Volume 138 — South Western Reporter

<p>Motion for permission to file petition for mandamus by Pansy Durrill against J. T. Robison, Land Commissioner.</p>

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

<p>Costs (§ 60*) — Partial Success — AppobtionMENT.</p> <p>Rev. St. 1895, art. 1425, provides that the successful party shall recover all costs expended and incurred, except where it may be otherwise provided by law; and article 1438 declares that the court, for good cause, to be stated on the record, may adjudge the costs otherwise than as provided in the preceding articles. Held, that where an alleged widow sued for wrongful death of a decedent, joining a minor daughter as a party plaintiff, and it was ultimately determined that she could not recover at all, and the judgment was sustainable only so far as it awarded damages to the daughter, the costs should be equally divided between the defendant and the alleged widow.</p> <p>[Ed. Note. — For other cases, see Costs, Dec. Dig. § 60.*]</p>

<p>Appeal from Medina County Court; H. E. Haass, Judge.</p> <p>John T. Fitzsimon was convicted of unlawfully pulling down and injuring the fence of a third person, and appeals.</p>

<p>1. Criminal Law (§ 1090*) — -Rulings on Evidence — Review—Bill of Exceptions.</p> <p>A motion for new trial on the ground that ■the court erred in admitting evidence, where no bill of exceptions was reserved, presents no question for review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1090.*]</p> <p>2. Criminal Law (•§ 1097*) — Questions Reviewable — Sufficiency of Evidence — Statement of Facts.</p> <p>In the absence of a statement of facts, the questions of the insufficiency of the evidence to sustain the judgment, and that the evidence discloses an offense not charged in the indictment, are not reviewable.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1097.*] .</p>

<p>Appeal from District Court, Kaufman County; P. L. Hawkins, Judge.</p> <p>Mart Shaw was convicted of murder in the first degree, and he appeals.</p>

<p>Appeal from District Court, Denton County ; Clem B. Potter, Judge.</p> <p>Delos Bradford was convicted of burglary, and be appeals.</p> <p>Affirmed.</p>

<p>1. Evidence (§ 16*) — Judicial Notice — Meaning oe Words — “Yearlings. ”</p> <p>The court takes judicial notice of the ordinary meaning which words have attached to them by general usage, and that, in the vernacular of this state, “yearlings” means animals of the cattle species.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 20; Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7554.]</p> <p>2. Chattel Mortgages (§ 118*)— Description of Property — Animals.</p> <p>Chattel mortgage of 100 cows and 300-head of “yearlings,” with the reference in the mortgage itself to said cows and yearlings as “the cattle above described,” is a sufficiently certain description of the yearlings as cattle, as distinguished from horses or sheep.</p> <p>[Ed. Note. — For other cases, see Chattel ■Mortgages, Cent. Dig. §§ 203, 204; Dec. Dig. § 118.*]</p> <p>3. Chattel Mortgages (§ 177*) — Conversion of Mortgaged Property — Action— Pleading — Variance—“Coming Twos.”</p> <p>A petition in an action for the conversion in October, 1907, of animals, describing them as “coming twos” and as part of property mortgaged to plaintiff in November, 1906, is supported by the mortgage which describes them as “yearlings,” since, if they were yearlings when mortgaged, they would be “coming twos” the following October at the time of the alleged conversion.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Dec. Dig. § 177.*]</p> <p>4. Chattel Mortgages (§ 150*) — Lien to Priority — Construction—Notice.</p> <p>Where a mortgage is made of 300 yearlings to be -acquired by the mortgagor, and to be branded for identification as provided by the mortgage, and is recorded, the record is constructive notice of the mortgagee’s lien as against the party who converts a part of them after all the things necessary for their identification had been done.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 246-252; Dec. Dig. § 150.*]</p> <p>5. Chattel Mortgages (§ 124*) — ’Construction — After-Acquired Property — Subsequent Acts.</p> <p>Where animals not owned then by the mortgagor are mortgaged, and the mortgagor afterwards acquires animals of the kind described by the mortgage, and put them in pasture, and branded them as provided by the mortgage, these acts of the mortgagor sufficiently show a purpose to bring the after-acquired property within the terms of the mortgage, and render the mortgage valid.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 208, 209; Dec. Dig. 124.*]</p> <p>6. Mortgages (§ 137*) — Nature of Mortgage in General — Common Law.</p> <p>At common law, a mortage conveyed the legal title and the right of possession, and nothing was left to the mortgagor except the right of redemption.</p> <p>[Ed. Note. — For other cases, see Mortgages,. Cent. Dig. §§ 270-278; Dec. Dig. § 137.*]</p> <p>7. Chattel Mortgages (§ 11*) — Property Subject to Mortgage — After-Acquired Property — “Potential Existence.”</p> <p>By the doctrine of “potential existence,” which means a present interest in property of which the thing mortgaged is the natural product or growth, as wool to be upon sheep, or crops upon land owned by the mortgagor when the mortgage is made, a mortgage of property not in existence, or which the mortgagor does-not then own, may be upheld at common law.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 47; Dec. Dig. § 11.* For other definitions, see Words and Phrases* vol. 6, p. 5475; vol. 8, p. 7758.]</p> <p>8. Chattel Mortgages (§ 11*) — Property Subject to Mortgage — After-Acquired-Property — Intervening Act.</p> <p>‘Under the doctrine of “intervening act,” the grant of a future interest with a deelaration precedent may take effect by some new intervening act, as a delivery of possession to the mortgagee or his taking possession after acquisition of the mortgage, and such act re-' lates back to.the original grants and operates as a conveyance of the legal title.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. X>ig. § 47; Dec. Dig. § 11.*]</p> <p>9. Chattel Mortgages (§ 129*) — Natube — “Mortgage7 ’ — Equity—Security.</p> <p>In equity, a mortgage is not a conveyance of the legal title, but only a security for debt.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 216; Dec. Dig. § 129.* For other definitions, see Words and Phrases, vol. 5, 'pp. 4596-4606; vol. 8, p. 7725.]</p> <p>10. Chattel Mortgages (§ 18*) — Property Subject to Mortgage — After-Acquired Property.</p> <p>In equity, it is immaterial that the mortgagor does not own the property at the time the mortgage js executed, since the mortgage will be treated' as a continuing agreement, and upon his acquisition of such property its lien will attach.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 61-66; Dee. Dig. § 18.*]</p> <p>11. Chattel Mortgages (§ 177*) — Conversion — Action for Damages.</p> <p>The mortgagee of personal property is entitled to recover, against one who converts the same to his own use and prevents foreclosure, the value of the property converted, to the extent of his lien.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 836-357; Dec. Dig. § 177.*]</p> <p>12. Chattel Mortgages (§ 177*) — Conversion-Action for Damages — Marshaling Assets. <</p> <p>The mortgagee of personal property is not required to exhaust its remaining security before it is entitled to judgment against a trespasser for the conversion of a part of the mortgaged property.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 336-357; Dec. Dig. § 177.*]</p> <p>13. 'Chattel Mortgages (§ 177*) — Actions for Damages — Damages—Interest.</p> <p>Where the complaint in an action for damages for the conversion of mortgaged personal property does not ask for interest eo nomine, but alleges damages from such conversion, interest, though not recoverable as such for conversion of property, may be awarded from the date of the conversion as damages.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. •§§ 336-357; Dec. Dig. § 177.*]</p> <p>14. Chattel Mortgages (§ 177*) —Action for Damages — Trial—Question for Jury.</p> <p>In an action for the conversion of mortgaged personal property, the question as to the recovery of interest as an element of damages, is one of law for the court.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Dec. Dig. § 177.*]</p>

<p>1. Limitation of Actions (§ 127*) — Amended Pleadings — New Cause of Action.</p> <p>Plaintiffs petition in an action on a note alleged a gift of the note by his father, the payee, and in his amended petition, filed more than four years after the maturity of the note, he predicated his rights to recovery upon an estoppel and a parol partition of several notes between himself, his sister, and defendant. Held that, as the same debt was relied on for recovery, and the amended petition only elaborated the means by which plaintiff became owner of the note, and the grounds upon which the suit was based, it stated no new cause of action, and hence the action was not barred by limitations.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]</p> <p>2. Bills and Notes (§ 487*) — Action — Amended Pleadings — Discbetion op Coubt.</p> <p>At the trial of an action on a note plaintiff, after offering a note payable to his order, which was objected to on the ground that the note declared upon was made payable to plaintiff’s father, was allowed to amend his petition by • inserting the word “order” therein. Held, that the allowance of the amendment was within the discretion of the trial court.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1575-1583; Dec. Dig. § 487;* Pleading, Cent. Dig. § 703.]</p> <p>3. Evidence (§ 471*) — Conclusions—Facts— Title and Ownership.</p> <p>In an action on a note which plaintiff claimed as a gift from his father, plaintiff was allowed to testify, “I am the owner of said note. Said note was given me by my father * * * during his lifetime.” Held, that the testimony was not objectionable as being the opinion and conclusion of a witness on a mixed question of law and fact.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2171; Dec. Dig. § 471.*]</p> <p>4. Appeal and Eebob (§ 1050*)— Haemless Eeeoe — Admission oe Evidence.</p> <p>Where the plaintiff in his action on a note which he claimed as a gift from his father, stated all the facts in connection with his ownership of it, his testimony that he was the owner of the note and that it was given to him by his father during his lifetime, if objectionable as a conclusion of a witness, was harmless.</p> <p>[Ed. 'Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160; Dec. Dig. § 1050.*]</p> <p>5. Appeal and Eeeoe (§ 1050*) — Harmless Eeeoe — Admission op Evidence — Pacts Otheewise Established.</p> <p>In an action on a note claimed by plaintiff as a gift from his father, and also under an oral partition of his father’s estate, in which plaintiff was permitted to state that he had received letters in which the defendant acknowledged his ownership of the note, the letters to which this reference was made being in evidence, the statement was apparently more to identify the letters than to show their contents, so that the statement, if erroneous, was harmless.</p> <p>_[Bd. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4166; Dec. Dig. § 1050.*]</p> <p>6. Evidence <§ 471*) — Conclusions — Mat-tees op Pact — Oral Partition op Property.</p> <p>In an action on a note claimed by the plaintiff under an oral partition of his father’s estate, testimony of his brother, a witness for defendant, that his father had partitioned his property, and that he had received his part of it several years ago, and that he had received nothing since his father’s death, is not an opinion or conclusion, but is proper as a statement of a fact.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent Dig. § 2171; Dec. Dig. § 471.*]</p> <p>7. Appeal and Error (§ 1050*) — Harmless Error — Admission op Evidence — Irrelevance to Issue.</p> <p>The admission of evidence irrelevant to the issues before the court, and which could not in any way affect the issues, is harmless.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4154; Dec. Dig. f 1050.*]</p> <p>8. Evidence (§ 357*) — Documentary Evidence — Private Writings — Letters.</p> <p>Where letters offered in an action on a note, claimed by plaintiff as a gift, are shown to be in the defendant’s handwriting, addressed to the plaintiff, and to discuss the subject of the note and to have been acted upon by the plaintiff, they are admissible,</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 1492-1499; Dec. Dig. § 357.*]</p> <p>9. Gipts (§ 49*) — Inter Vivos — Implied Delivery.</p> <p>An actual delivery of a gift may be implied from circumstances.</p> <p>[Ed. Note. — For other cases, see Gifts, Cent. Dig. § 97; Dec. Dig. § 49.*]</p> <p>10. Evidence (§ 278*) — Declarations op Donor.</p> <p>In an action on a note which plaintiff claimed as a gift from his father, declarations of the father that he had given the note to the plaintiff, are competent to prove both the gift and the delivery.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 1137; Dec. Dig. § 278.*]</p> <p>11. Gifts (§ 21*) — Delivery to Third Person foe Donee.</p> <p>An actual delivery is not always necessary, and, where it is, delivery to a third person for the donee is sufficient.</p> <p>[Ed. Note. — Por other cases, see Gifts, Cent. Dig. § 36; Dec. Dig. § 21.*]</p> <p>12. Gifts (§ 31*) — Gifts op Negotiable Instruments — Written Transfer — “Goods and Chattels.”</p> <p>Rev. St. 1895, art. 2546, provides that no gift of goods or chattels shall be valid, unless by deed or will duly acknowledged or proven up and recorded. A father holding three notes made by his son, dictated a letter to the son stating that he had given the first note to a daughter, the second to another son, and the third to the son addressed, but this writing was not acknowledged or proven up and recorded. Held, that the words “goods and chattels” did not include choses in action, and that the writing, though not acknowledged or proven, was sufficient to constitute a valid gift of the note.</p> <p>[Ed. Note. — Por other cases, see Gifts, Cent. Dig. §§ 58-62; Dec. Dig. § 31.*</p> <p>Por other definitions, see Words and Phrases, vol. 4, pp. 3130-3137; vol. 8, p. 7673.]</p> <p>13. Gifts (§ 49*) — Weight and Sufficiency op Evidence — Written Transfer op Note.</p> <p>Evidence in an action on a note, which plaintiff claimed as a gift from his father and under a parol partition of his father’s • estate, held sufficient to sustain a judgment for plaintiff on the ground of a written declaration by the father constituting a valid gift.</p> <p>[Ed. Note. — Por other cases, see Gifts, Cent. Dig. §§ 95-100; Dec. Dig. § 49.*]</p> <p>14. Bills and Notes (§ 452*) — Action—Defenses — Want of Title.</p> <p>Defendant, in an action on a note, claimed by the plaintiff to have been given him by their father, the payee, and under a written statement reciting a gift of one of several notes made by defendant to a brother, plaintiff herein, and one to himself, acquiesced in this disposition of the notes and promised to pay it to plaintiff with an increased rate of interest for an extension of time, and demanded and received the note given to him by his father at the same time. Held, that he was estopped from denying plaintiff’s ownership of the note sued upon.</p> <p>[Ed. Note. — Por other cases, see Bills and Notes, Dec. Dig. § 452.*]</p>

<p>1. Waters and Water Courses (§ 164*)— Adverse Holding — Interruption — Consent.</p> <p>Where defendant, without authority, flooded plaintiff’s land to increase its hunting and fishing facilities, and plaintiff’s predecessors in title for different periods had executed written agreements with defendant concerning the hunting and fishing privileges to be exercised on the lake so formed, which covered part of the land of both plaintiff and defendant, such agreements constituted an implied consent by plaintiff’s predecessors in title to the flooding of the land, which interrupted the time necessary to vest defendant with a prescriptive easement to flood the land, and, the remaining time being insufficient, defendant had no easement to maintain the lake, nor had plaintiff a right to insist that defendant maintain it at its ordinary level.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 164.*]</p> <p>2. Easements (§ 7*) — Prescription.</p> <p>One in adverse possession of another’s land claiming an easement acquires an easement as of right after the continuance of such possession for 10 years.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 16-19; Dec. Dig. § 7.*]</p> <p>3. Waters and Water Courses (§ 164*) — Reciprocal Easements.</p> <p>Where a landowner acquires a right to flood adjoining land by adverse possession, the owner of such adjoining land by the same act acquires a reciprocal easement to have the water maintained at the same ordinary height.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 164.*]</p> <p>4. Waters and Water Courses (§ 178*) — Injuries to Land — Measure of Damages.</p> <p>Where an adjoining lahdo-wner permanently injures the land of another by withdrawing therefrom the waters of an artificial lake, the measure of damages is the difference in value of the land before and after such withdrawal.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 178.*]</p> <p>5. Fish (§ 5*) — Ownership — Artificial Lake.</p> <p>Fish confined in an artificial lake belong to the owner of the land covered by the water in which they are found.</p> <p>[Ed. Note. — For other cases, see Fish, Cent. Dig. §§ 11-15; Dec. Dig. § 5.*]</p> <p>6. Fish (§ 5*) — Artificial Lakes — Traps.</p> <p>Where defendant wrongfully traps fish from an artificial lake, and induces them to swim through same into waters belonging to it, it becomes liable to plaintiff for 'their value.</p> <p>[Ed. Note. — For other cases, see Fish, Cent. Dig. §§ 11-15; Dec. Dig. § 5.*]</p> <p>Bookhout, J., dissenting.</p>

<p>Appeal from District Court, Lamar County; T. D. Montrose, Judge.</p> <p>Action by E. E. Blocker and others against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs. Defendant appeals.</p>

<p>Error from District Court, Wise County; J. W. Patterson, Judge.</p> <p>Action by R. N. Cearley and others against John May. From a judgment for plaintiffs, defendant brings error.</p>

Action by John Matthews against Ike Tow-ell, administrator of John Robbins, deceased, on a rejected claim against the estate. From a judgment sustaining exceptions to the petition, plaintiff appeals. This is a suit by appellant against appellee on a rejected claim against his testator’s estate. Exceptions were sustained to plaintiff’s petition, and final judgment' rendered against him in favor of the defendant.

<p>Appeal from District Court, Coke County; J. W. Timmins, Judge.</p> <p>Action by R. S. Armstrong, executor, against L. E. Burt. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Bnxs and Notes (§ '313*) — Sale of Note— Rights of Pubcbasee.</p> <p>Defendant having sold to plaintiff certain property, including a note previously pledged by defendant to a third person as security, and plaintiff having as consideration agreed to pay certain debts including that for which the note was pledged, defendant, having afterwards secured the note from the pledgee, by paying part of the secured debt, was not liable to plaintiff for the full amount of the note, but only for such amount less what defendant paid on the secured debt.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 746-750; Dec. Dig. § 313.*]</p> <p>2. Evidence (§ 419*) — Pabol Evidence — Consideration of Written Instrument.</p> <p>Parol evidence is always admissible to show the true consideration of a written instrument.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dee. Dig. § 419.*]</p> <p>3. REFORMATION OF INSTRUMENTS (§ 44*)— Parol Evidence — Varying Written Contract.</p> <p>Parol evidence is admissible to vary, alter, or change the terms of a written instrument, where a predicate is laid therefor in the pleading by an allegation that the writing did not express the true contract, by reason of fraud, accident, or mistake.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 155, 156; Dec. Dig. § 44.*]</p> <p>4. Evidence (§ 419*) — Parol Evidence — Consideration of Contract — Pleading and Proof.</p> <p>The action not being one to reform an instrument, and as reformed to enforce it, but one to recover property as part of the consideration of plaintiff’s contract with defendant, though not mentioned therein, he may by parol show that the true consideration was not set out in the writing, and that such property was part of the consideration, though alleging that the omission thereof from the writing was by mutual mistake, while the evidence shows that the omission was through mistake of plaintiff only.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.*]</p> <p>5. Evidence (§ 271*) — Self-Serving Declarations.</p> <p>Declarations of one of the parties to a sale, made after the contract, in the absence of the other party, to third persons, that the contract covered certain property, are inadmissible against the other party.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1104; Dec. Dig. § 271.*]</p>

Robinson, Judge. Petition by W. E. Hall against Bell County and others to compel payment of plaintiff’s salary as county auditor. From an order sustaining a general demurrer to the petition, plaintiff appeals.

<p>Public Lands (§ 173*) — Sale—Rescission-Acts Constituting.</p> <p>Where a county, contracting to sell land claimed it for a school fund, subject to the right to rescind for nonpayment of installments, subsequently conveyed the identical land by metes and hounds to a third person, the subsequent conveyance operated to rescind the contract of sale, and the third person acquired title as against the purchaser in the contract.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p>

<p>Appeal from District Court, Ellis County; F. L. Hawkins, Judge.</p> <p>Action by L. F. Day against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

C. Douglas, Judge. Action by Charles Graef against the Ft. Stockton Irrigated Lands Company, to which the defendant filed a plea of reconvention. From a judgment for plaintiff, defendant appeals.

<p>Appeal from District Court, El Paso County ; A. M. Walthall, Judge.</p> <p>Action by J. R. Shaklee against the El Paso Electric Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by C. F. Koehler and wife against H. W. Stude and wife. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Railroads (§ 440*)—Action fob Killing Animals—Petition—Evidence.</p> <p>Where the petition in an action against a railroad company for the killing of an animal on the track alleged that the animal was killed through negligence in running the train at a speed in excess of that fixed by a municipal ordinance, that the company did not observe a proper lookout, and did not use proper care to. prevent running over the animal after discovei--ing it on the track, and that the animal was killed by a train at a place where the track was unfenced, and the evidence sustained only the latter charge, plaintiff could recover without reference to the other grounds alleged, under the rule that a plaintiff alleging several distinct sufficient grounds of recovery may recover on proof of any one of them.</p> <p>[Ed.. Note. — For other cases, see Railroads, Dec. Dig. § 440.*]</p> <p>2. Railroads (§ 411*) — Fencing Track — Statutory Requirements — Exceptions.</p> <p>The courts from the necessity of the case have read exceptions into the statute requiring railroad companies to fence their tracks, and a company need not fence its tracks where it would be unlawful to do so, as at public roads and streets, or where it would be dangerous to its employés to construct cattle guards and dig pits at depot grounds, where employés must go on the track to switch and make up trains.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1433-1450; Dec. Dig. § 411.*]</p> <p>3. Railroads (§ 443*) — Fencing Tracks — Killing Stock — Liability.</p> <p>To make a prima facie case against a railroad company for the killing of an animal by a train, it is only necessary to prove the killing by the train, and to meet the case the company must prove either that its track was fenced, or that it was exempted from fencing at the point of the accident; but mere proof that such place is within the switching bounds arbitrarily established by the company, but not in fact used by it for switching purposes, is not sufficient.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1G08-1620; Dec. Dig. § 443.*]</p>

<p>1. Appeal and Error (§ 1039*) — Harmless Error — Erroneous Rulings on Pleadings.</p> <p>Error in overruling pleas of misjoinder to a petition stating a cause of action for money due under a written contract and other grounds for recovery is harmless, where the court limits a recovery to the written contract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. § 1039.*]</p> <p>2. Landlord and Tenant (§ 230*) — Action por Rent — Petition— Sufficiency.</p> <p>A petition in an action for money due on a lease, which alleges that plaintiff owned land, that defendant acting for himself and codefend-ants, his silent partners, entered into a lease with plaintiff whereby defendant and codefend-ants became bound to pay plaintiff a specified sum, that plaintiff complied with his part of the contract, and that defendant and codefendants refused to comply with their part, is sufficient to admit evidence to sustain its allegations and to justify a recovery for the rent money due.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 230.*]</p> <p>3. Appeal and Error (§ 742*) — Questions Reviewable — Assignments op Error — Statement — Requisites.</p> <p>. The criticised part of a pleading must be copied into the statement following the assignment of error complaining of the insufficiency of the pleading, and a reference to the record is not sufficient.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; 'Dec. Dig. § 742.*]</p> <p>4. Appeal and Error (§ 742*) — Assignments op Error — Rulings on Evidence — Statement — Bill op Exceptions.</p> <p>A statement under an assignment of error complaining of rulings on evidence must show that a bill of exceptions was taken to the evience objected to, or the assignment will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>5. Evidence .(§ 217*) — Admissions.</p> <p>In an action on a lease alleged to have been executed by an agent of the lessee, testimony of the lessor that he told the lessee in 'the presence of the agent that he had made a lease with the agent,, and that the lessee replied that the agent did serviceable work for him, was admissible to show the agency in making the lease.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 760; Dec. Dig. § 217.*]</p> <p>6. Principal and Agent (§ 21*) — Existence op Relation — Evidence—Admissibility.</p> <p>An agent is competent to testify to _ the agency and its extent, though his declarations are inadmissible to prove agency.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 39; Dec. Dig. § 251.*]</p> <p>7. Evidence (§ 241*) — Declarations op Agents — Admissibility as' Against Principal.</p> <p>Where agency is established, evidence of the acts and declarations of the agent in connection with the subject-matter of the agency are admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 887-892; Dec. Dig. § 241.*]</p> <p>8. Appeal and Error (§ 232*) — Questions Reviewable — Questions not Raised in Trial Court.-</p> <p>Where parol evidence had no tendency to vary the terms of a written contract, and it was objected to on the ground that it was irrelevant and immaterial., and inadmissible to bind the parties, an assignment of error com-: plaining of the admission of the evidence, because modifying the written contract, must be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1430, 1431; Dec. Dig. § 232;* Trial, Cent. Dig. §§ 211-222, 691-693.]</p> <p>9. Appeal and Error (§ 204*) — Questions Reviewable — Questions not Raised in Trial Court.</p> <p>An objection to evidence not urged in the trial court will not be considered on appeal under an assignment complaining of the admission of the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1258-1280; Dec. Dig. § 204.*]</p> <p>10. Landlord and Tenant (§ 222*) — Obligation op Tenant.</p> <p>A tenant assuming the burden of taking up a vendor’s lien note, may not refuse to perform his lease because of the failure of the landlord to take up such note.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 222.*]</p> <p>3L Trial (§ 250*) — Instructions—Assumption op Facts.</p> <p>A requested charge, injecting a false issue, not sustained by the law or evidence is properly refused.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. ■ Dig. §§ 584-586; Dec. Dig. § 250.*]</p> <p>12. Trial (§ 260*) — Instructions—Repusal to Give Instructions Covered by the Charge Given.</p> <p>Where the issues were properly presented by the general charge, the refusal, to give a requested charge was not erroneous.'</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>13. Partnership (§ 169*) — Liability op •Partner — Acts op Agents-.</p> <p>Partners are bound by the acts of their agent acting within the scope of the agency as well as by the acts of 'each partner acting within the scope of the firm.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 3Q3% ; Dec. Dig. § 169.*]</p>

<p>Appeal from District Court, Burnet County; Clarence Martin, Judge.</p> <p>Action by Otto Ebeling against T. A. Coleman and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal and Eeroe (§ 1001*) — Findings — CONCLTJSIVENESS.</p> <p>A verdict sustained by evidence will not be disturbed on appeal.</p> <p>[Ed. Note—For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]</p>

Error from District Court, Nueces County; W. B. Hopkins, Judge. Action by John T. Dickinson against Sarah Frances Dickinson for divorce. Judgment for plaintiff, and from an order denying defendant’s motion for new trial, she brings error.

<p>Damages (§ 216*) — Actions — Instructions— Personal Injuries.</p> <p>In an action for injuries to a passenger, an instruction that if plaintiff had received injuries before the accident, and the jury were unable to determine whether her present eon-' dition resulted from such former injuries, or from the accident complained of, their verdict should he for defendant “as to such present injuries,” given in lieu of an instruction that, under such circumstances, the verdict should be “for defendant on this issue,” was not misleading as permitting the jury to find for plaintiff for physical and mental pain and suffering, loss of time, etc., in the future.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.*]</p>

Error from District Court, Kaufman County; F. L. Hawkins, Judge. Action by M. A. Joy and others against the City of Terrell and others. Judgment for defendants, and plaintiffs bring error.

<p>Appeal from Nueces County Court; Walter E. Timón, Judge.</p> <p>Action by L. R. Clarkson against F. J. Reid. Judgment for plaintiff, and. defendant appeals.</p>

<p>Appeal from District Court, Denton County ; Clem B. Potter, Judge.</p> <p>Action by J. F. Morgan against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

W. Swayne, Judge. Action by R. A. Sneed, .administrator, and others, against W. T. Waggoner. Judgment for plaintiffs, and defendant appeals. H. A. Sneed, while employed in an oil mill belonging to appellant, suffered the loss of a part of one of his hands. The appellant’s foreman was having a press casing, weighing from 6,000 to 10,000 pounds, lowered into position in the oil mill.

S. Kinder, Judge. Action by the Lubbock Land & Grain Company against the Lubbock Hardware & Furniture Company and others. From an ancillary order made in vacation appointing a receiver, defendant H. C. Ferguson appeals.

<p>Appeal from District Court, Jack County; J. W. Patterson, Judge.</p> <p>Action by J. R. Rich against the Chicago, Bock Island & Gulf Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by Ross & Masterson against the Banco Minero. From a judgment for plaintiffs, defendant appeals.</p>

<p>Trial (§ 191*) — Instructions—Province or J ury — Negligence.</p> <p>An instruction that, if the jury believe by any of certain specified acts of negligence of defendant plaintiff’s cattle were injured and depreciated in value, plaintiff was entitled to recover therefor, was erroneous, as assuming that the acts stated constituted negligence as a matter of law.</p> <p>[Ed. Note. — For other cases, see Trial, Cent.' Dig. §§ 420-435; Dec. Dig. § 191.*]</p>

<p>1. Railroads (§ 485*) — Eires—Actions—In-structions — Inconsistency.</p> <p>An instruction that, if fire which escaped from defendant’s engines set fire to plaintiff’s wheat, there should be a verdict for plaintiff, was followed by an instruction that defendant was not liable if its engines were equipped with the latest and most approved spark arresters. Held, that the instructions were inconsistent.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.*]</p> <p>2. Trial (§ 295*) — Instructions—Construction op Charge as a Whole.</p> <p>The rule that instructions are to be construed as a whole, and that one part may be looked to for determining the meaning. of another, does not apply where the instructions are contradictory.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p> <p>3. Railroads (§ 485*) — Fires—Instructions —Equipment op Engines.</p> <p>An instruction that if defendant’s engine was equipped with the latest and most approved spark arresters in general use by railroads, and that they were in good repair, and that the defendant had exercised reasonable care to keep them in good repair, and that defendant’s employes used ordinary care in operating the engine to prevent the escape of fire, defendant was not liable, does not hold defendant to the absolute duty to so equip its engines with the latest and most approved spark arresters in general use, and is not reversible error.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.*]</p>

<p>Corporations (§ 573*) — Reorganization Aqbeements — Actions bob Breach — Damages.</p> <p>The holder of a judgment against a telephone corporation constituting a Hen on its property agreed that the corporation should be reorganized, and that he should receive the amount of his judgment in bonds in the reorganized company, and that the bonds of the reorganized corporation should not exceed $150,-000, of which at least $50,000 in cash should be put in extensions or additions to the property, but what extensions or additions were not designated. Held, that the reorganized corporation was liable in damages for its failure to comply with its promise only to the extent of the difference between the market value of the judgment creditors’ bonds without the additional capital and what would have been their market value if the additional capital had been supplied ; but the company cannot be liable for a sum in excess of the face value of the bonds.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2293-2296; Dec. Dig. § 573.*]</p>

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

<p>Appeal from Tom Green County Court; Milton Mays, Judge.</p> <p>Mrs. J. E. Douglas was convicted of violating the medical practice act, and appeals.</p>

<p>Criminal Law (§§ 1092, 1099*) — Appeal-Statement oe Facts — Filing—Time—Power oe Trial Court.</p> <p>A trial court is powerless to allow more than 20 days after adjournment of the term in which to file bills of exception and statement of facts.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. §§ 1092, 1099.*]</p>

<p>Criminal Law (§ 1144*) — Appeal—Review-Record — Presumption. .</p> <p>In the absence of bills of exception and a statement of facts, it will be. presumed that the court, in submitting the offense to the jury, submitted the law, and all the law, applicable to the evidence.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3032; Dec. Dig. § 1144.*]</p>

<p>Appeal from Tarrant County Court; Chas. T. Prewett, Judge.</p> <p>Action by George C. Wetzel against William Robinson and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Trial (§ 260*) — Instructions Covered by Other Instructions.</p> <p>Requested instructions included in the charge as given are properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>2. Telegraphs and Telephones (§ 20*) — Negligence — Use of Streets — Instructions — Applicability to Evidence.</p> <p>In an action against a telephone company for its negligence in leaving a cable spool on the street which caused plaintiff’s horse to run away, the evidence showed that the spool was placed on the street some time before work was begun and left some time after it was finished. Held, that charges which denied plaintiff’s recovery under certain circumstances, but did not present the issue as to defendant’s liability for leaving the spool on the street before it began work, were inapplicable to the evidence, and were properly refused.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 20.*]</p> <p>3. Telegraphs and Telephones (§ 20*) — Use oe Streets — Negligence — Instruction-Applicability to Issues.</p> <p>In an action against a telephone company, based on its negligence in leaving a cable spool in the street, which caused plaintiff’s horse to run away, a witness testified that the central office of the company had promised her that the spool would be removed at once. It did not appear that at the time of this promise the spool was in use. This evidence was introduced to show that defendant had notice that horses were being frightened. Held, that an instruction that defendant was not required to remove its spool in accordance with the promise, if it was in use, and until a reasonable time thereafter, and that, if an injury occurred within that period, a verdict should be given for the defendant, was properly refused, not being applicable to the issues; for the promise was not the basis of plaintiff’s action.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 20.*]</p> <p>4. Telegraphs and Telephones (§ 20*) — Use of Street — Frighte&tnq Horses — Instructions — Applicability.</p> <p>In an action against a telephone company for negligence in leaving a cable spool in the street, which frightened plaintiff’s horse and caused it to run away, the plaintiff showed the date of the injury, but the defendant did not show whether the spool was in use at the time of the injury. The court charged the jury upon the defendant’s liability for leaving the spool in the street for an unusual and unnecessary length of time, either before or after the use. Held, that the defendant, not having shown whether the spool was in use at the time of the injury, could not complain of that instruction.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 20.*]</p> <p>5. Telegraphs and Telephones (■§ 20*) — Use oe Street — Negligence — Evidence — Admissibility.</p> <p>Where plaintiff’s horse was frightened by the cable spool of a telephone company, left in the street, evidence as to the disposition of the horse and his qualities was admissible.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 20.*]</p> <p>6. Evidence (§ 317*) — Admissibility—Hearsay Evidence.</p> <p>Testimony as to what a telephone company’s foreman said to one who requested him to remove a cable spool from the street is inadmissible as hearsay.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]</p>

<p>1. Appeal and Error (§ 302*) — Presentation of Grounds op Review in Court Below— Motion fob New Trial — Sufficiency of Statement op Grounds.</p> <p>Where a motion for new trial set up as grounds that the verdict was without evidence to support it, and that the pleadings and evidence do not correspond, etc., which statement of grounds, under the direct provisions of district court rules 67 and 68 (67 S. W. xxv), were insufficient to warrant consideration in the district court, those points cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 174A-1752; Dec. Dig. § 302.*]</p> <p>2. Appeal and EReor (§ 281*) — Presentation op Grounds op Review in Court Below— Motion pob New Trial — Necessity.</p> <p>Errors not brought to the attention of the trial court in a motion for new trial cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661; Dec. Dig. § 281.*]</p>

L. Blanton, Judge. Trespass to try title by F. H. Barfield and others against S. E. Emery and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from District Court, Baylor County; J. A. P. Dickson, Judge.</p> <p>Action by the First National Bank of Boswell, Okl., against C. S. Whiteside. From the judgment, plaintiff appeals.</p>

<p>1. Money Received (§ 15*) — Nature oe Obligation.</p> <p>Where one person has received the money of another which in honesty and good conscience he cannot retain, an action will lie either at law or in equity by the party entitled to recover the money back, and it is immaterial whether the action is assumpsit or for money had and received.</p> <p>[Bd. Note. — Bor other cases, see Money Received, Cent. Dig. §§ 44-50; Dec. Dig. § 15.*]</p> <p>2. Money Received (§ 5*) — Money Wrongfully Obtained.</p> <p>The plaintiff, a bank cashier, purchased a note belonging to defendant for one B. The maker paid the note, and, by mistake, plaintiff credited the payment to the defendant’s account, and the defendant drew the money out of the bank. Plaintiff then paid B. Held, that plaintiff could recover, without taking an assignment of B.’s claim, and though plaintiff was not a surety or one ordinarily entitled to subrogation.</p> <p>[Bd. Note. — Bor other cases, see Money Received, Cent. Dig. §§ 14-20; Dec. Dig. § 5.*]</p> <p>3. Pleading (§ 34*) — DemuiIrer — Intend-ments on Demurrer.</p> <p>In an action for money which the plaintiff, a bank cashier, had paid to B. after erroneously crediting a deposit of money belonging to B. to defendant’s account, the petition alleged that the credit was made through mistake and by the negligence and oversight of the plaintiff. Held that, as a petition is given every reasonable intendment on general demurrer, effect must be given to the allegation of mistake rather than that of negligence which would bar the action.</p> <p>[Ed. Note. — Bor other cases, see Pleading, Cent. Dig. §§ 66-75; Dec. Dig. § 34.*]</p>

<p>1. Sheriffs and Constables (§ 125*) — Motion Against Sheriff — Status of Plaintiff.</p> <p>Where a judgment creditor issued an execution on which the sheriff made no return, and by a petition or motion sought to hold the sheriff liable for his failure to make return, the sheriff is not entitled to object that the petition or motion against him does not show whether the plaintiff was a firm, partnership, or corporation, for the plaintiff’s right to sue was determined in the former action.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 237-253, 330-337; Dec. Dig. § 125.*]</p> <p>2. Shekiffs and Constables (§ 125*) — Defects — Waiver.</p> <p>In the above case,' the sheriff’s filing a general denial waived his right to object to the failure of the petition to show the status of the plaintiff.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 237-253, 330-337; Dec. Dig. § 125.*]</p> <p>3. Pleading (§ 34*) — Demurrer—Construction Upon Demurrer.</p> <p>All reasonable inferences and conclusions will be indulged in favor of a pleading challenged by general demurrer; and hence it cannot be presumed that a pleading so challenged was filed by a foreign corporation from the mere fact that the party filing the pleading had a corporate name.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 66-75; Dec. Dig. § 34.*]</p> <p>4. Sheriffs and Constables (§ 125*) — Failure to Make Return of Execution — Excuse — Burden of Proof.</p> <p>On a motion against a sheriff for failure to return an execution, the burden of proof is upon him to excuse his failure and to show that he could not have collected anything had he executed the writ.</p> <p>[Ed. Note. — For other eases, see Sheriffs and Constables, Cent. Dig. §§ 237-253, 330-337; Dec. Dig. § 125.*]</p>

<p>Appeal from District Court, Haskell County; C. C. Higgins, Judge.</p> <p>Action by H. H. Jenkins and another against the American Home Life Insurance Company. From a judgment for plaintiffs, defendant appeals.</p>

W. Walling, Special Judge. Actions between R. R. Smith and T. D. Richardson and others. From judgments in favor of the latter, the former appeals. On motion to dismiss.

<p>Mortgages (§ 178*) — Priorities—Renewal of Barred Mortgage.</p> <p>The lien of a mortgage, given when the lien of an earlier mortgage was barred, is not subordinated to that of the earlier mortgage, by such mortgage afterwards being renewed by renewal of the secured debt.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 178.*]</p>

<p>Appeal from District Court, Grayson County; B. L. Jones, Judge.</p> <p>Action by John H. Troutman against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Courts (§ 121*) — Jurisdictional Amount.</p> <p>On sustaining exceptions to items of damage for conversion, reducing the amount in controversy below its jurisdiction, the county court should dismiss the suit.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-428; Dec. Dig. § 121.*]</p>

<p>Insurance (§ 103*) — Agent ox Insured — Liabilities.</p> <p>An insurance broker procured insurance for his principal’s property, and before the term had expired the insurer became insolvent and suspended business. Prior to the expiration of the term, the principal, not knowing that fact, requested the agent to reinsure the property, and this the agent agreed to do though he knew that the insurer had failed. After this agreement, the property burned, and the broker had procured no other insurance. Held, that he was liable for not having notified the principal of the failure of the insurer.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 130; Dec. Dig. § 103.*]</p>

<p>Appeal from Haskell County Court; Joe Irley, Judge.</p> <p>Action by John Florence against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1.Jury (§ 33*)— Right to Jury — Selection by Jury Commissioners.</p> <p>A defendant, demanding a jury trial and paying the requisite fee, may not arbitrarily be deprived of his statutory right of trial by a jury selected by the jury commissioners and compelled to submit to a trial by a jury selected by the sheriff, in the absence of any contingencies mentioned in the statute permitting a selection of a jury by the sheriff.</p> <p>[Ed. Note. — For other cases, see Jury, Dec. Dig. § 33.*]</p> <p>2. Trial (§ 120*) — Improbes Argument of Counsel.</p> <p>Under district court rule 39 (67 S. W. xxiii), -providing that arguments on the facts must be confined to the evidence, the argument of counsel that counsel for the adverse party had induced a witness to testify as he did, made in the absence of any evidence justifying it, is improper, and an objection thereto must be sustained.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. § 120.*]</p> <p>3. Evidence (§ 491*) — Opinion Evidence— Admissibility.</p> <p>In an action for negligent delay in the transportation of live stock, a witness sufficiently informed may testify as to the length of time usually required for transportation over the specified route, but a question whether he knows what would have been a reasonable or the usual time improperly calls for an. opinion on a mixed question of law and fact for the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 491.*]</p> <p>4. Carriers (§ 228*) — Delay in-Transportation op Live Stock — Evidence.</p> <p>Where, in an action for negligent delay in the transportation of live stock, a witness testified that the stock sold for their full market value at the point of destination, that one animal was so injured that it died before sale, and there was evidence that another animal was lost in transit, a recovery to the extent of the value of the two animals u%s justified.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 228.*]</p> <p>5. Trial (§ 240*) — Instructions—Argumentative Instructions.</p> <p>A charge in an action for negligent delay in the transportation of live stock that a carrier need not transport live stock in special trains when the rates fixed by law are insufficient to pay the operating expenses for such trains, and that the carrier was not bound to transport the shipment in controversy by special train, if the rate charged therefor was not sufficient to pay the expenses for such a train, was properly refused as argumentative.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.*]</p>

Action by Mrs. Virginia Hall against the Citizens’ Railway Company. Judgment for plaintiff, and defendant appeals. Appellee brought this suit for damages on account of injuries received by reason of the alleged negligence of appellant in failing to stop its car for a sufficient length of time to allow her to alight from said car, and in not having a conductor on said car.

<p>1. Appeal and Error (§ 500*)—Presentation op Question in Trial Court—Exceptions —Necessity op Ruling.</p> <p>' An assignment of error, based on a special exception on which the record fails to show any ruling, will not be considered on appeal.</p> <p>[Ed. Note.—Por other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 500.*]</p> <p>2. Appeal and Error (§ 1051*)—Review— Harmless Error—Admission op Evidence.</p> <p>Any error in admitting testimony as to the insolvency of a person was harmless, where the fact of insolvency is undisputed.</p> <p>[Ed. Note.—Por other cases, see Appeal and Error, Cent. Dig. § 4163; Dec. Dig. § 1051.*]</p> <p>3. Sheriffs and Constables (§ 138*)—Evi-dence—Admissibility.</p> <p>In an action against a sheriff and an attachment creditor of a third person for conversion of goods claimed by plaintiff, the admission of testimony of a witness, from whom plaintiff alleged he had purchased the goods, that he had a written contract with the attachment debtor for the sale of the goods, was proper, as it tended to support the theory of defendants that the sale was in reality to the attachment defendant, though nominally to plaintiff.</p> <p>[Ed. Note.—Por other cases, see Sheriffs and Constables, Cent. Dig. § 291; Dec. Dig. § 138.*]</p> <p>4. Trial (J 349*) — !Special Issues — Discretion op Court.</p> <p>The submission of a cause on special issues is within the discretion of the trial judge.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.*]</p> <p>5. Fraudulent Conveyances (§ 181*)— Transactions Invalid.</p> <p>In an action for conversion of a stock of goods levied on under an attachment against a third person, it is immaterial whether a gift or transfer .of land in another state can be fraudulent as to creditors; the question being whether the stock of goods taken in exchange for the land became in fact the property of the attachment debtor or of the plaintiff.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 564-567; Dec. Dig. § 181.*]</p> <p>6. Fraudulent Conveyances (§ 121*) — Right to Prefer Creditor.</p> <p>A debtor, though insolvent, may pay one creditor to the exclusion of others, though the effect is necessarily to hinder and delay other creditors, provided the transaction be in good faith at least on the part of the creditor receiving payment.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 385-391; Dec. Dig. § 121.*]</p> <p>7. Fraudulent Conveyances (§ 309*)— Transactions Invalid — Right to Prefer Creditors.</p> <p>In an action for the conversion of goods claimed by plaintiff, by seizure under an attachment against a third person, where there was evidence that the attachment debtor was indebted to plaintiff and desired to pay him, for which purpose the stock of goods was taken in the plaintiff’s name, and that after payment'it was the intention of the parties that the attachment debtor should receive back whatever remained, it was error to instruct that, if the design of the transaction was not only to secure the plaintiff in repayment of debt, but also to enable the attachment debtor to get the remainder arising from the stock of goods, the legal effect would be to hinder and delay the creditors of the judgment debtor, and therefore, as to such creditors, the transaction would be void and the goods would be subject to attachment.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 941-958; Dec. Dig. § 309.*]</p>

<p>Appeal from District Court, Tarrant County; Mike E. Smith, Judge.</p> <p>Action by J. W. Parker against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Trial (§ 169*) — Instructions—Direction of Verdict.</p> <p>Where, in an action on an account against defendants B. and C. jointly, there was no evidence of C.’s liability, and B. did not pray for a judgment over against C. in the event that the jury found that B. was liable, the court properly directed a verdict in favor of C.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 169.*]</p> <p>2. Sales (§ 53*) — Original Promise — Question for Jury.</p> <p>In an action for tile value of certain feed delivered to C., evidence held to require submission to the jury of the question of B.’s liability to pay therefor under a contract between him and plaintiff’s agent.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 53.*] .</p> <p>3. Appeal and Error (§ 1066*) — Statement of Issues — Prejudice.</p> <p>Where plaintiff alleged a contract with defendant B. to pay for feed furnished to C., B. was not prejudiced by a charge stating the issues that plaintiff claimed a contract between B. and “plaintiff’s agent” to pay for the feed furnished to O.; it being immaterial that the transaction was between B. and plaintiff’s agent, instead of with, plaintiff in person.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]</p>

<p>Appeal from Liberty County Court; J. B. Simmons, Judge.</p> <p>Proceedings by the Trinity Valley & Northern Railway Company against J. R. Chapman and others to condemn land for a right of way. From a judgment awarding damages, defendant Chapman appeals.</p>

<p>1. Sales (§ 364*) — Action eob Pbice — Instructions.</p> <p>Where, in an action against a county for certain trees, plaintiff alleged that the trees were sold to the county by his agent, that it was agreed that the price should not be less than $3 each and might be more, and that the charge for pruning and planting was reasonable, an instruction that plaintiff could recover the market value of the trees, should the jury find that they had a market value, otherwise their reasonable value, and for planting and pruning, not to exceed a specified sum, was erroneous, as eliminating the contract so far as the price of the trees was concerned.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1065-1076; Dec. Dig. § 364.*]</p> <p>2. Sales (§§ 343, 344*) — Special Contkact— Reasonable Value.</p> <p>Where plaintiff sought to recover the price as distinguished from the value of certain trees sold to a county, and alleged that it was agreed that the price should be not less than $3 each, plaintiff’s cause of action, so far as the trees were concerned, was based on a special contract, and hence he could not recover their value.</p> <p>[Ed. Note. — For other cases, see Sales, Cent Dig. §§ 947-955; Dec. Dig. §§ 343, 344.*]</p>

<p>Corporations (§ 548*) — Creditors’ Suit — Holding: Land — Beneficiary Under Resulting Trust.</p> <p>Where a petition in a suit to subject certain land to the payment of the debts of a construction company alleged that the land had been purchased in the name of a townsite company, and by it conveyed to another corporation for a consideration paid by the construction company, and that the grantee held the title for the latter to defraud its creditors, the officers and stockholders of both corporations_be-ing the same, it was not demurrable because fhe construction company had no authority to hold lands, under the rule that such an ultra vires act was not void, and could only be dealt with to the detriment of the offending corporation by the state.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. § 2186; Dec. Dig. § 548.*]</p>

<p>Appeal from District Court, Nolan County; Jas. L. Shepherd, Judge.</p> <p>Action by P. M. Wood against R. C. Crane. From' a judgment for plaintiff, defendant appeals.</p>

Error from District Court, Clay County; A. H. Carrigan, Judge. Action by Vienna Grigsby against J. P. Earle and others. There was a judgment for defendants, and plaintiff brings error.

<p>Appeal from District Court, San Saba County; Clarence Martin, Judge.</p> <p>Action by W. H. Howard against J. A. Mc-Bee. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Carson County; F. P. Greever, Judge.</p> <p>Action by Roy Slimp and another against Charles Martin and another. From a judgment for plaintiffs against defendant Martin, he appeals.</p>

<p>1. Criminal Law (§ 77*) — “Accessory After the Fact” — Assistance.</p> <p>A wife does not become an accessory after the fact 'because after the arrest of her husband and defendant she told persons, who inquired, that she knew nothing of the offense charged against them, though she was cognizant of their criminal acts, for an accessory is one who conceals the offender or gives him aid.</p> <p>[Ed. Note. — For other ^:ases, see Criminal Law, Cent. Dig. § 95; Dec. Dig. § 77.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 60, 61.]</p> <p>2. Witnesses (§ 325*) — Impeachment—Conclusiveness oe Answer oe Witness.</p> <p>Defendant seeking to impeach a witness for the state by showing that he has committed a criminal offense, involving moral turpitude, is bound by the answer of the witness, denying that he has been guilty of the offense.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1098; Dec. Dig. § 325.*]</p> <p>3. Witnesses (§ 297*) — Privilege oe Witness-Questions Tending to Incriminate.</p> <p>A witness sought to be impeached on the ground that he has committed a crime involving moral turpitude cannot be compelled to furnish evidence upon which a criminal prosecution might lie against him.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1026; Dee. Dig. § 297.*]</p> <p>4. Witnesses (§ 52*) — Confidential Relations — HUSBAND AND WIPE.</p> <p>A wife, by whose testimony her husband is sought to be impeached as a witness, cannot be compelled to testify that her husband has been guilty of a criminal offense, involving moral turpitude.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. '¿§ 124-136; Dee. Dig. § 52.*]</p> <p>5. Witnesses (§ 269*) — Cross-Examination —Scope.</p> <p>New matter not covered by the examination in chief which may be used against her husband cannot be elicited from the wife on cross-examination.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. § 269.*]</p> <p>6. Criminal Law (§ 518*) — Evidence—Confessions.</p> <p>A written confession by one accused of crime, reciting that, “the following is a voluntary statement of P. [accused] made to me T. [a justice of the peace] on this 2lst day of May, 1909, after having first been duly warned by me, T., that he did not have to make any statement at all, and that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made,” shows a compliance with all the requirements of law, and is admissible in evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1160; Dec. Dig. § 518.*]</p> <p>7. Criminal Law (§ 814*) — Instructions— Confessions.</p> <p>Where a witness requested accused to confess as to his crime, telling him that a code-fendant had confessed but held out no hope to accused, and a confession was made under those circumstances, charges upon the issue of whether the confession was voluntarily made or not were properly refused; there being no evidence to support it.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1865; Dec. Dig. § 814.*]</p> <p>8. Criminal Law (§ 519*) — Evidence—Confessions — Acts oe Jailer.</p> <p>A defendant in jail is entitled to confer with his attorney whenever he desires, and the officers having him in charge should not, instead of communicating his request to his attorney, seek to elicit a confession; and a confession obtained in such a manner is insufficient to support a conviction.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1167; Dec. Dig. § 519.*]</p> <p>9. Arson (§ 25*) — Ownership oe Building-Community Property — Statutes — Variance.</p> <p>Though, under Sayles’ Ann. Civ. St. 1897, arts. 2968, 2969, providing that all property acquired by either husband or wife during marriage shall be deemed common property, and that during coverture it may be disposed of only by the husband, a house purchased by the husband with his earnings after marriage, .and the deed taken in the name of the wife, is community property, an indictment for a criminal burning of the house properly alleged the ownership to be in the husband, and proof that the property was purchased with the husband’s earnings, and that the deed was taken in the name of the wife did not establish a variance.</p> <p>[Ed. Note. — For other cases, see Arson, Cent. Dig. § 54; Dec. Dig. § 25.*]</p>

<p>Appeal from District Court, Tarrant County; W..T. Simmons, Judge.</p> <p>Action by J. C. Case and others against the Citizens’ Railway & Light Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Wichita County; A. H. Carrigan, Judge.</p> <p>Action by J. T. Thompson against Morgan Jones and others. From a judgment for plaintiff, defendant Jones appeals.</p>

<p>1. Railroads (§ 401*) — Operation of Trains —Frightening Horses on Public Roads— Liability — Instructions.</p> <p>Where, in an action for injuries to a traveler caused by his team becoming frightened by a train, the court charged that if the engineer, after seeing the traveler, negligently sounded the whistle, though he had reasonable grounds for belief that the same would probably frighten the team, and the blowing of the whistle frightened the team, causing the injury complained of, plaintiff could recover,’ a charge that, if the engineer suspended so far as he could consistent with his other duties the operation and noise of the train after seeing that the team was about to become frightened, there could be no recovery, was not erroneous.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. § 401.*]</p> <p>2. Railroads (§ 360*) — Operation of Trains —Liability.</p> <p>A railroad company need not keep a lookout for’ persons driving in the highway adjacent to the track to prevent frightening teams thereon, but need only operate its trains without any unusual or unnecessary noise; and, where trainmen become aware that teams are about to become frightened, they must refrain from making any unnecessary noise that will likely do so.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1241-1244; Dec. Dig. § 360.*]</p> <p>3. Appeal and Error (§ 882*) — Right to Complain — Frightening Teams — Liability-Instructions.</p> <p>A plaintiff seeking to recover from a railroad company on the theory that the trainmen, after seeing his wife driving a team on the highway adjacent to the track and realizing her danger, began to blow and continued to blow a whistle until the train had passed her, thereby frightening her team and causing the injury complained of, may not complain of a charge as to discovered peril.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]</p>

<p>Criminal Law (§ 1090*) — Apfeal and Error —Affirmance.</p> <p>Where the record in a criminal appeal contains neither a statement of facts nor bill of exceptions, the judgment will be affirmed without a consideration of the grounds of error, assigned in the motion for new trial, that the verdict was against the law and the evidence, and that the penalty affixed was excessive, considering defendant’s physical condition.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803-2861; Dee. Dig. § 1090.*]</p>

<p>Bail (§ 43*) — Ceiminal Peoseoutions — Bailable Offenses.</p> <p>Where the proof in a murder case was not evident, the accused was entitled to be admitted to bail, under the provision of the Constitution authorizing the granting of bail in all cases, except in capital offenses where the proof is evident.</p> <p>[Ed. Note. — For other cases see Bail, Cent. Dig. §§ 153-164; Dee. Dig. § 43.*]</p>

<p>Appeal from Deaf Smith County Court; W. H. Russell, Judge. ></p> <p>Action by Allie Kastner against Frank Heagy. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, Hale County; L. S. Kinder, Judge. Action by C. J. Varrs and others against L. M. Faulkner and others. Judgment for defendants, and plaintiffs bring error.

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>' Action between George L. Scroggins and the L. R. Neece Lumber Company, and from the judgment Scroggins appeals.</p>

<p>Appeal from District Court, Harris County; W. P. Hamblen, Judge.</p> <p>Action by S. D. Anderson against G. I-I. Cahoon and others. Judgment for. plaintiff, and defendants appeal.</p>

<p>1. Statutes (§ 63*) — Eífeect oe Unconstitutionality — Execution oe Warrant.</p> <p>While persons called on by officers to aid in the.execution of a warrant are generally protected in giving such aid by the warrant, when it is not invalid on its face, and when issued by a magistrate having jurisdiction, yet the section of a statute under which a warrant for search and seizure is issued being unconstitutional, and therefore as if it had'never been, though not at the time adjudged unconstitutional, such statute and warrant furnishes no protection to persons who, after the search and seizure, at the request of the officers executing the warrant, assist in removing the articles seized.</p> <p>[Ed. Note. — For other cases, see Statutes, Dec. Dig. § 63;* Constitutional Law, Cent. Dig. §</p> <p>2. Intoxicating Liquors (§ 257*) — Loss oe Peoeits — Question foe Jury.</p> <p>Evidence of damages by loss of patronage from execution of a void warrant for search of plaintiff’s hotel and seizure of intoxicating liquors therein held sufficient to go to the jury.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 257.*]</p> <p>3. Evidence (§ 253*) — Admissibility—Declarations oe Third Persons.</p> <p>Defendants having been among those who assisted officers in carrying away the liquor which they had seized, under a void warrant for search of plaintiff’s hotel and seizure of intoxicating liquors therein, evidence that some of those assisting in carrying it away publicly remarked that “it was a regular blind tiger that was being run at the hotel” was admissible against defendants, in an action for damages by loss of patronage, as each and all of those so acting together must rest under the burden of what occurred at the time.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 994-1002; Dec. Dig. § 253.*]</p> <p>4. Damages (§1159*) — Evidence.</p> <p>Plaintiff, suing for injury to his hotel business by a raid under a void warrant for search of his hotel and seizure of liquor therein, may give his opinion, without pleading the facts on which it is based, that it was injured thereby.</p> <p>[Ed. Note. — For other cases, see Damages, Dec, Dig. § 159.*]</p> <p>5. Evidence (§ 158*) — Best and Secondary Evidence.</p> <p>Plaintiff’s testimony that his hotel business was injured through loss of patronage by a raid on the hotel is not objectionable because of his failure to introduce his hotel register and other books showing the amount of his business, as it cannot be said they constitute the only, or even the best, evidence of the fact.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 471-526; Dec. Dig. § 158.*]</p>

<p>Evidence (§ 178*) — Best and Secondary Evidence-Deeds — Notary— Certificate.</p> <p>In the absence of proof of the loss of a deed, or of plaintiffs’ inability to produce it, secondary evidence of its execution, consisting of a certified copy of the entries of the notary, who took the acknowledgment, in his notary’s book, which he was required to keep, and in which he was required to make entries of acknowledgments by Rev. St. 1895, art. 3512, which certificate. was made as authorized by article 3514, was inadmissible to prove the execution of the deed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 580-594; Dee. Dig. § 178.*]</p>

<p>Appeal from District Court, Potter County ; J. N. Browning, Judge.</p> <p>Action by the First National Bank of Ft. Worth against Z. A Curtis and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Cottle County Court; W. E. Bray, Judge.</p> <p>Action by J. E. Duran against J. C. Lem-mons. Judgment for plaintiff. Defendant appeals.</p>

<p>Carriers (§ 207*) — Contract to Furnish Oars — Outer and Acceptance — Breach.</p> <p>In an action against a carrier for damages arising from its alleged breach of a contract to furnish cars for the shipment of plaintiff’s cattle, evidence that plaintiff asked the carrier’s agent if he could furnish 13 cars at once to ship cattle, to which he replied he could not, but could furnish them on September 7th following, etc., and that he did not remember promising plaintiff cars on any particular day because he did not know when he could get them, did'not show a meeting of minds, and was insufficient to establish a contract.</p> <p>[Bd. Note. — For other cases, see Carriers, Cent. Dig. §§ 120-239; Dec. Dig. § 207.*]</p>

<p>Appeal from District Court, Denton County; Clem B. Potter, Judge.</p> <p>Action by O. M. Morris and others against C. M. Simmons and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Hardin County; L. B. Hightower, Judge.</p> <p>Trespass to try title by P.. H. Cannon against the Producers’ Oil Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Dallam County; D. B. Hill, Judge.</p> <p>Action by H. H. Spencer against the Reed-Allen Realty Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Dallas County ; Kenneth Eoree, Judge.</p> <p>Action by R. W. Williamson & Co. against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Frauds, Statute oe (§ 109*) — Debt oe Another — Promise to Pat — Memorandum.</p> <p>Plaintiff having been employed by the M. company had a claim against it for wages. He threatened to quit, when he was informed that defendant and certain others were about to organize a new company, and that they wanted plaintiff to work for them in the same capacity, and that if he would do so they would give him a job as long as they were in business, and would pay him $100 a month. Thereafter defendant wrote plaintiff a letter, stating that defendant’s partners were pleased with the stand plaintiff had taken in their behalf, and assured plaintiff that they would stand by him “and see you out paid in full,” and his berth made, so long as defendant and his two partners were in charge of the land company. Held, that such letter was not a sufficient memorandum under the statute of frauds to bind defendant to pay plaintiff’s claim for back salary against the M. company.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 222-224; Dec. Dig. § 109.*]</p>

<p>Appeal and Error (§ 387*) — Proceedings EOR TRANSFER OE CAUSE — APPEAL BOND OB Affidavit.</p> <p>Under Rev. St. 1895, art. 1387, requiring the appeal bond or affidavit in lieu thereof to be filed within a time prescribed therein after notice of appeal is given where the term of court may continue for more than eight weeks, where the bond or affidavit is not filed .within the prescribed time after notice of appeal given on the day the judgment is entered, the appeal will be dismissed, though a motion for new trial was filed and overruled within the time prescribed preceding the filing of the bond or affidavit; no new notice of appeal being given.</p> <p>[Ed. Note. — For other cases, see'Appeal and Error, Cent. Dig. §§ 2064-2079; Dec. Dig. § 387.*]</p>

A. Denny, Judge.. Action by J. A. Frazar against A. M. Box and another, in which defendant Box filed a plea in reconvention against the plaintiff for wrongfully suing out a distress warrant and having his property seized thereunder. Judgment for defendants as against the plaintiff,, and judgment for defendant Box on his cross-action, and plaintiff appeals.

<p>1. Highways (§ 37*) — Establishment—Juey of View — Qualifications.</p> <p>The statute requiring the appointment in highway proceedings of a jury of view of five freeholders of the county, a majority of whom may act, is material and not merely directory; and an owner disclosing in the commissioners’ court that two of the jurors were not freeholders of the county, and that a third failed to act, and objecting to the proceedings on that ground, may appeal to> the equitable powers of the court, though he appeared before the com-missionets’ court and asked compensation for his damages.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 82--92; Dec. Dig. § 37.*]</p> <p>2. Highways (§ 23*) — Public Lands.</p> <p>Under the statute conferring on the commissioners’ court the power to lay out public roads over lands, including public lands, except when actually used by the state or public for public purposes, as prescribed by Rev. St. 1895-, art. 4715, a commissioners’ court may establish a road over public school lands of the state subject to sale, by entering on its minutes an order to that effect and by actual use, and the statutory provisions for condemnation relate solely to the proceedings against property of individuals.</p> <p>[Ed. Note. — For other cases, see Highways, Dec. Dig. % 23.*]</p> <p>3. Public Lands (§ 173*) — School Lands— Establishment of Public Road — Rights OF PURCHASER.</p> <p>Where a commissioners’ court legally established a road over school lands, subject to sale, a subsequent purchaser thereof, with notice of the facts, took the lands incumbered with the road.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 173.*]</p> <p>4. Appeal and Error (§ 1054*) — Harmless Error — Rulings on Evidence.'</p> <p>Where the findings of the court trying a case without a jury are supported by ample testimony, assignments complaining of testimony will be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 4186; Dec. Dig. § 1054.*]</p> <p>5. Highways (§ 52*) — Establishment—Character of Road — First-Class Road — Statutes.</p> <p>Under Rev. St. 1895, art. 4674, requiring the commissioners’ court of the several counties to establish a first-class road from the county seats of the respective counties, a public road between county seats is a first-class road, and the commissioners’ court may not designate it a second-class road.</p> <p>[Ed. Note. — For other cases, see Highways, Dec. Dig. § 52.*]</p>

<p>Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.</p> <p>Action by Louis C. Wise against J. C. Ferguson and others. From an adverse judgment, plaintiff appeals.</p>

<p>Appeal from Clay 'County Court; S. A. Denny, Judge.</p> <p>Action by S. H. Camp against Joseph Stephenson and others, individually and as trustees of Thornberry School District No. 46, in Olay County. Prom a judgment for plaintiff, defendants appeal.</p>

H. Wilbern, Judge. Action by J. I. Thomas against the Gulf, Colorado & Santa Fé Bailway Company and the Houston & Texas Central Bailroad Company. From a judgment in favor of the Houston & Texas Central Bailroad Company and for plaintiff against the first-named defendant, the latter defendant appeals.

W. Swayne, Judge. Action hy S. L. Roberson against the Houston & Texas Central Railroad Company, and others. From a judgment for plaintiff, defendants appeal.

Briggs, Judge. Action by Steinhardt & Co. against the Galveston Cotton Seed Meal Company and against B. Adoue and J. Lobit, copartners doing business under the firm name and style of Adoue & Lobit. Dismissal as to Adoue & Lobit, and plaintiff appeals.

<p>Ckimikal Law (§ 1090*) — Review — Statement oe Pacts and Bills of Exceptions —Necessity.</p> <p>Refusal of a continuance is not reviewable, in the absence of a statement of facts and bills of exceptions.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2812; Dec. Dig. § 1090.*)</p>

<p>Vendor and Purchaser (§§ 114, 334*) — Contract — Performance—'Time to Perfect Title.</p> <p>Defendant contracted to sell certain school lands to plaintiffs and to deliver a perfect title within 40 days from February 15, 1909. On March 17th an abstract of title was furnished, which was not objected to, except for failure to show payment of interest to the state for the year 1908. Defendant thereupon applied to the State Treasurer for a certified statement of the interest paid since the date of purchase, and on April 2, 1909, defendant presented the statement to plaintiffs. On March 27, 1909, plaintiffs wrote defendant that they were ready to close, in case defendant could furnish receipts or certificate of interest payment by the State Treasurer on the land. Held, that such letter operated as a waiver of the provision requiring a conveyance within 40 days and granted defendant a reasonable time to show payment of interest, and, he having done so, plaintiffs could not recover the earnest money.</p> <p>■ [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 202-204, 959-980; Dec. Dig. §§ 114, 334.*]</p>

<p>1. Life Estates (§ 15*) — Rent—Persons Entitled.</p> <p>Where a life tenant leases the premises and dies before .the rent is due, it goes to the remainderman, and not to the legal representative of the life tenant.</p> <p>[Ed. Note. — For other cases, see Life Estates, Cent. Dig. § 34; Dec. Dig. § 15.*]</p> <p>On Motion to Correct Judgment.</p> <p>2. Life Estates (§ 15*) — Reni^-Persons Entitled.</p> <p>Where a life tenant leases the premises and dies before the rent is due, an heir of the life tenant is not entitled to any portion of the rent.</p> <p>[Ed. Note. — For other cases, see Life Estates, Cent. Dig. § 34; Dec. Dig. § 15.*]</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Suit by G. F. Thompson against J. M. McCoy. From a judgment refusing to dissolve an injunction, defendant appeals.</p>

<p>Appeal from District Court, Cooke County; C. B. Potter, Judge.</p> <p>Action by James A. Rogers against the Gulf, Colorado & Sante Pé Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Yan Zandt County; R. W. Simpson, Judge.</p> <p>Action by R. E. Bogue against Van Zandt County. From a judgment of dismissal rendered on sustaining a general demurrer to the petition, plaintiff appeals.</p>

<p>1. Evidence (§ 127*) — Res Gestze — Declaea-TIONS CONCERNING PERSONAL INJURY.</p> <p>Where one injured in a vehicle drove directly and immediately to a house a short distance away, her declarations shortly after she alighted concerning her physicial condition were properly admitted.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 377-382; Dec. Dig. § 127.*]</p> <p>2. Appeal and Eebob (§ .759*) — Assignments op Eeeob — Waived.</p> <p>Under Court Civil Appeals Rule 29 (67 S. W. xv), an assignment of error not copied in appellant’s brief is waived.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p>

S. Kinder, Judge. Suit by Viola Daugherty and her husband against F. B. Wheelock and others, in which G. W. Mounger, as administrator of R. M. Whittle, deceased, was joined as a party defendant. Judgment for plaintiff against all the defendants, and G. W. Mounger, administrator, appeals.

<p>Appeal from District Court, Nolan County; Jas. L. Shepherd, Judge.</p> <p>Action by J. L. Griffith against J. A. J. Bradford.- From a judgment for defendant, plaintiff appeals.</p>

W. Nugent, Special Judge. Action by O. A. Smith against the International & Great Northern Railroad Company. From a judgment for plaintiff in the justice court, defendant appealed to the county court, where judgment was rendered for defendant, from which plaintiff appeals.

W. Dean, Judge. Action by T. D. Hennessy against J. M. Blair, in which P. A. Newport and others intervene. From a judgment for plaintiff and interveners, defendant appeals.

<p>1. Electricity (§ 11*) — Electric Companies —Quasi Public Service Corporations.</p> <p>An electric light company having a municipal franchise is a quasi public corporation, and is bound to furnish lights to those members of the public who desire them.</p> <p>[Ed. Note. — For other cases, see Electricity, Dec. Dig. § 11.*]</p> <p>2. Electricity (§ 11*) — Electric Companies —Quasi Public Service Corporations— Reasonable Rules.</p> <p>The rule of an electric light company having a municipal franchise that persons using electric lights can use no other is unreasonable as tending to create a monopoly, and the company cannot justify a refusal to supply light because that rule is not observed.</p> <p>[Ed. Note. — For other eases, see Electricity, Dec. Dig. § 11.*]</p>

<p>Telegraphs and Telephones (§ 53*) — Delay —Damage—Pboximate Cause.</p> <p>Though a telegraph company was negligent in delivery of a message concerning the burial of plaintiff’s brother, it was not liable, where plaintiff would not have been able to reach the place of burial in time therefor, even if the message had not been delayed.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 53.*]</p>

<p>Appeal from District Court, Fannin County; Ben H. Denton, Judge.</p> <p>Action by J. B. Burnes against the Leonard Cotton Oil Company. From a judgment for plaintiff, defendant appeals.</p>

Error from Runnels County Court; R. S. Griggs, Judge. Action by Bedford & Odell, a copartnership, against Warren S. Butler, in which the State Bank of Winters was garnished. J. V. Nelson then filed a petition in intervention, which was dismissed, judgment being rendered in favor of the plaintiff against the garnishee bank, and intervener brings error.

McCullough, Judge. Action by G. B. Harris against the Missouri, Kansas & Texas Railway Company and another. Prom a judgment for plaintiff, defendants appeal.

<p>Costs (§ 264*) — Retaxation by Couet on Motion — Time eoe Motion.</p> <p>Appellant filed two appeal bonds, and on proceedings brought by one of the bondsmen consented to his withdrawal, provided his right of appeal' was saved. His motion to strike such proceedings from the record for want of jurisdiction was overruled, and thereafter the judgment appealed from was affirmed, motion for rehearing- overruled, and writ of error denied by the Supreme Court. Thereafter and for the first time he moved to retax costs and to strike out that part of the record relating to the bond proceedings. Held that, whether the trial court had jurisdiction in the proceeding or not, the motion was not filed in time.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 1004-1008; Dec. Dig. § 264.*]</p>

<p>1. FRAUD (§ 28*) — PARTICULAR TRANSACTIONS —Transfer of Note.</p> <p>Where the note sued on had been executed by the maker as indemnity only to secure the payee against liability for an unsatisfied vendor’s lien claim on certain land, to be surrendered on the maker’s discovering the holder of the lien and satisfying the same, and not to be transferred, such note, after satisfaction of the lien, was without consideration, and a transfer thereof to an innocent holder by one knowing the situation constituted an actionable fraud against the maker..</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 8, 26; Dee. Dig. § 28.*]</p> <p>2. (Principal and Agent (§ 158*) — Liability of Agent — Fraud.</p> <p>Where defendant H., acting for his divorced wife, made an exchange of land for her, in which he took a note as indemnity against an unpaid vendor’s lien on the land received in the exchange, to be surrendered on satisfaction of the lien, with notice that the lien had been discharged, and of the maker’s demand for the note, participated in the negotiation thereof to an innocent purchaser for value,’ he became personally liable to the maker for fraud, though he only acted as agent, and got no benefit from the transaction.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 597; Dec. Dig. § 158.*]</p>

Willrich, Judge. Action by J. P. Saxon against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Appellee’s brother sent him a telegram from Trinidad, Tex., to the effect that he was dangerously sick, and to come at once. This telegram, when received by appellee, was dated Trinidad, Colo.

<p>COURTS (§ 99*) — FORMER DECISIONS AS PRECEDENT — EmTECT.</p> <p>A point raised on motion in the nature of a bill of review to set aside judgments will not be considered as open, where it has been repeatedly passed upon in former decisions in the Supreme Court of the United States, the Supreme Court of the state, and the Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 340; Dec. Dig. § 99.*]</p>

<p>1. CaRbiebs (§ 321*) — Personal Injuries — Instructions — Conformity to Pleadings and Proof.</p> <p>Where, in an action for personal injuries to an infant passenger on a street car, the petition specifically alleged that the conductor, while assisting the plaintiff to alight, was negligent in taking plaintiff up, swinging her’over the pavement, and letting her drop, and the evidence as to the circumstances of plaintiff’s injury conformed to the allegations, and the court in the beginning of its charge stated the issues that plaintiff sought a recovery for injuries to her leg and ankle through the careless handling of plaintiff by defendant’s conductor, a charge that if the plaintiff sustained injuries to her leg and ankle, or either, as alleged in her petition, which were proximately caused by the conductor’s general failure to exercise due care, taken with the charge given at defendant’s request that if plaintiff was about to jump from the car, and the conductor attempted to catch her, to prevent her from being injured, but did not get such a hold as to prevent her from falling, that plaintiff could not recover, sufficiently confined the jury to a consideration of the specific negligence charged in the petition; and a further charge that if the conductor exercised that high degree of foresight as to possible danger to plaintiff, and such prudence in guarding, against such dangers as would be used by a prudent and competent person under similar circumstances, then the plaintiff could not recover, does not emphasize the alleged error in the previous charge.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 321.*]</p> <p>2. Damages (§ 216*) — Personal Injuries — Instructions — Conformity to Evidence.</p> <p>Where the evidence, in an action for injuries to the left leg and ankle of an infant passenger, was positive that the injuries to the leg on account of a break, and to the ankle on account of a sprain, were permanent, in that they were not and would not be just as they were before, although there had been a perfect union of the two parts of the bone, and the child was not experiencing any sensible inconvenience from the injury, a charge that the jury might consider whether plaintiff’s injuries were permanent, and that if they were they might award her such sum as would fairly compensate her therefor, is conformable to the evidence.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.*)</p> <p>3. Carriers (§ 321*) — Personal Injuries — Instructions — Degree of Care.</p> <p>In an action for personal injuries to an infant passenger, where the petition specifically alleged that defendant’s conductor, while assisting the plaintiff to alight, was negligent in taking plaintiff up, swinging her over the pavement, and letting her drop, and where there was evidence in conformity to the allegations of the petition, a charge, that it was the duty of defendant to use such a high degree of foresight as to possible-''dangers, and such'a'degree of prudence in guarding against such dangers as would be used by a prudent competent person under similar circumstances, is not erroneous or prejudicial.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1326-1337; Dee. Dig. § 321.*]</p> <p>4. Damages (§ 132*) — Excessive Damages — Personal Injuries.</p> <p>In an action for personal injuries to a girl between three and four years of age, who sustained an oblique fracture of the tibia of the ..left leg and a severe sprain of the ankle, and who was confined to bed for nearly two months suffering great pain, and where the injuries were to some extent permanent, a verdict for $4,000 held excessive so as to require a remitti-tur of $2,000.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*]</p> <p>Reese, J., dissenting in part.</p>

<p>1. Master and Servant (§ 213*) — Railroads —Death of Servant — Contributory Negligence.</p> <p>Where a railroad fireman in charge of an engine attached to a freight train on a siding disobeyed orders not to move his train out onto the main track until the passenger train had passed, and moved his train out onto the main track when he knew the passenger train was due, and was killed in a collision which resulted, he was guilty of contributory negligence.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 682, 759-775; Dec. Dig. § 243.*]</p> <p>2. Master and Servant (§ 248*) — Death of Servant — Discovering Peril — Failure to Avoid Collision.</p> <p>Where defendant, an engineer in charge of a passenger train swiftly approaching a switch, knew, or ought to have known by ordinary care, that a freight train had been negligently moved out from the switch onto the main track in front of his train in time to have stopped the same by the use of appliances at hand, but negligently failed to apply the brakes and reverse his engine until too late to prevent a collision, in which both he and the fireman of the freight train were killed, the engineer’s negligence in failing to act with sufficient promptness after discovering the peril was the proximate cause of the fireman’s death, for which the railroad company was liable, notwithstanding the fireman’s contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. § . 248.*]</p>

<p>Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.</p> <p>Action by John P. Atwood' against the Citizens’ Railway & Light Company and others. Judgment for plaintiff, and defendant Light Company appeals.</p>

Wilson, Judge. Action by the First National Bank of Victoria against M. Ucovich and Ira P. Bailey, in which M. Ucovich pleaded a cross-action against Bailey. From a judgment for plaintiff, which also denied his cross-action, Uco-vich appeals.

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by the Creamery' Dairy Company against the Electric Park Company. From an order denying a temporary injunction, the petitioner appeals.</p>

<p>Appeal and Error (§ 1068*) — Harmless Error — Instructions.</p> <p>In an .action for the price of goods, any error in giving and refusing instructions relating to the question of damages claimed by defendant for breach of warranty was harmless, where the verdict for defendant was not based upon such breach.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228; Dec. Dig. § 1068.*]</p>

Mandamus by August A. Busch & Co. against T. A. Caulfield and another. Judgment for respondents was reversed on appeal, and they move to retax costs.

<p>Appeal from Harris County Court; A. E. Amerman, Judge.</p> <p>Action by the Edward Weil Company against Gean Oliver. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Fayette County; L. W. Moore, Judge.</p> <p>Action by Fannie Franks against Henry Franks. From a judgment for plaintiff, defendant appeals.</p>

<p>Depositions (§ 75*) — Caption — Certification — Requisites.</p> <p>The caption of a deposition which recites that the answers of a witness to interrogatories propounded before a notary public in accordance with the accompanying commission are attached, and the certificate of the notary which recites that the answers of the witness were made before and reduced to writing by the notary and subscribed’ and sworn to before him, do not comply with the statute because they do not show that the deposition was' sworn to by the witness, and it must be quashed on motion.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. § 184; Dec. Dig. § 75.*]</p>

Kittrell, Judge. Action by J. M. Boyles against George A. Byers and others to restrain the sale of certain land. From a judgment upon plaintiff’s bond, plaintiff appeals.

<p>Waters and Water Courses (§ 167*) — Dams —Grants—Right to Water.</p> <p>A contract provided that, in consideration of $250 paid by C., S. granted to C. and his heirs the right to keep and maintain a dam on a certain river for irrigation purposes, and the privilege of maintaining a ditch across a survey of land to convey water from the dam, which right was declared to be an easement for the use of C., his heirs and assigns, so long as they chose to use it. The seventh clause declared that S. and those holding under him should, to irrigate the land of S., have the right to construct and maintain ditches across C.’s ditch, but did not state where that water was to be obtained, and the fourth clause provided that S. granted to C. the exclusive privilege of erecting a dam upon, the land described, and stipulated that S., his heirs and assigns, would not grant to any one else during the time that O. or his successors wished to retain the same their right of erecting a dam across the said river. Seld that, the two latter clauses being ambiguous, the first clause was not changed, and C., as an incident to the easement granted, took the exclusive right to use the water impounded by the dam.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 192-202; Dec. Dig. § 167.*]</p>

<p>1. Trial (§ 191*) — Instructions — Assumption by Judge as to Facts.</p> <p>It was not error to instruct that notice of a sheriff’s sale had not been published for a sufficient length of time, where the facts conclusively showed that to be true.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-435; Dec. Dig. § 191.*]</p> <p>2. Trial (§ 260*) — Instructions — SUFFICIENCY.</p> <p>In an action to set aside a sheriff’s sale for lack of notice and for gross inadequacy of price, a charge that, to find for plaintiff, the jury must believe the land sold for a grossly inadequate price covered the issue that a mere irregularity not affecting the amount of the price would not vitiate the sale.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>3. Judicial Sales (§ 45*) — Actions to Set Aside — Peesumption — Inadequacy op Pbice.</p> <p>Where a sheriff in making a sale of certain lands failed to give the notice required by law and the lands were sold at an inadequate price, it will be presumed that the irregularity affected the price, and in an action to set aside the sale the burden will be upon defendant to rebut such presumption.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. § 83; Dee. Dig. § 45.*]</p> <p>4. Judicial Sales (§ 45*) — Actions to Set Aside — Estoppel.</p> <p>Plaintiff who lived in one county recovered a judgment in a second county, and proceeded to sell land belonging to his creditor, situated in a third county. Plaintiff by his attorney mailed the sheriff of that county instructions to bid in the land for the amount of the judgment, which was $947. The sheriff did not receive these instructions, though neither plaintiff nor his attorney knew that fact, and the land was sold for $12. Soon after the sale, plaintiff tendered the purchaser the amount paid and Ms expenses. Held, that plaintiff was not estopped from setting aside the sale, for he was interested in the land bringing its fair value, to pay his judgment.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. § 83; Dec. Dig. § 45.*]</p>

<p>1. Justices of the Peace (§ 128*) — TEMPORARY INJUNCTION — DISSOLUTION—ANSWER.</p> <p>Where m a suit to enjoin the enforcement of a justice’s judgment defendant’s verified answer only argumentatively denied plaintiff’s allegations that the justice had acquired no jurisdiction over his person at the time the judgment was rendered, and that plaintiff had no knowledge of the judgment until 90 days had expired from the date it was rendered, and until it was too late to remove the, same to the county court, such answer did not deny the equities of the petition, and was insufficient to require a dissolution of the injunction.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Dec. Dig. § 128.*]</p> <p>2. Justices oe the Peace (§ 128*) — Dissolving Temporary Injunction — Grounds.</p> <p>Where, in a suit to restrain the enforcement of a justice’s judgment, it appeared from the petition and answer that the judgment was void for want of jurisdiction of the justice, and that plaintiff had not been guilty of laches, the fact that a meritorious defense to the suit in which the judgment was rendered was not alleged was no reason for dissolving a temporary injunction, under the rule that where the record is silent as to the existence of facts necessary to confer jurisdiction on a justice’s court, evidence aliunde is admissible to show the nonexistence of such facts, though the attack on the judgment is collateral.</p> <p>[Ed. Note. — For other cases, see' Justices of the Peace, Dec. Dig. § 128.*]</p> <p>3. Justices oe the Peace (§ 119*) — Jurisdiction — Judgment.</p> <p>A justice’s judgment rendered without the Justice having acquired jurisdiction over the person of him against ■ whom the judgment is rendered is void.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 373-376; Dec. Dig. § 119.*]</p> <p>4. Injunction (§ 128*) — Permanent Injunction — On Pleadings.</p> <p>Where in a suit to restrain the enforcement of a justice’s judgment, defendants denied generally all plaintiff’s allegations that the judgment was void for want of jurisdiction, it was error to render judgment perpetuating the injunction without other evidence of the truth of plaintiff’s allegations than that furnished by the affidavit to the petition on which the preliminary injunction was granted.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 128.*]</p>

<p>Appeal from District Court, Leon County; S. W. Dean, Judge.</p> <p>Action by Mrs. O. M. Roberts and others against Sol M. Coleman and others. Judgment for defendants. Plaintiffs appeal.</p>

<p>Appeal from District Court, Sterling County; J. W. Timmins, Judge.</p> <p>Action by H. K. Ray against the Co-operative Insurance Association of San Angelo, Tex., and others. From a judgment for. plaintiff, defendants appeal.</p> <p>H. K. Ray instituted this suit against the Co-operative Insurance Association of San Angelo, Tex., W. S. Robertson, R. A. Hall, J. B. Alexander, J. G. Schooler, and M. A. Murff, as individual stockholders and as partners," seeking to recover $1,000 alleged to be due upon a fire insurance policy. Before trial the plaintiff dismissed as to the defendant Hall. In their answer, the other defendants did not deny under oath the existence of partnership alleged by the plaintiff, but, in addition to a general denial, they pleaded a breach of two alleged warranties, one as to the value of the property, and the other as to an agreement to keep metal 3x3 feet under the stores used in the house. The plaintiff filed a reply to defendants’ answer. There was a nonjury trial, which resulted in a judgment for the plaintiff, and the defendants have appealed. The evidence sustains the judge’s findings of fact, which are as follows :</p> <p>“(1) That defendants as a joint-stock company, association and partnership under the name of the Co-operative Insurance Association of San Angelo, Texas, on October 28, 1908, by policy No. 725, insured plaintiff against loss by fire, etc., in the sum of $1,000, on his one-story shingle roof frame residence building, situated in Sterling county, Texas, described in plaintiff’s first amended original petition, and the household and kitchen furniture and articles of personal property fully described and set out in said petition while contained in said building; said policy being for $800 on said building and $200 on said personal property, and run for one year, beginning on October 28, 1908, and expiring on October 28, 1909.</p> <p>“(2) That during the life of said policy, on, to wit, March 17, 1909, said building, with the articles of personal property described in plaintiff’s said petition while contained in said building, were totally destroyed by fire.</p> <p>“(3) The actual cash value of said personal property, as admitted by defendants on trial, being more than $300, I find that two-thirds of the actual cash value thereof is more than $200.</p> <p>“(4) That after said fire, and, to wit, on the 17th day of March, 1909, plaintiff notified defendant of said fire and total destruction of said building and contents therein, which notice was received by them the next day, and that proof of loss was made and delivered to defendants April 14, 1909.</p> <p>“(5) That plaintiff’s application for.said insurance was wholly prepared by defendants’ agent, that before preparing said application defendants’ agent personally inspected said building, and the said personal property contained therein, was correctly informed by plaintiff of the cost and value thereof, and knew the situation, location, and condition of said building and its contents, and that he then agreed with plaintiff that defendants should write him a policy for $800 on the building and $200 on the contents therein.</p> <p>“(6) That plaintiff paid to said agent the premium therefor, amounting to $10, at the time of said application.</p> <p>“(7) That the answers to questions contained in said application and policy and set out in defendants’ answer, were not warranties, but only representations, and not material to the risk, and that the failure of plaintiff to keep metal 3x3 feet under the stoves did not cause or contribute to the fire and destruction of sáid building and contents.</p> <p>“(8) That defendants after being informed by plaintiff that he did not place and keep metals 3x3 feet under the stoves, and that the same were not under the stoves at the time of the fire, prepared proofs of the loss on said building and contents and required plaintiff to sign the same, and that with knowledge that said provisions of the policy had not been complied with, ■ informed plaintiff that said policy would be paid.”</p>

<p>1. Statutes (§§ 174, 175*) — Construction— General Rules — Application.</p> <p>Rules of statutory construction are intended to aid courts in arriving at a proper conclusion, but no particular rule should be followed to the exclusion of all others, when to do so leads to illogical deductions.</p> <p>TEd. Note. — For other cases, see Statutes, Cent. Dig. '§ 254; Dec. Dig. §§ 174, 175.*)</p> <p>2. Statutes (§ 245*) — Revenue Laws — Construction.</p> <p>Revenue laws are to be construed fairly for the government and justly for the citizen, and so as to carry out the intention of the Legislature gathered from the language used, read in connection with the general purpose of the law.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 326; Dec. Dig. § 245.*]</p> <p>3. Intoxicating Liquors (§ 91*) — Taxes— Amount — “Gross Receipts.”</p> <p>Under Acts 30th Leg. 1st Ex. Sess. c. 18, § 11, requiring' every one engaged in the wholesale liquor business to make a quarterly report showing the gross amount collected and uncollected from all sales made during the quarter next preceding, and to pay an occupation tax for the quarter beginning on the date of the report equal to one-half of 1 per cent, of “said gross receipts,” the. term “gross receipts,” though ordinarily meaning the gross amount of cash received, here includes the gross amount collected and uncollected of all the sales, on which amount the percentage must be computed to determine the tax.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 97; Dec. Dig. § 91.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3174; vol. 8, p. 7675.)</p>

<p>Appeal from District Court, Hopkins County; R. L. Porter, Judge.</p> <p>Action by C. B. Turner against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Evidence (§ 47*) — Judicial Notice — Transportation of Cattle — Agricultural Regulations.</p> <p>Since courts will take judicial notice of the regulations of the department of agriculture as to the transportation of cattle, and a proclamation of the Secretary of Agriculture putting such regulations in force, it was not error, 'in an action against a carrier for alleged default in carrying such regulations into effect, to introduce in evidence a pamphlet issued by the government purporting to contain such regulations.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 69; Dec. Dig. § 47.*]</p> <p>2. Carriers (§ 208*) — Transportation op Cattle — Inspection Certificate — Duty of Carrier.</p> <p>Where plaintiff’s cattle were inspected before shipment and a certificate of good health issued by a United States inspector which would have entitled the cattle to be sent North and sold for feeders at a higher price as intended, it was the carrier’s duty to have the inspection certificate required by the regulations of the agricultural department accompany the shipment to destination with the proper bill of lading.</p> <p>TE'd. Note. — For other cases, see Carriers, Dec. Dig. §.208.*]</p> <p>3. Appeal and Error (§ 1067*) — Instructions — Prejudice.</p> <p>Where the court specially informed the jury of each of the acts of negligence complained of and supported by evidence, and directed them that if they found such negligence to find the damage sustained from the same, stating in case of the carrier’s negligent delay of plaintiff’s cattle such damage to be the decline in values caused thereby, and in the case of negligence in failing to have the health certificate accompany the shipment, and in consequence thereof the cattle were unloaded at destination in pens set apart for infected cattle, and thereby plaintiff sustained loss, to find for him the amount of such loss, defendant was not prejudiced by refusal of an instruction that though the jury might find that the cattle were damaged they could not consider any damage except such as resulted proximately from defendant’s acts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §,4229; Dec. Dig. § 1067.*]</p> <p>4. Carriers (§ 229*) — Transportation op Cattle — Delay—Damages.</p> <p>In an action for delay in transporting cattle, damage accruing from the necessary unloading of the cattle for food, water, and rest in transit, unless the cattle were held at the unloading pens for an unreasonable length of time, under the circumstances of the shipment, is not to be considered, it being the carrier’s duty to hold the cattle in the pens for a period of not less than five hours exclusive of the time required for unloading and reloading.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.*]</p>

M. Holland, Judge. Action by J. A. Gilmore against the Dallas Consolidated Electric Street Railway Company. There was a judgment for plaintiff in the justice court, and defendant appealed to the county court where judgment was again rendered for plaintiff, and from that judgment, defendant appeals.

<p>1. Insurance (§ 817*) — Life Insurance — Death from Violation of Law — Burden of Proof.</p> <p>On the question whether insured Was the aggressor in the difficulty in which he lost his life, and so was within the condition of the certificate on his life that it should be void, should he die in consequence of the violation or attempted violation of the laws, insurer has the burden of proof.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 817.*]</p> <p>2. Trial (§ 139*) — Taking Case from Jury —Weight and Sufficiency of Evidence.</p> <p>A case cannot be taken from the jury, unless the facts are so clear and convincing that there is no room for fair and reasonable minds to reach different conclusions.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. § 139.*]</p> <p>3. Insurance (§ 825*) — Life Insurance — Death from Violation of Law — Evidence.</p> <p>Evidence, in an action on a life certificate, held to make a question for the jury whether insured was the aggressor in the difficulty in which he lost his life, as regards the condition that, should he die in consequence of the violation or attempted violation of the laws, the certificate should be void.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. § S25.*]</p> <p>4. Evidence (§ 588*) — Credibility of Witnesses.</p> <p>Though testimony of witnesses is uncontra--dicted, it may be disbelieved by the jury; the concern of one of them not to make any damaging statements that might be available against him in a criminal prosecution being apparent, and the other refusing to testify as to certain material facts, and his testimony given being of doubtful meaning.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*]</p>

<p>1. CabrieRS (§ 69*) — Bill of Ladina.</p> <p>Plaintiffs’ petition alleged that Y. ivas indebted to a cotton seed meal company, and in payment of that debt delivered to them forged negotiable ocean bills of lading representing cotton seed meal in transit; that the cotton seed meal company indorsed these bills of lading to defendants, who in turn negotiated them; plaintiffs becoming the ultimate holders. The bill further charged that plaintiffs had sold cotton seed meal for the company, and that these sales had been rescinded for delay in delivery, and that, by means of a bonus, the cotton seed meal company induced plaintiffs to buy these negotiable ocean bills of lading; that plaintiffs paid the consideration to persons named by defendants ; that the negotiations were really carried on for the benefit of defendants, the cotton seed meal company being largely indebted to them, and their only hope for payment being the sale of these bills of lading; and that this sale was made with full knowledge of the dishonor of the bills of lading by the persons on whom they were drawn. I-Ield, that the particular allega-; tions showed that defendants were not the owners of these bills of lading, and, as they were not parties to the transactions between plaintiffs and the cotton seed meal company, the allegations that their only hope of payment was in the sale of these negotiable bills of lading cannot be taken as true on demurrer, ■ but the petition must be construed to mean that they were not the owners, but were only interested in the sale, of the bills of lading, as they would receive the proceeds; furthermore that this sale was made with full knowledge of the dishonor of the bills of lading cannot mean that defendants knew of the forgeries, but only that they were refused by the persons to whom the meal 'had been shipped, and hence showed no liability of defendants, so that a demurrer to the bill was properly sustained.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 69.*]</p> <p>2. Carriers (§ 58*) — Bill of Lading — Rights of Action — Nature of Right.</p> <p>Where forged negotiable ocean bills of lading were negotiated by a third party, who acted merely as an intermediary for the owner, the bills being negotiated on the blank indorsement of the owner, the third party is not liable to the purchasers, even though he received the consideration of the bills of lading in payment of a debt due him from the owners, and though he had received assets from the owner to protect him from claims upon these bills of lading.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. § 58.*]</p>

<p>Appeal from District Court, Sabine County; W. B. Powell, Judge.</p> <p>Action by E. P. Padgett against J. F. Guil-martin. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error (§ 1011*) — Review — Findings — Conclusiveness.</p> <p>A finding by the trial court upon conflicting evidence is conclusive on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]</p> <p>2. Sales (§ 22*) — Validity — Meeting oe Minds.</p> <p>Where the seller offered to sell a saloon without the building or lot, and the buyer understood that those were included, there was no completed contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 39-43; Dee. Dig. § 22.*]</p> <p>3. Contracts (§ 92*) — Validity oe Assent-Condition oe Party.</p> <p>A party to a contract cannot escape liability because he was intoxicated at the time of its execution, unless he was incapable for the time being of understanding the contract, but a less degree of intoxication will avoid a contract where the drunkenness was caused by the opposite party, 'and he has taken advantage of it.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 411-414; Dec. Dig. § 92.*]</p> <p>4. Trial (§ 252*) — Instructions — Applicability to Issues.</p> <p>Where a party to a contract testified that he was intoxicated at the time of execution, but there was no evidence that he was so drunk that he did not understand what he was doing, it was improper to charge the jury upon the right of an intoxicated party to avoid a contract entered into while he was wholly incapable of understanding the nature of the transaction.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]</p> <p>5. Appeal and Error (§ 1062*) — Review — Harmless Error.</p> <p>Where a charge submitted three issues to the jury and their verdict could have been based upon any one issue, and the verdict did not indicate upon which issue it was based, the erroneous submission of one of these issues was prejudicial error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*]</p> <p>6. Evidence (§ 113*) — Value oe Property-Inadequacy oe Price.</p> <p>In an action to recover money paid during negotiations for the purchase of property on the ground that there had been no meeting of minds as to the property to be conveyed, plaintiff claiming that certain real estate was to be included, while defendant claimed that it was a sale of the buildings only, evidence offered by defendant that the price agreed upon would have been inadequate for the land and buildings was material to the issue.</p> <p>[Ed. Note. — For other cases, see Evidence. Cent. Dig. §§ 259-296; Dec. Dig. § 113.*]</p> <p>7. Contracts (§ 53*) — Rescission — Inadequacy oe Price.</p> <p>Mere inadequacy of price is no ground for the rescission of a contract.</p> <p>. [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 231-232; Dec. Dig. § 53.*]</p> <p>8. Trial (§ 260*) — Instruction — Instructions Covered by Others.</p> <p>The refusal of special instructions covered by the charge as given is not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>Appeal from District Court, Anderson County; B. H. Gardner, Judge.</p> <p>Action by A. N. Starr against Thomas J. Freeman, as receiver of the International & Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error (§ 1002*) — Review-Verdict — Conclusiveness.</p> <p>A verdict upon conflicting evidence is conclusive <on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>2. Carriers (§ 303*) — Carriage op Passengers — Personal Injury — Negligence op Carrier.</p> <p>As a train approached a switch station the negro porter told a passenger who was to alight there to “come on,” and when the passenger got to the doorway told him to go ahead. The vestibule of the car was open, and the negro told him to “hurry up,” and the passenger, although the train was moving, jumped. Held, that the porter was negligent.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1224-1243 ; Dec. Dig. § 303.*]</p> <p>3. Carriers (§ 333*) — Carriage op Passengers — Personal injury — Contributory Negligence.</p> <p>It is not negligence per se for one to alight from a moving train, but the question of negligence depends upon the circumstances of the case, such as the speed of the train, and the instructions of those in charge thereof.</p> <p>[Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 1385-1397; Dec. Dig. § 333.*]</p> <p>4. Negligence (§ 136*) — Actions — Questions eor Jury.</p> <p>In an action based on negligence, unless controlled by the statute, the question of negligence is one of fact for the jury, unless the facts are such that reasonable minds could come to but one conclusion.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 130.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth Poree, Judge.</p> <p>Action by E. A. Tweed against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Grimes County Court; Hood Boone, Judge.</p> <p>Action by Chr. Preeker against Henry Slayton and wife. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Falls County; Richard I. Munroe, Judge.</p> <p>Action by S. D. Davison against the International & Great Northern Railroad Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>Action by the First State Bank of Teague against J. M. Harris and another. Judgment for defendants for damages, and plaintiff appeals.</p>

<p>Appeal from District Court, Cooke County ; Clem B. Potter, Judge.</p> <p>Action by J. B'. Jarrell against tbe Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hunt County; T. D. Montrose, Judge.</p> <p>Action by A. W. Neef against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hale County; L. S. Kinder, Judge.</p> <p>Action by H. C. Randolph and another against R. M. Ellerd and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Tom Green County; J. W. Timmins, Judge.</p> <p>Trespass to try title by the Kansas City, Mexico & Orient Railway Company of Texas against E. T. Jett. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Wood County; R. W. Simpson, Judge.</p> <p>Action by J. T. Adams against the Consumers’ Lignite Company. From a judgment for defendant, plaintiff appeals.</p>

H. Arnold, Judge. Action by G. L. Sanders and others against the Southwestern Telegraph & Telephone Company and another. From a judgment for plaintiff against the first, but in favor of the last, defendant telegraph company appeals. Appellee G. L. Sanders brought this suit against the Southwestern Telegraph & Telephone Company and the Cameron Water, Light & Power Company, seeking to recover damages on account of personal injuries sustained by him.

<p>Appeal from District Court, Grayson County; B. L. Jones, Judge.</p> <p>Action by Kelley & Grady against John M. Davis. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Contracts (§ $05*) — Construction Contracts — Time for Performance — Waiver.</p> <p>If the owner leads a contractor to believe that performance by the time fixed in the contract will not be required, thereby inducing the contractor to expend money and material in completing the work, recovery of compensation cannot be defeated on account of failure to complete on time.</p> <p>TEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 1407-1475; Dec. Dig. § 305.*]</p> <p>2. Contracts (§ 309*) — Construction Contracts — Destruction of Work — Right to Compensation.</p> <p>Destruction of work by flood before its delivery by the builder to the owner does not excuse nonperformance of the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1444-1446; Dec. Dig. § 309.*)</p> <p>3. Contracts (§ 353*) — Instructions—Conformity to Pleading.</p> <p>In a suit for the contract price for constructing work, counting upon performance of the contract which made the price due on delivery of the completed work, it was error to authorize recovery if the work was completed and would have been delivered had the owner not wrongfully refused to accept it unless the contractor furnished extras, and the work was destroyed by flood while doing the extra work; that issue not being raised by the pleadings.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 353.*]</p> <p>4. Contracts (§ 303*) — Construction Contracts — Nonperformance—Excuse.</p> <p>One contracting to construct work according to plans and specifications, cannot, in the absence of fraud or mistake, excuse nonperformance on account of defects in the plans and' specifications.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dec. Dig. % 303.*]</p>

<p>1. Mines and Minerals (§ 79*) — Oil and Gas Leases — Payments—Time—Waiver.</p> <p>Under an oil and gas lease requiring the lessee to pay ,$25 every 60 days until commencement of drilling operations, the lessor waived failure to pay the third installment on time by receiving the second installment after it was due, and by failing for several days after being informed that the payment had been deposited in a bank to refuse to receive it.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Dec. Dig. § 79.*]</p> <p>2. Mines and Minerals (§ 81*) — Oil and Gas Leases — Junior Lessees — Rights.</p> <p>A junior oil and gas lessee contracting with knowledge of facts concerning the prior lease is in no better position than the lessor.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Dec. Dig. § 81.*]</p> <p>3. Mines and Minerals (§ 58*) — Oil and> Gas Leases — Mutuality.</p> <p>An oil and gas lease, running for five years, and as long thereafter as oil, gas, or other minerals shall be found in paying quantities, and providing for forfeiture unless operations were commenced with due diligence within 60 days, or the lessee should pay $25 every 60 days until the well should be commenced, etc., is not void as being unilateral.</p> <p>[Ed. Note. — For other cases, see Mines-and Minerals, Dec. Dig. § 58.*].</p>

<p>Appeal from' Harris County Court; A. E. Amerman, Judge.</p> <p>Action by Lillie Haywood against the Grand Lodge of Texas Knights of Pythias of North and South America, and Europe, Asia, and Africa. Judgment for defendant, and plaintiff appeals.</p>

C. Roberts, Judge. Suit by the State of Texas against J. C. Duke and others to enjoin them from keeping an alleged disorderly house. Injunction denied, and plaintiffs appeal.

<p>Appeal from District Court, Henderson. County; B. H. Gardner, Judge. Habeas corpus proceeding on relation of Pleas Box. Judgment remanding relator without bail, and he appeals.</p>

<p>Application for habeas corpus to obtain- bail by Minnie Lee Streight.</p>

<p>Appeal from District Court, Hall County; L. S. Kinder, Judge. Action by J. T. Pitts against A. M. Smith and others. Prom a judgment for plaintiffs, all of the defendants except C. Wilson appeal.</p>

<p>Error from Brown County Court; A. M. Brumfield, Judge. Action by G. M. Padgitt against the Et. Worth & Rio Grande Railway Company. Judgment for defendant, and plaintiff brings error.</p>