Volume 137 — South Western Reporter

W. Wilson, Judge. Action 'by the Highland Dairy Company against the Texas & New Orleans Railroad Company. A judgment for plaintiff was rendered in the justice court, and on appeal to the county court a judgment in favor of plaintiff was rendered, from which the defendant appeals.

J. Isaacks, Judge. Suit by W. H. Lee against S. V. Biggs. From a judgment restraining defendant from diverting the waters of a river to nonripari-an land, he appeals.

<p>1. Death (§ 14*) —Railroads — Cause ox Death.</p> <p>Under Rev. St. 1895, art. 3017, § 1, giving a right of action for injuries resulting in death caused by employés or agents of the owner of a railroad, the owner is not liable unless the negligence occurred in or was directly connected with operating the road.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 16; Dec. Dig. § 14.*]</p> <p>2. Death (§ 14*) — Railroads — Cause ox Death — “Operating the Road.”</p> <p>Any negligence of a physician employed by a lumber company to treat its tram railroad em-ployés’ families in failing to attend a patient more promptly cannot be regarded as negligence in operating the road within Rev. St. 1895, art. 3017, § 1, giving a right of action for death caused by negligence of the employés or agents of a railroad company.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 16; Dec. Dig. § 14.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7738.]</p> <p>3. Master and Servant (§ 278*) — Medical Attendance — Negligence — Evidence — Sufficiency.</p> <p>In an action against a lumber company for negligence of its physician in attending plaintiff’s wife, under a provision in plaintiff’s contract of employment that, in consideration of certain-deductions from his salary the employer would furnish medical attendance to the servant and his family, evidence held insufficient to show that the physician was negligent in failing to give prompt attention.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Oent. Dig. §§ 954-972; Dec. Dig. § 278.*]</p>

<p>Appeal from District Court, Shelby County ; James J. Perkins, Judge.</p> <p>In the matter of the proceedings for guardianship of Omega Estes. From a Judgment of the district court on appeal from the county court, A. D. Estes, guardian, appeals adversely to Emma Presswood.</p>

<p>Appeal from McLennan County Court; Tom L. McCullough, Judge.</p> <p>Action by P. J. Williams against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

Error from Jones County Court; Jas. P. Stinson, Judge. Suit by J. V. Cockrell against B. W. Ellison and others. Judgment in' favor of defendants J. W. Bogar & Co. and awarding defendant Ellison -damages on a cross-complaint, and plaintiff brings error.

<p>Mandamus by J. J. Dillard against J. A. Wilson and others in which third persons intervened.</p>

<p>Appeal from District Court, Chambers County; L. B. Hightower, Judge.</p> <p>Action by the Old River Rice Irrigation Company against F. H. Stubbs. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Vendor and Purchaser (§ 231*) — Bona Eide Purchaser—Notice oe Deeds—Scope.</p> <p>A purchaser of land is not only put upon notice of the contents of a prior recorded deed, but of any fact contained therein which would put a reasonable man upon inquiry.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dec. Dig. § 231.*]</p> <p>2. Evidence (§ 460*)—Parol Evidence—Identifying Land.</p> <p>Parol evidence is admissible to identify land imperfectly described in a deed.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2116-2122; Dec. Dig. § 460.*]</p> <p>3. Vendor and Purchaser (§ 231*) — Bona Fide Purchaser—Notice—Description oe Land—Sufficiency.</p> <p>A recorded deed to lots situated in a specified city, county, and state, and described as a specified block containing 20 lots in a specified addition, was sufficient to charge a subsequent purchaser with notice, though he took the land under a deed describing it as bounded by specified streets.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dec. Dig. § 231.*]</p> <p>4. Trespass to Try Title (§ 38*)—Burden oe Proof.</p> <p>In trespass to try title, the burden was on defendant to show that he was an innocent purchaser without notice and for value.</p> <p>[Ed. Note.—For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.*]</p> <p>5. Vendoe and Puechasee (§ 244*) — Bona Fide Puechaseb — Evidence—Sufficiency.</p> <p>Evidence on trespass to try title held insufficient to show that defendant was a bona fide purchaser.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. § 244.*]</p>

<p>Appeal from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by W. W. Forrester against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Hardin County Court; W. W. Dies, Judge.</p> <p>Suit by the Texas Banking & Investment Company, claimant of property levied on, against the T. S. Reed Grocery Company. Prom an adverse judgment, claimant appeals.</p>

<p>Appeal from District Court, Swisher County; B. &. Kinder, Judge.</p> <p>Action by J. T. Bemmon against T. B. Bond. Judgment for plaintiff, and defendant appeals.</p>

L. Porter, Judge. Action by C. D. Ellison and others against T. H. Gilliland and others. From a judgment for plaintiffs, defendants appeal. The party designated as Wid Humphreys was one of the plaintiffs.

H. Pope, Judge. Action by the Gladys City Oil, Gas & Manufacturing Company and others'against the Right of Way Oil Company and others. From a judgment for defendants, plaintiffs appeal.

<p>Appeal from District Court, Potter County; J. N. Browning, Judge.</p> <p>Action by II. B. Sanborn against the E. R. Roach Drug Company. From a judgment for insufficient relief, plaintiff appeals.</p>

<p>1. Trial (§ 139*) — Directed Veediot — When Authorized.</p> <p>To justify a directed verdict for defendant, the evidence must be such that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. § 338; Dee. Dig. § 139.*]</p> <p>2. Appeal and Error (§ 1005*) — Verdict— CONOLUSIVENESS.</p> <p>A verdict justified by evidence and sanctioned by the trial judge will not be disturbed on appeal.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 349S; Dee. Dig. § 1005.*]</p> <p>3. Insurance (§ 358*) — Agents — Powers— Payment of Premium — Extension op Time.</p> <p>A cashier of an insurance company ofiicing with general agents having as their territory some 40 counties in the state, or with the general manager for the larger part of the state, empowered to collect premiums and order the return of policies for nonpayment of the first premium, and with, whom policy holders can only deal with respect to the payment of premiums, may be deemed to have authority to extend the time of the payment of an annual premium due on a policy, stipulating that it shall lapse on the nonpayment of any premium when due, especially where the general agents referred insured to the cashier in response to a request for an extension of the time of payment in the absence of any limitation on his powers.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 915; Dec. Dig. § 358.*]</p> <p>4. Principal and Agent (§ 120*) — Power op Agent — Evidence.</p> <p>Where the relation of principal and agent is established and the scope of the agency is in issue, the authority in fact exercised by the agent may be considered in the absence of any fraud, especially where the principal does not show the scope of the agent’s power nor want of knowledge of the agent’s exercise of power.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 409; Dec. Dig. § 120.*]</p> <p>5. Corporations (§ 400*) — Agents—Powers.</p> <p>A corporation can act only through its agents, and general limitations on the power of an agent will yield to the power actually exercised by him with knowledge and acquiescence of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1590; Dec. Dig. § 400.*]</p> <p>6. Insurance (§ 665*) — Life Insurance — Power to Extend Time por Payment op Premiums — Evidence.</p> <p>In an action on a life policy, evidence held to justify a finding that an agent of insurer had authority to extend the time of payment of premiums, and actually extended the time of payment so as to prevent a forfeiture of a policy, though it declared that it would lapse on nonpayment of any premium when due.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 665.*]</p> <p>7. Insurance (§ 664*) — Waiver op Nonpayment op Premium at Maturity — Evidence.</p> <p>Where the insurer in a policy stipulating that it should be void on nonpayment of any premium when due relied on the nonpayment of a premium at maturity, the acts of its agents, though without authority to delay the collection of premiums or to receive past-due premiums, or to negotiate loans by insurer to pay such premiums, in dealing with insured by extending to him time for the payment of a premium and negotiating loans to pay the same, were admissible to show a waiver by insurer of the forfeiture for nonpayment of a premium.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1687; Dec. Dig. § 664.*]</p> <p>8. Insurance (§ 349*) — Nonpayment op Premiums — Eppect.</p> <p>A failure to pay a premium at maturity forfeits the policy, where it declares that it will lapse on the nonpayment of any premium when due, in the absence of any other controlling condition.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 891; Dee. Dig. § 349.*]</p> <p>9. Insurance (§ 372*) — Nonpayment op Premiums — Waiver op Forfeiture.</p> <p>The insurer in a policy declaring that it shall lapse for the nonpayment of any premium when due may by its election avoid a forfeiture and keep the policy in force.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 941; Dec. Dig. § 372.*]</p> <p>10. Insurance (§§ 388, 390*) — Nonpayment op Premiums — Waiver op Forfeiture.</p> <p>A waiver of the forfeiture of a life policy, stipulating that it shall lapse on the nonpayment of any premium when due, results from negotiations or transactions with insured after knowledge of the forfeiture, by which insurer recognizes the validity of the policy, but a waiver may not be inferred from mere silence.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1026, 1037; Dec. Dig. §§ 388, 390.*]</p> <p>11. Insurance (§ 665*) — Life Insurance^Nonpayment op Premium — Waiver op Forfeiture — Evidence.</p> <p>Evidence held to justify a finding that insurer, issuing a life policy, waived its forfeiture for nonpayment of premium at maturity.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 665.*]</p> <p>12. Insurance (§ 665*) —Life Insurance-Nonpayment of Premium — Waiver of Forfeiture-Evidence.</p> <p>In an action on a life policy, evidence held not to show that insured obtaining an extension of the time of the payment of an annual premium, and dying before payment, would not have paid the premium had he lived, and insurer, waiving a forfeiture for nonpayment of the premium at maturity, could not defeat a recovery on the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 665.*]</p> <p>Rector, Special Associate Justice, dissenting.</p>

<p>Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.</p> <p>G. E. Comegys was convicted of aggravated assault, and he appeals.</p>

<p>Criminal Law ■(§ 1097*) — Apbeai^-Record— Statement of Facts — Necessity.</p> <p>Assignments of error in the motion for new trial on the sufficiency of the evidence to sustain the verdict, and in defining theft of lost property by a general charge, when that was an issue under the evidence, and in refusing requested instructions, cannot be considered, in absence of the statement of facts.</p> <p>[Ed. Note — For other cases; see Criminal Law, Dec. Dig. § 1097.*]</p>

<p>Appeal from Sabine County Court; J. H. McGown, Judge.</p> <p>Eugene Hoyle was convicted of aggravated assault, and he appeals.</p>

<p>Beokees (§ 49*) — Compensation—CONTRACT— Optional Oeeeks.</p> <p>Where defendants agreed to give plaintiff a commission for finding a purchaser for defendants’ land within 20 days at $15 per acre, one-third cash and the balance on time notes, and he found a purchaser within the 20 days, who agreed to purchase upon those terms, and who put up $1,000 to bind the sale, but the purchaser could refuse to take the land and forfeit the $1,000, it was not such a contract of sale as entitled plaintiff to commissions. It was a sale oran option, as the purchaser saw fit to treat it.</p> <p>[Ed. Notecr-Eor other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.*]</p>

Action by T. M. Young and. others against Houston & Texas Central Railroad Company. Plaintiff Young had a judgment in a justice court, and defendant pleaded a petition to restrain collection of the judgment. From an order sustaining a demurrer and exceptions to the petition, and dismissing the petition, defendant appeals.

<p>Appeal from Wharton County Court; J. R. Bowen, Judge.</p> <p>Action by S. S. Willard against the Water-house Rice & Sugar Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Action (§ 64*) — Commencement—Time.</p> <p>Where plaintiff on July 23d delivered to the clerk of the Harris county district court a petition, requesting him to file it for the Sixty-First district, and under the special act of the Legislature regulating the filing of suits in the three district courts of that county, it was the clerk’s duty to file them alternately, and, if filed when presented to him, the suit would have g'one to the Fifty-Fifth district, but at the request of plaintiff he retained it until the 26th, when it was filed in the Sixty-First district, the suit was not filed until the 26th, for as until actually filed, the clerk held the petition as plaintiff’s agent.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. § 730; Dec. Dig. § 64.*]</p> <p>2. Wills (§ 212*) — Probate—Agreement oe Parties — Construction.</p> <p>Where all the heirs of a very old and infirm lady entered into an agreement whereby a trustee was appointed to preserve her property, with the further agreement that he should at her death deliver the entire property over to the executrices named in her will, and that the heirs should take whatever property remained at the time of her death, in accordance with the terms of the will, the agreement did not so abrogate the will as to make its probate necessary only to serve as a muniment of title.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 519; Dec. Dig. § 212.*]</p> <p>3. Trusts (§ 291*) — Accounting—Right to Require.</p> <p>The equitable jurisdiction of the district court cannot be invoked to require an accounting of a trustee appointed under an agreement between the prospective heirs of a decedent, where the trustee has already rendered an account to the plaintiff, the correctness of which is not questioned, and under the agreement he was required only to account to the executrices of the decedent, who had not yet been appointed and qualified.</p> <p>[Ed. Note. — For other cases, see Trusts, Dec. Dig. § 291.*]</p> <p>4. Wills (§ 253*) — Probate Jurisdiction — County and District Courts.</p> <p>While the district court has jurisdiction to partition estates, require accountings, and adjust equities between the several owners, its jurisdiction cannot be exercised to defeat that of the county court to probate a will which under the direct provisions of Const, art. 5, § 16, has the general jurisdiction of a probate court with power to probate wills, appoint guardians, settle accounts of executors, transact business, including the settlement, partition, and distribution of the estates of deceased persons.</p> <p>[Ed. Note. — For other cases, see Wills, Dec. Dig. § 253.*]</p> <p>5. Courts (§ 472*) — Jurisdiction—Courts oe Same State — County Courts.</p> <p>When properly invoked, the jurisdiction of the county court to make a settlement, distribution, and partition of the estates of deceased persons is exclusive.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 472.*]</p> <p>6. Wills (§ 205*) — Probate—Necessity.</p> <p>Where testatrix made a valid will appointing executrices, the fact that no debts exist against the estate, and there is no necessity for any administration, does not affect the power of the county court to probate the will, grant letters testamentary, etc., its jurisdiction having been invoked by a valid will, as Sayles’ Ann. Civ. St. 1897, art. 1991, expressly requires that the provisions of such a will shall be executed, and neither article 1884, as to the application to probate a will, nor article 1926, enumerating the facts to be shown before letters testamentary can be granted, requires that there shall be a. necessity for an administration.</p> <p>[Ed. Note. — For- other cases, see Wills, Dec. Dig. § 205.*}</p> <p>7. Wills (§ 257*) — Probate — Objections— Where Raised.</p> <p>An objection to the probate of a decedent’s will arising from an agreement made by the heirs should be raised first in the county court, and the district court, out of reasons of comity, should not entertain original proceedings to determine whether such a will may be probated.</p> <p>[Ed. Note — For other cases, see Wills, Dec. Dig. § 257.*]</p> <p>8. Action (§ 57*) — Consolidation—Jurisdiction.</p> <p>Where the district court had no jurisdiction of an original proceeding to partition real estate of a decedent and for other relief, by way of enjoining the probate of decedent’s will, such a proceeding could not be consolidated with an appeal from an order of the county court allowing the probate of the same will.</p> <p>[Ed. Note. — For other cases, see Action, Dee. Dig. § 57.*]</p>

<p>Carriers (§ 247*) — Passengers — Bail way Mail Clerks — Assault by Employé — Carrier’s Liability.</p> <p>A railway company being bound to deliver mail from,a station, to a post office, and an incoming railway mail clerk being bound to accompany the mail to the office, the relation of carrier and passenger existing between him and the company continued until arrival of the mail at the post office, making the company liable for assault and battery by and insulting conduct of the porter employed by the railroad to carry the mail.</p> <p>TEd. Note.' — For other cases see Carriers, Cent. Dig. §§ 98A-993; Dec. Dig. § 247.*]</p>

<p>1. Negligence (§ 44*) — Ebection oe Buildings — Cabe Required.</p> <p>The construction of the floors of the corridors of an office building with unpolished marble slabs customarily used for such purposes in like buildings does not of itself show a failure of the owner to exercise due care to render the corridors safe for those who may lawfully use them, and one lawfully in the building may not recover for injuries caused by slipping on the floor of a corridor on mere proof of the character of the floor.</p> <p>[Ed. Note. — Eor other cases, see Negligence, Cent. Dig. § 59; Dec. Dig. § 44.*]</p> <p>2. Negligence (§ 134*) — Ebection oe Buildings — Cabe Required.</p> <p>In an action for injuries to a person lawfully in an office building caused by slipping on the floor of a corridor, evidence held not to show actionable negligence of the owner in failing to keep the floor dry and free from slippery substances.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 267-270; Dec. Dig. § 134.*]</p> <p>3. Negligence (§ 44*) — Erection oe Buildings — Cabe Required.</p> <p>To authorize a recovery for injuries caused by slipping on the floor of a corridor of an office building while lawfully there, plaintiff must show not only the injury, but that the owner of the building was guilty of negligence producing the injury; and the negligence proved and the injury complained of must bear' the relation of cause and effect.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 59; Dec. Dig. § 44.*]</p> <p>4. Negligence (§ 134*) — Evidence—Circumstantial Evidence.</p> <p>Negligence may be established by circumstantial evidence, but the inference of negligence must be a legitimate inference from the facts proved.</p> <p>[Ed. Note. — For other cases, see Negligence," Cent. Dig. §§ 267-270; Dec. Dig. § 134.*]</p> <p>5. Appeal and Eeeor (§ 1175*) — Disposition of Case on Appeal.</p> <p>Where a case was fully developed on the trial, and there was no probability that plaintiff, failing to establish a case, could do so on another trial, the court, on reversing a judgment for plaintiff, will render judgment for defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]</p>

L. Hawkins, Judge. Action by John Lynch against George Phillips Jones and others. Judgment for plaintiff, and defendants appeal.

<p>1. Instjbance (§ 607*) — Subrogation of Insurer-Pleading.</p> <p>In an action by an insurer against a railroad company to recover the amount of a fire loss paid by plaintiff, who took a subrogation contract 'from insured under the insurance polir, cy, caused by fire negligently set by the railroad company, allegations in the petition that defendant had settled with the insured for the damages over and above the amount of the insurance policy, are not subject to exceptions, where the petition did not show that the settlement was made in compromise of the loss sustained.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §ji 1512, 1513; Dec. Dig. § 607.*]</p> <p>2. Evidence (§ 219*) — Admissions—Compromise.</p> <p>The policy of a railroad company to settle fire claims without regard to legal liability does not render inadmissible evidence of such a settlement, in an action by an insurer for the amo.unt of a fire loss paid on a fire set out by the railroad company; such settlement being admissible as tending to show an admission that the fire was negligently set out.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 762-770; Dec. Dig. § 219.*]</p> <p>' 3. Insurance (§ 607*) — Subrogation of Insurer-Instructions.</p> <p>In an action by an insurer against a railroad company, to recover the amount of a fire loss paid by plaintiff, who took a subrogation contract from insured under the insurance policy, where evidence was admitted of a settlement by the railroad company with the insured, the company was entitled to an instruction that, if reasonable explanation were made of the settlement with the claimants because of a policy of making settlements .with all parties sustaining losses, without regard to legal liability therefor, then proof of such settlement should not be considered as tending to admit liability of a defendant company.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1512, 1513; Dec. Dig. § 607.*]</p> <p>4. Railroads (§ 453*) — Operation — Fires— Care Required.</p> <p>Where railroad employes in charge of a locomotive used ordinary care and skill in operating the locomotive to prevent the escape of fire, and the company used ordinary care to have the locomotive equipped with the best appliances in general use for preventing the escapé of fire, and in keeping the locomotive in good repair and serviceable condition, the company was not liable for the fire, although it was in fact set out by fire which escaped from the locomotive.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1657-1660; Dec. Dig. § 453.*]</p> <p>On Rehearing.</p> <p>5. Railroads (§ 481*) — Operation — Fires— Evidence.</p> <p>In an action for fire set out by a railroad, evidence of numerous fires set out by the defendant during the same summer and fall was admissible in rebuttal of evidence that the defendant equipped all its engines with the best approved spark arresters.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]</p>

<p>1. Appeal and Error (§ 1064*) — Review-Harmless Error — Instructions.</p> <p>Where an oiler was injured in oiling a stationary engine in the dark, and the controlling issue was whether or not he was guilty of contributory negligence in failing to discover that the. engine was running, a charge that if the plaintiff was “entirely familiar with the mechanism of the engine,” and if he “necessarily would have seen if he had looked, or heard if he had listened,” the verdict should be for the defendant, was not erroneous; for, while the defendant might be entitled to a verdict on other facts, it was entitled to a verdict on these, and was not harmed 'because they were submitted con-junctively.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. § 1064.*]</p> <p>2. Damages (§ 53*) — Measure op Damages— Personal Injuries — Mental Suffering.</p> <p>In an action for personal injuries, mental suffering caused- by the plaintiff’s incapacity to earn a living may be considered in measuring the damages.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 100; Dec. Dig. § 53.*]</p>

P. Huff, Judge. Action by Mary E. Catron against the Vernon Cotton Oil Company. From a judgment for plaintiff, defendant appeals. J. M. Catron was employed in the seed-house of appellant company, and was a member of the night shift, and his work was to shovel cotton seed into the conveyer from the seed pile in the room. The seedhouse is one room 300 feet long east and west, and between 60 and 70 feet wide north and south, and 27 feet in height.

<p>1. Appeal and Error (§ 1032*) — Reqord— Bill of Exceptions.</p> <p>Where a bill of exceptions to the action of the trial court in allowing- each defendant in an action of trespass to try title six peremptory challenges failed to show that the defendants challenged more than six jurors, and that some juror who was unchallenged by the plaintiff was taken off of the jury by such action, there is nothing to show that the plaintiff was injured, and the error, if error there was, cannot be availed of on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1032.*]</p> <p>2. Jury (§ 136*) — Challenges—Number.</p> <p>In an action of trespass to try title, where one of the defendants pleaded over against the other as his warrantor to the land, and the other pleaded a general denial, each were entitled to six challenges, though there was no real contest between them.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 612; Dec. Dig. § 136.*]</p> <p>3. Trial (§ 251*) — Issues.</p> <p>In an action of trespass to try title, where the plaintiff in no way raised the issue in his pleadings that the defendant’s grantor was es-topped from conveying the land to the defendant, and the only issue was whether defendant’s grantor had executed a prior conveyance, it was proper not to submit an issue of estoppel of the defendant’s grantor to the jury.</p> <p>[Ed. Note — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>4. Husband and Wipe (§ 198*) — Wipe’s Estate-Equitable Estoppel — Grounds.</p> <p>A married woman held certain property as her separate estate, and refused to sign a conveyance to it prepared by her husband. The conveyance was then executed by the husband alone; certain land being given in exchange. In company with her husband, she resided upon that land and acquired a homestead, and later joined her husband in conveying it to another person. The conveyance of the exchanged land had been to the community estate. There was no evidence of fraud or concealment on her part, or that her separate estate had in any wise benefited by the transfer. Held, that she was not estopped from claiming her separate estate because she joined in the conveyance of the community estate.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 733; Dec. Dig. § 198.*]</p> <p>5. Trespass to Try Title (§ 45*) — Actions —Instructions.</p> <p>In an action of trespass to try title, where the plaintiff claimed that the defendant’s grantor had executed a previous deed under which he had title to the land, and there was evidence that the defendant had not acted fairly with his grantor, who was his aunt, there being some difference in the testimony of the two as to the nature of this transaction, a charge that in determining this case argument as to whether or not the defendant’s trade with his grantor was a fair one should be disregarded in no wise prejudiced the rights of the plaintiff, or deprived him of the right to any benefit he might secure in showing the discrepancies in the statements of the defendant and his grantor.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 67; Dec. Dig. § 45.*]</p> <p>6. Appeal and Error (§ 1002*) — Review-Findings — Credibility op Witnesses.</p> <p>In an action of trespass to try title, though there was strong evidence to show that the defendant’s grantor had previously conveyed her interest, where she testified that she had not so conveyed her interest, and the jury found in accordance with her testimony, that finding cannot be reviewed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p>

<p>Appeal from District Court, Hunt County; T. D. Montrose, Judge.</p> <p>Action by- D. O. Driver against the St. Louis Southwestern Railway Company of Texas.' Judgment for plaintiff, and defendant appeals.</p>

<p>1. Judgment (§ 324*) — Amendment.</p> <p>Under Rev. St. 1895, art. 1356, authorizing amendments in open court of judgments, the court, on petition to correct a mistake in a judgment, may act on its own recollection, or on such legal evidence as to it may seem proper, and evidence consisting of formal bills of exception, duly made and filed, is sufficient.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 623-625; Dec. Dig. § 324.*]</p> <p>2. Appeal and Eeeob (§ 347*) — Time foe Appeal.</p> <p>The time within which an appeal from a judgment must be taken must be computed from the date of the entry of a nunc pro tunc order correcting the judgment, so as to show that it disposed of all the issues. .</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1897-1899; Dec. Dig. § 347.*]</p> <p>3. 'Sales (§ 287*) — Action foe Peice — Failure of Consideration.</p> <p>Where a maker of a note given for the price of a jack, bought for breeding purposes and warranted by the seller, answers, in a suit on the note, that the representations were false, and claims a total failure of consideration, the maker, though retaining the animal, may yet recover damages for a partial failure of consideration by proving a Breach of the warranty, and that the animal has some value, so that an instruction that an offer to return was essential to a recovery by defendant was erroneous.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 811-816; Dec. Dig. § 287.*]</p> <p>4. Sales (§ 287*) — Breach of Warranty-Return or Tender of Article Bought.</p> <p>A buyer of a jack for breeding purposes, who shows that the jack is worthless and without any market value in the United States, is entitled to relief without returning or tendering a return of the animal.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 811-816; Dec. Dig. § 287.*]</p> <p>5. Trial (§ 191*) — Instructions — Assumption op Fact.</p> <p>A charge which assumes a fact in issue for the jury is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]</p>

<p>Appeal from District Court, Wichita County; A. H. Carrigan, Judge.</p> <p>Action by J. P. Jones and others against W. W. Linville. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Bell County Court; W. S. Shipp, Judge.</p> <p>Action by J. H. Head against the City of Belton. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Injunction (§ 172*) — Review—Dissolution ou Temporary Injunction.</p> <p>An order dissolving a temporary injunction, granted, without notice, on the petition, will be affirmed, having been on an answer under oath, clearly denying the material facts, and supported by ample testimony.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 172.*]</p>

Error from District Court, San Augustine County; W. B. Powell, Judge. Trespass to try title by Allie Turner and others against John H. Pope and others. Judgment for plaintiffs for a part of the land in controversy, and judgment for defendants as to a part, and plaintiffs bring error.

P. Huff, Judge. Action by A. B. Jones against the Vernon Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Late on May 22, 1909, appellee and his companion, Herring, applied to the night superintendent of appellant for employment, and were employed, and at 7 o’clock p. m., along with the night shift, were set to work in the mealroom trucking meal. They offered for no special work, and were not engaged for special work, hut generally to do work.

<p>1. Master and Servant (§ 260*) — Injury to Servant — Assumption op Risk — Pleading.</p> <p>A petition in an action for the death of an engineer while operating a stationary engine, which alleges that the base on which the engine stood was too narrow to furnish safe standing room; that the passageway between the engine and the outer edge of the opening in the floor in which a drivewheel revolved was too narrow, in that the width of the cement base was six inches and the floor space six inches; that a guard rail was placed across the open space, instead of on the outer edge thereof; that decedent slipped or fell into the opening — states no cause of action, as the facts show that he assumed the risk of injury, notwithstanding any allegations to the contrary.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 260.*]</p> <p>2. Pleading- (§ 8*) — Conclusions.</p> <p>Where the facts show that the position of a guard rail, alleged as a defect, was plainly visible, an allegation in an action for the death of a servant that it could not be discovered by a casual observer, and was not known to decedent, was but a mere conclusion, and could not prevail against the facts alleged.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 8.*]</p> <p>3. Master and Servant (§ 258*) — Injury to Servant — Negligence—Petition.</p> <p>A petition in an action for the death of a servant which alleges that decedent’s feet slipped from under him on a greasy floor, precipitating him into an unguarded pit where a wheel was revolving, or that he stepped into the pit, or otherwise came into contact with the wheel, does not sufficiently allege that the condition of the floor was the cause of the accident, under the rule that plaintiff suing for a negligent injury must affirmatively allege that the negligent act relied on was the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. § 258.*]</p>

<p>1. Trial (§ 250*) — Instructions — Applicability to Issues.</p> <p>In an action for injuries from the breaking of a levee as a-result of defendant’s negligence in the extension of its waterworks system, a charge that defendant had the right to enlarge its system of waterworks and to make the excavation in which to build the tunnels complained of in connection with such enlargement was not error, where it was not denied that defendant had the right to enlarge its waterworks, and there was no evidence that a sufficient supply of water could have been obtained by the construction of a tunnel in any other place.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. § 250.*]</p> <p>2. Trial (§ 192*) — Instructions — Province of Court and Jury — Assumption as to Fact.</p> <p>It is not error for the court to assume in its charge a fact which is established by uncon-troverted testimony.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 482-434; Dec. Dig. § 192.*)</p> <p>3. Witnesses (§ 237*) — Examination—Questions Assuming Facts.</p> <p>In an action for injuries from the breaking of a levee, there was no error in permitting a question to a witness assuming that the levee gave way, where that fact was uncontroverted.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 829-832; Dec. Dig. § 237.*]</p> <p>4. Appeal and Error (§ 1048’y — Harmless Error.</p> <p>In cross-questioning a witness, a question complained of as assuming what he had not said is not harmful, where the witness was intelligent, and made it perfectly plain what he did say.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145; Dec. Dig. § 1048.*]</p> <p>5. Appeal and Error (§ 1046*) — Review-Harmless Error — Remarks of Judge.</p> <p>The remark of the judge in ruling on an objection to a question to appellant’s witness on cross-examination that it assumed what the witness had not said that the court thought the witness would keep it pretty straight was not injurious to appellant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4134; Dec. Dig. § 1046.*]</p> <p>6. Evidence (§ 513*) —Expert Testimony — Examination of Witness.</p> <p>A witness was properly permitted to give Ms opinion on matters relating to the construction of a tunnel where he was shown to be an expert in such matters, and, in connection with</p> <p>the opinion given, he stated fully all the facts on which they were based.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2317, 2318; Dec. Dig. § 513.*]</p> <p>7. Witnesses (§ 240*) — Examination—Leading Questions — Discretion of Court.</p> <p>The refusal to permit appellants to lead their witness is not an abuse of discretion where it does not appear that he was not willing to answer the questions, nor that he made any attempt to evade any question, nor that he was lacking in intelligence.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 240.*]</p>

<p>1. Appeal and Error (§ 742*) — Assignments op Eeboe — Propositions and Statements Accompanying Assignment.</p> <p>In an action for commissions on the sale of goods, an assignment that the court erred in permitting plaintiff to be recalled after the jury had received the charge and retired to consider their verdict, and to testify, over objection, that the amount of accounts due by parties to defendant who had failed and not paid was about $1,100, the evidence showing that plaintiff did not know whether all the goods included in such accounts were shipped by defendant to customers or not, and his statement of the amount being hearsay, the statement of an opinion and conclusion, and the testimony showing that he kept and had a duplicate of the order which would show the amount of their account, and which would therefore be the best evidence, will not be considered, being insufficient to disclose the point relied on, and not being followed by any proposition or statement.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Evidence (§ 158*) — Best and Secondary Evidence — Facts Evidenced by Writing.</p> <p>In an action for commissions on the sale of goods, parol testimony as to plaintiff’s recollection of the amount of his sales was not rendered inadmissible by the fact that he kept duplicate slips for most of the sales, his testimony not being as to what the slips showed, but as to •the facts, independently of what they showe'd.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 158.*]</p> <p>3. Appeal and Ereoe (§ 1052*) — Harmless Error — Reception oe Evidence.</p> <p>A contention that it was error to admit oral testimony of facts which might have been shown by letters in the witness’ possession will not be •sustained, where the letters were in fact introduced in evidence after the opposite party had closed its evidence;, there being no contention that the court abused its discretion by admitting the letters at that stage of the proceedings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1052.*]</p> <p>4. Principal and Agent (§ 89*) — Contract-. Modification — Question foe Juey.</p> <p>In an action for commissions on the sail •of goods, where the original contract for com missions at 12% per. cent, was modified so as to provide for commissions at 5 per cent, anc traveling expenses, plaintiff’s testimony that the change was to last only to July 1, 1908, and then they “were to go back,” was sufficient tc make a question for the jury, though the letters introduced to prove the modification did not -specifically show that the change thereby made should.be in effect only to July 1st, or to any •other given time.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Dee. Dig. § 89.*]</p> <p>-5. Peincipal and Agent (§ 89*) — Action foe Commissions — Issues and Proof — Counterclaim.</p> <p>In an action for commissions on the sale of •goods, where defendant pleaded a cross-action .against plaintiff for the value of trunks, samples, etc., retained by plaintiff, and the plaintiff in a ■supplemental petition did not deny defendant’s ownership, but declared that he would retain possession until the amount claimed by him from .defendant was paid, he having no right to so retain them, evidence was admissible on behalf of defendant as to their value.</p> <p>[Ed. Note. — For other eases, see Principal and Agent, Dec. Dig. § 89.*]</p>

<p>1. Trial (§ 251*)—Submission oe Issues— Conformity to Pleadings.</p> <p>In a suit against a railway company ■ for a nuisance, counting on unnecessary noises made by passing locomotives, it was error to predicate plaintiff’s right to recover on unusual noises.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>2. Trial (§ 203*) — Issues—Duty to Submit.</p> <p>It is error to omit to submit an issue raised by the pleadings and evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. § 203.*]</p> <p>3. Railboads (§ 222*) — Nuisances — Defenses.</p> <p>A railroad company cannot defeat liability for nuisances arising from unnecessary noises because railroads generally are operated in the same way.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 720-724; Dec. Dig. § 222.*]</p> <p>4. Limitation of Actions (§ 55*) — Nuisances —Limitations.</p> <p>That a railroad company has been operated for more than two years does not preclude an adjoining landowner from recovering for nuisances maintained within two years before suit arising from the method of operating trains.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.*]</p>

Foree, Judge. Consolidated actions by R. C. Buckner against J. Mercer Carter and others, and by the latter against the former. From a judgment for Carter, Buckner appeals.

M. Walthall, Judge. Action by C. O. Coffin against W. P. Skov and others, and cross-action by defendants. From a judgment for plaintiff, defendants appeal.

<p>Appeal from District Court, La Salle County; J. F. Mullally, Judge.</p> <p>Action by Seguin Milling & Power Company against W. I. Nicholson and John P. Guinn. Dismissed as to defendant Nicholson, and judgment for defendant Guinn, and plaintiff appeals.</p>

<p>1. Tenancy in Common (§ 38*)—Pleading-Requisites.</p> <p>In a suit by several upon equitable grounds to establish a tenancy in common with defendant, who was employed to protect their lands in severalty, it was unnecessary to aver and establish the specific interest claimed by each plaintiff, as would be required if plaintiffs sued as tenants in common.</p> <p>[Ed. Note.—For other cases, see Tenancy in Common, Dec. Dig. § 38.*]</p> <p>2. Trusts (§ 103*)—Attorney as Equitable Trustee—Estobpel.</p> <p>An attorney employed to enforce interests in land for a share of the recovery, and who, as such attorney, has acquired the legal title to the lands, is estopped to deny his clients’ title'and his trusteeship for their benefit.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 154; Dec. Dig. § 103.*]</p> <p>3. Trusts (§ 103*)—Constructive Trust.</p> <p>An attorney, having acquired land under a compromise in a suit in which he was employed to enforce interests for a share of the recovery, cannot repudiate a promise that the clients should have part of the land so acquired, and leave them merely to their remedy for breach of contract.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 154; Dec. Dig. § 103.*]</p> <p>4. Trusts (§ 103*)—Attorney as Client’s Trustee.</p> <p>An attorney employed to enforce interests in land for a share of the recovery could not defeat their rights to interests in the land acquired by him under a compromise by procuring the legal title to be vested in another.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. § 154; Dec. Dig. § 103.*]</p> <p>5. Trusts (§§ 17, 18*)—Parol Trusts.</p> <p>A parol agreement to acquire and hold lands in trust for another is not within the statute of frauds.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 15-24; Dec. Dig. §§ 17, 18.*]</p> <p>6. Trusts (§ 103*)—Attorney as Client’s Trustee.</p> <p>Equity will compel an attorney to convey to his clients lands to which they have acquired equitable title under his dealings in their behalf.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent Dig. § 154; Dec. Dig. § 103.*]</p> <p>7. Tenancy in Common (§ 38*) — Suit to Establish Cotenancy—Judgment.</p> <p>In a suit by several to establish a coten-ancy in land to which defendant acquired the legal title under a compromise in a suit in which he was employed by them under a contract for one-half of the recovery, failure of some of the plaintiffs to establish interests did not affect the right of the successful plaintiffs to a joint one-half interest.</p> <p>[Ed. Note.—For other cases, see Tenancy in Common, Dec. Dig. § 38.*]</p> <p>8. Teusts (§ 91*) — Trusts in Intitum — Requisites.</p> <p>Trusts in invitum do not depend upon agreement or expressions of the trustee; they arise from sound equitable principles.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. § 139; Dee. Dig. § 91.*]</p> <p>9. Tenancy in Common (§ 30*) — Payment oe Taxes — Inurement oe Beneeit.</p> <p>One’s redemption of land at a tax sale inures to the benefit of his equitable cotenants.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig'. §§ 95, 96, 98, 99; Dec. Dig. § 30.*]</p> <p>10. Principal and Agent (§ 69*) — Disabilities oe Agent.</p> <p>In equity an agent is disabled from dealing with the subject-matter on his own account.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 130, 115; Dec. Dig. § 69.*]</p> <p>11. Trusts (§ 103*) — Equitable Trusts — Requisites.</p> <p>To establish an equitable trust in land acquired under compromise of a suit in which plaintiffs were parties, it was unnecessary that the other party to the suit, in agreeing to the compromise, understood that the land would be charged with the trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 154; Dec. Dig. § 103.*]</p> <p>12. Trusts (§ 103*) — Attorney as Client’s Trustee.</p> <p>In a suit to establish a trust in land which defendant acquired as plaintiffs’ attorney under an agreement for an equal division •of the recovery, it was unnecessary for plaintiffs to show damages were sustained by them through defendant’s breach of the agreement.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 154; Dee. Dig. § 103.*]</p> <p>13. Trusts (§ 107*) — Attorney as Client’s Trustee.</p> <p>An attorney who has acquired the subject-matter of a suit in which he is employed has the burden to establish good faith, in a suit by his client to declare a trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 157; Dee. Dig. § 107.*]</p> <p>14. Attorney and Client (§ 125*)--Sale-Purchase — Attorney as Client’s Trustee.</p> <p>An attorney cannot divest himself of a •trust for his client’s benefit in land acquired as .attorney by purchasing the land at a tax sale.</p> <p>[Ed. Note. — For other cases, see Attorney and ’.Client, Cent. Dig. §§ 250-263; Dec. Dig. § 125.*]</p> <p>15. Trial (§ 370*) — Equity Practice — Submission oe Issues.</p> <p>On request of plaintiffs, a suit in equity was properly submitted to the jury on special ■issues.</p> <p>[Ed. Note. — For other cases, see'Trial, Cent. .Dig. § 881; Dec. Dig. § 370.*]</p> <p>. 16. Trusts (§ 366*) — Unnecessary Parties.</p> <p>In a suit to establish a trust in city land acquired by defendant as plaintiffs’ attorney, ■the city was not a necessary party, though defendant had dedicated part of the land as .streets and alleys, plaintiffs ratifying the dedication, nor was the owner of a street railway built along such streets a necessary party.</p> <p>[Ed. Note. — For other cases, see Trusts, Dec. Dig. § 366.*]</p> <p>:17. Trespass to Try Title (§ 35*) — Issues— Public Easements.</p> <p>A public easement in land which is the ■subject of litigation between individual parties is not involved in the suit, unless expressly brought into it by the parties.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.*]</p> <p>18. Trusts (§ 366*) — Suit to Establish— Unnecessary Parties.</p> <p>In a suit to establish a trust in land which defendant acquired as plaintiffs’ attorney, one to whom defendant had sold part of the land as so acquired was not a necessary party, where plaintiffs claimed no interest in that part, charging it to defendant’s share of the whole tract.</p> <p>[Ed. Note. — For other cases, see Trusts, Dec. Dig. § 366.*]</p> <p>19. Appeal and Error (§ 213*) — Failure to Present Question Below — Submission of Issues.</p> <p>Defendants in equity cannot complain of failure to submit certain issues along with others, where they did not request such submission.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1305; Dec. Dig. § 213.*]</p> <p>20. Trial (§ 370*) — Submission of Issues— Scope.</p> <p>On submitting issues in an equity case, only such matters of fact as in some way tend to establish or defeat a cause of action need be submitted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 881; Dec. Dig. § 370.*]</p> <p>21. Appeal and Error ■(§ 1062*) — Beview— Submission of Issues.</p> <p>In equity, where plaintiffs’ pleadings present several theories on either of which, if established, they are entitled to recover, and it is manifest from the undisputed facts and such as are embraced in the verdict that the judgment rendered was had upon one of the several theories, which is fully sustained by the.facts, the failure of the court to submit issues which pertain only to the other' theory affords no ground for the reversal of such judgment.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dee. Dig. § 1082.*]</p> <p>22. Trusts (§ 103*) — Attorney as Client’s Trustee.</p> <p>In a suit to establish a trust in land acquired by defendant under a compromise as plaintiffs’ attorney., it is immaterial whether plaintiffs claimed in the compromised suit by limitations or otherwise.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent, Dig. § 154; Dec. Dig. § 103.*]</p> <p>23. Trusts (§ 374*) — Decree—Propriety.</p> <p>On declaring a trust in land acquired by defendant as plaintiffs’ attorney under an agreement for an equal division of the recovery, it was proper to decree partition between defendant and plaintiffs, where the interests of the parties were established and subject to ad-measurement.</p> <p>[Ed. Note. — For other cases, see Trusts, Dec. Dig. § 374.*]</p> <p>24. Partition (§ 92*) — Value — Ascertainment.</p> <p>On decreeing partition of land one-half of which defendant was declared to hold in trust for plaintiffs, it was not error to authorize the commissioners to consider the value of the property; defendants not having requested submission of value to the jury as an issue.</p> <p>[Ed. Note. — For other cases, see Partition, Dec. Dig. § 92.*]</p> <p>26. Appeal and Error (§§ 724, 736, 742*)— Assignments op Error — Sufficiency.</p> <p>An assignment of error is not reviewable when presented as a proposition in itself, when not followed by a proposition, and when argumentative and containing several separate issues.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022. 302S, 3029, 3000; Dec. Dig. §§ 724, 736, 742.*]</p> <p>26. Appeal and Error (§ 742*) — Assignments op Error.</p> <p>An assignment of error not followed by the statement required by Court of Civil Appeals Rule 3Í (67 S. W. xvi) will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>27. Appeal and Error (§ 1053*) — Harmless Error — Admission op Evidence.</p> <p>Appellants cannot complain of the admission of testimony afterwards withdrawn from the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.*]</p> <p>On Motion for Rehearing.</p> <p>28. Attorney and Client (§ 125*) —Payment op Taxes — Right to Reimbursement.</p> <p>An attorney who has fraudulently attempted to overreach his clients is not entitled to reimbursement for taxes paid under the scheme to defraud.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 250-263; Dec. Dig. § 125.*]</p>

Certified Question from Court of Civil Appeals, Fifth Supreme Judicial District. Action by the State against J. C. Duke and others. There was a judgment denying relief, and the state appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.

<p>Appeal from Grayson County Court; J. ■Q. Adamson, Judge.</p> <p>John Mackey was convicted of violating the local option law, and he appeals.</p>

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>W. W. Lawrence applied for habeas corpus, was remanded .without bail, and appeals.</p>

<p>Appeal from District Court, Dallas County ; J. C. Roberts, Judge.</p> <p>Action by Ernest L. Bnrns, by his guardian, against Jennie E. Parker and husband. From the judgment, plaintiff appeals.</p> <p>This is an action in statutory form of trespass to try title; filed in the district court of Dallas county by Ernest L. Burns, a minor, per J. H. Burns, bis guardian, plaintiff and appellant, to recover of Jennie E. Parker and her husband, W. B. Parker, appellees, certain lots of land and the improvements thereon and the rents of same, situated in the city and county of Dallas, Tex. There was a trial before the court without a jury, and judgment rendered for plaintiff for the lots; but he was denied a recovery for the improvements standing thereon and for the rents, and he prosecutes this appeal.</p> <p>The appellant, Ernest Burns, is the adopted son of Theodore Nussbaumer and his wife, Jennie Nussbaumer, now Jennie E. Parker, appellee. ' During the lifetime of Theodore Nussbaumer, he acquired by gift from his mother one acre of land in the city of Dallas, which he and his wife occupied as their homestead. This land fronts 150 feet on the northwest side of Chestnut street, and runs hack 291% feet, the width of its front, on the north line of Dawson street. Theodore Nussbaumer died in 1902, and after his death his wife continued to occupy the property as her homestead. It was 26 feet from its extreme rear end to College street, which street runs parallel with Chestnut street. Mrs. Nussbaumer acquired this, -26.,feet, extending 150 feet along College street, as her separate property. Her homestead at the time of the trial consisted of that part of the original homestead lying in the northeast corner of the same, and fronting 100 feet on Chestnut street, and extending back, along the north side of Dawson street, the width of its front, 191% feet, upon which her residence is situated. The 150xl00-foot lot, in the rear of her present homestead and of the 50xl00-foot lot upon which a rent house had been erected, was divided in three lots, each 50 feet wide; and by platting the strip, 26x150 feet, owned by Mrs. Nussbaumer individually, these three lots were made to front on College street, and houses were erected thereon for renting purposes; about two feet of each of said houses being upon the 26x150 feet. These houses, as also the house on lot A, were erected by Mrs. Nuss-baumer out of her separate funds.</p> <p>Theodore Nussbaumer and Mrs. Nussbaumer acquired title jointly to a tract fronting 50 feet on Chestnut street and running back the width of its front along the south line of Dawson street to College street, which tract is now known as lots 1 and 8, of block 3, of Nussbaumer’s addition to the city of Dallas. The location of the property and the manner in which it is subdivided may be gathered by an examination of the map as follows:</p> <p> </p> <p>The original homestead is shown by the red line. The parts of the original homestead abandoned by appellee Mrs. Parker are shown by lots A, B, O, and D. Judgment was rendered giving Ernest L. Burns a fee-simple title to all of the original Theodore Nussbaumer homestead, and giving him immediate possession of said four lots. The judgment awards to Mrs. Parker the possession of that part of the original homestead not abandoned by her, and adjudges to her the absolute ownership of all the improvements on said four lots, A, B, O, and D, as her separate property. It stipulates that said lots should be partitioned between plaintiff and defendant, giving to E. L. Burns, if the same can be justly and fairly done, his two-thirds covering that part which does not include the improvements, and to defendant Jennie E. Parker her one-third covering the improvements; but, if the two-thirds so allotted to Ernest L. Btorns should embrace one or more of the cottages thereon, then defendant Jennie E. Parker may be allowed to remove the cottages therefrom under the-court’s direction. Ernest L. Burns and Mrs. Jennie E. Parker are each adjudged to own an undivided one-half of lots T and 8, of block 3, of Nussbaumer’s addition to the city of Dallas. It was adjudged that defendant Mrs. Jennie E. Parker owns as her own separate property the improvements upon said lots 1 and 8, and on partition the same should be set off to her, if practicable; but, if the same cannot be set off, then upon any sale made for partition she should be allowed pro rata therefor.</p>

<p>Error from District Court, Sutton County; J. W. Timmins, Judge.</p> <p>Action by the State against H. Murphy to cancel an award and sale of certain public school lands. From a judgment dismissing the suit, the State brings error.</p>

<p>Error from Kaufman County Court; Thos. R. Bond, Judge.</p> <p>Action by C. M. Grigsby and others against, the Texas & Pacific Railway Company. From a judgment in a Justice’s Court for plaintiffs, defendant appealed to the County Court, where judgment was given in its favor, and the plaintiffs bring error.</p>

<p>Appeal from District Court, Brewster County; W. C. Douglas, Judge.</p> <p>Action by ■ Charles T. Wilson against the Texas Rubber Company. From an order refusing to dismiss a receiver, defendant appeals.</p>

<p>1. Master and Servant (§ 189*) — Injuries to Servant — Fellow Servants — Statutory Provisions.</p> <p>Under Rev. St. 1895, art. 4560g, and Acts 1909 (1st Ex. Sess.) c. 10, relating to the liability of railroads for injuries to employés, a boiler maker and his helper, the former having authority to direct and superintend the latter in the work they were doing, though he did not have power to hire and discharge, were not fellow servants.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435; Dec. Dig. § 189.*]</p> <p>2. Constitutional Law (§ 245*) — Equal Protection op Laws.</p> <p>Rev. St. 1895, art. 4560g, and Acts 1909 (1st Ex. Sess.) c. 10, relating to the liability of railroad companies for injuries to employés, and abrogating the common-law rule that the employe’s negligence would not be imputed to the master unless the power to hire and discharge was conferred on him, are not violative of the equal protection clause of the fourteenth amendment to U. S. Const.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 702; Dec, Dig. § 245.*]</p> <p>3. Master and Servant (§ 180*) — Injuries to Servant — Railroads—Employer’s Liability Statutes — Repeal.</p> <p>Rev. St. 1895, art. 4560g, making any person engaged in the service of a railway corpora-ting operating a railroad situated, etc., in this state, and who is authorized by such corporation to control or direct any other employe in the performance of his duty, a vice principal of such corporation, was not repealed 'by implication' by Acts 1909 (1st Ex. Sess.) c. 10, referred to as the “Texas Employer’s liability Act.”</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-368; Dec. Dig. § 180.*]</p> <p>4. -Statutes (§ 159*) — Repeal by Implication.</p> <p>To repeal a statute- by implication, there must be a repugnancy between the provisions of the new law and the old, and the new must be contrary to the prior law; it not sufficing that the later law is different.</p> <p>[Ed. Note. — For other cases, See Statutes, Cent. Dig. §§ 229, 231; Dec. Dig. § 159.*]</p> <p>5. Master and Servant (§ 279*) — Injuries to Servant — Negligence—Sufficiency op Evidence.</p> <p>In a servant’s action against a railroad company for injuries while repairing boilers, evidence held, to show that defendants’ vice principal was guilty of negligence proximately causing tile injuries.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-980; Dec. Dig. § 279.*]</p> <p>6. Appeal and Ebror (§ 216*) — Necessity of Objections — Instructions.</p> <p>A party failing to request a special charge correcting an error of omission in the charge given may not complain on appeal.</p> <p>[Ed. Note. — For. other cases, see Appeal and Error, Dec. Dig. '§ 216 ;* Trial, Cent. Dig. §§ 630-641.]</p> <p>7. Damages (§ 26*) — Personal Injuries — Evidence.</p> <p>It is not essential to an injured party’s right to recover for future consequences of his injuries that he show that it is “reasonably certain” that he will suffer the future results claimed; it sufficing to show a reasonable probability of the occurrence of future ill effects of the injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 69, 236; Dec. Dig. § 26.*]</p> <p>8. Damages (§ 132*) — Personal Injuries— Excessive Damages.</p> <p>Where the sight of plaintiff’s right eye was entirely destroyed, and the evidence indicated that the sight of the left eye had been impaired, two physicians testifying that plaintiff had only' two thirds normal vision in his left eye, and that its condition was due to sympathetic weakness, from the injury to the right eye, a verdict for $11,000 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-3.85; Dec. Dig. .§ 132.*]</p>

<p>Appeal from District Court, Dallas County ; Kenneth Foree, Judge.</p> <p>Action by R'. C. Fisher against C. H. Alexander and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Galveston County; Robert G. Street, Judge.</p> <p>Action by R. A. Clark against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for defendant. Plaintiff appeals.</p>

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by Henry Rader and others against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for defendant, plaintiffs appeal.</p>

T. Simmons, Judge. Actions by J. O. Patton against the Texas & Pacific Railway Company and others, and Stanley Taylor against the same defendants. Erom a judgment for defendants, both plaintiffs appeal.

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Action by the Galveston & Western Railway Company against the City of Galveston. Prom an interlocutory order refusing a temporary -injunction, plaintiff appeals.</p>

<p>1. New Trial (§ 44*) — Grounds — Misconduct of Juror —Giving Juror Intoxicants.</p> <p>M., who was at the place of trial in the interest of his brother, who was to be tried for murder,at the same term, gave a juror a drink of whisky which he brought with him, in the presence of H., who was in the employ of plaintiff’s attorneys to investigate evidence in personal injury actions. M. was a friend of H., but had never seen plaintiff until he assisted in carrying him into the courtroom. Plaintiff’s attorneys were not acquainted at the place of trial, and M. told them, when they were Inspecting the jury list, that such juror was a good man. On account of the crowded condition of the hotel, M. and H. roomed together, and M. put a bottle of whisky in Ii.’s grip, and asked the. juror to take a drink with him in a vacant building; H. not drinking and nothing being said about the case, H. not knowing at the time that the juror was on the jury. Seld, that the giving of the drink to the juror was not ground for a new trial, M. not having acted in plaintiff’s interest, but apparently in the interest of his brother.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85; Dec. Dig. § 44.*]</p> <p>2. New Teial (§ 44*) — Gbounds — Misconduct of Jubob — Discbetion oe Court.</p> <p>The refusal of a new trial because of the misconduct of the juror was within the trial court’s discretion under Daws 1905, c. 18, amending Rev. St. 1895, art. 1371, providing that, if misconduct of a juror be material, a new trial may be granted in the court’s discretion; the court’s finding on an issue of fact in such ease being entitled to the same weight as a jury finding.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85; Dec. Dig. § 44.*]</p> <p>3. New Triad (§ 140*) — Grounds — Misconduct of Juboe — Burden of Proof.</p> <p>Notwithstanding Laws 1905, c. 18, amending Rev. St. 1895, art. 1371, providing that, if the misconduct of a juror be material, a new trial may be granted in the court’s discretion, where improper conduct is shown, the offending party has the burden of showing, to the court’s satisfaction, that the juror was not influenced thereby.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 284r-306; Dec. Dig. § 140.*]</p> <p>4. New Trial (§ 44*) — Grounds — Misconduct of Juror.</p> <p>That a juror stated during the jury’s deliberation that he fav.ored the award of $50,000 damages in a personal injury action because plaintiff’s attorneys would get one-half of the amount recovered was not such misconduct as to require a new trial; the statement being merely an expression of opinion, and not a statement of fact purporting to be within his knowledge.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85; Dec. Dig. § 44.*]</p> <p>5. Appeal and Error (§ 1066*) — Harmless Error — Instructions — Unnecessary Instructions.</p> <p>Defendant in a personal injury action cannot complain on appeal of error in a charge on contributory negligence, where the evidence did not require such charge.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]</p> <p>6. Damages (§ 46*) — Personal Injuries— Medical Expenses.</p> <p>That plaintiff’s physician looked to his brother-in-law for pay for his services would not prevent an award of reasonable medical expenses in a personal injury action. x</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 99, 251; Dee. Dig. § 46.*]</p> <p>7. Appeal and Error (§ 216*) — Preservation of Grounds — Request for Instruction — Necessity.</p> <p>Where an instruction in an employes personal injury action authorizing the jury to consider reasonable medical expenses incurred for medical services correctly stated the law so far as it went, defendant cannot object thereto on appeal on the ground that there was no evidence as to the amount of the charges of some of plaintiff’s physicians, where it did not request a further charge qualifying the instruction given.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. §§ 627-641.]</p> <p>8. Witnesses (§ 248*) — Questions Answered.</p> <p>In a freight brakeman’s action for personal injuries by other cars being backed into a caboose in which he was sleeping, knocking him out of the caboose, a witness was asked what, if anything, the switching crew should have done before running onto the caboose track and what was the custom in that respect, and, upon objection and before an answer was made, witness was asked, “What was usually done?” which was not objected to, and witness answered, “You have got to inspect the brake. A man never cuts off a car unless he inspects the brake. If he does, he does not do his duty.” Seld, that the first question asked was not answered.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec, Dig. § 248.*]</p> <p>9. Master and Servant (§ 270*) — Injuries— • Admission of Evidence — Negligence.</p> <p>In a freight brakeman’s action for personal injuries by ears being switched against a caboose in which he was sleeping knocking him out of the caboose, evidence as to the custom as to what switching crews usually do before switching cars was admissible on the issue of negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 270.*]</p> <p>10. Appeal and Error (§ 237*) — Preservation of Grounds — Reception of Evidence-Part Inadmissible.</p> <p>If a part of an answer to a question was objectionable, the objecting party cannot assign error thereon, unless he moves to exclude such part.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1386-1388; Dec. Dig. § 237;* Trial, Cent. Dig. §§ 228-252.]</p> <p>11. Damages (§ 130*) — Excessive Damages— Personal Injuries.</p> <p>A verdict for $30,000 in a railroad brakeman’s action for personal injuries held sustained by evidence.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367; Dec. Dig. § 130.*]</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by Juliette Pearson against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals.</p>

A. Wilcox, Judge. Action by the Galveston Chamber of Commerce and others against the Railroad Commission of Texas and others. From a judgment for defendants, plaintiffs appeal.

<p>1. Telegraphs and Telephones (§ 51*) — Delay in Telephone Connection — Contributory Negligence.</p> <p>Where plaintiff was informed over the long distance telephone that her father had been struck by a street car, but was not seriously injured, and that, if the doctors later found his condition serious, she would be informed, it was not contributory negligence on her part to fail to start at once to her father’s bedside, so as to preclude recovery for mental suffering due to the fact that connection was negligently denied at a later hour when it was attempted to tell her that her father was fatally hurt, by which she was prevented from reaching him while still alive.</p> <p>[Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 35; Dee. Dig. § 51.*]</p> <p>2. Tbial (§ 260*) — Instructions Aleeady Given.</p> <p>Requested instructions, already covered by those given, are properly refused.</p> <p>[Ed. Note. — Eor other cases, see Trial, Gent. Dig. § 651; Dec. Dig. § 260.*]</p> <p>3. New Teial (§ 162*) — Denial Conditioned on Remission of Paet op Recovery.</p> <p>Under Rev. St. 1895, art. 1029a, authorizing the Court of Civil Appeals to require the remission of so much of a recovery as it deems excessive as a condition of refusing to reverse, a similar action of the trial court as a condition of denying a new trial is not error.</p> <p>[Ed. Note. — For other eases, see New Trial, Cent. Dig. §§ 324-329; Dec. Dig. § 162.*]</p> <p>4. Telegraphs and Telephones (§ 56*) — Eailuke to Give Telephone Connection —Agency op Person Calling fob Person Called.</p> <p>Where J. requested a long-distance telephone connection, stating that it was for plaintiff’s benefit, and to notify her of the dangerous state of her father so that she could come at once, J. was the agent of the plaintiff in so doing, and the facts established a contract relation between plaintiff and the telephone company, entitling her to sue for the negligent failure to give the connection whereby plaintiff was unable to reach her father before he died.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 37; Dec. Dig. § 56.*]</p> <p>5. Telegraphs and Telephones (§ 71*) — Failure to Deliver Message — Amount op Recovery — Mental Anguish.</p> <p>In an action against a telephone company for a negligent failure to give a long-distance connection, whereby plaintiff was deprived of being with her injured father for three hours before he died, during all of which time he was unconscious, a verdict of $1,500 for mental anguish, reduced by the trial court to $1,000, was not so excessive as to require a further reduction at the hands of the appellate court.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dee. Dig. § 71.*]</p> <p>Reese, J., dissenting in part.</p>

<p>Appeal from Runnels County Court; R. S. Griggs, Judge.</p> <p>Action by F. B. Brooks and another against W. F. Whitaker and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Hays County Court; Ed R. Kone, Judge.</p> <p>Action by W. A. Mer-ideth against the In~ ternátional & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Matagorda County Court; W. S. Holman, Judge.</p> <p>Action by B. Zuch, as E. Zuch’s executor, against the St. Louis, Brownsville & Mexico Railway Company. Judgment for plaintiff, and defendant appeals.</p>

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

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by the Farmers’ Rice Milling & Storage Company against C. H. Sweeney to foreclose a chattel mortgage, in aid of which plaintiff sued out a writ of sequestration, and in which defendant filed a plea in reconvention for damages from the alleged wrongful writ of sequestration, and in which R. F. Faickney and J. P. Blackwell, copartners under the firm name of Faickney & Blackwell, intervened, alleging defendant’s indebtedness to them, and claiming a mortgage lien on part of the property covered by plaintiff’s writ of sequestration. Defendant’s motion to quash plaintiff’s application and bond for the writ of sequestration was overruled, and there was a judgment for plaintiff, with a decree for foreclosure of the mortgage, and judgment for interveners with a decree for the foreclosure of their mortgage, subject to plaintiff’s superior lien, and defendant appeals.</p>

<p>Master and Servant (§ 32*) — Discharge or Servant — Service Letter — Right oe Action.</p> <p>In .an action against defendant railroad company, the pleading and proof showed that plaintiff, a brakeman, refused ta handle cars when directed so to do, on the ground that it was dangerous, and was discharged therefor. A service letter was given to him, in response to his written demand, which was never circulated by the company. There was nothing to question the good faith of defendant in its statement that plaintiff had been guilty of insubordination. Held that, as the letter from the standpoint of the railway company was wholly true, plaintiff had no causé of action because of the' same against defendant.</p> <p>[Ed. Note. — For other cases, see Master and •Servant, Cent. Dig. § 38; Dec. Dig. § 32.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Shearon Bonner against E. A. Belsterling and ’ others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Arthur Lefevre against E. A. Belsterling and others. From a judgment for defendants, plaintiff appeals.</p>

O. Douglas, Judge. Action by J. C. Smith against Wm. M. Edwards and others. Judgment against defendant Edwards and disclaimer by the other defendants, and he appeals.

<p>Appeal from District Court, Ft. Bend County; Wells Thompson, Judge.</p> <p>Action by Ophelia Black and husband against Michael Feeney for the recovery of land, with cross-action by defendant alleging himself to’ be the owner of the land. Judgment ‘ for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Milam County; J. C. Scott, Judge.</p> <p>Action by B. N. Ashley against the Western Union Telegraph Company. From an order sustaining an exception to defendant’s answer, defendant appeals.</p>

<p>Appeal from District Court, Grayson County; B. L. Jones, Judge.</p> <p>Action by W. M. King against S. H. Oliph-ant. .Judgment for defendant, and plaintiff appeals.</p>

W. Wilson, Judge. Action by the Wm. Roylance Company against C. M. Chinski, doing business as the Southeast Texas Produce Company, and R. J. Barry, doing business as Barry Bros. Judgment against defendant Barry, and he appeals.

<p>1. Counties (§ 105*) — Courthouses—Power TO CONSTRUCT.</p> <p>Under Const, art. 5, § 18, giving county commissioners such power over county business as is conferred by the Constitution and general laws, under article 11, § 2, requiring courthouses to be provided for by general law, and under Rev. St. 1895, art. 1537, subd. 7, requiring county commissioners to provide and keep in repair courthouses, county commissioners are empowered to construct such buildings.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 165; Dec. Dig. § 105.*]</p> <p>2. Counties (§ 105*) — Courthouses and Jails — Necessity for Construction — Determination.</p> <p>Whether a courthouse and jail are needed by a county is for sole determination by the commissioners.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 165; Dec. Dig. § 105.*]</p> <p>3. Counties (§ 192*) — Courthouses and Jails — Taxation—Limitation of Rate.</p> <p>The power of county commissioners under Const, art. 8, § 9, as amended December 19, 1890, and under Rev. St. 1895, art. 1538, to levy a tax of 25 cents on $100 valuation to construct buildings, sewers, and other permanent buildings, being limited to that levy for all such purposes, a levy can be made for a courthouse and jail only so far as the limit has not already been reached for the other purposes.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 302; D.ec. Dig. § 192.*]</p> <p>4. Counties (§ 149*) — Courthouses and Jails — Power to Create Debt.</p> <p>County commissioners can create a debt of the county to construct a courthouse and jail, if provision for collection of a tax therefor is made, as provided by Const, art. 11, §§ 6, 7.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 214; Dec. Dig. § 149.*]</p> <p>5. Counties (§ 122*) — Courthouses — Payment — Method—Validity.</p> <p>County commissioners have power to erect a courthouse and jail under a contract providing for payment of the contractors with warrants drawn against the courthouse and jail funds, though the payments are not all within the year of the making of the contract or construction of the building, and to provide for interest on any deferred payments evidenced by such warrantfe.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 181; Dec. Dig. § 122.*]</p> <p>6. Taxation (§ 2*) — Power to Tax.</p> <p>Power to tax for governmental purposes is limited by the Constitution only.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 2; Dec. Dig. § 2.*]</p> <p>7. Taxation (§ 28*) — Delegation of Powers.</p> <p>The general rule of constitutional law that a sovereign power conferred upon one branch of the government cannot be delegated applies to taxation, but does not prevent municipal corporations being given authority concerning taxation, subject to recall.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § €0; Dee. Dig. § 28.*]</p> <p>8. Taxation (§ 28*) — Power to Tax — Delegation.</p> <p>The Legislature cannot confer upon merely administrative or ministerial officers the power to make rules for taxation; and, if such officers are given authority to levy and collect taxes, it must be under rules prescribed for them by the power which grants the authority.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 60; Dec. Dig. § 28.*]</p> <p>9. Counties (§ 174*) — Courthouses—Bonds —Power to Issue.</p> <p>Power of a county to build a courthouse does not imply power to issue bonds therefor.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 264, 265; Dec. Dig. § 174.*]</p> <p>10. Counties (§ 124*) — Courthouses—Construction — Contracts—Validity.</p> <p>Authority of county commissioners to contract for construction of a courthouse cannot arise from estoppel, acceptance, or ratification, without legal authority.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 185; Dec. Dig. § 124.*]</p> <p>11. Counties (§ 105*) — Courthouses—Power to Construct — Constitutional Law.</p> <p>. Const, art. 11, § 2, requiring courthouses to be provided for by general law, limits county commissioners’ power to construct courthouses to the manner and means so provided.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 165, 166; Dec. Dig. § 105.*]</p> <p>12. Counties (§ 105*) — Courthouses—Power to Construct — Constitutional Law.</p> <p>Const, art. 8, § 9, limiting the rate of taxation for county purposes, limits the power of the Legislature under article 11, § 2, requiring courthouses to be provided for by general law, as well as county commissioners in acting under such law.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 165; Dec. Dig. § 105.*]</p> <p>13. Counties (§ 105*) — Courthouses—Power to Construct — Statutes.</p> <p>The power of county commissioners to provide for construction of a courthouse otherwise than from a sale of bonds was not abrogated by Act May 26, 1899 (Acts 26th Leg. c. 149), nor by Act April 28, 1903 (Acts 28th Leg. c. 4), authorizing issuance of county bonds.</p> <p>[Ed. Note. — For other cases, see Counties, Dec. Dig. § 105.*]</p> <p>14. Municipal Corporations (§ 902*) — Warrants — Nature.</p> <p>A municipal warrant or order is an instrument generally in the form of a bill of exchange or order, drawn by an officer of a municipality upon its treasurer, directing him to pay an amount of money .specified to the person named, or his order, or bearer. They are in the ordinary form of commercial paper, but do not possess the qualities of such paper, being regarded as orders of the corporation on itself, and, in substance, the mere promise of the municipality to pay the amount specified, and subject to all the equities existing, or attached to the original transaction.</p> <p>[Ed. Note. — For other caseh, see Municipal Corporations, Cent. Dig. § 1887; Dec. • Dig. § 902.*]</p> <p>15. Municipal Corporations (§ 938.*) — Bonds — Nature.</p> <p>Municipal bonds are negotiable with the attributes of commercial paper, and a bona fide holder thereof for value and before maturity can recover clear of equities against the original holder, subject to authority and regularity in issuance.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1955-1957; Dec. Dig. § 938.*]</p> <p>16. Municipal Corporations (§ 1000*) — Bonds — Taxation — Injunction — Parties.</p> <p>Holders of municipal bonds are necessary parties to suit to 'enjoin collection of taxes for their payment.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2169; Dec. Dig. § 1000.*]</p>

Action by the Arkansas Fertilizer Company against the City National Bank. Judgment for defendant. Plaintiff appeals.

<p>Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.</p> <p>Application by Mrs. Ella Warren for tbe .probate of a will which, was contested by Eliza Ellis and others. From a judgment of the probate court refusing probate to the will, proponent appealed to the district court, and from a judgment in that court refusing probate, she appeals.</p>

B. Muse, Judge. Action by R. J. Riser against Southwestern States Portland Cement Company. From the judgment for plaintiff, defendant appeals. Appellee was in the employment of appellant as a laborer in the construction of a rock storage plant. On the 13th day of May, he, together with a fellow servant, was engaged in riveting sheeting to the side of the structure.

<p>Appeal from District Court, Bee County; E. A. Stevens, Judge.</p> <p>Action by S. E. Miller and another against the San Antonio & Aransas Pass Railway Company and others. Prom the judgment, defendants appeal.</p>

<p>1. Pleading- (§ 261*)' — Carriage of Live Stock — Amendments.</p> <p>In an action against a railroad for damages through delay in transporting plaintiff’s cattle, where the original answer contained general demurrers and special exceptions, etc., and special answers to the effect that those in charge of the cattle did not request that the train be stopped in order to water and feed the stock, though ample facilities were offered, etc., an amended answer setting up numerous special exceptions not included in the original answer and special pleas alleging failure to comply with requirements of the contract, etc., and a failure to request in writing, as provided in the contract, opportunity to water and feed the stock, brought new issues into the case, and its filing w-as properly refused.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Gent. Dig. §§ 794-800; Dec. Dig. § 261.*]</p> <p>2. Appeal and Ereos (§ 959*) — Pleading (§ 236*) — Discretion of Trial Court — Amendment of Pleadings.</p> <p>Matters relating to an amendment of pleadings during a trial must be largely intrusted to the discretion of the trial judge, and, unless there is a palpable abuse of such discretion, appellate courts will not interfere with rulings thereon.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3825-3833; Dec. Dig. § 959;* Pleading, Gent. Dig. § 601; Dee. Dig. § 236.*]</p> <p>3. Witnesses (§ 37*) — Competency—Knowledge.</p> <p>That a witness had been at a certain town only twice did not destroy the effect of his testimony as to the market value of cattle there, since he might know such market value, though he had never visited the place.</p> <p>[Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 80; Dec. Dig. § 37.*]</p> <p>4. Judgment (§ 670*) — 'Oonclusiveness—Ca-pacity of Paety — Community Property.</p> <p>Executors of an estate had full authority to prosecute a suit for damages to community property regardless of who might be entitled to part of it, and a surviving wife suing as an executrix was bound by the judgment, not only as executrix, but as an individual.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 1185; Dec. Dig. § 670.*]</p> <p>5. Trial (§ 260*) — Instructions — Instructions Covered.</p> <p>The refusal of an instruction, the purport whereof was given in the main charge and in special charges, is not error.</p> <p>[Ed. Note.' — Por other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*]</p> <p>6. Trial (§ 327*) — Sufficiency of Verdict.</p> <p>A verdict against railroads designated by initials and parts of words instead of the full names was a sufficient basis for a judgment against them.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. § 768%; Dec. Dig. § 327.*]</p> <p>7. Carriers (§ 228*) — Carriage of Live Stock — Delay in Transportation — Sufficiency of Evidence.</p> <p>Evidence held insufficient to show that a delay in transportation of plaintiff’s cattle was caused by negligence of defendant railroads.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 228.*]</p>

<p>Appeal from Williamson County Court; T. J. Lawhon, Judge.</p> <p>Action by E. H. Young against the Taylor Cotton Oil Company. Judgment for defendant, and plaintiff appeals.</p>