not applicable to affidavits in lieu of bond, and there can be no postponement of proceedings until a new affidavit of inability to pay costs in lieu of appeal bond can be prepared, if the first affidavit was insufficient.</p> <p>[Ed. Note. — F05 other cases, see Appeal and Error, Gent. Dig. §§ 2072-2076; Dec. Dig. § 389.*]</p>

<p>Appeal from Denton County. Court; Lee Zumwalt, Judge.</p> <p>Action by Kirkland & Son against T. B. Berry. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from El Paso County Court; Albert S. Eylar, Judge.</p> <p>Action by the J. H. Nations Meat & Supply Company against the Galveston, Harrisburg & San Antonio Bail way Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by Herman Kruegel against H. W. Jones and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Tarrant County Court; Chas. T. Prewett, Judge.</p> <p>Action by H. C. Gilbert against the St. Louis Southwestern Railway Company of Texas and another. Judgment for plaintiff, and defendants appeal.</p>

P. Huff, Judge. Action by J. C. Sumner against E. M. Bledsoe. Judgment for plaintiff, and defendant appeals. Appellee brought the suit to recover on three promissory notes executed by appellant to him, and to foreclose a vendor’s lien on certain land; and prayed in the alternative, upon the specific facts alleged, if he was not entitled to recover on the notes, that he have judgment for the land.

<p>1. Statutes (§ 225%*) — General Statutes— Special Statutes.</p> <p>A general statute yields to a special statute.</p> <p>[Ed. Note. — For other cases, see Statutes,. Cent. Dig. § 305; Dec. Dig. § 225%.*]</p> <p>2. Intoxicating Liquors (§ 25*) — Local Option Elections — Statutes.</p> <p>The local option law, Rev. St. 1895, arts.. 3389, 3390, of which provide that the officers holding local option election shall conform to-the existing laws regulating elections in all respects not herein specified, and requiring the-commissioners’ court to hold a special session to-open the polls and count the votes, is complete within itself, so far as it undertakes to prescribe-the duty of the commissioners’ court, and article 1753 of the general election law does not apply to a local option election.</p> <p>[Ed. Note. — For other cases, see Intoxicating-Liquors, Dec. Dig. § 25.*]</p> <p>3. Statutes (§ 188*) — Construction—Meaning ox Words.</p> <p>Under Rev. St. 1895, art. 3268, providing that in construing a státute the ordinary signification shall be applied to the words thereof, words in a statute must be taken in their ordinary and popular acceptation, unless technical terms are used, or unless it appears from the context that the words used are not intended to be understood in their ordinary signification.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 266, 267, 276; Dec. Dig. § 188.*]</p> <p>4. Statutes (§ 190*) — Construction—Unambiguous Statute.</p> <p>Where a statute is plain and unambiguous, there is no room for construction.</p> <p>[Ed. Note. — For other' cases, see Statutes, Cent. Dig. §§ 266, 269; Dec. Dig. § 190.*]</p> <p>5. Intoxicating Liquors (§ 35*) — Local Option Election — “Polls.”</p> <p>Under Rev. St. 1895, art. 3390, requiring the commissioners’ court to hold a special session after a local option election, “for the purpose of opening the polls and counting the votes,” the commissioners’ court must open the ballot boxes and count the votes, instead of merely canvassing the returns made by the officers of the election; the word “polls” referring to the ballot boxes.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 35.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5446.]</p> <p>6. Elections (§ 241*)— Count op Votes — Participation by Clerk op Court.</p> <p>Rev. St. 1895, art. 1747, requiring the county clerk to safely keep the ballot boxes, does not prevent the county clerk from complying with an order of the commissioners’ court requiring him to open the boxes, to enable the court to count the votes.</p> <p>[Ed. Note. — For other cases, see Elections, Dec. Dig. § 241.*]</p> <p>7. Injunction (§ 118*) — Canvass by Commissioners’ Court — Action by Resident Citizen — Petition.</p> <p>A petition by a resident citizen praying for an injunction to restrain the commissioners’ court from opening the ballot boxes and counting the ballots cast at a local option election must allege facts showing what interest he has in the election, and an allegation that the threatened acts of the commissioners’ cdurt will work irreparable harm is insufficient.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*]</p> <p>8. Injunction (§ 122*) — Petition—Verification — Requisites.</p> <p>Under Rev. St. 1895, art. 2992, prohibiting the granting of an injunction, unless the applicant therefor shall present his petition verified by his affidavit, a petition for an injunction, verified by one of the attorneys of the petitioner, who states that the facts alleged are within his knowledge and true, on information received from another, and that he believes the same to be true, is not sufficiently verified.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. § 122.*]</p>

<p>Appeal from District Court, Tarrant County ; W. T. Simmons, Judge.</p> <p>■Suit for specific performance by the Northern Texas Realty & Construction Company against S. D. Lary. Judgment for defendant, and plaintiff appeals.</p> <p>Alleging full compliance on its part and refusal of appellee to perform and comply, the appellant brought suit for specific performance of a written contract entered into by them as to purchase and sale of certain houses and lots. Among other defenses by appellee, there was urged as a reason for his refusal to comply with and perform the terms of the contract the happening, on May 21, 190S, and before the time for closing the contract, of an unprecedented flood, causing substantial injury to the lots and houses.</p> <p>Appellant was the owner of the property, and the contract reads: “(1) That the said party of the first part has this day’bargained and sold and by these presents does hereby bargain, sell and obligate himself to cod-vey or cause to be conveyed in manner as hereinbefore stated unto the said party of the second' part, all and singular the following described property, to wit: (here follows description). (2) The consideration paid and to be paid to party of the first part by said party of the second part for the property above described is the agreed sum of seven thousand five hundred and 00/100 dollars, to be paid as follows: Cash. (3) This contract is conditioned that the party of the first part will procure and deliver to the party of the second part, .at earliest practicable date, a full, complete certified abstract of title to the above-described property, and permit said party to have same examined by his attorneys. If title as shown by the abstract is 'good and valid, then said first party wall make, execute and tender a good and sufficient deed conveying the aforesaid property to party of the second part, with full covenants of general warranty. to complete this contract in- accordance with its terms and stipulations. If 'the title to said property as disclosed by the abstract is not shown to be good and valid, then the said -party of the second part shall procure and submit to party of the first part a statement in writing 'of the objections made to said abstract. If said objections are of such character that they can be cured or removed within a period of time not to exceed 30 days, then the said first party shall be obligated and is hereby obligated to so cure or remove said objections at his own expense, and it is hereby agreed and understood that said first party shall have 30 days from and after the date when the written statement of objections is delivered to him within which to cure or remove same. If the title to said property as shown by the abstract is not good, and the objections thereto are not cured or removed by said first party in the manner and within the time hereinbefore stated, then said second party shall-have the right to declare this contract at an end and no longer binding on him, and same shall thereupon become null and void, and said second party shall be entitled to the return of all money paid by bim by reason of tbis agreement. (4) As an evidence of good faitb and in earnest of tbis contract said party of tbe second part has tbis day deposited with J. E. Head & Company tbe sum of three hundred fifty dollars with the express agreement and understanding that if said party of tbe first part does in fact make and tender to said second party a good and perfect general warranty deed, conveying to said second party tbe property hereinbefore described, for tbe price and subject to tbe terms hereinbefore stated, and does in fact deliver to said second party a complete and duly certified abstract of title to said property, and said abstract and deed is ax^proved by tbe attorney of tbe said second party within tbe time hereinbefore stated, and said second party thereupon fails and refuses to keep and perform tbe obligations on bim imposed by this agreement, then and in that event be shall forfeit to the said first party tbe aforesaid sum of three hundred dollars as liquidated damages, but if said deed and abstract, or either, is disapproved by said attorney for cause and objections not removed within the time stated, then and in that event the said sum of three hundred fifty dollars shall be by J. E. Head & Company returned to said party on demand, and this contract shall thereupon become null and void. If the abstract and deed is approved by said attorney, then, upon the final completion of this agreement, the said sum of three hundred fifty dollars shall be. applied as part of the cash payment for said property as hereinbefore stated. This contract is executed in duplicate and. one copy delivered to each of said parties, this the day and year first above written.’</p> <p>The court made the findings, in effect, that appellant had delivered 'an abstract of title within the time, and it was by appellee delivered to his attorney, who made a statement in writing of objections to the title, and that the objections were cured on June 20, 1908, and title was then good and sufficient, and appellant had thereafter, before suit, tendered a deed. The court found that an unprecedented flood occurred on May 21, 1908, damaging the property to the extent of $1,025. It does not appear' that appellee went into possession of the land. The court made the conclusion of law “that, on account of the injured and- damaged condition of the property included in the contract, due to the flood of May 21, 1908, and the failure of plaintiff to restore the property to its same condition as at the time of the making of the contract, the defendant was not required or obligated to carry out the contract, and is entitled to the return of the money deposited by him with plaintiff.”</p>

<p>Appeal from District Court, Wood County; R. W. Simpson, Judge.</p> <p>Action by W. L. Nichols against 'the Reid Coal Company. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Master and Servant (§ 313*) — Negligence of Servant — Injury to Third Person-Liability.</p> <p>The negligence of a servant committed in the course of his employment is imputed to the master, and both are liable -for injuries to a third person .in consequence thereof.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1238; Dee. Dig. § 313.*]</p> <p>2. Appeal and Error (§ 216*) — Instructions —Failure to Request Instructions.</p> <p>A party failing to request a charge to supply an omission in a charge not affirmatively erroneous cannot complain on appeal of the omission.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216 ;* Trial, Cent. Dig. §§ 627-641, -662-^676.] • .</p> <p>3. Appeal-and Error (§ 204*) — Questions Review able — Questions Raised in Trial Court.</p> <p>Only the objections made in the trial court to evidence can be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1258-1280; Dec. Dig. § 204.*]</p> <p>4. Appeal and Error (§ 971*) — Questions Review able — Rulings on Competency of • Witness.</p> <p>The competency of a witness to testify is primarily for the trial judge, and his decision, unless manifestly wrong, cannot be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. § 971.*]</p> <p>5. Appeal and Error (§ 1040*) — Harmless Error — Erroneous Rulings on Pleadings.</p> <p>Where the court charged that plaintiff could • not recover on a count in the petition, and the verdict was not based on that count, errors, if any, in overruling exceptions thereto, are immaterial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>6. Appeal and Error (§ 742*) — Assignment of Error — Exclusion of Evidence — Proposition.</p> <p>An assignment complaining of the exclusion of evidence will not be considered on appeal, where the ground of objection to the evidence excluded is not shown by the statement subjoined to the proposition under the assignment.</p> <p>[Ed., Note. — For other eases, see Appeal and Error, Cent. Dig. §' 3000; Dec. Dig. § 742.*]</p> <p>7. Trial (§ 207*) — Evidence—Admissibility —Instructions.</p> <p>Where evidence admissible against one defendant, but inadmissible against codefendant, was received, the court must limit the effects thereof by a special charge, and where it did so the admission of the evidence was not prejudicial to eodefendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §1 498-501; Dec. Dig. § 207.*]</p> <p>8. Municipal Corporations (§ 705*) — Operation of Vehicles — Violation of Statutes — Negligence.</p> <p>That a street on which an- automobile was operated at a speed in excess of that fixed by Laws 1907, c. 96, was a race course or speedway, is defensive matter, and, unless proved, the operation of a machine at a speed in excess of that limited by the statute is negligence as a matter of law.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dee. Dig. § 705;* Highways, Cent. Dig. §§ 459-469.]</p> <p>9. Trial (§ 203*) — Issues—Instructions.</p> <p>An issue raised by the petition and supported by evidence is properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dee. Dig. § 203.*]</p> <p>10. Trial (§ 255*) — Instructions—Requests —Necessity.</p> <p>A defendant sued for negligently driving his automobile at an excessive speed against a pedestrian, who desires a charge on the law as to the duty of one overtaking another to pass to' the right or left of the person overtaken, must request it, and, in the absence of such request, he cannot complain.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dee. Dig. § 255.*]</p>

Error from Court of Civil Appeals of Third Supreme Judicial District. Action by H. F. Huntington and others against the South Texas Telephone Company and others. There was a judgment of the Court of Civil Appeals (121 S. W. 242) affirming a judgment for plaintiffs, and defendants bring error.

<p>1. Courts (§ 122*) — Jurisdiction — Amount in Controversy.</p> <p>A petition, in an action in the county court for the destruction of property by fire, which states generally that the amount involved is $950.25, and which sets forth a detailed list of the items of property destroyed, aggregating $950.25, while one item, “85 tons of maize at $7.00 per ton, $455.00,” shows on its face a mistake either in the number of tons or the price per ton or the total value of the maize, will be construed as stating a cause of action within the court’s jurisdiction on the theory that the mistake is in the number of tons of maize.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 122.*]</p> <p>2. Ootjkts (§ 121*)—Jurisdiction —Amount IN CONTROVERSY.</p> <p>Where the amount demanded in the original petition for the destruction of property by fire did not exceed $1,000, the county court had jurisdiction, though an amended petition included a prayer for interest and thereby placed the amount of the recovery sought beyond $1,000.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 419; Dec. Dig. § 121.*]</p> <p>3. Evidence (§ 244*) — Statements of Em-ployés—Admissibility.</p> <p>A statement by a section boss, made a day or two after a fire, to the effect that a train set the fire, is not admissible against the railroad company, in the absence of proof that the section boss had authority to make the statement or that any officer having such authority was present when the statement was made.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.*]</p>

<p>Appeal from District Court, Haskell County; C. C. Higgins, Judge.</p> <p>Action by H. W. Gebhard against J. W. Payne and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Shelby County ; James I. Perkins, Judge.</p> <p>Action by' the Farmers’ National Bank of Center against the Merchants’ National Bank of Houston and others. From the judgment in favor of defendant bank, plaintiff appeals; and from the judgment for plaintiff against defendants Potts & Lynch, said Potts & Lynch appeal.</p>

<p>1. Trial (§ 331*) — Verdict—Sufficiency. _</p> <p>A verdict, in an action for the conversion of a bale of cotton, “We, the jury, find a verdict in favor of the plaintiff for the value of three-fourths of such bale of cotton and $50 exemplary damages,” is too indefinite tb support a judgment for plaintiff, requiring resort to the evidence to ascertain the amount plaintiff was entitled to recover thereunder.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 783; Dec. Dig. § 331.*]</p> <p>2. Trial (§ 260*) — Instructions—Request— Instructions Already Given.</p> <p>A requested charge was properly refused, where it was charged in substance by an instruction given.</p> <p>TEd. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*]</p> <p>3. Dandlord and Tenant (§ 326*) — Title to Property.</p> <p>If the relation of landlord and tenant existed, title and right of possession to the crop raised was in the tenant, though the rent was payable in crops, so that the landlord’s taking possession thereof without the tenant’s consent would be a trespass.</p> <p>TEd. Note — For other cases, see Landlord and Tenant, Cent. Dig. § 1367; Dec. Dig. § 326.*]</p> <p>4. Set-Off and Counterclaim (§ 33*) — Propriety of Set-Off.</p> <p>Under the direct provisions ''of Rev. St. 1S95, art. 754, defendant cannot set off a debt claimed to be due him from plaintiff against damages for a tort committed against plaintiff by him.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Dec. Dig. § 33.*]</p> <p>6. Landlord and Tenant (§ 331*) — Conversion of Crop — Exemplary Damages.</p> <p>In an action by a tenant for the conversion of a bale of cotton by his landlord, it appeared that plaintiff left the cotton in the possession of his agent pending a settlement with defendant for rent, and defendant, in the agent’s absence and without plaintiff’s consent, took the cotton, sold it, and appropriated the proceeds to his own use without offering to account to plaintiff. MelH, that the issue of exemplary damages .was properly submitted.</p> <p>[Ed. Note. — F’or other cases, see Landlord and Tenant, Dec. Dig. § 331.*]</p>

<p>Appeal from District Court, Potter County ; J. N. Browning, Judge.</p> <p>Action by R. A. Harris against the Panhandle Telephone & Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Railroads (§ 397*) — Injuries to Person on Track — Evidence—Admissibility.</p> <p>In an action for the death of a trespasser struck by a train, a witness may not testify that no one had ever forbidden him from walking on the track; it not appearing that any rail•way employé knew of his walking on it, or that '.he had ever asked permission so to do.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 397.*]</p> <p>:2. Railroads (§ 397*) — Injuries to Person on Track — Evidence—Admissibility.</p> <p>Where, in an action for the death of a person struck by a train, the evidence showed that the engineer saw what he thought was cinders on the track, and did not realize that it was a person lying on the track until he was so close ■to it that he could not stop the train, evidence of .a rule of the company known to the engineer forbidding the dumping of cinders on the roadbed was inadmissible.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 397.*]</p> <p>3. Railroads (§ 397*) — Injuries to Person on Track — Contributory Negligence — Evidence.</p> <p>Where, in an action for the death of a person lying on a track by being struck by a train, ■the evidence showed that decedent was lying on the track at 3:40 a. m., probably asleep, that he had been in town the day before, and that he was in the habit of drinking when in town, evi-dence that decedent had been seen intoxicated a day or two before the accident was admissible ■ on the issue of contributory negligence.* ’</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 397.*]</p> <p>-4. Railroads (§ 359*) — Trespassers on Track —Who Are.</p> <p>A person lying at night on a railroad track ’by the side of a bridge across a stream is a ■trespasser, and the company does not owe him any duty to keep adookout for him.</p> <p>[Ed. Note. — For other cases, see Railroads, ■Cent. Dig. §§ 1238, 1239; Dec. Dig. § 359.*]</p> <p>Supplemental Opinion.</p> <p>:5. Railroads (§ 376*) — Injuries to Trespassers on Track — Liability.</p> <p>A railroad company on discovering the peril of a trespasser on the track need only exercise ordinary care to avoid injuring him.</p> <p>[Ed. Note. — For other cases, see Railroads, •Cent. Dig. §§ 1275-1279; Dec. Dig. § 376.*]</p>

<p>1. Appeal and Error (§ 882*) — Insufficiency of Evidence — Party Entitled to Complain.</p> <p>A defendant who requests charges submitting issues to the jury cannot claim that there was no evidence, or insufficient evidence, to warrant the submission.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]</p> <p>2. Master and Servant (f 278*) — Injury to Servant — Negligence—Question for Jury.</p> <p>In an action for the death of a servant by a pile of cotton seed falling on him, evidence held to justify a finding that the master negligently failed to maintain a safe place for the servant to work; and that no warning of the danger was given to deceased.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 278.*]</p> <p>3. Master and Servant (§ 280*) — Injury to Servant — Assumption of Risk.</p> <p>In an action for the death of a servant by a pile of cotton seed falling on him, evidence held to justify a finding that the risk was not ordinarily incident to the work, and that the danger was not open and obvious.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 280.*]</p> <p>4. Master and Servant (§ 281*) — Injury to Servant — Contributory Negligence. ,</p> <p>In an action for the death of a servant by a pile of cotton seed falling on him, evidence held to justify a finding that he was not guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 281.*]</p> <p>5. Master and Servant (§ 107*) — Injury to Servant — Negligence.</p> <p>A servant put to work at night to remove cotton seed from a pile was exposed to danger by seed falling on him; the lights being so dim that he could not well discover the condition of the upper part of the pile, which was 30 to 35 feet high. The vice principals of the master knew the perpendicular condition of the pile, and that such condition made the premises unsafe for servants. Supports would have prevented the pile from toppling over. The pile fell from the top due, not alone to the law of gravity, but to lack of supports. Held, that the death of the servant by the fall of the pile resulted, hot alone from the action of gravity on the pile, but from the nonperformance of the master’s duty to protect him, authorizing a recovery.</p> <p>TEd/Note. — For other cases, see Master and Servant, Dec. Dig. § 107.*]</p> <p>6. Master and Servant (§ 205*) — Injury to Servant — Assumption of Risk.</p> <p>A servant need not anticipate the master’s negligence, and he does not assume the risks of the failure of the master to perform his duty.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 547; Dec. Dig. § 205.*]</p> <p>7. Appeal and Error (§ 742*) — Questions Review able — Assignments of Error.</p> <p>An assignment of error complaining of instructions given and refused, not followed by a proposition, will not be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>8. Appeal and Error (§ 216*) — Questions in Trial Court — Instructions—Requests —Necessity.</p> <p>In the absence of requested instructions defining contributory negligence and assumption of risk, the defeated party may not complain that the instructions failed to define those terms.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. § 627.]</p> <p>9. Trial (§ 260*) — Instructions—Refusal to-Give Instructions Covered by the Charge Given.</p> <p>It is not error to refuse requested charges covered by a special charge given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 260.*]</p> <p>10. Master and Servant (§ 217*) — Injury to Servant — Assumption of Risk.</p> <p>A servant, to assume a risk, must know the danger, or, in the prosecution of his work, must necessarily know of it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 574; Dec. Dig. § 217.*]</p> <p>11. Depositions (§ 107*) — Admissibility as Evidence — Objections.</p> <p>An objection to a deposition which has been on file for months before the trial, not made until after the case has proceeded to trial, and going only to the manner and form of taking the deposition, does not justify its suppression.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 309-319; Dec. Dig. § 107;* Trial, Cent. Dig. § 189.]</p>

<p>Appeal from Tarrant County Court; Chas. T. Prewett, Judge.</p> <p>Action by the Kahn Tailoring Company against E. H. Crowdus and another. From a judgment of the county court for plaintiff, rendered on appeal from a judgment of a justice of the peace, defendants appeal.</p>

Potter, Judge. Action by J. G. Clark against D. A. Stephenson and wife, in which the Security Life Insurance Company of America was made a party defendant at the instance of the defendants Stephenson, and a recovery over, demanded against it in case of judgment for plaintiff. Judgment was rendered for plaintiff and for defendants Stephenson against the Insurance Company, and it appeals.

<p>Appeal from District Court, Presidio County ; W. O. Douglas, Judge.</p> <p>Action by S. W. Wooley and another against W. R. Hampton and another. Judgment for plaintiffs, and defendants appeal.</p>

Error from District Court, El Paso County; A. M. Walthall, Judge. Action) by Annie Gestean and another against Clark Bishop and others. There was a judgment for plaintiffs, and defendants bring error.

Perkins, Judge. Proceedings by H. M. Hastings and others against Sam H. Townsend, County Attorney, to contest a local option election. From a judgment for defendant, contestants appeal.

Proceedings for the appointment of an administrator of the estate of Geo. H. Walker, deceased, and for allowances to Willie Walker, claiming to be the wife of decedent. From orders setting aside Willie Walker’s appointment as administratrix, and granting her allowances and homestead, she appeals.

<p>Injunction (§ 158*) — Concuebent Jurisdiction — Conflicting Oedees.</p> <p>Rev. St. 1895, art. 2989, amended by Gen. Laws 1909, c. 34, declares that no district judge shall grant an injunction, returnable to any other court than his own, unless it shall be alleged that the judge in whose district the suit is pending is absent, sick, unable to hear the.application, inaccessible, has refused to act or disqualified, and such matters are set out in the application, or an affidavit accompanying it, and that no district judge shall have power to grant the writ when the application shall have once been acted on by a district judge o'f the state. Held, that where a decree, had been rendered by a district court, and an application had been made to the judge thereof for an injunction restraining the levy of an execution based thereon, and had been denied, the judge of another district, though of concurrent jurisdiction and holding court in the same county, had no jurisdiction to grant the writ.</p> <p>[Ed. Note. — For other cases, see Injunction, Gent. Dig. § 341; Dec. Dig. § 158.*]</p>

<p>1. Appeal and Error (§ 1040*) — Review— Harmless Error — Pleadings — Exception to Abandoned Pleading.</p> <p>The overruling of a special exception to-plaintiff’s petition which was subsequently abandoned and an amended petition substituted is-harmless error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. §•■ 1040.*]</p> <p>2. Contracts (§ 349*) — Action for Breach-Evidence — Betters .</p> <p>In an action for the breach of an express contract, a letter written by the defendant which did not evidence the contract is admissible as a part thereof to show the transaction-between the parties.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 17S1-1818; Dec. Dig. § 349.*]</p> <p>3. Customs and Usages (§ 18*) — Pleading-Declaration on Express Contract and-Evidence of Custom.</p> <p>Where a plaintiff has declared upon an express contract made by defendant to refund freight charges paid by plaintiff without alleging any custom of refunding, evidence of such custom is inadmissible.</p> <p>[Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. § 40; Dec. Dig. § 18.*]</p> <p>4. Customs and Usages (§ 15*) — Explanation op Teems op Contract.</p> <p>While it is not permissible to contravene or vary the plain terms of a contract by evidence of a custom, where the custom does not contradict the terms of the contract, and is not inconsistent therewith, it may be shown to introduce a new incident not expressly embraced in the contract and in reference to which the parties are presumed to have contracted; and a return of goods by a vendee would be affected by a general custom to refund to the vendee the freight charges paid by him on the goods returned, and confer the right to a recovery of the same .in the absence of a stipulation in any contract upon the subject.</p> <p>TEd. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 30-33; Dec. Dig. § 15 ;* Evidence, Cent. Dig. §§ 1945-1952.]</p> <p>5. Customs and Usages (§ 5*) — Explanation op Contract — General Custom.</p> <p>A custom set up in explanation of a contract must be a general custom.</p> <p>TEd. Note. — For other cases, see Customs and Usages, Cent. Dig. § 4; Dec. Dig. § 5.*]</p> <p>6. Evidence (§§ 324, 482*) — Evidence as to Existence.</p> <p>A general custom set up in explanation of a contract must be shown by direct testimony, and not by opinion or reputation.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1218-1229, 2255; Dec. Dig. §§ 324, 482.*]</p> <p>7. Customs and Usages (§ 20*) — Evidence as to Knowledge op Custom.</p> <p>Where a custom is set up to explain or qualify a contract, it must be shown that it was known to the party sought to be charged with it, or that it was of such well-known character as to warrant an inference that it was known to him.</p> <p>[Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 41-46; Dec. Dig. § 20.*]</p> <p>On Motion for Rehearing.</p> <p>8. Appeal and Error (§ 1177*) — Reversal-Necessity poe New Trial — Failure to Introduce Evidence Sufficient to Authorize Recovery.</p> <p>Where plaintiff declared on an express contract and relied on a custom, but did not make sufficient proof of the custom although he had opportunity to make proof if he had any, there is no necessity for a new trial, and the judgment for plaintiff may be reversed and judgment rendered that plaintiff take nothing.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4620; Dec. Dig. § 1177.*]</p>

<p>Judgment (§ 101*) — Affirmative Relief Under Answer.</p> <p>In a suit to recover land, an answer pleading general exceptions, general denial, and limitations, and praying judgment for the land and for other legal or equitable relief, was insufficient to authorize affirmative judgment for defendant on plaintiff’s failure to appear; the prayers adding nothing to the legal effect of the answer.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 168-170; Dec. Dig. § 101.*]</p>

<p>COURTS (§ 121*)— JURISDICTION — MATTER IN Controversy.</p> <p>The rule that in a suit to recover a debt and to foreclose a mortgage securing the same the matter in controversy is not only the debt, but also the security, and the value of the property mortgaged determines the jurisdiction, does not apply to the foreclosure of a lien created by statute; and hence in the foreclosure of a landlord’s lien, irrespective of whether a distress warrant was applied for and sued out, that the property on which the lien was asserted was worth $500 did not give the county court jurisdiction, the amount of the demand being less than $200.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 121.*]</p>

<p>Appeal from Jones County Court; Jas. P. Stinson, Judge.</p> <p>Action by A. B. Bachman and another against L.' D. Smith. From a judgment dismissing certiorari proceedings to review a justice’s judgment, Ethel Smith and her husband appeal.</p>

<p>Appeal and Error (§ 79*) — Final Judgment —Necessity.</p> <p>An appeal will be dismissed for want of a final judgment, where neither the verdict nor judgment disposed of the cross-action of one of defendants.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 484-493; Dec. Dig. § 79.*]</p>

<p>1. Beokees (§ 82*) — Actions for Compensation — Petition—Sufficiency.</p> <p>A petition, in an action by a real estate broker for compensation for procuring a purchaser, which alleges his employment for a specified compensation and avers that he procured a purchaser able, ready, and willing to purchase on terms satisfactory to the owner, and that he communicated that fact - and the name of the purchaser to the owner, who thereafter, by reason of the broker’s services, sold the property to the purchaser, states a cause of action.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 101; Dec. Dig. § 82.*]</p> <p>2. Brokers (§ 54*) — Employment — Compensation.</p> <p>AATiere a broker employed to procure a purchaser, but not given an exclusive agency, procured a purchaser able, ready, and willing to purchase on terms satisfactory to the owner, who was informed of the fact and of the name of the purchaser, the owner could not, by ignoring the broker and acting in person or through another agency, sell the property to the purchaser, and defeat the broker’s right to compensation.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*]</p> <p>8. Pleading- (§ 84*) — Construction—Liberal Construction — Sufficiency of Petition.</p> <p>In the absence of any special exception to a petition, all reasonable intendments and inference will be indulged in its favor.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 69; Dec. Dig. § 34.*]</p> <p>4. Brokers (§ 53*) — Compensation — When Earned.</p> <p>AVhere a broker, having an agency for the sale of land for a specified compensation, found a purchaser to whom the property was sold, notified the owner who the purchaser was, and rendered such services as made him the procuring cause of the sale, and would have rendered all other necessary services if the owner had given him an opportunity so to do, the broker earned the agreed compensation.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. % 74; Dec. Dig. § 53.*]</p>

<p>1. Trespass to Try Title (§ 6*) — Title op Plaintiff — Burden of Provins Title.</p> <p>In trespass to try title, plaintiff must show title from the sovereignty of the soil.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 5; Dec. Dig. § 6.*]</p> <p>2. Appeal and Error (§ 664*) — Statements of Facts — Conclusiveness.</p> <p>A statement of facts made and certified by the trial court after the parties have failed to agree upon one is conclusive as to what was or was not put in evidence, and, where it shows no stipulation by the parties, such stipulation, though it appear in the record, is of no effect.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2858; Dec. Dig. § 664.*]</p> <p>On Motion for Rehearing.</p> <p>3. Appeal and Error (§ 79*) — Determination of All Issues — Abandonment of Issue.</p> <p>In trespass to try title, where defendant impleaded his warrantor, who set up a cross-action for an amount alleged to be owing on the land, a judgment, which failed to dispose of the cross-action of the warrantor, who offered no evidence, and who did not ask to have his action submitted to the jury and made no motion for a new trial, or in any way objected to the failure to dispose of his action, is a final judgment as to the other parties, for the war-rantor is presumed to have abandoned his cross-action.</p> <p>[Ed. Note. — For other cases, see Aopeal and Error, Cent. Dig. §§ 484-493; Dec. Dig. § 79.*]</p>

<p>1. Public Lands (§ 173*) — Statutes — Repeal.</p> <p>Acts 1901, c. 125, § 3, prohibits the Commissioner of the General Land Office from selling to the same party more than four sections of land, provided such provision shall not apply to sales made and afterwards canceled as invalid for some reason other than abandonment, where the purchaser was not at fault, and the act also requires the purchaser to reside upon the land for a certain period and improve it under penalty of forfeiture, but does not provide for cash sales. Acts 1905, c. 103, § 8, provides for the survey and sale of public school lands for cash in whole or part without expressly limiting the amount sold to each person, but provides that sales of 640 acres or less shall be without condition of settlement and improvement with right of payment at any time, and that all other un-surveyed vacant tracts shown by the official maps in the land office when an application for survey is filed shall be sold on condition of settlement and improvement as provided by law for the sale of surveyed lands, and that, when land is purchased without the condition of settlement, etc., the application shall otherwise conform to the requirements for surveyed lands, except as to settlement, etc. Held, that section 3 of Act 1901 was not repealed by section 8, so that one person could not purchase more than four sections of public school lands.</p> <p>[Ed. Note.—For other cases, see Public Lands, Dec. Dig. § 173.*]</p> <p>2. Statutes (§§ 161, 225*)—Co'nstkuction— Two Statutes on the Same Subject.</p> <p>Two statutes relating to the same subject should he harmonized, if possible, so as to effectuate each; it being presumed that an implied ropeal was not intended unless tlie statutes are repugnant.</p> <p>[Ed. Note. — For other oases, see Statutes, Cent. Dig. §§ 230-234, 302, 303; Dec. Dig. §§ 161, 225.*]</p> <p>On Motion for Rehearing.</p> <p>3. Public Hands (§ 173*) — School Hands — Forfeiture — Sufficiency of Evidence.</p> <p>In trespass to try title in which plaintiff relied upon a purchase from the state as school lands, evidence helé to show prima facie that the land had been forfeited.</p> <p>[Ed. Note. — For other cases, see Public Hands, Dec. Dig. § 173.*]</p> <p>4. Trespass to Try Title (§ 38*) — Actions— • Burden of Proof.</p> <p>The burden is on plaintiff in trespass to try title to show title in himself.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.*]</p>

<p>1. Homestead (§ 175*) — Exemptions—Abandonment.</p> <p>After a homestead is abandoned, it is subject to levy and sale as other property, though the owner has not acquired another homesteadl at the time of the levy.</p> <p>TEd. Note. — For other cases, see Homestead,. Cent. Dig. §§ S41, 343; Dec. Dig. § 175.*]</p> <p>2. Trial (§ 296*) — Conflicting Instructions.</p> <p>Where it is impossible to determine whether the jury were controlled by a correct or an erroneous instruction on the same subject, error-in the latter is reversible.</p> <p>[Ed. Note. — For other cases, see Trial, Cent.. Dig. §§ 705-713; Dec. Dig. § 296.*]</p> <p>3. Homestead (§ 181*) — Abandonment—Burden op Proof.</p> <p>In trespass to try title, in which plaintiff claimed under an attachment sale property claimed by defendant to have been his homestead, the burden was upon plaintiff to show that defendant had abandoned the land as a homestead before the levy.</p> <p>[Ed. Note.—Eor other cases, see Homestead, Cent. Dig. §§ 351-353; Dec. Dig. § 181.*]</p>

<p>1. Railroads (§ 350*) — Crossings — Negligence of Travelers—Question eor Jury.</p> <p>Whether one thrown from his wagon while steadying a stove on crossing a railroad track was guilty of contributory negligence held for the jury.</p> <p>[Ed. Note.—Eor other cases, see Railroads, Dee, Dig. § 350.*]</p> <p>2. Negligence (§ 136*)—Contributory Negligence.</p> <p>One attempting to do that which he knows is attended by some degree of danger is not, as a matter of law, guilty of contributory negligence.</p> <p>[Ed. Note.—Eor other cases, see Negligence, Cent. Dig. §§ 333-346; Dec. Dig. § 136.*]</p> <p>3. Railroads (§ 303*)—Crossings—Duty to Maintain.</p> <p>The liability of a railroad company for failure to maintain a safe railroad crossing does not depend on its failure to maintain the crossing in the condition it was before its road crossed the highway, in the absence of any evidence as to the condition of the highway before the railroad was built.</p> <p>[Ed. Note.—Eor other cases, see Railroads, Cent. Dig. § 959; Dec. Dig. § 303.*]</p> <p>4. Trial (§ 260*)—Instructions—Requested Charges Covered by the Charge Given.</p> <p>It is error to give a requested special charge'substantially covered by the main charge.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*]</p>

<p>Vendo» and Purchases (§ 343*) — Pbospec-TIVE SHORTAGE OF ACREAGE — RIGHT TO RECOVER.</p> <p>A survey of state land containing 685 acres was purchased as containing 640. Defendant, a subsequent purchaser, having sold 200 acres to a third person, sold 485 to plaintiff. An act of 1889 (Sayles’ Ann. Civ. St. 1897, arts. 4274-4279). requires segregation of excess lands in surveys belonging to the state, but provides no method for selecting the .excess. Held that, no segregation having been made, plaintiff cannot assume that the 45-acre excess will be taken from his tract, and hence cannot recover from defendant such deficiency in the acreage purchased by him.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dee. Dig. § 343.*]</p>

H'. Arnold, Judge. Action by J. H. Timmons against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed. Conclusions of Fact. Lee Timmons, the brother of appellee, lived with his father, J. M. Timmons, near Ater, in Coryell county, Tex.

<p>1. Homestead (§ 108*) — INOumbeaNce—Val-ue in Excess oe Homestead — Restraining Foreclosure Sale.</p> <p>In an action to restrain a trustee and a mortgagee’s assignee from selling land covered by . a deed of trust, it was not error to deny the injunction because since the execution of the mortgage plaintiffs had made their homestead on the land, and so are entitled to have the excess acreage sold first and the proceeds applied to the payment of their debt, where the excess appears to have been sold, and the purchasers are not parties to the action.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 167; Dec. Dig. § 108.*]</p> <p>2. Appeal and Error (§ 742*) — Assignments óe Error — Statement.</p> <p>In an action to restrain the foreclosure of a mortgage, an assignment that the trial court erred in vacating the injunction because appellant since the execution of the mortgage had established a rural homestead on the mortgaged premises, and that they had the equitable right to have the excess acreage over the homestead sold first, cannot be considered where there is nothing in the statement accompanying the assignment showing that there was any such excess acreage which could reasonably be expected to sell for enough to satisfy appellee’s indebtedness.</p> <p>•[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>3. Appeal and Error (§ 742*) — Assignments op Error — Statement.</p> <p>. In such case, an assignment of error that the court should have continued the injunction until a trial of the facts at the next term of court, when the amount due by appellant on such mortgage had been determined and the rights of all parties to the suit adjusted, and the injurious consequences of the sale prevented,''cannot be considered where the statement accompanying the assignment fails to show that appellees are attempting to sell the land for more than is justly due by appellant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error,' Cent. Dig. § 3000; Dec. Dig. f 742.*]</p>

<p>Appeal from Mitchell County Court; R. H. Worthington, Judge.</p> <p>Action by J. D. Norman against J. N. Porter and others. . Judgment for plaintiff, and defendants appeal.</p>

<p>1. Trial (§ 125*) — Argument op Counsel.</p> <p>"Where, in an action on a note, the vital issue, was whether defendant signed the note, remarks of plaintiff’s counsel, “Why shouldn’t this, defendant pay to this poor working boy the amount of his note, when he (defendant) lives on his ranch and counts his cattle by the hundreds, and controls property and people like a feudal lord; when he owes to this plaintiff the amount of this debt, which represents hard, honest toil on his part” were inflammatory and prejudicial.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.*]</p> <p>2.' Evidence (§ 474*) — Opinion Evidence— Handwriting-.</p> <p>A witness who had seen defendant write could express his opinion as to the genuineness of defendant’s signature to the note in issue.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2210-2213; Dec. Dig. § 474.*]</p> <p>3. Bills and Notes (§ 502*) — Action—Evidence.</p> <p>In an action on a note, proper proof of defendant’s signature to a note for which the note, sued on was later substituted was admissible as a circumstance relevant to the issue of whether defendant signed the note in controversy.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 502.*]</p>

<p>Appeal from Taylor County Court; T. A. Bledsoe, Judge.</p> <p>Action by C. B. Moore against C. A. Struve. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Taylor County ; Thos. L. Blanton, Judge.</p> <p>Action by S. T. Thompson and another against the Continental Oil & Cotton Company. From a judgment for plaintiffs, defendant appeals.</p> <p>Reversed and remanded.</p>

<p>Appeal from Gray County Court; T. M. Wolfe, Judge.</p> <p>Action by the Pecos & Northern Texas Railway Company against H. W. Scurlock and others. From a judgment dismissing the petition, plaintiff appeals.</p>

<p>Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.</p> <p>Action by James J. Williams against the Kirby Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1 Appeal and Error (§ 742*) — Assignments oe Error — Propositions in Statements Accompanying. Assignments.</p> <p>Where a statement of facts, following an assignment of error in failing to instruct, did not set out that a charge was requested and refused, and did not refer to the page of the record where the evidence on which the request was based could be found it did not comply with rule 31 (67 S. W. xvi) requiring statements to contain references to the record explaining the proposition.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.'*]</p> <p>2. Street Railroads (§ 73*) — Regulation-Municipal Ordinances — “Substantial Compliance.”</p> <p>A “substantial compliance,” which means a compliance with the essential requirements, is a sufficient compliance with a penal municipal ordinance requiring street railways to maintain fenders upon the front ends of cars.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 73.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6738.]</p> <p>3. Street Railroads (§ 118*) — Regulation-Instructions — Inconsistency.</p> <p>In an action against a street railway company, a charge that, if a certain life guard or fender was a substantial compliance with the ordinance requiring a life guard or fender to be fastened to the front end of the cars, the use of such an equipment would not be negligence, is not inconsistent with a special charge that, if the car was not equipped with a fender or life guard as required by the ordinance, and if the failure to comply with the ordinance was the direct cause of the death of plaintiffs’ son, the verdict should be for them-.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 118.*]</p> <p>4. Appeal and Error (§ 742*) — Presentation op Grounds oe Review in the Court Below — Exceptions—Necessity.</p> <p>Where the statement accompanying an assignment. of error complaining of the exclusion of testimony fails to show that an exception was reserved, the assignment' will not be reviewed.</p> <p>[ExL Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>5. Street Railroads (§ 113*) — Operation — Evidence — Admissibility.</p> <p>In an action against a street railway company, plaintiffs alleged that defendant was negligent in failing to have the car equipped with a fender or life guard as required by ordinance. The undisputed evidence showed that the car was equipped with a certain kind of life guard, and evidence tending to show that another sort of a life guard would have prevented the accident was offered and excluded; but it did not tend to show that the life guard used was not a substantial compliance with the ordinance. Held, that the exclusion was proper.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 113.*]</p> <p>6. Trial (§ 296*) — Instructions—Cure.</p> <p>In an action 'against a street railway for death of a minor, the error, in a charge referring to contributory negligence, that negligence was the failure to use that degree of care a prudent and ordinary person would exercise under the same circumstances, and that whether ar? act or omission is or is not negligence depends upon all the circumstances, was cured by a special charge that, in considering whether deceased acted with ordinary care and prudence, he was charged with exercising the amount of care ordinarily possessed by children of his age and discretion, and no more.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-718; Dec. Dig. § 296.*]</p>

<p>Appeal from Jones County Court; Jas. P. Stinson, Judge.</p> <p>Action by T. J. Durrett against B. D. Webb and others. From a judgment in favor of plaintiff T. J. Durrett and in favor of N. N. Durrett against Webb, he appeals.</p>

<p>1. LIMITATION OF ACTIONS (§ 127*) — AMENDED Petition — New Cause of Action.</p> <p>Where the original petition alleged the payment by plaintiff to defendant of money as the price of a section of land on representation by defendant that the land was school land, subject to sale, and that the land was not school land, and prayed for the recovery of the money, an amended petition, alleging that the money was paid as a consideration for four sections of land, and that in the consummation of the agreement land had been conveyed, did not state a new cause of action, but merely averred an additional stipulation in the agreement alleged in the original petition, and the cause of action alleged 'in the amended petition was not barred by limitations, though the amended petition was filed after the running of limitations.</p> <p>[Ed. Note. — Por other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.''*]</p> <p>2. Vendor and Puechaser (§ 341*) — Remedies of Purchaser — Recovery of Purchase Price — Fraud—Parties.</p> <p>Where the petition, in an action by two persons for the recovery of money paid for the price of four sections of land because of fraudulent representations of defendants, alleged that the payment was made jointly by plaintiffs, an averment that three sections of the land had been deeded to one plaintiff and one section to coplaintiff did not show a misjoinder of parties plaintiff.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser Dee. Dig. § 341.*]</p> <p>3. Pleading (§ 8*) — Limitation of Actions — Conclusions — Fraud — Discovery of Fraud.</p> <p>A petition, in an action begun in 1905 for the recovery of money paid in 1901, on the ground of fraudulent representations, which alleges that plaintiff had no means of ascertaining the fraud until 1904, is sufficient as. against an exception averring that the allegation of diligence to prevent the running of limitations was but a conclusion.</p> <p>[Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 12-2Sy2 1 Dec. Dig. § 8.*]</p> <p>4. Appeal and Error (§ 931*) — Questions Reviewable — Presumptions.</p> <p>Where no assignment of error was presented to the failure to submit the issue whether plaintiff, by the exercise of due diligence, could have discovered the fraud complained of sooner than he did discover it, the court on appeal must assume that the evidence affirmatively showed that he could not have discovered the fraud sooner.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3762-3771; Dec. Dig. § 931.*]</p> <p>5. Appeal and Error (§ 1040*) — Harmless Error — Pleadings—Erroneous Overruling op Exceptions:</p> <p>The error, if any, in overruling exceptions to a petition alleging diligence by plaintiff to discover the fraud complained of, so as to prevent the bar of limitations, is harmless, where the uncontradicted testimony showed that plaintiff, by the exercise of due diligence, could not have discovered the fraud sooner than he did.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>6. Vendor and Purchaser (§ 334*) — Contracts — Validity.</p> <p>A contract by a vendor to sell to a purchaser public free school land, subject to sale, is not illegal, and does not preclude a recovery by the purchaser of the money paid under the contract for failure of consideration, though deeds have been executed in performance of the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. § 334.*]</p> <p>7. Trial (§ 260*) — Instructions—Refusal to Give Instructions Covered by the Charge Given.</p> <p>Where the court charged that the burden rested on plaintiff to establish his right to recover by the preponderance of the testimony, and that unless the jury found from such preponderance such a fact they should find for defendant, the refusal to charge that the burden of proving each material fact rested on plaintiff, and that he must establish the same by the preponderance of testimony, was not erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. 651-659; Dec. Dig. § 260.*]</p>

<p>1. Appeal and Error (§ 216*)—Request to Ci-iaege—-Necessity.</p> <p>Defendant cannot object on appeal to an omission in the court’s statement of the issues, where no request was made at the time to supply the omission.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 216 ;* Trial, Cent. Dig. §§ 627-641.]</p> <p>2. Assault and Battery (§ 26*)—Intent-Burden op Proof.</p> <p>When an injury is caused by violence to the person, an intent to injure is presumed, and it rests on the person inflicting the injury to show accident or innocent intention.</p> <p>[Ed. Note.—For other eases, see Assault and Battery, Cent. Dig. § 36; Dec. Dig. § 26.*]</p> <p>3. Assault and Battery (§ 43*)—Instruc-tions—Construction.</p> <p>An instruction that no verbal provocation justifies an assault, hut insulting and abusive -words may be given in evidence in mitigation, 'vas not misleading in the nse of the word “assault,” instead of the words “assault and battery.”</p> <p>[Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 57-62; Dec. Dig. § 43.*]</p> <p>4. Assault and Battery (§ 43*) — Instruction — Sele-Defense.</p> <p>An instruction that violence to the person does not amount to assault and battery when inflicted in self-defense, against unlawful violence offered to the person, and only that degree of for'ce must be used which is reasonably necessary to repel the threatened violence, but that the danger of violence to the person, in order to justify an assault and battery, need be apparent only, provided the person charged acted on a reasonable apprehension of danger of violence, the circumstances being viewed from his standpoint at the time, was correct.</p> <p>[Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 57-62; Dec. Dig. § 43.*]</p> <p>5. Damages (§ 216*) — Personal Injury — Instructions.</p> <p>An instruction that in estimating plaintiff’s damages the jury might consider the mental pain and suffering, if any, consequent on the injuries, if any, was not objectionable as authorizing double damages, in allowing a recovery for mental and physical pain and for “suffering” in addition thereto.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 54S-555; Dec. Dig. § 216.*]</p> <p>6. Evidence (§ 207*) — Admissions—Conviction Before a Justice.</p> <p>In an action for assault and battery, evidence of defendant’s conviction before a justice on a plea of guilty with reference to the same assault is admissible as an admission.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 707-712; Dec. Dig. § 207.*]</p> <p>7. Evidence (§ 265*) — Admissions—Judicial Proceedings — Effect.</p> <p>Where, in an action for assault and battery, evidence of defendant’s conviction on a plea of guilty of the same assault before a justice of the peace was admitted, an instruction that proof of such fact was admitted as any other fact in evidence, though not conclusive that defendant committed an unlawful assault and battery on plaintiff, and was to be considered as any other evidence and given such weight as the jury deemed it entitled to, was correct.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.*]</p> <p>8. Appeal and Error (§ ‘1067*) — Harmless Error — Failure to Instruct — Damages— Exemplary Damages.</p> <p>Where only actual damages were submitted, and no request referring to exemplary damages was made, defendant was not prejudiced by the court’s permitting the issue of exemplary damages to remain before the jury without instructions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.*]</p> <p>9. Trial (§ 237*) — Instructions—Weight of Evidence — “Establish.”</p> <p>An instruction that the burden of proof was on plaintiff, and that before he could recover he must establish all the facts necessary to his recovery by a preponderance of the evidence, the burden resting on defendant “to establish his plea of self-defense,” was not erroneous in the use of the word “establish,” as requiring too high a degree of proof, it being used in the sense of “prove”; the court having also charged that the jury should find for plaintiff, if they believed from a preponderance of the evidence that defendant made an unlawful assault on plaintiff, and to find for defendant, if they believed from a preponderance of the evidence that plaintiff was about to make an attack, real or apparent, on defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 542-551; Dec. Dig. § 237.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2469-2473.]</p> <p>10. Damages (§ 210*) — Instructions.</p> <p>Where plaintiff specified the amount of each element of damage sustained by him, an instruction charging generally as to the damage sustained was not erroneous for failure to limit the amount of the recovery on each element specified to the amount claimed.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 537; Dec. Dig. § 210.*]</p> <p>11. Trial (§ 260*) — Instructions—Request to Charge — Instructions Given.</p> <p>It is not error to refuse a request to charge substantially covered by an instruction given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. § 260.*]</p> <p>12. Assault and Battery (§ 43*) — Instructions.</p> <p>In an action for assault and battery, a request to charge that the burden was on plaintiff to show by a preponderance of the evidence that he had been injured by the blow, and that the blow was the direct and proximate cause of the injury, if any, and if the jury did not so believe from a preponderance of the evidence they should find for defendant, was properly refused, as relieving defendant from liability even for nominal damages, though the assault was proved.</p> <p>[Ed. Note. — For other cases, see Assault and 13attery, Cent. Dig. §§ 57-62; Dec. Dig. § 43.*]</p> <p>13. Appeal and Error (§ 732*) — Assignments of Error — Speoificness.</p> <p>An assignment that the court erred in overruling defendant’s motion for a new trial for each reason therein stated, as stated in each paragraph therein, was too general.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*]</p> <p>14. Appeal and Error (§ 760*) — Instructions — Assignment of Error and Statement-Reference to Testimony.</p> <p>Refusal of a request to charge will not be reviewed on appeal, where the brief fails to refer to any testimony on which to base the charge.</p> <p>[Ed. Note. — For othdr cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 760.*]</p> <p>15. Assault and Battery (§ 43*) — Instructions.</p> <p>A request to charge that, if the jury believed plaintiff’s injury and suffering were feigned, they should find for defendant was properly refused, as requiring a verdict for defendant, though plaintiff was entitled to nominal damages for an unjustifiable assault.</p> <p>• [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 57-62; Dec. Dig. § 43.*]</p> <p>16. Assault and Battery (§ 43*) — Instructions— Evidence.</p> <p>In an action for assault and battery, evidence held insufficient to authorize a submission of the question whether plaintiff was feigning injury to the jury.</p> <p>[Ed. Note. — For other cases, see Assault and Battery, Dec. Dig. § 43.*]</p> <p>17. Damages (§ 34*) — Aggravation of Injury — Use of Narcotics.</p> <p>Where, in an action for assault and battery, all the evidence on the subject showed that nar•cotics given to plaintiff after the assault were necessary or proper to alleviate existing pain, according to medical direction, the court properly refused to charge that, if plaintiff suffered pain and mental anguish and was compelled to pay out money for medical treatment as the result of his taking narcotics to excess under the prescription of his medical adviser, or any person, then he would not be entitled to recover anything for the physical pain, mental anguish, and medical treatment, though defendant committed an unlawful assault and battery on him, since what is done to an injured person in the way of proper medical treatment, applicable to him in his injured state, is attributable to the act causing the injury, as a proximate result thereof.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 43; Dec. Dig. § 34.*]</p>

Appeal and Error from District Court, Potter County; J. N. Browning, Judge. Action by D. E. McIntyre against Wells Fargo & Co. and the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and the Express Company brings error, and the Railway Company appeals.

<p>Appeal from Johnson County Court; J. B. Haynes, Judge. John Benson was convicted of crime, and he appeals.</p>

<p>Appeal from District Court, Plansford County; F. P. Greever, Judge. P. P. Eifer appeals from a judgment denying bail on a habeas corpus trial.</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Joe Zaby appeals from a judgment denying bail on a habeas corpus trial.</p>

<p>Appeal from Williamson County Court; T. J. Lawhon, Judge. Action by the Saxony Mills against the Prewitt Mercantile Company. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, McLennan County; Marshall Sur-ratt, Judge. Action by J. A. Muse against Alfred Abeel. From a judgment for plaintiff, defendant appeals.</p>

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