Volume 140 — South Western Reporter

<p>Appeal from HI Paso County Court; Albert S. Eylar, Judge.</p> <p>Action between Leon Feingold and Samuel Lefkovitz. From the judgment, Feingold appealed.</p>

<p>Appeal from District Court, Houston County; Benj. H. Gardner, Judge.</p> <p>Action by Warfield and another against W. B. Collins and others. From a judgment for plaintiffs, defendants appeal.</p>

Error from District Court, Tarrant County; Jas. W. Swayne, Judge. Action by Read Bros. & Montgomery and others against the Port Worth & Denver City Railway Company. Judgment for plaintiffs, and defendant brings error. Read Bros. & Montgomery were independent contractors, and entered into a contract with the railway company to construct a complete spur track from a point on the main line at Alvord to a rock quarry.

<p>1. Garnishment (§ 185*) — Proceedings Against Garnishee — Separate Docket.</p> <p>Failure to doeketj garnishment proceedings against each of the garnishees separately, while an irregularity, will not affect the validity of the judgment, if the proceedings are otherwise legal.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 357; Dec. Dig. § 185.*]</p> <p>2. Appeal and Error (§ 79*) — Final Judgment-Garnishment.</p> <p>Where a judgment in garnishment failed to make any disposition of the cause against two of the garnishees, it was not a final judgment, and insufficient to support a writ of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 484-493; Dec. Dig. § 79.*]</p>

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action by W. M. Cotton and another against T. W. Morrison and another. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Attachment (§ 364*) — Conversion—Waiver of Right of Action.</p> <p>An attachment was levied on wood of a firm for a debt of a partner, who was the acting manager of the firm. Only a small part of the wood was ever removed, and that was sold to provide the expense of removing part of the wood from a pasture to a railroad right of way, where the main' part was stacked. The officer did not take actual possession of the main part. The copartner was notified that his wood had not been levied on. The partner indebted voluntarily moved to quash the attachment and to abate the suit, and the court granted the motions. Held, that the firm waived its right to sue for the conversion of the wood, except as to the part sold.</p> <p>[Ed. Note. — For other cases, see Attachment, Dec. Dig. § 364.*]</p> <p>2. Attachment (§ 164*) — Manner of Levy— Statutes — * * Trespasser . ’ ’</p> <p>Under- Rev. St. 1895, arts. 201, 2349, requiring an attachment to be levied as an execution on similar property is levied, and providing that a levy on personalty is made by taking possession thereof, an officer in attaching wood stacked on land must perform such pos-sessory acts or take such undoubted control as to constitute a trespass; a “trespasser” being one who unlawfully enters on or intrudes on another’s land, or who unlawfully and forcibly takes' another’s personalty.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 4G4r-479; Dec. Dig. § 164.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7094; vol. 8, p. 7821.]</p> <p>3. Attachment (§ 278*) — Vacation—Effect.</p> <p>Under Rev. St. 1895, art. 216, requiring the court, on quashing an attachment, to order disposition of the property or the proceeds of any sale thereof by directing that the same be turned over to defendant, the court, on quashing an attachment on the motion of the debtor, must order the return of tlie property to the debt- or, to receive which the law implies an obligation on his part, and a debtor who knew the effect of the quashing of an attachment must resume control of the property, in the absence of any preventing cause.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 980-982; Dec. Dig. § 278.*]</p> <p>4. Attachment (§ 375*) — Wrongful Attachment-Damages.</p> <p>Where a debtor obtained an order quashing an attachment of personalty, only a small part of which had been removed, and that part sold, the recovery for the wrongful attachment was limited to the value of the property actually converted and sold, and to special damages, if any, and to deteriorations in value of the property, if any, while in possession of the officer under the attachment.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1378-1385; Dec. Dig. § 375.*]</p> <p>5. Attachment (§ 364*) — Wrongful Levy-Waiver.</p> <p>Where a partner, who was the sole manager of a firm, moved to quash an attachment on firm personalty for a debt due from him, and the court granted the motion, he could not.deny the necessary legal effect of his deliberate action, amounting to a waiver of the conversion of the property; and he could not testify that in moving to quash he did not intend to waive the conversion caused by the attachment.</p> <p>[Ed. Note. — For other cases, see Attachment, Gent. Dig. § 1327; Dec. Dig. § 364.*]</p> <p>6. Attachment (§ 377*) — Wrongful Levy-Exemplary Damages.</p> <p>Where a creditor, attaching firm property for the debt of a partner, ascertained that a copartner had an" interest in the property, and informed him that he could at any time take the property that belonged to him, and the levy on the property was constructive, rather than actual, exemplary damages for the wrongful levy were not recoverable by the firm.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1389; Dec. Dig. § 377.*]</p>

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by J. C. Inglehart against B. D. Hurd. Judgment for plaintiff, and defendant appeals.</p>

<p>Courts (§ 487*) — Jurisdiction—Texas Court of Civil'Appeals.</p> <p>Since, under Sayles’ Ann. Civ. St. 1897, art. 1387, appeals generally are perfected when tbe bond is filed, the Court of Civil Appeals for the Seventh district, creation of which became operative June 9, 1911, under Act April 3, 1911 (Acts 32d Leg. c. 120), has no jurisdiction of an appeal, where the bond was filed May 2(>, 1911, and no order of the Supremo Court transferring the cause to the new court is shown.</p> <p>[Ed. Note. — For other eases, see Courts, Dec. Dig. § 487.*]</p>

<p>Appeal from District Court, Hemphill County1; F. P. Greever, Judge.</p> <p>Action by A. M. Reynolds against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trial (§ 252*) — Instructions — Application to Issues and Evidence.</p> <p>Where, in an action for death of plaintiff’s daughter caused by the discharge of a blowpipe alleged to have been negligently constructed and maintained in connection with the plant of defendant ice company, defendant pleaded that the placing of the pipe was the work of the E. Company, an independent contractor, but plaintiff pleaded and offered evidence to show that the ice company had received and was operating the plant at the. time of the accident, the court did not err in refusing to charge that if the jury believed the defendant ice company had contracted with the F. Company to install the plant, and by the terms) of the contract the E. Company had entire charge and control of the erection of the plant, plaintiff could not recover.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]</p> <p>2. Master and Servant (§ 318*) — Injuries to Third Persons — Construction of Plant — Independent Contractor.</p> <p>Where a contract for the construction of an ice plant by the F. Company provided that the latter should make and erect the machinery, but that defendant ice company should also do certain enumerated things in the construction of the plant, and furnish all materials not specifically undertaken to be furnished by the F. Company, the agreement contemplated the co-operation of the two companies, and did not show that the work was so completely under the control of the contractor as to exempt the ice company from liability for negligence in the manner of the construction of the plant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dee. Dig. § 318.*]</p> <p>3. Master and Servant (§ 324*) — Construction of Machinery — Independent Contractor.</p> <p>Where defendant ice company was actually operating and using the machinery of its plant at the time plaintiff’s minor daughter was killed as the result of mud and steam being discharged through a blowpipe negligently constructed and maintained, and actually caused the mud and steam which caused the child’s death to be discharged, it was no defense that the pipe was constructed by an independent contractor.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1265; Dec. Dig. § 324.*]</p> <p>4. Trial (§ 253*) — Instructions — Applicability to Evidence.</p> <p>Where plaintiff’s child, when she was struck by mud and water discharged from the blowpipe of defendant ice company and whereby she was so injured that she died, was at the end of a trench dug by the flowing steam from the pipe on a railway right of way at a point frequently traveled by the public in general, including children, a request to charge that if the child was at the end of the trench on the railway right of way, and defendant did not know the child was there the verdict should bq for defendant, was properly refused, as ignoring defendant’s duty so to construct and maintain its plant as not to cause injury to persons whose presence ought reasonably to be anticipated.</p> <p>TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>5.Master and Servant (§ 330*) — Injuries to Third Persons — Independent Contractor — Evidence.</p> <p>Where, in an action for death as the result of the operation of defendant’s ice plant, it pleaded that the plant had been constructed by an independent contractor, and plaintiff claimed that defendant ice company at the time of the accident had accepted the plant as completed, such fact was provable by parol evidence, either direct or circumstantial, and hence it was not error to permit the introduction of a deed of trust executed by the ice company to the contractor to prove such fact over an objection that the deed did not bear the ice company’s corporate seal.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 330.*]</p>

<p>Appeal from District Court, Potter County; J. N. Browning, Judge.</p> <p>Action by Etta M. White against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Municipal Corporations (§ 20*) — Authority — Presumptions.</p> <p>■A city, not shown to be operating under a special charter, is presumed to be subject to Sayles’ Ann. Civ. St. 1897, arts. 381-671m, relating to cities and towns; the burden being on it, in a suit against it, to show exemption from the operation of such general laws.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 49, 51; Dec. Dig. § 20.*]</p> <p>2. Municipal Coepoeations (§ 607*) — Dumping Grounds — Right to Maintain.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 448, authorizing a city to make all necessary and expedient health regulations, authorizes a dumping ground outside the city limits.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 607.*]</p> <p>3. Municipal CORPORATIONS (§ 736*) — Dumping Ground as Nuisance — Liabilitv.</p> <p>A city authorized to maintain a dumping ground is liable for damages to adjoining owners, caused by its maintenance as a nuisance.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. § 1552; Dec. Dig. § 736.*]</p>

1 J. P. Volz was indicted for murder, and he sued out a writ of habeas corpus. Bail denied, and relator remanded, and he appeals.

<p>1. Appeal and Error (§ 1011*) — Findings— Conclusiveness.</p> <p>A finding on 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. Adveese Possession (§ 13*) — Possession— Requisites.</p> <p>Possession, to be adverse -within Rev. St. 1895,' art. 3349, defining it as the actual and visible appropriation of land, commenced and continued under a claim of right, inconsistent with, and hostile to, the claim of another, must be actual, continued, visible, notorious, distinct, and hostile, and mere occasional grazing is not sufficient, but continued cultivation is sufficient, as well as any visible and notorious acts evidencing an intention to claim ownership and possession, and an inclosure is only an act indicative of possession and claim of ownership.</p> <p>[Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 65-76; Dec. Dig. § 13.* For other definitions, see Words and Phrases, vol. 1, pp. 227-235; vol. 8, p. 7568.]</p> <p>3. Adverse Possession (§ 66*) — Extension of Possession.</p> <p>Where a purchaser of a survey used and cultivated continually an adjacent survey containing less than 160 acres and claimed the entire survey as his own, his possession extended to the limits of the survey, and was not confined to the land actually cultivated.</p> <p>[Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 371-383; Dec. Dig. § 66.*)</p> <p>4. Adverse Possession (§ 110*) — Plea for ' Less Than 160 Acres — Requisites.</p> <p>A plea of limitations for less than 160 acres need not describe by metes and bounds the land claimed, though where the tract claimed contains more than 160 acres, and there is no written memorandum of title, claimant must, under Rev. St. 1895, art. 3344, accurately describe the 160 acres to which he is restricted.</p> <p>[Ed. Note. — Por other cases, see Adverse Possession, Dec. Dig. § 110.*]</p> <p>5. Appeal and Error (§ 1071*) — Erroneous Findings — Effect.</p> <p>An erroneous finding on a material fact is ordinarily ground for reversal.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.*]</p> <p>6. Appeal and Error (§§ 1010, 1071*) — Harmless Error — Erroneous Findings.</p> <p>Where the finding of adverse possession by cultivation long enough to give title is supported by evidence, the appellate court must assume the truth of the finding, and hence any error in a finding as to the time of construction of a house on the premises is immaterial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4234-4239; Dec. Dig. §§ 1010, 1071.*]</p> <p>7. Adverse Possession (§ 85*) — Evidence-Admissibility.</p> <p>On the issue of adverse possession of unin-closed land, evidence that stock was not permitted to run at large where the land was situate, and that it was not customary for farmers to fence their lands, was admissible.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Dec. Dig. § 85.*]</p> <p>S. Appeal and Error (§ 1052*) — Harmless Error — Erroneous Admission of Evidence.</p> <p>Where there is ample proper evidence to sustain the findings of the court trying the case without a jury, error in admitting testimony is not reversible, unless it affirmatively appears that the improper testimony was considered by the court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.*]</p>

<p>1.Courts (§ 122*) — Jurisdiction—“Amount in Controversv.”</p> <p>In the absence of a plea to the jurisdiction, averring that the sum claimed is fraudulently alleged' to give the court jurisdiction, the amount well pleaded is the “amount in controversy” and fixes the jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 122.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 376, 377; vol. 8, p. 7574.]</p> <p>2. Courts (§ 247*) — Jurisdiction—“Amount in Controversy.”</p> <p>Where, in an action in justice’s court and appealed to the county court, plaintiff demanded judgment for less than $100, and defendant filed a counter demand for $200, and the county court rendered judgment against plaintiff on his cause of action and in defendant’s favor on the counterclaim for $175, the “amount in controversy,” within Rev. St. 1895, art. 996, conferring on the Court of Civil Appeals appellate jurisdiction when the amount in controversy exceeds $100, must be determined from the counterclaim, and that defendant remitted the judgment in his favor will not defeat the. jurisdiction.</p> <p>TEd. Note. — For other cases, see Courts, Cent. Dig. §§ 749-765; Dec. Dig/§ 247.*]</p> <p>3. Evidence (§ 397*) —Parol Evidence — Varying Written Instruments.</p> <p>An instrument, which recites that plaintiff has turned over to defendant for collection a note for a specified sum, imports an agreement on defendant’s part to collect the note in money or to exercise due diligence to do so, and in- the absence of fraud, accident, or mistake, the instrument may not be varied or contradict-, ed by parol. i</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1756-1765; Dec. Dig. § 397.*]</p> <p>4. Evidence (§ 434*) — Fraud — Parol Evidence.</p> <p>Evidence held not to raise the issue of fraud in the execution of a written instrument, reciting that plaintiff had delivered to defendant for collection a note of a third person, so as to admit parol evidence to vary the instrument.</p> <p>[Ed. Note. — For other cases, see Evidence, -Cent. Dig. §§ 2005-2020; Dec. Dig. § 434.*]</p>

<p>On Motion for Rehearing.</p> <p>1. Frauds, Statute of (§ 63*) — Interest Under Contract of Sale.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 624, providing that no estate of inheritance or freehold or for a term of more than one year in lands and tenements shall be conveyed, except in writing, subscribed and delivered by the grantor, one who contracted to purchase land could only convey his equitable title arising from the contract by his written- deed delivered to the grantee.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 100; Dec. Dig. § 63.*]</p> <p>2. Vendor and Purchaser (§ 204*) — Agreements Between Parties — Breach—Right - -of Action.</p> <p>Defendants contracted to sell a tract to plaintiffs, a part of the price being paid in cash and the remainder to be paid at stated future dates, the contract also providing that, upon violation of -any of its terms, the contract should be forfeited, and the cash payments retained by defendants. Plaintiffs failed to make payments as agreed, and, after negotiation, defendants agreed to sell the land to a prospective purchaser from plaintiffs, acting both for themselves and plaintiffs, and to pay plaintiffs all received over the original price per acre to plaintiffs. Before making the sale, defendants repudiated such agreement and notified plaintiffs that they were acting for themselves only in reselling the land. Held, that plaintiffs’ right of action was for damages for breach of defendants’ agreement to waive their right to declare a forfeiture of plaintiffs’ equity in the land because of their failure to make the payments due, and not to recover an amount re-1 ceived by defendants upon the resale of thd land as plaintiffs’ agent; that agreement having been rescinded by defendants.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 377; Dec. Dig. § 204.*]</p>

<p>1. Appeal and Error (§ 644*) — Statement of Facts — Delay in Filing — Effect.</p> <p>The Court of Civil Appeals will notice failure to file the statement of facts in time, though appellee does not raise the question.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2795-2798; Dec. Dig. § 644.*]</p> <p>2. Waters and Water Courses (§ 39*) — Riparian Rights.</p> <p>The canal of an irrigation company which has condemned all the waters of a stream should be treated the same as the stream, as affecting the question whether land of a purchaser from the company on the line of the canal is riparian land.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 31; Dec. Dig. § 39.*]</p> <p>On Rehearing.</p> <p>3. Appeal and Error (§ 742*) — Assignments of Error — Sufficiency of Statement.</p> <p>An assignment of error should be overruled where the only statement thereunder is that the court sustained exceptions 1, 2, 3, and 4 as shown by the assignment, to which action defendant excepted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>4. Appeal and Error (§ 497*)—Record—Suf-ficiency.</p> <p>An assignment of error to the rejection of evidence will be overruled if the bill of exceptions on which it is based fails to show that the objection to the evidence was improperly sustained.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2954; Dec. Dig. § 497.*]</p> <p>5. Appeal and Error (§ 742*)—Assignments OP ERROB—SUPPICIENCY OP STATEMENT.</p> <p>“Statement. See testimony of H., original statement of facts, pp. 38-44,” etc., is insufficient as a statement under an assignment of error.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>6. Appeal and Error (§ 877*)—Right to Complain.</p> <p>A judgment will not be reversed for error affecting only persons not parties to the suit.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3565, 3566; Dec. Dig. § 877.*]</p>

R. Spencer, Judge. Petition for mandamus by Gip Smith and others against W. E. McLaughlin and others, in which a temporary injunction was prayed. Prom an order granting the injunction, defendants appeal.

<p>1. Nuisance (§ 3*) — Erection of Building —Barns.</p> <p>Defendant could erect a barn on his lot within 45 feet of the street and directly across the street from plaintiff’s residence and porch, if the use of the barn did not materially inconvenience plaintiff in the use of his residence so as to constitute a nuisance; the barn in itself not constituting a nuisance.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 4-25; Dec. Dig. § 3.*]</p> <p>2. Nuisance (§ 49*) — Action foe Damages— Sufficiency of Evidence.</p> <p>Evidence in an action for damages to plaintiff’s property by the erection of a barn on defendant’s lot directly across the street therefrom held to show that the only damage suffered by plaintiff was because the barn was erected in front of his residence, no damages from odors, etc., resulting.</p> <p>[Ed. Note. — For other cases, see Nuisance, Dec. Dig. § 49.*]</p> <p>On Motion to Render Judgment.</p> <p>3. Appeal and Ekrok (§ 1175*) — Disposition —Rendition.</p> <p>Where it appears that the case was fully-developed below, and is not shown that the facts would not be different on another trial, judgment will be rendered for appellant upon reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dee. Dig. § 1175.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Trespass to try title by Louisa L. Mitchell and others against J. D. Schofield and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>j. Trespass to Try Title (§ 11*) — Proof of Title.</p> <p>Notwithstanding defendant’s plea of not guilty in trespass to try title, plaintiff need not prove title in himself from the sovereignty of the soil, where it appears by a special plea, and from the evidence offered in support of it that the title asserted by defendant emanated from plaintiff.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Gent. Dig. § 14; Dec. Dig. § 11.*]</p> <p>2. Trespass to Try Title (§ 38*) — Defenses —Estoppel—Burden of Proof.</p> <p>In trespass to try title, the court properly charged that the burden was on defendant to show by a preponderance of evidence the existence of facts constituting the alleged estoppel relied on as a defense.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 88.*]</p>

Action, between Mary Berger and M. W. Kirby and others. From the judgment, Berger brings error. On motion to advance the cause.

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by E. M. Badouh against the St. Louis, Brownsville & Mexico Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by Markham Warehouse & Elevator Company against Plotner & Stoddard. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Sherman County.</p> <p>Action by C. F.-Rudolph against L. M. Price and another. From a-judgment for defendants, plaintiff appeals.</p>

<p>1. Appeal and Error (§ 169*) — Review — Scope.</p> <p>There being no statement of facts in the record, and defendants not having been represented at the trial, they cannot complain on appeal, except for fundamental error.</p> <p>[Ed. Note— For other cases, see Appeal and . Error, Cent. Dig. §§ 1018-1034; Dec. Dig. § 169.*]</p> <p>2. Vendor and • Purchaser (§ 267*) — Contracts — Breach by Purchaser — Vendor’s Remedy.</p> <p>Purchasers of land having broken a promise, made under a supplemental agreement, to •execute a note in consideration of the vendor’s release of the lien to enable the purchasers to secure a loan, the vendor is entitled to treat such agreement as rescinded, and to assert a lien for the amount of such note as against the purchasers.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. § 267.*]</p> <p>3. Pleading (§ 406*) — Waiver oe Objections —Misjoinder.</p> <p>Misjoinder of causes of action on separate contracts is waived by failure to plead it.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1355-1359; Dec. Dig. § 406.*]</p> <p>4. ArENDOR AND PURCHASER (§ 280*) — VENDOR’S Lien — Foreclosure—Pleading— Sufficiency.</p> <p>The petition, in a suit to foreclose a vendor’s lien on two separate tracts under distinct contracts with J. and A. and A., respectively, is insufficient to sustain judgment foreclosing on both tracts, if it does not show how payments made on the original indebtedness were ■applied, or that the sum claimed was to be a lien on both tracts.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 280.*]</p>

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by J. H. Powell against George E. Williamson. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Harris County; W. P. Hamblen, Judge.</p> <p>■ Action by Ross Babno against the Galveston, Houston & Henderson Railroad Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Principal and Surety (§ 172*) — Suit by Surety for Release — Parttes.</p> <p>The principal on a note was not a necessary party to a suit by the surety to be released from liability.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 495, 496; Dec. Dig. § 172.*]</p> <p>2. Evidence (§ 420*) — Parol Evidence Affecting- Note — Admissibility.</p> <p>In a suit by the sureties on a note to be released from liability, introduction of written contracts between him and the principal did not preclude oral evidence for the surety, showing the conditions on which he signed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944; Dec. Dig. § 420.*]</p> <p>3. Principal and Surety (§ 74*) — Consideration — Conditions of Liability — Sufficiency.</p> <p>That the seller of machinery would not have sold, had the plaintiff not become surety on a note for part of the price, the buyer being insolvent, shows sufficient consideration for the seller’s agreement that other notes given by the buyer should not mature before the particular note.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Dec. Dig. § 74.*]</p> <p>4. PRINCIPAL AND SURETY (§ 88*) — RELEASE op Surety — Alteration op Conditions.</p> <p>Generally a surety is discharged by disregard of conditions imposed as security to himself.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 135; Dec. Dig. § 88.*]</p> <p>5. Principal and Surety (§ 99*) — Notes— Release op Surety.</p> <p>The surety on one of several notes given for the price of machinery is entitled to discharge where a condition imposed by him that that note mature before the other notes was disregarded by the seller and the buyer making a new arrangement, to which the surety was not a party, whereby other notes matured first.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 158-161; Dec. Dig. § 99.*]</p>

<p>Appeal and Error (§ 773*) — Dismissal-Failure to File Brief.</p> <p>When no briefs were filed by either party, as required by Rev. St. 1895, art. 1417, the appeal must be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. | 773.*]</p>

<p>Appeal from Harris County Court; A. E. Amerman, Judge.</p> <p>Action by Blake Dupree against Elijah Smith. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Cottle County Court; W. E. Bray, Judge.</p> <p>Action by W. W. Galloway against the Quanah, Acme & Pacific Bailway Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Eastland County Court; E. A. 1-Iill, Judge.</p> <p>Action by the Latham Company against C. U. Connellee. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by Gaines & Corbett against Mata-gorda County Drainage District No. 1 and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by Alfred Bangle against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for an insufficient amount, plaintiff appeals.</p>

<p>1. Partnership (§ 199*) — Suits by — Parties.</p> <p>Suit cannot be brought by a partnership in the firm name.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 362-368; Dec. Dig. § 199.*]</p> <p>2. Justices op the Peace (§ 174*) — Pleading —Amendment on Appeal.</p> <p>Where objection that suit before a justice was brought by a partnership in the firm name was first made on appeal, it was proper to permit amendment correcting the error.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dee. Dig. § 174.*]</p> <p>3. Justices op the Peace (§ 96*) — Pleading —Amendment.</p> <p>Amendment of the statement of a. cause of action sued on before a justice by a partnership to correct error in suing in the firm name does not set up a new cause of action.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 328-332; Dec. Dig. § 96.*]</p> <p>4. Justices op the Peace (§ 183*) — Proceedings — Review.</p> <p>Proceedings before a justice of the peace should be liberally construed.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Dec. Dig. § 183.*]</p> <p>5. Justices op the Peace (§ 183*) — Review-Presumptions. ■</p> <p>Where, on appeal from Justice’s court in a suit by a partnership in the firm name, it appears that the process discloses the names of the members of the firm, and that the docket discloses no pleadings, it will be presumed that there was some oral pleading by plaintiff at the time the account was filed from which the justice received that information and which he failed to note upon the docket.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 705-714; Dec. Dig. § 183.*]</p>

<p>1. Appeal and Error (§ 1001*) — Review-Verdict— Conclusiveness.</p> <p>A verdict will not be disturbed where there is any evidence to support it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3928; Dec. Dig. § 1001.*]</p> <p>2. Master and Servant (§ 286*) — Injuries to Servant — Actions—Evidence.</p> <p>In in action for injuries received by a servant, evidence of the master’s negligence held to raise a question for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. § 286.*]</p> <p>3. Master and Servant (§ 285*) — Injuries to Servant — Actions — Evidence — Jury Question — Proximate Cause.</p> <p>In an action by a servant for personal injuries, the question of whether the master’s failure to supply lights was the proximate cause of the injury held for the jury.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Dec. Dig. § 285.*]</p> <p>4. Master and Servant (§ 289*) — Injuries to Servant — Contributor:? Negligence.</p> <p>Where plaintiff, inexperienced as a' “feeder tender,” was, in the discharge of his duties, required to keep cement from clogging inside of the feeder, which contained a number of rapidly revolving knives, and his hand was caught in the knives because he could not see the danger with the light furnished, he was not guilty of contributory negligence as a matter of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 2S9.*]</p> <p>5. Master and Servant (§ 221*) — Injuries —Assumption of Risk.</p> <p>Plaintiff, having been promised by his master sufficient light, did not assume the risk of injury from the want thereof.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-647; Dec. Dig. § 221.*]</p> <p>6. Appeal and Error (§ 882*) — Review—Invited Error.</p> <p>Where defendant at the same time requested a peremptory charge and special charges submitting certain issues, he cannot on appeal complain that there was no evidence authorizing the submission of such issues.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]</p> <p>7. Pleading (§ 252*) — AHENDMENo^-EEFECiy-Amount Claimed.</p> <p>In his original petition, plaintiff alleged that he had been damaged in a certain sum, and that he had expended a named amount for hospital accommodations and medical attention. Upon the filing of defendant’s plea of former suit pending, plaintiff amended his petition by withdrawing his claim for medical attention, but did not reduce his sum claimed as damages. Held,, that the withdrawal of the claim for medical attention did not reduce the gross «mount sued for.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 252.*]</p> <p>8. Damages (§ 158*) — Issues and Proof.</p> <p>In an action for damages for injuries to plaintiff’s hand, testimony that another operation would likely be necessary was relevant, even though plaintiff’s petition did not specifically allege the probable necessity of such an operation.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 441-446; Dec. Dig. § 158.*]</p> <p>9. Appeal and Error (§ 1052*) — Review-Harmless Error.</p> <p>Any error in admitting, in an action for personal injuries, evidence which could only have affected the amount of the recovery was harmless, where defendant did not claim that the verdict was excessive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.*]</p>

<p>On Rehearing.</p> <p>Appeal and Error (§ 1129*) — Assignments of Ekkor — Waivek.</p> <p>Where the only assignments of error upon which an error could be sustained are waived by the parties to an appeal, an affirmance must necessarily follow.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1129.*]</p>

<p>1. Municipal Corporations (§ 12*) — Organization — Petition—Map or Plat.</p> <p>Under the statutory provisions for the incorporation of a town, the failure to accompany the petition for an- election on the question of incorporation with a map or plat is not such a noncompliance as to render tlie attempt to incorporate invalid.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 22-32; Dec. Dig. § 12.*]</p> <p>2. Municipal Corporations (§ 12*) — Organization — Entry op Result op Election— Evidence op Corporate Existence.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 586, which provides that the county judge, within 20 days after receipt of the returns of an election resulting in favor of a town’s incorporation, shall make an entry upon the records that the inhabitants of the town are incorporated within the boundaries thereof, etc., such entry by the county judge is but prima facie proof of the facts recited therein, which may be established otherwise than by the record, and the entry of such order is not necessary, so that defects therein are immaterial.</p> <p>[Ed. Note. — For other" cases, see Municipal Corporations, Dee. Dig. § 12.*]</p>

<p>1. Courts (§ 121*) — Jurisdiction — Amount —County Courts.</p> <p>If, in an action in the county court upon open account to recover $200.18, an item of $3.72 was barred -by limitations, defendant’s exception to the court’s jurisdiction should have been sustained and the suit dismissed.</p> <p>[Ed. Note. — For other cases, see Courts, Cent-Dig. §§ 413-428; Dec. Dig. § 121.*]</p> <p>2. Pleading (§ 248*) — Amendment — New Cause of Action.</p> <p>Where the amount alleged to be due in the original petition in an action on an open account, and the total amount shown to be due on the exhibit accompanying it of the items sued-for, included an item of $3.72, an amendment to the petition and exhibit so as to show the particulars of such item and amount thereof did not state a new cause of action; amendments which merely supply omissions or correct mistakes in the original pleading being proper.</p> <p>[Ed. Note. — For other cases, see Pleading,. Cent. Dig. §§ 686-709; Dec. Dig. § 248.*]</p> <p>3. Pleading (§ 312*) — Exhibits — Control Over Pleadings.</p> <p>While in some cases exhibits control the-pleadings to which they are attached, so that a written instrument attached to a pleading would control the pleading so as to correct a misdescription therein, exhibits do not always control pleadings, their purpose being merely to aid and explain their allegations, and where the petition in an action on an open account alleged that a certain amount was due, which amount included an item not show in detail, on the exhibit attached, setting forth the items for which recovery was sought, but was included in the total amount due as shown on the exhibit, the petition would control over the exhibit as to the items sued for and the amount due.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 943, 948; Dec. Dig. § 312.*]</p> <p>.4. Interest (§ 39*) — Accounts.</p> <p>Under the direct provisions of Rev. St. 1895, art. 3102, interest on open accounts should be allowed from the 1st day of January after they are made, and not from the time they become due.</p> <p>[Ed. Note. — Eor other cases, see Interest, Cent. Dig. §§ 83-89; Dec. Dig. § 39.*]</p> <p>5. Account, Action on (§ 7*) — Admission of Evidence.</p> <p>Where, in an action on an open account for lumber sold, the evidence sustained a finding that defendant was personally liable for all of the items on the account sued upon, the fact that a dray receipt for items of lumber, claimed to be a part of the account sued for, on its face showed a sale and delivery to another than defendant, would not make it inadmissible, especially where defendant’s name appeared under the itemization on the receipt; it being immaterial to whom the receipt showed the sale and delivery to have been made if defendant was liable for the lumber.</p> <p>[Ed. Note. — Eor other cases, see Account, Action on, Dec. Dig. § 7.*]</p>

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

<p>1. Statutes (§ 236*) — Construction — Remedial Statute.</p> <p>A remedial statute is to be construed liberally.</p> <p>[Ed. Note. — Eor other eases, see Statutes, Cent. Dig. §§ 317, 324, 325; Dec. Dig. § 236.*]</p> <p>2. Exceptions, Bill of (§ 41*) —Record — Statement of Pacts — Time fob Piling— Statutes.</p> <p>Acts 30th Leg. (1st Ex. Sess.) c. 7, which granted to parties to causes tried in the district and county courts 20 days after adjournment to file a statement of facts and bills of exception, was repealed, so far as it related to filing statements of facts in civil actions in the county court, by Acts 30th Leg. (1st Ex. Sess.) c. 24, which repealed all laws in conflict therewith. Acts 31st Leg. (1st Ex. Sess.) c. 39, repealed Acts 30th Leg. (1st Ex. Sess.) c. 24, and provided by section 7 that on appeal from the judgment in any cause in the district or county court the parties should have 30 days after adjournment to prepare and file a statement of facts and bills of exception, and which empowered the court to allow an additional time; and by •section 13 declared that its provisions as to the time allowed for filing of the statement of facts and bills of exceptions should apply to all civil cases tried in the county court. An appeal was taken in a civil case in county court at a term which adjourned January 28th; plaintiff being given 30 days to file bills of exception and statement of facts. By a later order, the time was extended an additional 30 days, and the statement of facts and bill of exceptions was filed March 28th. Held, that the statement of facts and bills of exceptions were filed within the time prescribed by law.</p> <p>[Ed. Note. — Por other cases, see Exceptions, Bill of, Dec. Dig. § 41.*]</p>

B. Hill, Judge. Action by L. T. Lester against E. R. Ricks, in which Stephen Jesko intervened. From a judgment for defendant and a judgment for the intervener, plaintiff appeals.

<p>Appeal from District Court, McCulloch County; John W. Goodwin, Judge.</p> <p>Action by W. P. Neal against the Fort Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant appeals.</p>

M. Walthall, Judge. Proceeding by Jesus Parra and others for the probate of a certain document as a will, opposed by John Wyatt and others. From a judgment refusing probate, proponents appeal.

Action by Deck Martin and another against J. D. Ross. There was a judgment of the Court of Civil Appeals (128 S. W. 718) affirming a judgment for plaintiffs, and defendant brings error.

<p>Appeal from District Court, Ft. Bend County; Wells Thompson, Judge.</p> <p>Will Battle was convicted of murder, and he appeals.</p>

<p>1. Criminal Law (§ 940*) — New Trial— Newly Discovered Evidence — Witness Subsequently Rendered Competent.</p> <p>In a prosecution1 for burglary, there was evidence by an accomplice as to defendant’s participation in the burglary and his subsequent possession of a pistol alleged to have been stolen ; but the evidence was practically without corroboration. Subsequent to defendant’s trial, a codefendant had been tried and acquitted, and his affidavit, presented on a motion for a new trial, covered every question testified to by the accomplice, and was contradictory to a large part of it. Helé, that the evidence which the, codefendant would give was material, and entitled defendant to a new trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327; Dee. Dig. § 940.*]</p> <p>2. Burglary (§ 34*) — Admission of Evidence —Possession of Property Stolen.</p> <p>Where the witnesses of the state, in a prosecution for burglary, testified in regard to some flour that was found at a certain place, and also that they were wholly unable to connect this flour with that taken from the store, the admission of the evidence is error.</p> <p>[Ed. Note. — For other cases, see Burglary, Cent. Dig. § 85; Dec. Dig. § 34.*]</p> <p>3. Criminal Law (§ 677*) — Request for Withdrawal of Evidence — Time for Request.</p> <p>Defendant in a criminal prosecution may request the court to withdraw evidence from the jury, even after the evidence has been argued.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent Dig. § 1605; Dec. Dig. § 677.*]</p>

<p>1. Judgment (§ 248*) —■ Evidence (§ 593*) — Applicability to Pleadings.</p> <p>No testimony can be properly introduced, and, if introduced, can be considered, in support of a judgment, unless the pleadings are sufficient to support the same.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Dee. Dig. § 248;* Evidence, Cent. Dig. § 2430; Dec. Dig. § 593.*]</p> <p>2. Sheriffs and Constables" (§ 168*) — Wrongful Le^y — -Attachment—Indemnity Bond — Pleading.</p> <p>Where, in an action against a sheriff and his official bondsmen for wrongful attachment, the record showed an intent on the part of the sheriff and his bondsmen to bring into the cause as defendants the sureties on an indemnity bond, but there were no allegations of fact, or prayers for relief, in any pleading in the record that could be held sufficient to support a judgment in behalf of the sheriff and his official bondsmen against the sureties on the indemnity bond, a judgment over against the latter was erroneous.</p> <p>[Ed. Note. — Eor other cases, see Sheriffs and Constables, Dec. Dig. § 168.*]</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by Eudora Maxville against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Public Lands (§ 172*) — Headright Cer-tifícate — Recital.</p> <p>Recital in a headright certificate issued in 1838 by a board of land commissioners to one as administrator of B. that B. was killed at the Alamo establishes a strong prima facie case of such fact, requiring strong and convincing evidence to overturn the conclusion of the commissioners, which may have been based on evidence now lost.</p> <p>[Ed. Note. — Eor other cases, see Public Lands, Dec. Dig. § 172.*]</p> <p>2. Public Lands (§ 172*) — Headright Certificate — Identity—Evidence.</p> <p>Evidence in trespass to try title to land patented to the heirs of B. by virtue of a head-right certificate issued to one as administrator of B. recited to have been killed at the Alamo held insufficient to connect with the B. mentioned in the certificate, plaintiffs, who sue as his heirs.</p> <p>[Ed. Note. — For other cases, see Public Lands. Dec. Dig. § 172.*]</p>

<p>Appeal from District Court, Grayson County; B. L. Jones, Judge.</p> <p>Suit by A. W. Acheson against the Denison & Sherman Railway Company and others. Erom a judgment for defendants, plaintiff appeals.</p>

M. Smithdeal, Judge. Action for an injunction by J. T. Johnson and others against Horton B. Porter, County Judge of Hill County, and others. Prom an order continuing a temporary injunction pending a hearing on the merits, defendants appeal.

B. Hill, Judge. Action between Mrs. R. M. Holt and others and W. H. Abbey and others. From an adverse judgment, the former parties appealed, and an appellee moves to strike out the statement of facts. Motion

<p>1. Appeal and Error (§ 660*) — Record — Bringing up.</p> <p>District court rules 13, 14 (67 S. W. xxi) require that a party amending shall prepare and file a substitute, for the pleading amended, and that, unless the substituted instrument shall be set aside on exceptions, the original shall not be regarded as a part of the pleadings in the record, unless some error in deciding upon the necessity for the amendment be complained of, or it be necessary to look to the original pleading on a question of limitation. Rule 84 (67 S. W. xxvi) provides that in making the record all proceedings in the case shall be entered in the order in which they occur, provided that amended pleadings shall take the place of the originals. Held that, where an amended answer has been actually filed as a substitute for the original, a motion to perfect the record on appeal by requiring the clerk to send up the original answer will be denied, where it does not appear in the motion that the amended answer was set aside on exception, or that it was necessary to look to the superseded pleading upon the issue of limitation.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2844r-2847; Dec. Dig. § 660.*]</p> <p>2. Appeal and Error (§ 660*) — Record—Motion to Perfect.</p> <p>Plaintiff’s motion to perfect the record on appeal by requiring the clerk of the district court to send up defendant’s original answer, so that it might be inspected on the issue of due order of pleading, will be denied, where the motion, though containing allegations as to what was pleaded in the original answer, is not sworn to, and is not accompanied by a certified copy of that answer.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2844-2847; Dec. Dig. § 660.*]</p>

<p>1. Bailment (§ 14*) — Cotton Compress Companies — Duty.</p> <p>Storage of cotton delivered to a 'compress company being an incident to its compression, the company was bound to use ordinary care in such storage.</p> <p>[Ed. Note. — For other cases, soe Bailment, ■Cent. Dig. §§ 45-56; Dec. Dig. § 14.*]</p> <p>2. Negligence (§ 56*) — Liability — Proximate Cause.</p> <p>To be actionable, negligence must proximately cause injury.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. § 56.*]</p> <p>•3. Trial (§ 253*) — Instructions—Ignoring Issues.</p> <p>In an action against a compress company for loss of cotton by fire, an instruction authorizing recovery if the company or its watchman was negligent was improper, as ignoring an issue that the presence of a watchman using proper care would not have avoided the loss.</p> <p>• [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>4. Appeal and Error (§ 882*) — Invited Error-Instructions.</p> <p>In an action against a compress company for loss of cotton, requests for instructions that any bad condition of fire hose kept by the company would not make it liable, unless the condition contributed to the loss, and that, though the company was negligent, plaintiff could not recover if guilty of contributory negligence, etc., did not invite error in an instruction which authorized recovery if the company or its watchman was negligent, regardless of whether the presence of the watchman would have avoided the loss.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3602-3604; Dec. Dig. § 882.*]</p> <p>5. Railroads (§ 455*) — Fires—Negligence.</p> <p>If the danger of a locomotive setting out fires is greater under use of coal as fuel than when fuel oil is used, and a person of ordinary prudence, situated as defendant railway company was, would have used fuel oil, and if sparks were emitted from defendant’s engine, setting out a fire which destroyed plaintiff's cotton, plaintiff could recover.</p> <p>[Ed. Note. — For other eases, see Railroads, ■Cent. Dig. § 1672; Dec. Dig. § 455.*]</p>

<p>1. Appeal and Eeeoe (§ 79*) — Decisions Reviewable — Finality oe Determination— Final Judgment.</p> <p>Where defendant by a cross-action brought in another defendant, who answered, and plaintiff’s exceptions to the cross-action were sustained by an order reciting that the court had sustained a plea as to defendant’s answer, a judgment for plaintiff in the main action was not a final judgment, for a final judgment must dispose of all the parties before the court, and the order sustaining the exceptions to the cross-action, while the basis for a final judgment thereon, was not a final judgment because the’ second defendant, having appeared and answered, was entitled to a final judgment pronouncing that fact and to his costs.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 484-493; Dec. Dig. § 79.*]</p> <p>2. Appeal and Eeeoe (§ 77*) — .Decisions Reviewable — Finality oe Determination— Necessity.</p> <p>An appeal in an action sounding in tort against a common carrier can be had only from a final judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 44A-463; Dec. Dig. § 77.*]</p>

<p>Appeal from District Court, Potter County; W. E. Gee, Special Judge.</p> <p>Action by J. J. Currie against J. B. Browning and others. From a judgment for plaintiff against all defendants, and in favor of defendant L. O. Thompson against codefend-ants J. B. Browning and another, the latter appeal.</p>

<p>1. Carriers (§ 139*) — Carriage oe Goods— Liability as Warehouseman — Goods Awaiting Transportation.</p> <p>Where a railroad company allowed shippers of cotton to leave cotton on its station platform until the full lot to be shipped was ready, it was liable, as a warehouseman, under Rev. St. 1895, art. 323, providing that a railroad company shall be liable as a warehouseman for goods stored before the commencement of transportation, for part of a lot of cotton intended for shipment, left overnight on the platform by the shipper, in accordance with the custom, awaiting the rest of the shipment, to be brought the next day.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 139.*]</p> <p>2. Carriers (§ 142*) — Carriage of Goods— Liability of Warehouseman — Nature of Liability.</p> <p>A railroad company, liable as a warehouseman for cotton left upon its station platform or yard, is bound to exercise ordinary care for the prevention of fire; and to extinguish any fire which may occur.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 608-622%; Dec. Dig. § 142.*]</p> <p>3. Carriers (§ 146*) — Carriage of Goods— Actions — Evidence—Sufficiency.</p> <p>In an action against a railroad company for the loss of cotton burned upon its cotton platform, evidence of the negligent emission of sparks from a locomotive held sufficient to go to the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 146.*]</p> <p>4. Carriers (§ 143*) — Carriage of Goods— Actions — Contributory Negligence.</p> <p>A shipper who at the invitation of a railroad company left upon the' company’s station platform part of a lot of cotton intended for shipment for which the railroad company was liable as a warehouseman, was not guilty of contributory negligence, though the cotton was burned.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 143.*]</p> <p>5. Trial (§ 194*) — Instructions.</p> <p>In an action against a railroad company for burning of cotton, for which the company was liable as a warehouseman, where there was evidence that boys played around the cotton, and defendant’s answer set up that one of them set fire to it, a charge authorizing the jury to determine whether ordinary care would have required the railroad company to employ a watchman to prevent boys from playing in and about the cotton was not a charge upon the weight of evidence.</p> <p>[Ed. Note. — For other-cases, see Trial, Cent. Dig. §§ 439-441, 446-466; Dec. Dig. § 194.*]</p>

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

<p>1. Appeal and Error (§ 635*) — Record— . Omissions.</p> <p>Where there were no conclusions of law and fact fin' the record, judgment will be affirmed, if there is any evidence to support any theory on which it may be sustained.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 635.*]</p> <p>2. Sales (§ 479*) — Recovery op Property by Seller — Evidence—Sufficiency.</p> <p>In an action wherein a seller of furniture on the installment plan sequestered it, evidence held, to sustain a finding that the furniture had been paid for.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 479.*]</p> <p>3. Appeal and Error (§ 934*) — Review-Presumptions.</p> <p>Where, on appeal in an action wherein furniture sold on the installment plan was sequestered, there were no conclusions of fact, and the record shows the value of the property when it was delivered to defendant’s buyers, the appellate court must assume that the trial court found it to be the same value at the time' of the trial; judgment for defendant being for such amount.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3784; Dec. Dig. § 934.*]</p>

<p>1. Husband and Wife (§ 273*) — Community Property — Necessity of Administration— Action by Surviving Spouse.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 2220, providing that on the death of husband or wife leaving no children the common property passes to the survivor, a wife surviving her husband, who dies leaving no children, is the owner of an open account payable to the husband and constituting community property, so that she may sue thereon without any administration.</p> <p>[Ed. Note. — For other eases, see Husband and Wife, Dec. Dig. § 273.*]</p> <p>2. Justices of the Peace (§ 43*) — Jurisdio . TION.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 1568, defining the jurisdiction of justices of the peace, a justice’s court has original jurisdiction of an action by a surviving wife on an open account for §130, payable to the deceased husband, and constituting community property of the wife and deceased husband; there being no children.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 149-156; Dec. Dig. § 43.*]</p> <p>3.Husband and Wife (§ 273*) — Community Property — Actions by Survivor.</p> <p>A debt owing to the community estate of a husband and wife does not, on the husband’s death without children, become a trust fund in the hands of the debtor for the payment of debts due from the estate, and the existence of debts does not prevent the surviving wife from suing on the debt.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dee. Dig. § 273.*]</p> <p>4. Evidence (§ 222*) — Admissions by Party to Counsel for Adverse Party.</p> <p>The testimony of the attorney for plaintiff suing on an open account as to admissions by defendant of the indebtedness sued on is admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 768-808; Dec. Dig. § 222.*]</p> <p>5. Appeal and Error (§ 1051*) — Harmless Error — Erroneous Admission of Evidence.</p> <p>Where defendant admitted in his pleadings the indebtedness sued on, the error, if any, in admitting evidence of admissions by defendant of the indebtedness, was immaterial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. §■ 1051.*]</p>

<p>Appeal from District Court, Harris County; N. G. Kittrell, Judge.</p> <p>Action by J. M. Bender against Edward Kennedy and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Anderson County Court; O. C. Funderburck, Judge.</p> <p>Action by the Payne & Joubert Machine & Foundry Company against G. E. Dilley. From a judgment for defendant, plaintiff appeals.</p>

<p>Adverse Possession (§ 65*)—Acts Constituting—Mistake.</p> <p>One took possession of a lot inclosed by a fence which included a strip belonging to the adjacent owner, believing that he took possession of his own land. He continued in possession for 10 years, claiming the property as his own and living on it with his family. About a year after he took possession, he had the lot surveyed by a surveyor, and a new fence stood on the line indicated by sticks set by the surveyor to mark the line. Held, that he acquired title to the strip by adverse possession, as against the objection that his possession was by mistake.</p> <p>[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 365-370; Dec. Dig, § 65.*]</p>

<p>1.Depositions (§ 110*) — Objections—Evidence.</p> <p>An objection to a deposition on the ground that the notice of filing the interrogatories was served on attorneys who had not at the time become attorneys of record is properly-overruled, in the absence of evidence supporting the facts on which the objection is predicated.</p> <p>[Ed. Note. — For other cases, see Depositions,. Dec. Dig. § 110.*]</p> <p>2. Depositions (§ 83*) — Objections—Manner and Foem op Taking-.</p> <p>An objection to a deposition on the ground that the notice of the filing of the interrogatories was served on attorneys who had not at the time become attorneys of record goes merely to the manner and form of taking the deposition, and under Rev. St. 1895, art. 2289, it must be presented by motion to suppress.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. § 83.*]</p> <p>3. Master and Servant (§ 278*) — Injury to-Servaniv-Negligence — Evidence. ■</p> <p>In an action for injuries to a freight conductor who stumbled over a movable object on the station platform while attempting to-board his moving train, evidence held to support a finding of actionable negligence, based on the theory that the obstruction was on the platform through some agency over which the railroad company and its employés had control, and that no provision had been made for inspecting the premises for nearly 12 hours preceding the accident.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954-972; Dec. Dig. § 278.*]</p>

<p>1. Adveese Possession (§ 114*) — Nature-Visible and Notorious Possession — Evidence.</p> <p>Evidence in trespass to try title held to show that defendant for more than five years had peaceful and notorious possession of part of the land in controversy, claiming the entire tract and paying taxes thereon.</p> <p>[Ed. Note. — Eor other cases, see Adverse Possession, Dec. Dig. § 114.*]</p> <p>2. Adverse Possession (§ 100*) — Nature-Constructive Possession.</p> <p>Where defendant, who claimed an entire survey of land under color of title, had peaceful and exclusive possession of part' of the land for more than the statutory period and paid taxes upon the whole, he acquired title to the entire survey; his actual possession of part being in constructive possession of the whole.</p> <p>[Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.*]</p>

D. Montrose, Judge. Petition by Eliza Stringer and others to review a judgment in favor of S. E. Robertson and another, and for a new trial. From a judgment denying relief, relators appeal.

<p>Carriers (§ 229*) — Live Stock — Injury-Damages — ELEMENTS.</p> <p>On injury to the shipment, shippers of cattle for exhibition at a stock show and for sale were not entitled to recover from the carrier for loss of prize money which might have been won at the show.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 229.*]</p>

<p>Appeal from District Court, Tyler County; W. B. Powell, Judge.</p> <p>Action by Annie Kirkland, by next friend, against the Texas & New Orleans Railroad Company. From a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from Liberty County Court; J. B. Simmons, Judge.</p> <p>Action by A. W. Marshall against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal and Error (§ 773*) — Time fob Fil-ins Appellant’s Brief— Statutory Requirements.</p> <p>A plaintiff in error who files his brief within 20 days of the date fixed for the submission of the case does not comply with Rev. St. 1895, art. 1417, giving defendant in error 20 days after notice of the filing of the brief of plaintiff in error in which to file a brief, and the writ of error will be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]</p>

P. Marshall, Judge. Action by W. T. Skeeters against the Old River Dumber Company. From a judgment for plaintiff on appeal from a justice’s judgment for defendant, the defendant appeals.

<p>Appeal from Wichita County Court; • M. F. Yeager, Judge.</p> <p>Action by H. B. Jackson against W. T. Childs. From a judgment for plaintiff, defendant appeals.</p>

P. Hamblen, Judge.. Action by A. N. Dawson against S. P. Dawson for divorce. From an order refusing to set aside an order allowing alimony and to quash an execution to enforce the order, plaintiff appeals.

W. Swayne, Judge. Action by the Broad-Davis Cattle Company against the San Antonio & Aransas Pass Railway Company and another. From a judgment for plaintiff against defendant named, it appeals.

Harper, Judge. Trespass to try title by Juan Romero and others against M. D. Christy and others. Judgment for plaintiffs, and defendants appeal.

B. Haynes, Judge. Action by D. M. Appling against A. M. Cowart. Judgment for plaintiff for his debt and foreclosure of a chattel mortgage, and an alias order of sale against the property in the possession of L. L. Yandell and others who filed a claimant’s affidavit and bond, and retained possession. Judgment for plaintiff, and claimants appeal.

<p>Appeal from Navarro County Court; J. M. Blanding, Judge.</p> <p>Action by I. S. Baker against J. A. Sands. From a judgment for defendant on a cross-complaint, plaintiff appeals.</p>

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>Action by the Panhandle Packing Company against A. W. Bivins. Prom a judgment for plaintiff, defendant appeals.</p>

Kittrell, Judge. Trespass to try title by George H. Her-mann against J. W. Mclver and others Judgment for defendants, and plaintiff brings error.

J. Lawhon, Judge. Action by the Bartlett State Bank and others against D. T. Iglehart and R. G. Crosby, copartners, doing business under the firm name of D. T. Iglehart & Co., and another. From a judgment against the partnership, it appeals.

<p>Appeal from District Court, Hardeman County; S. P. Huff, Judge.</p> <p>Suit by R. D. Dudney against T. M. Young and others. From a decree for plaintiff, defendants appeal.</p>

B. Hightower, Jr., Judge. Action by E. C. Ogden and another against the Kansas City Oil & Rice Land Company, a partnership, and others, in which defendants, by cross-bill, vouched in the Texas & New Orleans Railroad Company as warrantor of title of defendants. From a judgment for plaintiffs against defendants and for defendants against the Railroad Company, defendants bring error.

<p>Constitutional Daw (§ 245*) — Master and Servant (§ 204*) — Equal Protection oe Laws — Railroad Employés — Assumption of Risk.</p> <p>Laws 1905, c. 163, rendering unavailable, under certain circumstances, the plea of assumption of risk, in an action against a person, corporation, or receiver operating a railroad or street railway, for death or injury of defendant’s employe, does not deny the equal protection of the law; it applying to all of a class.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 702; Dec. Dig. § 245 ;* Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.*]</p>

<p>Appeal from District Court, Wise County; J. W. Patterson, Judge.</p> <p>Action by J. H. Mitehum against the Chicago, Bock Island & Gulf Bailway Company. Judgment for plaintiff. Defendant appeals.</p> <p>Appellee was in appellant’s employ as a section hand on its line of railway. In the latter part of January, 1907, as he testified, he and his brother John Will Mitehum and one Abies, also section hands, with one Wicher as their foreman, in the discharge of their duties as employés of appellant, were traveling from Park Springs on a hand car moving south on appellant’s line of railway. When the hand car reached a point on said line of railway 250 or 300 yards from a curve in a cut ahead of them, Wicher, saying he thought he heard a train coming, directed appellee and the other employés to stop the car and wait there while he walked ahead and ascertained if a train was approaching from the south. The car was stopped, and Wicher walked on to the curve, or to a point near it, and then, by waving his hand, signaled appel-lee and the other section men to come on. In obedience to Wieher’s signal, they propelled the car to a point about 50 yards further south, when a ringing of the rails warned them that a train was approaching, whereupon they jumped from the hand car, and, looking north, discovered that a passenger train running 40 or 45 miles an hour was coming towards them and was only about 50 yards from them. In assisting the other men in getting the hand car off the track, appellee claimed he fell, and so received the injuries he complained of. Pie recovered a judgment for the sum of $7,500.</p>

<p>Appeal from Dallas County Court; W. M. Holland, Judge.</p> <p>Action between Collins & Jordan and G-. B. Kittrell. From a judgment for the latter, the former appeal.</p>

<p>1. Brokers (§ 67*) — Employment op Brokers to Procure Exchange op Real Estate-Right to Act por Both Parties.</p> <p>A real estate broker may represent both parties while acting merely as a middleman to bring them together to negotiate for an exchange of their lands.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 52-54; Dec. Dig. § 67.*]</p> <p>2. Brokers (§ 86*) — Employment to Procure Exchange of Lands — Commissions—Evidence.</p> <p>In an action by a broker for commissions of a specified per cent, for procuring an exchange of real estate, evidence held to support a finding that there was no agreement as to which tract his commissions should be based on.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 86.*]</p> <p>3. Brokers (§ 71*) — Procuring Exchange op Real Estate — Commissions.</p> <p>Where an owner employs a broker to assist. him in effecting an exchange of his land for other lands, and promises him a eommission of a certain per cent., and no express contract is made as to which tract shall be the basis for fixing the commission, the value of the tract tafeen in exchange is the basis.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. § 71.*]</p> <p>4. Brokers (§ 82*) — Actions for Commissions — Issues, Peoof ato» Yaeianoe.</p> <p>An allegation in a petition by a broker suing for a commission for effecting an exchange of lands that he was to receive a specified per cent, commission on the land received in exchange was sufficient to justify the admission of testimony that the contract was for such per cent, on the deal without any agreement as to the land which should form the basis for calculating the commission, since the rule of law fixing the land received in exchange as the basis governed.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 82.*]</p>

<p>1. New Trial (§ 128*)—Motion—Specifica-tion' of Ebbor— Sufficiency.</p> <p>A specification of error in a motion for new trial that the verdict is excessive, and finds an amount greater than all the testimony warrants, is too general to require consideration.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 262; Dec.. Dig. § 128.*]</p> <p>2. Appeal and Error (§ 731*)—Assignments of Erboe—Sufficiency.</p> <p>An assignment of error that the verdict is excessive and finds an amount greater than the testimony warrants is too general.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3017; Dec. Dig. § 731.*]</p> <p>3. Trial (§ 329*)—'Verdict—Responsiveness to Issues.</p> <p>Where the court correctly submitted the issues raised by a cross-action, a verdict for plaintiff disposed of the cross-action and the judgment on the verdict was not objectionable as based on a verdict which did not dispose of the issues.</p> <p>[Ed. Note. — Eor other cases, see Trial, Dec. Dig. § 329.*]</p>

<p>Error from District Court, Harris County; W. P. Hamblen, Judge.</p> <p>Action by the Houston Land & Loan Company against the Texas Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Smith County; R. W. Simpson, Judge.</p> <p>Action by D. R. Glass against W. F. Boy-ette and wife. From a judgment for plaintiff, defendants appeal.</p>

<p>1. RaxlRoads (§ 398*) — Death of Trespasser —Evidence.</p> <p>In an action against a railroad company for death of a trespasser on the track, evidence held to warrant a finding that the operatives of defendant’s train that struck deceased saw him on or near the track in a position of danger, and that no warning was given or effort made to stop the train or to prevent the accident until it was too late, that the place where deceased was walking was frequented by the public as a passageway to the knowledge of defendant, and that the train was running at a high rate of speed.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356-1363; Dec. Dig. § 398.*]</p> <p>2. Railroads (§ 370*) — Persons on Track-Trespassers — Duty of Train Operatives.</p> <p>That decedent was a trespasser when he was killed while walking on or along the side of defendant’s railroad track did not relieve defendant’s employés of the duty of keeping a lookout along the track, and taking steps, on discovering decedent’s peril, to avoid injuring him.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dec. Dig. § 376.*]</p> <p>3. Railroads (§ 401*) — Persons on Track-Defenses — Assumed Risk.</p> <p>Where a trespasser on defendant’s railroad track was killed by a train approaching him from the rear, a request to charge that if there was a pathway or public road known to decedent which he could have traveled with convenience, beyond reach of the train, and he voluntarily chose the dangerous way, he assumed the risk, was fatally defective, since the doctrine of assumed risk as distinguished from contributory negligence was not involved.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. § 401.*]</p> <p>4. Trial (§ 191*) — Instructions Assuming Facts — Contributory Negligence.</p> <p>Where decedent was killed by a train approaching him from the rear as he was walking on or very close to defendant’s track, along a way habitually used by pedestrians, an instruction assuming that if he could have chosen a different path which would have been safe, and, instead, he chose to walk along the railroad, he was guilty of contributory negligence, was erroneous; the question of his negligence under such circumstances being one for the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431; Dec. Dig. § 191.*]</p> <p>5. Railroads (§ 400*) — Persons on Track-Death — Contributory Negligence.</p> <p>Decedent was killed while walking along a railroad track in a path habitually used by pedestrians by being struck -by a train approaching from the rear, without signal or warning. The crew by the use of reasonable care could have prevented the accident, but took no steps to do so. Held, that decedent was not negligent as a mattér of law.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.*]</p> <p>6. Railroads (§ 398*) — Persons on or Near Track — Death—Proximate Cause.</p> <p>Deceased was killed while walking along or near defendant’s track in the daytime at a place where he could have been seen for a mile by the crew of defendant’s train, approaching him from the rear. No warning was -given, and it did not appear that deceased had any knowledge of the approach of the train before he was struck. Held to warrant a finding that, though decedent was negligent in walking along the track, the negligence of the defendant was the direct and proximate cause of his death.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356-1363; Dec. Dig. § 308.*]</p>

<p>1. ACKNOWLEDGMENT (§ 60*) — VALIDITY—PERSONS Befobe Officer — Evidence.</p> <p>Evidence held to require a finding that plaintiff wife at the time a deed to the homestead was executed did not acknowledge the deed, and did not appear before the notary for that purpose before delivery.</p> <p>[Ed. Note. — Por other cases, see Acknowledgment, Dec. Dig. § 60.*]</p> <p>2. Acknowledgment (§ 25*) — Appearance Befobe Offices — Necessity.</p> <p>Where a deed to a homestead was sent to a wife for her signature during her absence in another state, and she never appeared to acknowledge the deed until after delivery and record, when the notary testified he met her privately and received her acknowledgment, the deed was void as to her.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Dec. Dig. § 25.*]</p> <p>3. Homestead (§ 122*) — Conveyance—Estop-pel of Wife.</p> <p>Where a wife signed, but did not acknowledge, a deed to the homestead on which a certificate of her acknowledgment was improperly entered, and there was no evidence that she either, indirectly or. otherwise, knowingly or fraudulently represented that she had appeared before the notary to acknowledge the deed, or conspired with her husband to defraud the purchase, she was not estopped to thereafter deny its validity on that ground.</p> <p>[Ed. Note. — For other cases, see Homestead, Dec. Dig. § 122.*]</p>

<p>Appeal from District Court, Franklin County; P. A. Turner, Judge.</p> <p>Application by the State, on the relation of R. W. Reaves, against H. L. Wilkinson and others, for leave to file an information in the nature of quo warranto. From an order refusing leave and denying a temporary writ of injunction, relator appeals.</p>

<p>1. Trover and Conversion (§ 23*) — Defenses — Return of Property.</p> <p>Where a person wrongfully converts the property of another, the owner may sue either for the property itself or its value, and, having brought suit for the value of the property, may refuse to receive it if tendered to him, and hence, where a mule was wrongfully levied on, it was no defense that defendants agreed to surrender the mule to plaintiff, but were unable to do so because it was held under other attachments, since, defendants having wrongfully taken possession of the mule, they were responsible for its value unless it was returned to and accepted by plaintiff.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 163-166; Dec. Dig. § 23.*]</p> <p>2. Attachment (§ 364*) — 'Wrongful Levy— Estoppel.</p> <p>Where plaintiff’s mule was wrongfully levied on, the fact that plaintiff’s attorney received a check for. a surplus on a sale of the mule, the amount of which was less than its value, did not estop plaintiff from recovering at least the balance of the value of the mule in trover for conversion.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1327; Dec. Dig. § 364.*]</p> <p>3. Attachment (§ 377*) — Wrongful Levy — » Exemplary Damages.</p> <p>Before a person can recover exemplary damages for the wrongful levy of an attachment, it must appear not only that the grounds on which the levy was made were untrue, but the party suing out the same must likewise be shown to have acted maliciously and without probable cause for believing that he had a right to levy, under the rule that malice and want of probable cause must both concur to support such claim.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1389-1397; Dec. Dig. § 377.*]</p> <p>4. Attachment (§ 374*) — Wrongful Levy— Malice — Want oe Probable Cause — Evidence.</p> <p>Evidence held insufficient to warrant a finding that defendants in causing an attachment levy to be made on plaintiff’s mule, as the property of another, acted both maliciously and without probable cause so .as to justify an award of punitive damages.</p> <p>[Ed. Note. — For other cases, see Attachment, Dec. Dig. § 374.*]</p>

Calhoun, Judge. Suit by the Texas & Pacific Railway Company and others against the Railroad Commission of Texas and others. Judgment for complainants, and defendants appeal. Appellees brought this suit in the district court of Travis county to restrain appellants from putting into effect the orders of the Railway Commission of Texas, prescribing a system of bookkeeping to be observed by ap-pellees, and requiring them to make certain reports to said commission.

<p>Appeal from Montague County Court; A. W. Ritchie, Judge.</p> <p>Action by W. E. Price against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

W. Patterson, Judge. Action by True Bros, against the St. Louis, Brownsville & Mexico Railway Company and others. From a judgment for plaintiff against two defendants, defendant named appeals. The suit was to recover damages alleged to have been occasioned appellees in a shipment of cattle from Norias, Tex., to Ringold, Tex.

<p>1. Appeal and Error (§ 1002*) — 'Verdict on Conflicting Evidence — Conclusiveness.</p> <p>A verdict on an issue as to which the evidence is conflicting is conclusive.</p> <p>[Ed. Note. — Eor other cases,-see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*)</p> <p>2. Contracts (§ 315*) — Services—Acts Constituting Breach.</p> <p>Where a chemist, under contract to examine and analyze cotton seed meal and cake, had continued to fully perform his part of the contract, the refusal of the employer, during the term of the contract, to give him further employment thereunder, was without justification and was a wrongful breach of the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1279, 1280; Dec. Dig. § 315.*)</p> <p>3. Contracts (§ 319*) — Performance oe Breach — Necessity oe Tender oe Performance.</p> <p>Where a merchant contracted with plaintiff for the examination and analysis of cotton seed meal and cake, and during the term of the contract unequivocally refused to employ the plaintiff further or to submit any samples to him, as provided by the contract, the plaintiff was thereby released from all his obligations under the contract and was not required to continue his tender of performance by maintaining his laboratory and holding himself in readiness to perform, since one party to a contract is not required to tender performance when the other party thereto has declared that he will not accept such performance.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1493-1507; Dec. Dig. § 319.*)</p> <p>4. Contracts (§ 319*) — Repudiation—Rights and Liabilities.</p> <p>After the employer of a chemist under an express contract to examine and analyze cotton seed meal and cake has declared that he would not accept performance of the contract, the chemist is under no obligation to remain at the place of performance to continue to tender performance, but may accept as final the employer’s repudiation of contract.</p> <p>[Ed. Note. — For other eases, see Contracts, Dec. Dig. § 319.*]</p> <p>5. Contracts (§ 282*) — Construction—Services.</p> <p>Under a contract whereby plaintiff was to examine and analyze cotton seed meal and cake, the extent of his undertaking was to perform such services in an accurate and skillful manner, and not to employer’s satisfaction.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1284-1289; Dec. Dig. § 282.*]</p> <p>6. Trial (§ 252*) — Instructions—Conformity to Issues.</p> <p>Where the evidence, in an action for damages for breach of a contract for plaintiff’s services as a chemist, raised no issue whether plaintiff had a properly equipped laboratory, a charge upon such issue was properly omitted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]</p> <p>7. Trial (§ 260*) — Instructions—Instructions Elsewhere Given.</p> <p>A requested instruction, covered by the charge of the court, is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>8.Contracts (§ 322*) — Action for Breach — < Admissibility of Evidence — Complaint.</p> <p>In an action for damages for the breach of a contract for plaintiff’s services as a chemist, by the employer’s repudiation of the contract during its term, evidence on the part of plaintiff that the employer had often complained of the inaccuracy of plaintiff’s work is properly excluded as immaterial.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 322.*},</p> <p>9i Trial (§ 56*) — Repudiation of Evidence —Repetition.</p> <p>The courts may properly refuse to permit the repetition of material evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 131-132; Dec. Dig. § 56.*]</p> <p>10. Evidence (§ 535*) — Opinion Evidence-Qualification of Expert.</p> <p>The opinion of a witness, in an action for damages for the breach of a contract for plaintiff’s services as a chemist, as to plaintiff’s competency and the character of his work, is properly refused, where the witness is not shown to be qualified to express an opinion on that subject.</p> <p>[Ed. Note. — For other eases, see Evidence, Dee. Dig. § 535.*]</p> <p>11. Contracts (§ 322*) — Breach of Contract for Services — admissibility of Evidence.</p> <p>In an action for damages for a breach of a contract for plaintiff’s services as a chemist, brought after the employer’s repudiation of the contract during its term, evidence on the part of the employer that he needed the services of a chemist in his business, and that it was an inconvenience to him to discharge plaintiff, was properly excluded as not material upon the issue whether plaintiff was in fact competent and performed his work in a proper manner.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 322.*]</p> <p>12. Contracts (§ 171*) — Entire or Separable Contracts — Services.</p> <p>A contract between a merchant and a chemist under which the chemist was to render services from September 1, 1908, to July 1, 1909, for which the merchant agreed to pay the sum of $3,000, payable in monthly installments of $300, is a contract for employment for ten months and is not a divisible contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 754^-757; Dec. Dig. § 171.*]</p> <p>13. Master and Servant (§ 42*) — Reduction of Damages — Breach of Contract for Services.</p> <p>Upon a breach of a contract for personal services, the employe is bound to use proper diligence to reduce his damages by earnings during the term of the contract.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 54-56; Dec. Dig. § 42.*]</p> <p>14. Master and Servant (§ 42*) — Breach of Contract — Services—Reduction of Damages.</p> <p>Upon breach of his contract for the services of plaintiff as a chemist for the entire term of 10 months, the employer became liable for the full amount of the compensation to be paid plaintiff for the entire time covered by the contract, less any reduction by plaintiff’s earnings during that time, which he could not have received, if he had been permitted to perform the services required of him under the contract.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 54^56; Dec. Dig. § 42.*J</p>

<p>Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.</p> <p>Suit by A. J. Cariker and another against J. H. Dill and others for injunction. From an adverse judgment, plaintiffs appeal.</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by Gardner Thomas and wife against Robert C. Maes. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Caeeiees (§ 412*) — Passengers—Ejection.</p> <p>Plaintiff boarded a train through Pullman cars, placing his baggage in one of the vestibules, and entered the dining car, where he bought Pullman transportation. After leaving the diner and whil§ standing in the vestibule of one of the Pullman cars his money was refunded and he was compelled to enter the day coaches. Held to show ejection from the Pullman cars though he was- not actually therein.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1580; Dec. Dig. § 412.*]</p> <p>2. Caeeiees (§ 410*) — Passengees—When Relation Aeises.</p> <p>The relation of carrier and passenger arises between the Pullman Company and the purchaser through sale of a Pullman car seat check.</p> <p>[Ed. Note. — For other cases, see Carriers, Dee. Dig. § 410.*]</p> <p>3. Caeeiees (§ 412*) — Pullman Company— Duty to passengees.</p> <p>A sleeping car company’s employés in ejecting a passenger must use no more force than is reasonably necessary and must act in a courteous and considerate manner, regardless of whether the company is to be deemed a common carrier in the ordinary sense of the term.</p> <p>[Ed. Note. — For other cases, see Carriers, Gent. Dig. § 1580; Dec. Dig. § 412.*]</p> <p>4. Caeeiees (§ 412*) — Pullman Caes — Ejection oe Passengees — Geounds.</p> <p>Rolls of foreign blankets being taken home by a passenger to be used as portieres do not constitute baggage which he may take with him into a Pullman car, and upon his insisting on doing so the Pullman Company is entitled to terminate the relation of carrier and passenger and eject him from the car.</p> <p>[Ed. Note. — For, other cases, see Carriers, Cent. Dig. § 1580;' Dec. Dig. § 412.*]</p> <p>5. Caeeiees (§ 412*) — Passengees—Ejection.</p> <p>A railway passenger can remove the ground for ejecting him from a Pullman car constituted by his attempt to take improper baggage into the car, by checking or otherwise disposing of the baggage, and is entitled to reasonable opportunity to make such disposition; but the carrier need not take the initiative by tendering opportunity to check.</p> <p>[Ed. Note. — For other cases, see Carriers, (Tent. Dig. § 1580; Dec. Dig. § 412.*]</p> <p>6. Carriers (§ 412*) — Pullman Car Passengers — Ejection—Grounds.</p> <p>As affecting a sleeping car company’s right to eject a passenger who attempted to take improper articles into the car with him, he cannot excuse the failure to request an opportunity to check the articles by any impropriety in the conductor’s manner.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1580; Dec. Dig. § 412.*]</p> <p>7. Carriers (§ 416*) — Pullman Car Passengers — Ejection — Action — Pleading and Proof.</p> <p>In a suit for ejecting plaintiff from a Pullman car based upon lack of opportunity to check objectionable baggage, which plaintiff was not allowed to take into the car with him, plaintiff cannot recover upon the theory of improper conduct of the conductor.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. § 416.*]</p> <p>8. Trial (§ 243*) — Inconsistent Instructions.</p> <p>In an action for ejecting from a Pullman car a passenger who insisted on taking a roll of blankets into the car, an instruction that the blankets would not constitute baggage, and another instruction leaving it to the jury to determine whether they were baggage, were improper as tending to mislead the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §| 564, 565; Dec. Dig. § 243.*]</p> <p>9. Trial (§ 204*) — Submission op Issues — Questions fob Jury — Undisputed Facts.</p> <p>Trial courts should not submit as issuable undisputed facts.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 495, 497; Dec. Dig. § 204.*]</p> <p>10. Carriers (§ 416*) — Ejection op Passenger-Instructions — Refusal — Ignoring Issues.</p> <p>In an action for ejecting from a Pullman car a passenger who attempted to take improper baggage into the car, an instruction which ignored his right to opportunity to check the baggage, and which was based on the theory that he must have shown himself to have been actually within the car instead of in the vestibule, was properly refused.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. § 416.*J</p> <p>11. Trial (§ 255*) — Instructions—Requests —Necessity.</p> <p>In a suit for refusing to carry a passenger in a Pullman car after he had purchased a seat check and while he was in the vestibule of the car, if the company desired to have specifically submitted the distinction between ejection and exclusion, it was bound to request a correct charge upon that issue; the question of ejectment or not having been submitted in the general charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dee. Dig. § 255.*]</p> <p>12. Damages (§ 49*) —Mental Anguish — Right to Recover for.</p> <p>Recovery may be had for mental anguish without physical pain or injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 100; Dec. Dig. § 49.*]</p> <p>13. Evidence (§ 80*) — Presumptions—Laws of Other States.</p> <p>In the absence of a contrary showing, the law of a sister state on a given point is presumed to be the same as the law of the forum.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. § 80;* Common Law, Cent. Dig. §§ 14-16.]</p> <p>14. Carriers (§ 416*) — Passengers—Ejection —Damages—Excessiveness.</p> <p>$900 is excessive recovery for ejection of a passenger from a Pullman car, where the acts complained of, at most, were merely humiliating.</p> <p>[Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 1590-1600; Dec. Dig. § 416.*]</p>

S. Dean, Judge. Action by T. L. Luce and wife against D. S. Durham and others, in which defendants filed a cross-bill. From a judgment for plaintiffs, defendants appeal.

<p>1. Contracts (§ 305*) — Breach or Contract —Waiver.</p> <p>A contract for the digging of a well stipulated that, if the well did not furnish 1,000 gallons of water per minute at 350 feet, the contractor or the owner might nullify the contract. The owner knew nothing about water-bearing strata, but in response to a question of the agent of the contractor stated that the agent might proceed to finish the well, if he thought it would produce the amount of water contracted for. The agent continued work, but the well when finished did not produce the requisite amount of water. Held, that the owner did not waive his rights to rely on performance of the contract, before the contractor could recover compensation under the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1398, 1399, 1467-1475; Dec. Dig. § 305.*]</p> <p>2. Work and Labor (§ 12*) — Contracts — Performance.</p> <p>Where a contractor to dig a well of a specified capacity sued for the contract price without complying with the contract, and the evidence showed that the owner had made no use of the well, and had refused to accept it and to pay for it, there could be no recovery on a quantum meruit.</p> <p>[Ed. Note. — For other cases, see Work and Labor, Cent. Dig. § 27; Dec. Dig. § 12.*]</p> <p>3. Contracts (§ 305*) — Performance — Waiver.</p> <p>A contract for the digging of a well stipulated that the well should furnish 1,000 gallons of water per minute. The well dug did not furnish that amount, and the owner agreed to pay a specified sum for a flow of 800 gallons per minute, but the well when tested did not produce more than 650 gallons. Held, that the conditional agreement did not prevent the owner from insisting on full performance of the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 305.*]</p>

<p>1. Vendor and Purchaser (§ 279*) — Lien-Foreclosure — Necessary Parties.</p> <p>In an action to foreclose a vendor’s lien on land which the purchaser had conveyed to his wife for life, and upon her remarriage over to any children that might be born, the children were neither necessary nor proper parties, because the title of the vendor was superior to theirs, and because both the purchaser and his wife were still living and the children’s estate had never vested by the happening of the contingency on which alone their estate depended.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 778-782; Dec. Dig. § 279.*]</p> <p>2. Vendor and Purchaser (§ 279*) — Lien-Foreclosure — Deficiency Judgments — Parties.</p> <p>A vendee, who in part payment for land gave vendor’s lien notes thereon and assumed a prior vendor’s lien, was primarily liable for the debt, though he had subsequently conveyed to a grantee who did not assume the debt and the owner of such notes may recover a personal judgment against him without foreclosing the lien upon the land, and hence he cannot complain that the omission of his grantees of a contingent remainder as parties to the foreclosure suit would render the land unsaleable and thus subject him to personal liability.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 778-782; Dec. Dig. § 279.*]</p> <p>3. Vendor and Purchaser (§ 265*) — Lien-Subsequent Grantees — Notes — Attorney’s Fees — Notice.</p> <p>A purchaser of land, who gave vendor’s lien notes thereon, granted it to his wife by way of gift. The .original deed described the vendor’s lien notes, but did not recite that they provided for attorney’s fees. Held that, while the lien for attorney’s fees could not have been foreclosed against an innocent purchaser without notice, the wife, being a mere volunteer, took the land subject to all claims against it, regardless of whether she had notice.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 700-712; Dec. Dig. § 265.*]</p> <p>4. Fraudulent Conveyances (§ 58*) — Gifts.</p> <p>Under Rev. St. 1895, art. 2545, providing that every gift by a debtor shall be void unless he be possessed of property within the state subject to execution sufficient to pay his debts, a gift of land subject to vendor’s lien notes given by the vendee is void as to the holder of the notes, in the absence of a showing that the purchaser had property remaining after the conveyance, sufficient to pay his debts.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 144r-147; Dec. Dig. § 58.*]</p> <p>5. Vendor and Purchaser (§ 285*) — Lien-Foreclosure — Judgment.</p> <p>In an action to foreclose a vendor’s lien, where the purchaser had granted his wife a life estate in land, and there was no showing as to the value of the wife’s estate, the judgment ordering a sale was not erroneous for failing to order a part of the surplus proceeds, if any, to be paid to the wife, and, having ordered the excess, if any, to be paid to the purchaser or “those claiming under him, if any,” it will be reformed by striking out the quoted provision.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 285.*]</p> <p>6. Husband and Wife (§ 25*) — Mutual Rights — Husband as Agent of Wife.</p> <p>A husband, being the agent of his wife, is entitled to receive and receipt for her share in the surplus proceeds of sale of land sold under foreclosure.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 148-154; Dec. Dig. § 25.*]</p> <p>7. Costs (§ 238*) — On Appeal — Parties Entitled.</p> <p>In an action for the foreclosure of a vendor’s lien upon land in which several parties had estates, where the recitals in the judgment disposing of the excess, if any, were erroneous, but the error was not called to the attention of the trial court by a motion to correct the judgment, the defendants, though successful on appeal in having the judgment corrected, will not be adjudged any costs.</p> <p>[Ed. Note. — For other cases, see Costs, Cent.' Dig. §§ 908-919; Dec. Dig. § 238.*]</p>

<p>1. Railroads (§ 33*) — Foeeign Corporations — Service op Process.</p> <p>In an action against a foreign railway company, operating no road within the state, service of citation was properly made on a soliciting passenger agent maintaining an office within the state.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 33.*]</p> <p>2. Appearance (§ 24*) — Waiver op Jurisdiction.</p> <p>After- a motion to quash citation against defendant, a foreign railway corporation, for want of jurisdiction was overruled, there was a mistrial, and at a subsequent term the company appeared and contested recovery on the merits. Held, that the company submitted to the jurisdiction of the court, even if proper service was not had.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. § 24.*]</p> <p>3. Railroads (§ 282*) — Action for Injury-Jury Question.</p> <p>In an action by a brakeman employed by one railroad company against another company, for injury caused by a defective handhold on a ear belonging to defendant while being operated by plaintiff’s employer, held, under the evidence, proper to refuse to direct verdict for defendant on the theory that defendant owed no duty to plaintiff.</p> <p>, [Ed. Note. — For other cases, see Railroads, Dec. Dig. § 282.*]</p> <p>4. Railroads (§ 275*) — Railroad Companies —Liability to Employés of Other Roads.</p> <p>Defendant, being a member of a railway association which permitted members to use the cars of each other at a stipulated rate per diem, became liable for a defect in its car, causing injury to a brakeman on another road using such car, where it failed to use ordinary care to discover the defect, and to repair it.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 275.*]</p> <p>5. Railroads (§ 275*) — Railroad Companies —Defective Cars.</p> <p>A railway company was charged with notice of the defective condition of a freight car delivered to a foreign road, upon which a brakeman was injured through a defective handhold, where the handhold was fastened by lag screws, instead of bolts and nuts, and where the car had been used for about the average life of a car, and the wood had become rotten, and a proper inspection would have disclosed the defect.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 275.*]</p> <p>6. Release (§ 29*) — Persons Released — Joint Tort-Feasors.</p> <p>A railway brakeman’s release of two railroad companies from liability for injury received by him through a defect in a car belonging to a third company, but used by the first two, did not release the third company from liability, where the agreement for settlement expressly reserved a cause of action against it.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 64-70; Dec. Dig. § 29.*]</p> <p>7.Release (§ 29*) — Release of One Joint-Tort-Feasor — Effect.-</p> <p>Plaintiff having released two railroad companies' from liability for personal injury due to joint negligence, recovery against a third company was properly limited to the damages sustained in excess of the amount paid under such, settlement.</p> <p>[Ed. Note. — For other cases, see Release, Cent, Dig. §§ 64-70; Dec. Dig. § 29.*]</p>

<p>Intoxicating Liquors (§ 35*) — Local Option Election — Canvassing Returns — Examination op Ballots.</p> <p>Rev. St. 1895, art. 3390, requiring the commissioners’ court to hold a special session to open the polls and counting the votes deposited at a local option election, only authorizes the canvassing of the returns made by the election officers, and does not authorize them to open the ballot boxes, and recount the ballots.</p> <p>[Ed. Note. — Eor other cases, see Intoxicating Liquors, Dee. Dig. § 35. *]</p>

<p>1. TRIAL (§ 194*) — INSTRUCTIONS—WEIGHT OF Evidence.</p> <p>In an action for an injury to an employé in a sawmill, instructions directing a verdict for'the plaintiff if certain conditions were found to exist and certain things had been done, without reference to whether these conditions resulted from negligence, or whether the acts referred to constituted negligence, are charges on the weight of the evidence, and are improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 439-441; Dec. Dig. § 194.*]</p> <p>2. Trial (§ 194*) — Instructions—Weight of Evidence.</p> <p>An instruction which specifically enumerates certain facts which the jury may consider in determining the issue of negligence is a charge on the weight of the evidence, and improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 439-441; Dec. Dig. § 194.*]</p>

M. Reiger, Judge. Action by J. I. Gilbert against O. L. York. From a justice’s judgment in favor of plaintiff, affirmed on appeal to the county court for less than the relief demanded, plaintiff appeals.

<p>'Statutes (§ 82*) — Veto Message — CONSTRUCTION.</p> <p>Where a Governor’s veto message is expressed in plain language, its meaning and effect must be determined by a construction of the language used.</p> <p>[Ed. Note. — For other cases, see Statutes, /Dec. Dig. § 32.*]</p>

<p>Appeal from Criminal District Court, Galveston County; C. W. Robinson, Judge.</p> <p>Ed James was convicted of burglary and appeals.</p>

<p>Appeal from District Court, Mitchell County ; James L. Shepherd, Judge.</p> <p>N. T. Smith was convicted of rape, and he appeals.</p>

<p>Appeal from Hill County Court; Horton B. Porter, Judge.</p> <p>Action by W. T. McGrew against J. M. Norris. Judgment for defendant on a counterclaim, and plaintiff appeals.</p>

Error from District Court, Wichita County ; A. H. Carrigan, 'judge. Action by the City National Bank of Wichita Falls against C. H. Smith and others, in which a writ of garnishment was issued. From a judgment for plaintiff, defendants-bring error. The City National Bank of Wichita Falls-sued and obtained a judgment in the district court against C. H. Smith, A. B. Smith, L. M. Carnes, and J. H. Burns as principals on a promissory note for $1,500, interest and attorney’s fees.

<p>Appeal from Martin County Court; Bailey Anderson, Judge.</p> <p>Action by the Stanton Mercantile Company against G. A.. Wren. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and Servant (§ 261*)--Injuries-to Servant — Actions—Petition—Negativing Contributory Negligence.</p> <p>A petition, in an action for injuries to a brakeman while attempting to board a train in ■a railroad yard, which alleges that, in attempting to bo'ard the train at the time and under the circumstances stated, the brakeman did so in the regular course of his duty, sufficiently alleges that the brakeman was engaged in the discharge of his duties and negatives the presumption of his own negligence.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. § 851; Dec. Dig. § 261.*]</p> <p>2.Master and Servant (§ 260*) — Injuries to Servant — Actions — Petition — Negativing Assumption of Risk.</p> <p>A petition, in an action for injuries to a brakeman while attempting to board a train in a railroad yard, caused by defects in the stirrup to a car and in the yards, which alleges that in attempting to board the train the brakeman did so in the regular course of his duty, and that he did not know of the defective condition ■of the stirrup or the yard, sufficiently shows that he did not assume the risk.</p> <p>I Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 844-848; Dec. Dig. § 260.*]</p> <p>3. Trial (§ 4*) — Order of Trial of Issue on Dilatory Motion.</p> <p>Under Rev. St. 1895, arts. 947, 1269, authorizing the Supreme Court to make rules for the courts not inconsistent with the law, and providing that dilatory pleas shall be determined during the term at which they are filed if the business of the court permits, and under -district and county court rule 24 (67 S. W. xxii), providing that all dilatory pleas shall be tried at the first term to which the attention of the court shall be called to the same, unless passed by agreement, and all such pleas shall be ■disposed of before the main issue on the merits is tried, the court may in its discretion dispose -of dilatory motions at the trial of the merits, and, whore evidence on the motions and the main case are heard together, it must "require the jury to first dispose of the motions, and, where that is done, the defeated party may not complain unless he shows that he suffered injury by the failure of the court to dispose of the motions before hearing evidence on the merits.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 8-10; Dec. Dig. § 4.*]</p> <p>4. Trial (§ 48*) — Reception of Evidence-Evidence Admissible for Particular Purpose.</p> <p>Where the issues involved the residence of plaintiff under the venue laws at the time he received personal injuries while a servant of defendant and his capacity and disposition to earn money, the allowance of plaintiff to testify that he paid the larger part of the cost of his mother’s home in a sister state was not erroneous, where he without objection testified to his residence in the sister state and of his intention of going home at the time of the accident.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. § 120; Dec. Dig. § 48.*]</p> <p>5. Appeal and Error (§ 882*) — Review — Persons Entitled to Allegations — Invited Error — Instructions.</p> <p>Where the court, as requested by defendant, submitted the issue of the residence of plaintiff suing for a personal injury received in another county while a servant bf defendant, a plea of privilege having been filed to be sued in the county where the accident occurred, it could not complain on appeal of the refusal to give a peremptory instruction on the issue.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. S82.*]</p> <p>6. Trial (§ 260*) — Instructions — Instructions Covered by Charge Given — “Residence.”</p> <p>An instruction, on the issue of the residence of plaintiff within the venue laws, that, if at the time of the injury complained of plaintiff had his residence in the county in which the accident occurred, the jury must find for defendant on its plea of privilege to be sued in such county, while, if at the time plaintiff resided in a sister state, the jury must find against the plea, and that the word “residence” meant a fixed and permanent abode or dwelling place for the time being, correctly stated the law, so that it was not error to refuse requested instructions on the issue.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*</p> <p>Por other definitions, see Words -and Phrases, vol. 7, pp. 6151-6161; vol. 8, p. 7788.]</p> <p>7. Appeal and Error (§ 987*) — Review — Verdict — Oonclusiveness.</p> <p>The jury are the judges of the weight of the evidence, and the court on appeal may only determine whether there is evidence sufficient, if believed, to sustain the verdict, in the absence of anything indicating that the jury were improperly influenced.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3893; Dec. Dig. § 987.*]</p> <p>8. Venue (§ 21*) — Privilege of Defendant— “Residence.”</p> <p>Evidence held to show that a servant suing a railroad company for injuries received in another county in the state was a nonresident of the state within the venue laws; residence within the statute requiring a settled and fixed abode and an intention to remain at least for a time for business or for other purposes.</p> <p>[Ed. Note. — Por other cases, see Venue, Cent. Dig. § 34; Dec. Dig. § 21.*]</p> <p>9. Trial (§ 251*) — Issues—Instructions.</p> <p>Where the court limited a recovery to one ground, the refusal of requested instructions submitting other issues was not erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 587; Dec." Dig. § 251.*]</p> <p>10. Trial (§ 194*) — Instructions Invading Province of Jury.</p> <p>An instruction, in an action for injuries to a brakeman, while boarding a train, caused by a defective stirrup to a car, that the evidence showed that the brakeman boarded the train of his own choice, and was not acting by the orders of his superiors, or by the demands of an emergency in the management of the train, and that there was no actionable negligence, and that he was not acting in the furtherance of his duties, but was a mere licensee precluding a recovery, was objectionable as on the weight of the evidence as to the emergency and as to actionable negligence.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. § 466; Dec. Dig. § 194.*]</p> <p>11. Master and Servant (§ 295*) — Injuries to Servant — Actions — Instructions—Assumption of Risk.</p> <p>An instruction on assumption of risk, in an action for injuries to a servant, which failed to require knowledge on the servant’s part of an additional hazard, if any, in the mode selected by him for the performance of his duties, was properly refused.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. § 1175; Dee. Dig. § 295.*]</p> <p>12. Master and Servant (§ 295*) — Injuries to Servant — Actions — Instructions—Assumption of Risk.</p> <p>Under Laws 1905, c. 163, making the plea of assumed risk, where the ground of it is knowledge or means of knowledge of the defect causing the injury complained of, available in enumerated cases, recovery by .a servant who assumed a risk of the mode of performing a service is expressly made to depend on whether an ordinarily prudent servant would have so performed the service, and a special charge failing to so state the law is properly refused.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1175; Dec. Dig. § 295.*]</p> <p>13. Trial (§ 260*) — Instructions — Refusal to Give Instructions Covered by the Charge Given.</p> <p>It is not error to refuse a requested charge sufficiently covered by the charge given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*]</p> <p>14. Master and Servant (§ 295*) — Injuries to Servant — Actions — Instructions—Assumption of Risk.</p> <p>Where, in an action for' injuries to a brakeman while attempting to board a train, caused by a defective stirrup to a ear, the evidence showed that the brakeman was an experienced railroad man and accustomed to getting on and off a moving train, the only contributory negligence or assumed risk to which an instruction could properly apply was that of attempting to board the car with the stirrup out of repair, and where in a requested charge his rights were not made to depend on the question of his knowledge of the additional hazard or of his negligence in attempting to board the car under the circumstances, the charge was properly refused.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1175; Dec. Dig. § 295.*]</p> <p>15. Master and Servant (§ 228*) — Injuries to Servant — Contributory Negligence— Effect. '</p> <p>Laws 1905, c. 163, defining when the defense of assumption of risk is available, and Laws 1909 (1st Ex. Sess.) c. 10, providing that the contributory negligence of a railroad employs shall not bar a recovery for injuries received, but the damages must be diminished in consequence thereof, when construed together, do not bar a recovery for injuries received by a railroad employs guilty of contributory negligence; but the damages must be diminished thereby.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.*]</p> <p>16. Master and Servant (§ 99*) — Injuries to Sérvanos-Negligence — Joint Liability.</p> <p>The negligence of either of two employers constituting a copartnership inures to the benefit of an employs injured thereby, and that one employer exercised the required care does not prevent a recovery where the other employer was guilty of negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 165; Dec. Dig. § 99.*]</p> <p>17. Master and Servant (§ 228*) — Injuries to Servant — Contributory Negligence-Statutory Provisions.</p> <p>Under Laws 1905, c. 163, and Laws 1909 (1st Ex. Sess.) c. 10, relating to the defense of assumption of risk and contributory negligence in actions by railroad employés, a railroad company is liable for injuries to a brakeman caused by defects in the stirrup to a car, where the defective condition was the result of negligence, and the brakeman knew nothing thereof and was not guilty of contributory negligence in failing to know, and he was in the discharge of a duty to his master and exercised the care of a-reasonably prudent employé similarly situated.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.*]</p>

<p>1. Waters and Watek CouRses (§ 54*) — Diversion.</p> <p>A landowner cannot lawfully construct an embankment that turns the overflow of a stream upon the land of another.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 54.*]</p> <p>2. Waters and Water Courses (§ 63*) — Diversion oe Overflow — Injury—Evidence —Sufficiency.</p> <p>In an action to enjoin the construction of a levee, evidence held insufficient to show injury to plaintiff by a wrongful diversion of the overflow of a stream.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 63.*]</p>

<p>1. Judgment (§ 743*) — Conclusiveness — Matters Concluded.</p> <p>In a former action between the same parties involving the same land, the court charged the jury that the land in controversy belonged to plaintiff, unless the land was included within the boundaries of defendant’s deed. A judgment, based on a verdict rendered upon this instruction, having been affirmed, held, that the title of plaintiff to the land was adjudicated, ■and could not be contested in another action.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1275-1277; Dec. Dig. § 743.*]</p> <p>2. Judgment (§ 743*) — Conolusiveness — Matters Concluded.</p> <p>Where a judgment in a former action, between the same parties and involving the same land, established the interest of each in such land, such judgment was an adjudication of defendant’s right to claim land by adverse possession and defendant could set up only adverse possession had since the judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1275-1277; Dec. Dig. § 743.*]</p> <p>45. Frauds, Statute of (§ 70*) — Real Property-Boundaries.</p> <p>Where the boundary line between the lands of plaintiff and defendant, while established by .a judgment, had not been run according to courses and distances, and the parties disagreed as to the way it should be run, it was competent for them to orally agree that two surveyors should locate the line, and that it should be binding, for, while an oral agreement between parties to establish a- boundary line, so as to give one land that admittedly belongs to another, would be within the-statute of frauds, yet, a division line being in dispute, an agreement fixing such line is not a transfer of the land, and need not be in writing.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 112; Dee. Dig. § 70.*]</p> <p>4. Boundaries (§ 46*) — Submission to Arbitration — Validity.</p> <p>The boundary line between two adjoining landowners being in dispute, they orally agreed that two surveyors should run the line from an established monument, according to the directions of a judgment had in an action between them. Held, that this agreement was at common law an arbitration, an agreement for arbitration being good, though not in writing; it being sufficient that the question to be arbitrated is in dispute, that arbitrators be selected and act, and that their award be published.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.*]</p> <p>5. Arbitration and Award (§ 12*) —Submission — V alidity.</p> <p>A common-law arbitration is valid.</p> <p>[Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. §§ 32-51; Dec. Dig. § 12.*]</p> <p>•6. Arbitration and Award (§ 18*) — Submission — Intendments.</p> <p>Arbitrations are favored, and every reasonable intendment will-be indulged in to support them.</p> <p>[Ed. Note. — For other cases, see Arbitration ■and Award, Dec. Dig. § 18.*]</p> <p>7. Boundaries (§ 46*) — Awards — Conclusiveness.</p> <p>Where two adjoining landowners agreed that two surveyors, one selected by each, should run a boundary line between their lands, and the line was run in the presence of both landowners, neither of whom objected, the running of such line was an award, conclusive upon both.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.*]</p>

<p>1. Frauds, Statute of (§ 72*) —Sale or Stawding Timber — “Contract eor the Sale op Real Estate” — “Real Property.”</p> <p>A contract of sale of timber allowing the •purchaser 15 years to remove it is a “contract for the sale of real estate” within the statute of frauds (Rev. St. 1895, art. 2543, subd. 4), and ■must be in writing.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 117; Dec. Dig. § 72.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1530; vol. 7, pp. 5939-5951; vol. 8, pp. 7778, 7779.]</p> <p>2. Logs and Logging (§ 3*) — Sale of Standing Timber — Contracts—Invalidity.</p> <p>A contract of sale of timber on “certain lands” of the vendor in the southern part of a •designated county is void for want of a sufficient description of the lands.</p> <p>[Ed. Note. — For other eases, see Logs and Logging, Cent. Dig. § 6; Dec. Dig. § 3.*]</p> <p>3. Logs and Logging (§ 3*) — Sale of Standing Timber — Contract—Description—Sufficiency.</p> <p>A written contract for the sale of the timber on “our lands in the southern part of” a specified county is not necessarily void for uncertainty of description, if it covers all the land of the vendors in the locality named; but, where it is shown by parol that they owned other land in that locality, which concededly was not covered by the contract, the contract is void for uncertainty.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. § 6; Dec. Dig. § 3.*]</p> <p>4. Logs and Logging (§ 3*) — Sale of Standing Timber — Contract — Action for Bee ach — Y ariance .</p> <p>Plaintiff, in an action for breach of a contract for the sale of standing timber, pleaded the sale by written contract of the timber on all the defendants’ lands in the southern part of a specified county, and specifically described •certain tracts, alleging that defendants owned such tracts, and no others in that location, and that the tracts specified were the only ones the timber on which was sold. The contract, pleaded verbatim in the petition and annexed to it as an exhibit, agreed to sell all the timber “on our lands situated in the southern part of” the county specified. The proof showed that the sellers owned other timber lands than those specified in the southern part of the county. Meld, that if, to avoid the invalidity of the contract for uncertainty of description, it were to be held that the contract covered the additional tracts shown by the proof to be owned by the defendants, there would be a fatal variance between the proof and the allegations of the petition that the tracts particularly specified in the petition were the only ones on which the timber was sold.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. § 12; Dec. Dig. § 3.*]</p> <p>5. Frauds, Statute of (§ 131*) — Contracts Affecting Real Estate — Parol Modifications — Validity.</p> <p>A written contract of sale of timber, which provides for the consummation of the sale on a designated date by the purchaser depositing in a designated bank the balance of the price and by the vendor giving a merchantable title, can not be modified by a parol agreement providing that the vendor need not make a merchantable title, but shall attempt to cure defects, and that, if they cannot be cured, the purchaser will accept a warranty deed, and absolving the purchaser from his obligation to pay the unpaid price into the bank on the designated date, because the parol agreement changes the terms of the written contract.</p> <p>[Ed. Note — For other cases, see Frauds, Statute of, Gent. Dig. §§ 283, 284; Dec. Dig. § 131.*]</p> <p>6. Logs and Logging (§ 3*) — Sale of Standing Timber — Breach of 'Contract — Damages.</p> <p>Where a contract of sale of standing timber failed because of the inability of the vendor to make title, and the breach was not willful or fraudulent, the purchaser could only recover the purchase money paid, and not the difference between the contract price of the timber and its market value.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. § 12; Dec. Dig. § 3.*]</p> <p>7. Logs and Logging (§ 3*) — Sale of Standing Timber — Contracts—Mutual and Dependent Promises.</p> <p>A contract of sale of timber, which binds the purchaser to pay into a bank on a designated date the balance of the unpaid price, and which requires the vendor to deposit in the bank a merchantable title, makes the obligations of the parties mutual and dependent promises, and, where the purchaser fails to pay the money into the bank on the day designated, the vendor may treat the contract as terminated.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. § 6; Dec. Dig. § 3.*]</p> <p>8. Appeal and Error (§ 1116*) — Disposition of Case on Appeal.</p> <p>Where defendants, in an action for damages for breach of contract to sell timber on lands, appealed from an erroneous judgment for plaintiff without complaining of the judgment against them on their plea in reconvention for the earnest money, the court reversing the erroneous judgment will not disturb the judgment on the plea in reconvention.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4411, 4412; Dec. Dig. § 1116.*]</p>

<p>Appeal from District Court, Bexar County; J. B. Camp, Judge.</p> <p>Action by J. E. McCown and others against George W. Henry and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Trial (§ 296*) — Instructions — Error in Instruction Cured by Giving Other Instruction.</p> <p>In an action for injury to an employé, by moving a locomotive while he had his hand under it, fastening a latch connecting a turntable track with a switch track, an instruction, authorizing recovery without requiring a finding that defendant knew or should have known of plaintiff’s position, was not erroneous, where the evidence showed that plaintiff was doing his work in the customary manner, and that the employé who caused the locomotive to move knew that plaintiff had gone to make the fastening, and where another instruction1 precluded recovery, if the employés in charge of the movement of the engine did not know of plaintiff’s danger, etc.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 709; Dec. Dig. § 296.*]</p> <p>2. Damages (§ 216*) — Personal Injury — Instructions.</p> <p>An instruction that plaintiff could recover such sum as would compensate him for the injury, and that, in estimating his damages, the jury might consider the mental and physical pain suffered, consequent upon such injury, etc., was not erroneous, as authorizing recovery for mental suffering and physical pain, other than that necessarily incident to the physical pain resulting from the injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 550; Dec. Dig. § 216.*]</p> <p>3. Damages (§ 159*) — Personal Injury — Loss of Time — Pleading.</p> <p>Recovery for loss of time is authorized by allegations that plaintiff’s hand and arm were so mangled as to require amputation; that before the injury he was able to earn $1.40 a day at work; that he was uneducated, and without means, and compelled to labor for a living; that his injury was permanent and incurable ; and that his capacity to earn had been practically destroyed, etc.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 443; Dec. Dig. § 159.*]</p> <p>4. Appeal and Error (§ 978*) — Review—Discretion of Lower Court — Refusal of New Trial.</p> <p>An order refusing a new trial for misconduct of the jury will not be disturbed, unless the trial court has clearly abused its discretion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3870; Dec. Dig. § 978.*]</p> <p>5. New Trial (§ 44*) — Grounds — Misconduct of Jurors — Judicial Discretion.</p> <p>The trial court in a personal injury action did not abuse its discretion in refusing defendant a new trial, on' the ground that, after retiring to deliberate, jurors stated among themselves that plaintiff would have to divide his recovery with his attorneys, though most of the jurors testified to the misconduct, where others testified they did not hear any such remarks, or that the remarks did not influence their verdict.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 80; Dec. Dig. § 44.*]</p> <p>6. Damages (§ 132*) — Personal Injury — Excessive Damages.</p> <p>$15,000 recovery for loss of the right hand of a railroad laborer 27 years old is excessive by $5,000; he being uneducated, and having earned only $1.40 a day.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 383; Dec. Dig. § 132.*]</p>

<p>Appeal from District Court, Navarro County; H. B. Davis, Judge.</p> <p>Action by J. B. Cooksey against J. G. Jordan and another. Prom the judgment, plaintiff appeals.</p>

<p>Appeal from District Court, Castro County; L. S. Kinder, Judge.</p> <p>Action by the Bryant-Fort-Daniel Company against Percy Estes. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hartley County; D. B. Hill, Judge.</p> <p>Action by Henry Altman and another against William Powell. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Specific Performance (§ 95*) — 'Contracts foe Sale of Land — Merchantable Title.</p> <p>Where vendor of land agreed to convey it to the purchaser by a good and sufficient warranty deed, he could not enforce specific performance until tendering both a proper deed and a merchantable title.</p> <p>[Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 257-277; Dec. Dig. § 95.*]</p> <p>2. Specific Performance (§ 119*) — Contracts for the Sale of Land — Title by Limitation.</p> <p>A vendor of land attempting to obtain specific performance of a contract for its purchase, and tendering title which he claims has been rendered valid by the statute of limitations, has the burden of showing that all persons who might claim any interest in the land are not laboring under disability, which by any chance might stop the running of the statute.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 382, 383; Dec. Dig. § 119.*]</p> <p>3. Vendor and Purchaser •(§ 134*) — Contracts Enforceable — Contracts for Sale of Land — “Incumbrance.”</p> <p>A contract for the sale of land stipulating for a good and sufficient warranty deed cannot be specifically enforced at the suit of the vendor where, at the time he offered to convey, the land was subject to vendor’s lien notes in a large amount, such lien being an “incumbrance” under Rev. St. 1895, arts. 633, 634, providing that the word “grant” in a conveyance imports a warranty against incumbrances.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 250-254; Dec. Dig. § 134.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3519-3527.]</p> <p>On Motion for Rehearing.</p> <p>4. Appeal and Error (§ 1076*) — Error Waived in the Appellate Court — Showing.</p> <p>In the absence of any affirmative evidence showing an admission abandoning' the assignment of error in the argument on appeal, such assignment will not be held to have been waived.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1076.*]</p> <p>.5. Judgment (§ 713*) — Estoppel by Record.</p> <p>In an action by a vendor of land to enforce specific performance of a contract for its purchase, where the purchaser defended on the ground that he was not offered a merchantable title, a judgment rendered long after the time set for the conveyance of the land does not es-top the purchaser from showing the vendor’s lack of title, even though he was a party to such judgment which by agreement recited that the grantor had title.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1234-1241; Dec. Dig. § 713;*]</p> <p>6. Judgment (§ 715*) — Res Judicata.</p> <p>Defendant entered into a contract to purchase land owned by plaintiff, but refused to carry it out because plaintiff’s title was not clear. After performance of the contract had been refused, the owner of vendor’s lien notes which had been executed by plaintiff’s grantors, foreclosed making defendant a party, and the judgment, which was rendered by agreement, recited that plaintiff was the owner of the land. Not only was the land subject to these vendor’s lien notes, but it was not shown that the original patentee had ever conveyed the land and his heirs were not parties to this judgment. Held that, in an action of specific performance, this judgment did not estop defendant from setting up that plaintiff’s title was defective, being subject to the claims of the heirs of the original patentee.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1244-1247; Dee. Dig. § 715.*]</p> <p>7. Limitation of Actions (§ 195*) — Evidence —Burden of Proof.</p> <p>In an action for the possession of land where the party in possession sets up and shows title by limitation, the burden is upon those attempting to defeát his title to show that they were laboring under some disability which prevented the running of the statute.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 711-716; Dee. Dig. § 195.*] »</p>

<p>1. Reference (§ 99*) — Report of Auditor— Report as Evidence.</p> <p>An auditor’s report, in so far as it is excepted to, is prima facie evidence of what it exhibits, and, where not excepted to, it is conclusive.</p> <p>[Ed. Note. — For other cases, see Reference, Cent. Dig. §§ 148-156; Dec. Dig. § 99.*]</p> <p>2. Reference (§ 100*) — Auditor’s Reports— Introduction of Other Evidence — Objection.</p> <p>Where plaintiff, in an action for the recovery of money alleged to have been embezzled by a deputy collector, filed no exceptions to an auditor’s report, but introduced other testimony, the effect of which was to negative the report, he was in no position to complain, if the court considered all the testimony.</p> <p>[Ed. Note. — For other cases, see Reference, Cent. Dig. §§ 157-168; Dec. Dig. § 100.*]</p> <p>3. Taxation (§ 567*) — Evidence — Conversion by Deputy Collector.</p> <p>Evidence, in an action by a tax collector against the representative of a deceased deputy, held to sustain a judgment in favor of the defendant as to a particular collection.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 567.*]</p> <p>4. Taxation (§ 567*) — Evidence — Conversion by Deputy Collector.</p> <p>Evidence, in an action by a tax collector for the recovery of money alleged to have been misappropriated by a deputy, held to warrant the finding that a certain amount sought to be recovered was received during the deputy’s absence.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec.- Dig. § 567.*]</p> <p>5. Taxation (§ 567*) — Conversion by Deputy Collector — Evidence.</p> <p>Evidence, in an action by a tax collector to recover amounts alleged to have been collected by the deputy and to have been converted or appropriated by him, held to sustain a judgment for defendant.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 567.*]</p>

M. Milam, Judge. Application by J. W. Ward to make perpetual a temporary injunction restraining the collection of costs by J. C. Powell and others. From a judgment dissolving the injunction, applicant appeals.

<p>1. Municipal Corporations (§ 961*)—Taxa-tion—Statutes—Validity.</p> <p>A provision in the charter of a city that on a majority vote of the people a special tax may be voted for any purpose for which a petition is presented, and for which the council may call an election, is not invalid as authorizing the levy of taxes for unlawful purposes, but limits the authority of the city to levy a special tax for a lawful purpose.</p> <p>[Ed. Note.—For other ' cases, see Municipal Corporations, Cent. Dig. § 2038; Dec. Dig. § 961.*]</p> <p>2. Constitutional Law (§ 48*)—Statutes (§ 181*)—Construction in Favor on Validity—Intent.</p> <p>The court will construe a statute according to its intent, and so as to uphold it rather than to nullify it.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48;* Statutes, Cent. Dig. § 259; Dec. Dig. § 181.*]</p> <p>3. Municipal Corporations (§ 956*)—Taxa-tion—Statutes—Construction.</p> <p>A provision in a city charter giving the city the right to levy a special tax of 50 cents on the $100 for special purposes, gives the right to levy a tax of 25 cents for a special purpose.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 2011; Dec. Dig. § 956.*]</p> <p>4. Municipal Corporations (§ 956*)—Spe-cial Taxes—Elections—Propositions.</p> <p>A proposition submitted to the people of a city authorized by its charter to levy a special tax on a majority vote of the people, “Shall a hospital be established by the city, and the taxpayers be taxed” a specified amount “for its payment?” is sufficient, and when a majority vote is east in favor of the proposition, a special tax may be levied.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 2013; Dec. Dig. § 956.*]</p> <p>5. Municipal Corporations (§ 956*)—Spe-cial Taxes—Elections—Validity.</p> <p>Where the officers of a city, authorized by its charter to levy a special tax on a majority vote of the people, called an election in the proper way on a petition therefor deemed sufficient, and an election was held and the result thereof ascertained and declared, the election will not be avoided though the requisite number «f persons did not sign the petition, and though other matters in the petition were irregular.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2013; Dec. Dig. § ’956.*]</p> <p>■6. Municipal Corporations (J 956*) — Special Elections — Majority vote.</p> <p>Under a city charter authorizing special taxes on a majority vote of the property owning taxpaying voters of the city, a majority of those voting at a special election, public notice of which has been given, is sufficient to authorize the levy of special taxes.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Gent. Dig. § 2013; Dec. Dig. § 956.*]</p>

<p>Appeal from District Court, Matagorda -County; Wells Thompson, Judge.</p> <p>Habeas corpus by Frank Stelzig to have bail granted. Denied, and applicant appeals.,</p>

<p>Appeal from District Court, Hardeman County; S. P. Huff, Judge.</p> <p>Habeas corpus proceeding by Elbert Eads. From a judgment denying him bail, he appeals.</p>

<p>Appeal from District Court, Shelby County; James I. Perkins, Judge.</p> <p>John Henry Peddy was convicted of violating the local option law, and he appeals.</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Action by A. Wood against J. R. Sandidge and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Hartley County; D. B. Hill, Judge.</p> <p>Action by Mrs. L. F. Brown against the Colorado & Southern Railway Company and another. Judgment for plaintiff, and the named defendant appeals.</p>