Volume 141 — South Western Reporter

<p>1. Criminal Law (§ 721*) — Misconduct of Prosecuting Attorney — Reference to Accused’s Failure to Testify.</p> <p>A prosecuting attorney’s statement to the jury that, although accused had offered no testimony under his defense, the attorney did not intend to refer to his failure to testify >vas erroneous, as making such reference.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.*]</p> <p>2. Criminal Law (§ 854*) — Jurors—Separation.</p> <p>After ten jurors had been accepted, it was error to permit them to separate, without placing them in charge of an officer.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2044; Dec. Dig. § 854.*]</p>

<p>Appeal from District Court, Bexar County; Edward Dwyer, Judge.</p> <p>Daniel Cortez was convicted of assault to murder, and lie appeals.</p>

<p>1. Courts (§ 183*) — Actions—Jurisdiction.</p> <p>The county court has no power to issue an injunction beyond the limits of its jurisdiction as defined by the subject-matter or amount in controversy,' and cannot restrain the trustees of an independent school district from proceeding with the trial of charges against the superintendent of the district, which power could only be exercised by the district court under its general equity powers.</p> <p>[Ed. 'Note. — For other cases, see Courts,. Dec. Dig. § 183.*]</p> <p>2. Injunction (§ 78*) — Powers of School Officers — Trial of School Superintendent-Equitable Relief.</p> <p>An injunction does not lie to restrain the trustees of an independent school district empowered by Acts 29th Leg. c. 124, §§ 70, 161, to manage and control the schools and to employ and dismiss teachers, from proceeding to try the superintendent of the district on charges preferred committed subsequent to a decision that such superintendent had been legally employed, and render judgment on the charges.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 78.*]</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by E. B. Cole against John E. Kjell-berg. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Pleading (§ 64*) — Petition — Separate Counts — Necessity.</p> <p>One may not recover both on an express contract and on a quantum meruit, and hence both causes of action may not be declared on in the same count.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 134-137; Dec. Dig. § 64.*]</p> <p>2. Pleading (§ 53*) — Petition — Separate</p> <p>Counts — Breach oe Contract.</p> <p>One may, by the use of separate counts, state causes of action in the alternative on an express contract, and on quantum meruit in case the express contract fails of proof.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 114-117; Dec. Dig. § 53.*]</p> <p>3. Trial (§ 251*) — Instructions — Applicability to Pleadings.</p> <p>Where a defendant agreed to pay plaintiff a part of the commissions realized on all sales made to any purchaser procured by plaintiff, and the contract continued in existence, everything done by plaintiff in the way of procuring purchasers must be deemed to have been done under, the contract, and his right to recover must be based on the contract, so as to make it error to submit to the jury his right to recover on a quantum meruit.</p> <p>[Ed. Note. — Eor other cases, see Trial, Dec. Dig. § 251.*]</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by P. C. Kramer against the El Paso & Southwestern Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Lipscomb County Court; P. B. Mills, Judge.</p> <p>Action by C. H. Lockhart and another against the Southern Kansas Railway Company of Texas and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Johnson County; O. D. Lockett, Judge.</p> <p>Action by Adeline Linton against Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Schools and School Districts (§ 24*)— Creation of District — Collateral Attack.</p> <p>Where the creation of a school district is authorized hy statute, and it has been organized under color of such authority, its corporate existence and the rights of the trustees to exercise their functions cannot be inquired into in a collateral proceeding to restrain a threatened levy of taxes upon plaintiffs’ property alleging irregularities in the organization as a ground of action, but can only be determined in a suit brought for that purpose in the name of the city, or by some individual under the authority of the state, who has a special interest affected by the existence of the corporation.</p> <p>[Ed. Note. — For other cases, see Schools and (school Districts, Cent. Dig. §§ 47-49; Dec. Dig. § 24.*)</p>

<p>Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.</p> <p>Suit by C. O. Rushing and others against J.' I. Campbell and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.</p> <p>Action by the Farmers’ State Bank of Knox City against the Knox City Milling Company and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Damages (§ 20*) — Tobts — Remote Damages — 1 ‘Foreseen. ’ ’</p> <p>A wrongdoer is liable for such injuries as might reasonably have been anticipated to result from his wrongful act, it being inaccurate to say that he is only liable for such damages as he could have foreseen, the primary meaning of “foreseen” being to see or know beforehand, though it may also be sometimes used in the sense of “anticipate” or “expect.”</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 55-57; Dee. Dig. § 20.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2892.]</p> <p>2. Damages (§ 20*) — Pboximate and Remote.</p> <p>The local agent of defendant railroad company had charged plaintiff with stealing coal and lumber, and defendant sent a detective to the town to investigate the charge, and while plaintiff was absent from town, which defendant’s employés knew, and plaintiff’s wife was at home with her 10 year old son and a lodger about 60 years of age, defendant’s agents and the detective came into plaintiff’s yard about 11 or 12 o’clock at night without permission, and went to a pile of lumber in the yard and carried a piece of plank away, which plaintiff’s wife saw them do, and, recognizing them and realizing that they were hunting for evidence to sustain the charge against plaintiff, she became frightened and lost consciousness, which was followed by a nervous breakdown, injuring her physical health. Held, that the damages resulting from fright of plaintiff’s wife were not too remote to be recoverable; it not being unreasonable for defendant’s agents to have anticipated that she would become frightened under the circumstances.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 55-57; Dec. Dig. § 20.*]</p> <p>3. Appeal and Ebrob (§ 1040*) — Habmless Ebbob.</p> <p>Failure to sustain exceptions to causes of action alleged by the petition, other than that submitted to the jury, was not reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>4. Appeal and Ebbob (§ 547*) — Grounds oe Review — Presentation Below.</p> <p>One moving for a new trial for newly discovered evidence, as shown by affidavits attached to the motion, must show that the affidavits were brought to the trial court’s attention, in order to have reviewed his ruling denying the motion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2427; Dec. Dig. § 547.*]</p>

<p>1. Master and Servant (§ 332*) — Injury to Third Persons — -Jury Question — Scope of Authority.</p> <p>Evidence, in an action against a railroad company for injuries from fright caused by the act of defendant’s conductor in pulling, down a trolley wire passing over the railroad tracks and causing it to be thrown against plaintiff’s buggy, held to make it a jury question whether the pulling down of the trolley wire was in the scope of the conductor’s authority.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 332.*]</p> <p>2. Master and Servant (§ 302*) — Scope op Authority — “Authority” — “Instructions.”</p> <p>The word “authority,” as used in the rule that a master is only responsible for the acts of a servant within the scope of his authority, is not synonymous with “instructions,” but often has a broader meaning.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1217; Dec. Dig. § 302.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 646-648; vol. 4, pp. 3663, 3664.J</p> <p>3. Master and Servant (§ 302*) — Scope op Authority.</p> <p>As a rule, a master is responsible for a servant’s wrongful act if the servant had authority to do the business in which he was engaged when the act was committed, and it was done in the course of his employment, though the servant abused his authority, or was reckless, or inflicted unnecessary injury in performing his master’s orders.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1217; Dec. Dig. § 302.*]</p> <p>4. Damages (§ 20*) — Remote Damages — Personal Injuries — Injuries from F'right.</p> <p>As a rule damages may be recovered for physical injuries resulting from fright caused by a wrongful act if the fright is the natural and direct result of the wrongful act, though the wrongdoer did not anticipate the resulting injuries, so that plaintiff, who was severely frightened while driving near defendant’s railroad track 'by its employes pulling down a trolley wire passing over the tram by means of fastening a chain to it and causing it to fall against plaintiff’s buggy emitting sparks and frightening her horse, etc., could, as against an objection of remoteness, recover damages for the nervous shock and paralysis resulting from her intense fright, especially as it appeared that before defendant’s conductor pulled down the wire plaintiff screamed and requested him not to pull it down, thereby notifying him that she was then frightened and apprehended injury from the wire being pulled down.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Diig. §§ 55-57; Dec. Dig. § 20.*]</p> <p>5. Limitation op Actions (§ 13*) — Estoppel to Assert.</p> <p>In the original petition, in a personal injury action, filed within two years before the cause of action accrued, defendant was designated as the “M., etc., Railroad Company,” and citation was issued running to that company and served upon defendant, the “W. M., etc., Railroad Company,” and defendant appeared and moved to quash the citation because it did not command the sheriff to summon it by its proper corporate name, but designated itself in its motion as the defendant in the action, and the motion was sustained, and plaintiff filed an amended petition more than two years after the cause of action accrued, designating the defendant as the “W. & M., etc., Railroad Company.” Held that, since defendant admitted in its motion to quash citation that it was the defendant sued, it was thereby estopped from afterwards claiming that it was not sued until the amended petition was filed.</p> <p>[Ed. Note. — F'or other cases, see limitation of Actions, Cent. Dig. §§ 56-58; Dee. Dig. § 13.*]</p> <p>6. Master and Servant (§ 329*) — Injuries to Third Persons — Sufficiency of Petition.</p> <p>The petition, in an action against a railroad company for injuries from fright caused by the act of the “employes in charge of the train” lin throwing a chain over a trolley wire passing over the train and pulling the wire down by moving the train and throwing tne wire against plaintiff’s buggy, frightening her, was fatally defective in not alleging that the pulling down of the trolley wire was within the scope of the train employes’ employment, or alleging facts showing that it was necessary in the scope of their employment, as that the wire was an obstruction to the operation of the train.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1269; Dec. Dig. § 329.*]</p>

<p>1. Teial (§ 315*) — Conduct of Jubt — Quotient Veb-dict.</p> <p>The jurors, after determining defendant’s-liability and agreeing as to an item of $751.1S, agreed that additional damages should be determined by each juror writing down the amount of damage he was in favor of finding, and that the sum of such amounts divided by 12. should constitute the verdict. Held, that the verdict was illegal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740, 741; Dee. Dig. § 315.*]</p> <p>2. Venue (§ 7*) — Peovisions of Contbact.</p> <p>Under Rev. St. 1895, art. 1194, subd. 5, suit on a contract for the exchange of property, “enforceable at Weatherford, in Parker county, Texas,” is properly brought in Parker county.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 13-16; Dec. Dig. § 7.*]</p> <p>3. Appeal and Ebkob (§ 742*) — Assignments OP BEBDE — INSTRUCTIONS.</p> <p>Where the statements accompanying assignments objecting to charges given by the court point out no state of facts showing error, the assignments will be overruled.</p> <p>[Ed. 'Note. — For other cases, sec Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>4. Appeal and Ebbob (§ 499*) — Bill of Exceptions — Objections to Evidence.</p> <p>Where objection is made to the introduction of certain evidence, but the bill of exceptions fails to show what the objection was, it will not be considered.</p> <p>[Ed. Note. — F'or other cases, see Appeal and Error, Cent. Dig. §§ 2295-2299; Dec. Dig. § 499.*]</p>

<p>1. Pleading (§ 22S*)—Exceptions—General Demurrers.</p> <p>An exception, alleging that defendants specially except to all that part of plaintiff’s petition which undertakes to set up a lien, for the reason that the facts alleged are not sufficient to establish the lien, is only a general demurrer, in that it fails to point out wherein the pleading is insufficient.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.*]</p> <p>2. Vendor and Purchaser (§ 337*)—Defec-tive Title—Recovery oe Deposit—Lien.</p> <p>Where the purchaser of several tracts of land, under a contract calling for a stipulated payment to be applied on the purchase money, refused to take some of the land because of a defective title, the court may, in an action to recover back the proportionate amount of the deposit, decree a lien in favor of the purchaser on the land not conveyed.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 985-990; Dec. Dig. § 337.*]</p> <p>3. Vendor and Purchaser (§ 334*)—Con-tracts—'Construction.</p> <p>A vendor agrees to sell certain described land, the purchasers to pay $5,000 for an option until April 1st, such sum to apply on a cash payment; it being understood that if the purchasers take and pay for all the land before April the vendor shall refund $1 per acre on all the land already sold, and shall deduct for land unsold $1 per acre, and in case good title cannot be conveyed then the sum already paid to be refunded. The contract was not treated as a mere option, and the purchasers admitted that they did not intend to take all of the land, though they did take and pay for part of it. Held that, not having taken the entire land, or given notice that they would do so, the purchasers were not entitled to have the refund of $1 per acre, and, having performed the contract only in part, could not recover back the $5,000, which must be considered as a penalty deposited with the vendor to guarantee any damages he might suffer hy reason of the purchasers’ failure to carry out their contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Diig. § 384.*]</p> <p>4. Appeal and Eebob (§ 719*) — Assignment oe Eebob — Ebeobs ov Record.</p> <p>Error in peremptorily instructing the jury to return a verdict for defendant is an error of law apparent on the record, which may be taken advantage of without an assignment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2975; Dec. Dig. § 719.*]</p> <p>5. Appeal and Eeeob (§ 729*) — Recobd—As-signments op EBbob.</p> <p>An assignment of error that the court erred in taking the case from the jury after the evidence was all tin, and instructing for defendant, is sufficient to warrant review of all errors committed by the court in giving the peremptory instruction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2998, 3016; Dec. Dig. § 729.*]</p>

<p>1. Husband and Wife (§§ 249, 259*) — Community PROPERTY.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 2968, providing that all property acquired by either husband or wife during' the marriage, except that acquired by gift, devise, or descent, shall be the common property of both, etc., a debt in favor of both for merchandise sold and delivered and a debt due the wife for personal services constitute community property, even if it was agreed that part of the proceeds when collected should belong to the wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 911; Dec. Dig. §§ 249, 259.*]</p> <p>2. Husband and Wipe (§ 270*) — Community Property — Suits to Recover — Parties.</p> <p>While suit to recover on an account due a community should be brought by the husband, that the wife was made party plaintiff was no ground for dismissing the cause; dismissal of the wife on timely exception being the proper remedy.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 971; Dec. Dig. § 270.*]</p> <p>3. Justices op the Peace (§ 150*) — Mis-joinder oe Parties — Waiver oe Objection.</p> <p>By failing to except in justice court for misjoinder of the wife in a suit on an account due a community, defendant waived the objection and could not urge it on appeal in the county court.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 508-515; Dec. Dig. § 150.*]</p>

<p>1. Continuance (§ 6*) — Right—Filins Answer on Day oe Trial — Application of Statute.</p> <p>Plaintiff sued upon an itemized verified account for goods sold, and on the day of trial defendant filed a sworn answer alleging that he owed plaintiff nothing when the petition was filed except $15, which was not then due and which he tendered into court, and pleaded accord and satisfaction and claimed certain credits not allowed in plaintiff’s account which, with the exception of $15, was alleged to be a full settlement of the account. Rev. St. 1895, art. 2323, provides that, when an action is founded on a verified open account, it shall be taken as prima facie evidence of that fact, unless the other party files a written denial under oath, provided that, when the counter-affidavit shall he filed on the day of trial, plaintiff shall have the right to continue the cause until the next term. Held, that the answer raised the issue of the truth of the verified account so as to entitle plaintiff to a continuance as a matter of right.</p> <p>[Ed. Note. — For other cases, see Continuance, Dec. Dig. § 6.*]</p> <p>2. Account, Action on (§ 13*) — Sufficiency of Answer — Satisfaction.</p> <p>An answer, in an action on a verified account, admitting that defendant had bought all the items set out, and alleging that at the time the suit was brought he owed nothing, claiming that he had paid all that he owed except a sum that was not due at the time of the filing of the suit, and which he tendered in court, and specially pleading payment, settlement, and an accord'and satisfaction, states a good defense.</p> <p>[Ed. Note. — For other cases, see Account, Action on, Cent. Dig. § 39; Dec. Dig. § 13.*]</p>

Shepherd, Judge. Action by Hall Jarmon against the Missouri, Kansas & Texas Railway Company and others. From a judgment for plaintiff against defendant the Roscoe, Snyder & Pacific Railway Company, and for it against defendants Missouri, Kansas & Texas. Rail-way Company of Texas and another, the two latter companies appeal.

<p>Appeal from District Court, El Paso County; James R. Harper, Judge.</p> <p>Action by Sam Bennett against the El Paso Foundry & Machine Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Waters and Water Courses (§ 179*)— Instructions — Proximate Cause.</p> <p>Where the evidence in an action for damage-to land by erecting- a dam in a creek, causing an overflow, raised the issue of proximate cause, a requested charge should have been given that if plaintiff has suffered damages, but that if the jury believed he would have suffered such damage, if any, even if defendant’s dam had not been constructed, they should find for defendant.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 179.*]</p> <p>2. Trial (§ 203*) — Instructions—Defenses— Affirmative Presentation.</p> <p>Defendant has a right to have his theory of' the case affirmatively presented by the instructions.</p> <p>[Ed. Note. — For other cases, see Trial, Cent.. Dig. §§ 477-479; Dec. Dig. § 203.*]</p> <p>3. Trial (§ 261*) — Instructions—Requests— Sufficiency.</p> <p>A requested charge, in an action for damages to land by overflow from a dam erected by defendant, that if the jury believed that plaintiff had suffered damage, but that he would have suffered such damage as he did, if any, even if defendant’s dam had not been constructed, they should find for defendant, even if incorrect in law, was sufficient to suggest to the-court the necessity of a charge on proximate cause; the evidence making such charge necessary.</p> <p>[Ed. Note. — For other cases, see Trial, Cent.. Dig. §§ 660, 671-675; Dec. Dig. § 261.*]</p>

<p>Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.</p> <p>Action by Antonia Mendoza against Mrs. E. S. Kampmann. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.</p> <p>Action by Albert Sadroek against the Galveston, Harrisburg & San Antonio Railway Company. From the judgment, plaintiff appeals.</p>

<p>Appeal from District Court, Comanche County; J. H. Arnold, Judge.</p> <p>Action by Higginbotham Bros. & Co. against W. N. Breed and others. From a judgment for plaintiffs, defendant Breed appeals.</p>

<p>Appeal and Error (§ 488*) — Supersedeas Bond — Stay.</p> <p>A perpetual injunction, granted on final hearing of the merits, which was in part mandatory and in part prohibitive, was stayed by the giving of a supersedeas bond on appeal; Rev. St. 1895, art. 1406, providing that the giving of a supersedeas bond on appeal from a judgment on final hearing shall stay the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Ei’ror, Cent. Dig. §§ 2277-2278; Dec. Dig. § 488.*]</p>

<p>Appeal from Ochiltree County Court; R. I. Hanna, Judge.</p> <p>Action by E. G. Odell and another against J. G. Grogan. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Vendor and Purchaser (§ 253*)—Ven-dor’s Lien—Retention.</p> <p>Where a note showed that it was given to pay the balance of the purchase price of certain lots and contained the words “the said lots to stand good till paid,’’ such words were sufficient to reserve a vendor’s lien in favor of the payee, though no lien was reserved in the deed.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 637-640; Dee. Dig. § 253.*]</p> <p>2. Vendor and Purchaser (§ 257*) — Vendor’s Lien—Effect.</p> <p>Where a vendor’s lien on land is expressly retained in a note given for the balance of the price, the superior title remains in the vendor until the lien is satisfied.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 654; Dec. Dig. § 257.*]</p> <p>3. Vendor and Purchaser (§ 253*) — Vendor’s Lien—Instruments—Construction.</p> <p>Where a note for the balance of the purchase price of land reserved a vendor’s lien, and the deed, which fully described the land, was executed the day after the execution of the note, the two instruments were parts of the same transaction of purchase and sale, and hence it was not material that the note reserving the lien did not describe the land.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 637-640; Dee. Dig. § 253.*]</p> <p>4. Vendor and Purchaser (§ 299*) — Vendor’s Lien—Recovery oe Land—Limitations.</p> <p>Where a vendor brought suit to recover the land, and not to collect a note reserving a vendor’s lien for the balance of the price, nor to foreclose the lien, it was not material that an action on the note or to foreclose the lien would have been barred by limitations.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 299.*]</p> <p>5. VENDOR AND PURCHASER (§ 299*) — VENDOR’S Lien — Action to Recover Land— Offer to Repay.</p> <p>Where a vendee failed to pay a note for the balance of the price of the land and reserving a vendor’s lien, a petition by the vendor to recover the land, alleging that the vendee had refused to pay the note, but which did not allege the amount of the purchase money that had been paid, or show any facts which, in equity, would require a return of any part of the consideration as a condition to his right to rescind the sale, was not objectionable for failure to contain an offer to repay the purchase money the vendor had received.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 299.*]</p> <p>6. Vendor and Purchaser (§ 245*) — Unrecorded Deed — Question for Jury.</p> <p>Evidence held to require submission to the jury of the question whether a subsequent purchaser of certain land had notice of a prior unrecorded deed of an undivided interest in the land by his vendor to another.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 245.*]</p> <p>7. Vendor and Purchaser (§ 24S*) — Prior Unrecorded Deed — Notice—Evidence.</p> <p>On an issue as to whether a subsequent purchaser had notice of a prior unrecorded deed from his vendor to L. of an undivided interest in the property, L., having been asked by such subsequent purchaser’s attorney why he did not record the deed sooner, was properly permitted to state not only that he had been informed by an. attorney that the only person that could beat him out of the land was his grantor by conveying it to someone else, and that, relying on his grantor, he did not place the deed on record, but also concerning the consideration he agreed to pay for the property to show that he was claiming the same in good faith.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 606-608; Dec. Dig. § 243.*]</p>

<p>Counties (§ 149*) — Conteacts for Improvements — validity.</p> <p>Award of a contract to paint a county jail is unenforceable, if no special tax fund therefor has been created, and current expenses exceed the amount of the general fund.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 214; Dec. Dig. § 149.*]</p>

<p>1. Appeal ard Error (§ 1078*) — Briefs-Failure to Assign Error — Effect.</p> <p>Under the court rules, assignments of error not urged in appellant’s brief will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1078.*]</p> <p>2. Courts (§ 289*) — Jurisdiction—Subject-Matter— Laws Relating to Commerce— Employer’s Liability Act.</p> <p>Even if a railroad seal clerk killed just after he had finished inspecting a train containing interstate freight was engaged in interstate commerce when killed by being- struck by a switch engine not engaged in interstate commerce, the federal courts would not have jurisdiction of an action for his death under the federal employers’ liability law (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]), since to give jurisdiction thereunder both the employs injured and the negligent employes must have been engaged in interstate commerce.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 830; Dec. Dig. § 289.*]</p> <p>3. Courts (§ 289*) — Jurisdiction—Laws Relating to Commerce — Employers’ Liability Act — Interstate Commerce.</p> <p>A seal clerk employed by a railroad company, a large percentage of the shipments over ■which was destined to interstate points, was killed by a switch engine while crossing another track just after he had finished3 inspecting and taking a record of a freight train, which contained a number of cars containing interstate shipments, and which was being pulled out of the yards when decedent was struck; his purpose in crossing the other track not being shown. Held, that decedent was not engaged in interstate commerce when killed so as to give the federal courts jurisdiction of an action for his death under the federal employer’s liability law (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]).</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 830; Dec. Dig. § 289.*]</p> <p>4. Courts (§ 255*) — Federal Courts — Jurisdiction.</p> <p>The federal courts are entitled to jurisdiction only when the facts necessary to confer jurisdiction appear with reasonable clearness and certainty.</p> <p>[Ed. Note. — For other cases, see Courts. Dec. Dig. § 255.*]</p> <p>5. Master and Servant (§ 228*) — Injuries— Discovered Peril — Effect of Statute.</p> <p>Laws 1909 (1st Eix. Sess.) c. 10, § 2, provides that in all actions against a railroad company for an employe’s death the fact that the employe may have been also negligent shall not bar a recovery, but the damages shall be diminished in proportion to his negligence, provided that an employe shall not be held negligent where the carrier’s violation of the statute for the safety of employes contributed to the injury. Held, construing the act of 1909, in view of the prior rules as to assumption of risk and contributory negligence, and of the aot of 1905 (Laws 1905, c. 163), abolishing the plea of assumed risk in certain cases, that the act of 1909 did not in any way affect the employer’s liability for injuries to an employe in cases of discovered peril.</p> <p>• [Ed. Note. — Fbr other eases, see Master and Servant, Dee. Dig. § 228.*]</p> <p>6. Statutes (§ 1S4*) — Construction — Purpose of Statute.</p> <p>In construing a statute, especially where its language is ambiguous, the law on the subject before its enactment and the evil sought to be remedied should be ascertained, if possible.</p> <p>[Ed. Note. — For other cases, see Statutes, Dec. Dig. § 184.*]</p> <p>7. Trial (§ 191*) — Instructions — Assuming Facts.</p> <p>In an action for the death of a railroad seal clerk, stx-uck by a ballast car shoved by a switch engine, while crossing the track after inspecting a freight train, the court instructed that if, before the ballast car struck decedent, he was in danger of being struck, and the employes in charge of the switch engine discovered-Ids peril before he was struck in time to have avoided striking him by ordinary care, and if such employés, after so discovering his peril, if they did so, failed to exercise ordinary care to avoid running over him, the jury should find for plaintiff. Held, that the instruction was not erroneous for assuming that the failure of the employés in charge of the switch engine to exercise ordinary care to avoid running over decedent was negligence causing his death, and was otherwise correct.</p> <p>[Ed. Note. — E'or other cases, see Trial, Cent. Dig. §§ 420-431; Dec. Dig. § 191.*]</p> <p>8. Master and (Servant (§ 296*) — Injuries— Instructions — Discovered peril.</p> <p>In an action for a railroad employé’s death by being-struck by a switch engine while crossing the track after inspecting another train, defendant requested a charge that if, while the switch engine was advancing, decedent was seen so dangerously near the track as to make it reasonably appear that if the engine kept on approaching him, and he did not get out of the way, he might be struck, it was the duty of the engineer and the switch crew to warn him by whistle, etc., of their approach, and th'at after giving such warning, if they did warn him, the engineer and crew could rely .upon decedent heeding the warning, and taking proper care for himself, etc., and could proceed until it became apparent to them that decedent would not or could not get off the track, and that if the engineer and crew discovered decedent on or so near the track, etc., it immediately became their duty to use all proper means to avoid striking decedent, but such duty did not arise until it became known and apparent to the engineer and crew that decedent was in such danger. Held, that the instruction was properly refused because it- required the engineer and crew, which included each member of the crew, to know of decedent’s peril before they were required to exercise care to avoid injuring him.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Dec. Dig. § 290.*]</p> <p>9. Trial (§ 260*) — Instructions.</p> <p>In an action for a railroad employS’s death by being struck by a ballast car shoved by a switch engine, the court instructed that if decedent was in peril, and such peril was discovered by the employés operating the ballast ear and engine, they could presume that decedent would get off the track, unless it became apparent to them that he would not do so, so that if they saw decedent on the track, and in danger, and warned him, and if it did not appear that they realized that he would not get off the track in time¡ by the exercise of ordinary care, to avoid being injured after such warning, the jury should find for defendant. Held, that the instruction sufficiently covered the issues raised by a special charge requested, that the mere fact that the switch crew saw decedent on the track while they were some distance from him and before he was in danger would not warrant a recovery, but that plaintiff could only recover if some member of the switch crew failed to exercise due care to avoid injuring him after actually discovering his peril.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>10. Appeal and Error (§ 1064*) — Harmless Error — Construction.</p> <p>Even if the instruction was not technically correct, it was as favorable to defendant as was warranted, and did not mislead the jury to its prejudice.</p> <p>[Ed. Note. — Pbr other cases, see Appeal and Error, Cent. Dig. §§ 4221-4224; Dec. Dig. § 1064.*]</p> <p>11. Master and Servant (§ 296*) — Injuries —Instructions—Discovered Peril.</p> <p>In an action for a railroad employé’s death by being struck by a switch engine shoving a ballast ear, defendant requested a charge that the duty of the “engineer and employés” in charge of the switch .engine to exercise care to avoid striking decedent in a position of discovered peril would not arise until decedent was in fact in -a perilous position, and was known by “such employés” to be so, and until they knew that he could not, or would not be able to, extricate himself therefrom, and, unless they discovered his perilous position and failed to exercise due care to avoid injuring him thereafter, the jury should find for defendant. Held, that the requested charge was properly refused as erroneous, because it imposed no duty on any one of the switch crew to act until all of them knew of decedent’s peril.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Dec. Dig. § 296.*]</p> <p>12. Master and Servant (§ 296*) — Negligence — Discovered Peril.</p> <p>In order to impose the duty on the crew of a switch engine which struck another em-ployé on the track to take steps to avoid killing him after discovering his peril, it was not necessary that it appear that he could not or would not extricate himself from his dangerous position.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 296.*]</p>

Porter, Judge. Action by J. R. Thompson, Sr., against B. F. Perryman. From a judgment sustaining a general demurrer and special exceptions to the petition, plaintiff appeals.

<p>1. EVIDENCE (§ 459*) — PAROL EVIDENCE — Written Orders.</p> <p>An order, addressed to the manager of the emblem bureau of a voluntary association of cotton growers having subsidiary organizations in each of the cotton states, and signed by the president of a state organization, requesting a specified number of official buttons of the association, for which “we agree” to pay a specified sum, does not show on' its face that the president is personally bound thereby; and parol evidence to show to whom credit, was in fact extended when the order was given, and that the president was not to be individually liable, is admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2109-2114; Dec. Dig. § 459.*]</p> <p>2. Evidence (§ 459*) — Parol Evidence — Written Orders.</p> <p>Where an order for goods signed by the president of a voluntary association, was procured by fraudulent representations • that he would not be liable, parol evidence to show to whom credit was in fact extended when the order was given, and that the president was not to be individually liable, is admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 459.*]</p> <p>3. Sales (§ 357*) — Action for Price — Evidence.</p> <p>Where an action on an order for goods, ad-dressed to the manager of the emblem bureau of a voluntary association of cotton growers, and signed by the president of a state organization of the association, was brought by a firm claiming to be the owners of the bureau, the firm had the burden of proving the individual liability of the president, who showed by parol testimony that at the time of the making of the order, it was agreed that he should not be personally liable, and that he did not know that the firm owned the bureau, but believed that the association was the owner.</p> <p>[Ed. Note. — Eor other cases, see Sales, Dec. Dig. § 357.*]</p> <p>4. TRIAL (§ 233*) — Instructions—Burden of Proof.</p> <p>A charge on the burden of proof must confine the jury to the issues raised by the pleadings and evidence, and an instruction, leaving it to the jury to read the answer and determine for themselves the . allegations found therein, was properly refused.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 527-530; Dec. Dig. § 233.*]</p> <p>5. Appeal and Error (§ 1047*) — Harmless Error — Erroneous Rulings on Evidence.</p> <p>Where the controlling issue in a case was whether or not defendant was personally liable on the instrument sued on, and there was no interrogatory of defendant, whose ex parte deposition had been taken, which, if taken as confessed, rendered him personally liable, the error, if any, in denying a motion to take as confessed interrogatories propounded to defendant, because of evasive answers, was not prejudicial to plaintiff.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1047.*]</p>

<p>1. Account, Action on (§ 12*) — Answer-Verification — Necessity.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 1265, requiring verification of an answer, stating that a verified account sued on is not just, an answer denying the justness of certain items, but not denying under oath other items sued on, is equivalent to a confession of the justness of the undenied items.</p> <p>[Ed. Note. — For other cases, see Account, Action on, Cent. Dig. § 37; Dec. Dig. § 12.*]</p> <p>2. Attachment (§ 366*) — Grounds—Nonresidents.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 186, prescribing grounds for attachment, the facts that defendant was justly indebted to plaintiffs for several hundred dollars, and was a nonresident of the state, show probable cause for suing out the writ, as against a counterclaim for damages for wrongful attachment.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1339-1342; Dec. Dig. § 366.*]</p> <p>3. Attachment (§ 356*)—Malice in Suing out Writ—Liability.</p> <p>One is not liable for maliciously suing out a lawful attachment.</p> <p>[Ed. Note.—For other cases, see Attachment, -Cent. Dig. §§ 1319-1321; Dec. Dig. § 356.*]</p>

<p>1. Appeal and Error (§ 773*) — Failure to File Briefs — Delay.</p> <p>On motion to dismiss an appeal for appellants’ failure to file briefs, on the ground that the appeal was taken for delay only, the court will examine the entire record, and if any error appears the motion will be overruled, and the judgment reversed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104-3110; Dee. Dig. § 773.*]</p> <p>2. Appeal and Error (§ 635*) — Amount in Controversy — Jurisdiction.</p> <p>Where, in a suit in the county court to foreclose a chattel mortgage, the petition contained no allegation of the value of the property mortgaged, a judgment for plaintiff will be reversed on appeal for failure to show that the amount in controversy was within the' trial court’s jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2776-2778; Dec. Dig. § 635.*]</p>

<p>Appeal from District Court, Midland County; S. J. Isaacks, Judge.</p> <p>Action by S. W. Hanna against John At-chison and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Criminal Law (§ 1090*) — Appeal — Statement op Pacts.</p> <p>An exception to the overruling of a motion for a new trial on the ground that the evidence was insufficient to support the verdict and that the evidence was erroneously admitted cannot be reviewed, where the record contains neither a statement of facts nor a bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2804, 2862; Dec. Dig. § 1090.*]</p>

<p>1. Railroads (§ 898*) — Injuries to Licensees—Actions—Sufficiency of Evidence.</p> <p>In an action against a railroad company for injuries to a child in crossing defendant’s yards in company with her father, evidence held to show that the father knew that the train which struck the girl was moving continuously from the time he went into the yards until the injury, and that the trainmen, being aware of such knowledge, properly -acted on the assumption that he would protect the child against injury.</p> <p>[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 398.*]</p> <p>2. Negligence (§ 89*)—Contributory Negligence—Presumptions.</p> <p>Train employés who knew that a child five years of age was accompanied by her father in going through the yards, could assume, without being negligent, that the father would not permit the-child to perform any act which would be negligent if done by him, at least until the contrary appeared, and were not themselves bound to take charge of the child for its protection.</p> <p>[Ed. Note. — Eor other cases, see Negligence, Dec. Dig. § 89.*]</p> <p>3. Railroads (§ 358*) — Injuries to Dicen-sees — Cabe Required.</p> <p>One using railroad yards according to the custom of the public to use them as a way, was at most a licensee, and the company was not liable for injuries resulting merely from the dangerous condition of the yards.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1236-1237; Dec. Dig. § 358.*]</p> <p>4. Raileoads (§ 372*) — Injuries to Licensees — Neglisence—Speed oe Train.</p> <p>Negligence in the speed of a freight train when a licensee was injured in railroad yards cannot be claimed, if, considering the weight and power of the engine, it could not have properly made the coupling had it been running at a less speed.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 372.*]</p> <p>5. Railroads (§ 378*) — Injuries to Licensees — Negligence.</p> <p>Plaintiff, a girl five years and eight months of age, was, with her father, crossing through defendant’s railroad yards, and was struck when she and her father, after walking between tracks, turned and crossed track No. 2, which the train employés could not have learned that they intended to do, without having inquired of the father as they passed him shortly before that time, nor could they have anticipated any danger to plaintiff until she and her father suddenly turned to cross track No. 2, and then could not have avoided injurying them. Held,, that no negligence of the train employés, contributing to plaintiff’s injuries, was shown.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1281, 1282; Dec. Dig. § 378.*]</p> <p>On Motion for Rehearing.</p> <p>6. Railroads (§ 389*) — Injuries to Licensees — Negligence—Proximate Cause.</p> <p>Any negligence by train employés in failing to look out for plaintiff while she was in the yards, and in not ringing the bell, could not have been the proximate cause of her injury by being struck by a train; it appearing that plaintiff knew that the train was in motion, and that it was impossible for the employés to have prevented the injury after plaintiff started across the track even if they had been looking at her.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1319-1323; Dec. Dig. § 389.*]</p>

<p>1. Dismissal and Nonsuit (§ 42*) — Construction oit Pleading Affected by.</p> <p>Plaintiffs’ petition may be looked to in aid of defendant’s answer in a suit to try title, notwithstanding plaintiffs had dismissed their suit, for the purpose of identifying and furnishing a ’description of the land mentioned in defendant’s plea of limitation, on which defendant prayed affirmative relief.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 75-83; Dec. Dig. § 42.*]</p> <p>2. Judgment (§ 251*) — Pleadings to Support.</p> <p>Though a plea of limitation may be used as defensive in trespass to try title, it may also be used as the basis of affirmative relief, and when coupled with a prayer for the recovery of the land to which it is sought to be applied it becomes an affirmative plea of title and will support a judgment for recovery of the land.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent, Dig. § 437; Dec. Dig. § 251.*]</p> <p>3. Pleading (§ 148*) — Defensive Plea — Affirmative Relief.</p> <p>If the facts stated in a defensive plea show no more than that plaintiff is not entitled to recover, such plea will not support a prayer for affirmative relief, but if the facts are sufficient to entitle defendant to maintain an action thereon, the fact that the allegations in the plea are sufficient to defeat plaintiff’s claim, and are pleaded for that purpose as well as to show an affirmative right in defendant, does not destroy or in any way affect their sufficiency to support a prayer for affirmative relief.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 299; Dec. Dig. § 148.*]</p> <p>4.Dismissal and Nonsuit (§ 42*) — Effect-Plea — Affirmative Relief.</p> <p>In trespass to try title, defendant answered that he was not guilty of the trespasses charged and demanded strict proof thereof, and then alleged that he was and for more than thirty years had been the head of a family, had resided in peaceable and adverse possession of the land described in the petition together with his family for more than ten years continuously before the filing of plaintiffs’ petition, cultivating, using, and enjoying the same, claiming it adversely against all others, and that his occupancy was open and notorious, praying that he have judgment for title and possession of the land, for damages, and for such other relief as he was entitled to in law or in equity. Held, that such plea of limitation was intended as an affirmative plea in reconvention for the recovery of the land, and not merely pleaded in defense; and hence, defendant’s right to recover thereon was not affected by plaintiffs’ dismissal. \</p> <p>[Ed. Note. — For other and Nonsuit, Cent. Dig. § 42.*] cases, see Dismissal § 75-83; Dec. Dig. §</p> <p>5. Evidence (§ 175*) — Best Evidence — Records.</p> <p>In trespass to try title, the original record in a volume of the “State Abstract of Titles to Patented Bands,” showing that the lands in controversy had been patented to B., held pri-ma facie admissible as primary evidence.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 561-569; Dec. Dig. § 175.*]</p>

<p>Appeal from District Court, Tyler County; W. B. Powell, Judge.</p> <p>Trespass to try title by H. M. True-heart against Jack Graham and others. Judgment for defendants for part of the land sued for, and plaintiff appeals.</p>

<p>Appeal from El Paso County Court; Albert S. Eylar, Judge.</p> <p>Action by J. I. Broyles against H. W. Goldman and others. Judgment for plaintiff, and defendant Goldman appeals.</p>

H. Davidson, Special Judge. Garnishment by J. R. Bevil, a judgment creditor of the South Silsbee Lumber Company, against W. E. Trotti, as garnishee. There was a judgment against the garnishee, and he sued to enjoin proceedings to collect the judgment, to set it aside, and to grant a new trial. Prom a judgment granting relief to the garnishee, the judgment creditor appeals.

<p>Appeal from District Court, Delta County; T. D. Montrose, Judge.</p> <p>Application by J. F. Wingfield and others for a writ of mandamus directed to C. C. Dunnagan and others, as the Commissioners’ Court of Delta County, requiring that court to declare the result of an election. From an order granting the writ, respondents appeal.</p>

H. Russell, Judge. Action by W. G. Broyles against Eli Dunlap. There was a judgment for plaintiff in the justice court, and on appeal to the county court judgment was again rendered for plaintiff, from which defendant appeals.

<p>Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.</p> <p>Action for divorce by O. O. Charlton against A. L. Charlton, who filed a cross-bill for divorce. From a judgment granting a divorce to defendant on his cross-bill, plaintiff appeals.</p>

<p>Appeal from District Court, La Salle County; J. P. Mullally, Judge.</p> <p>Action by Joseph Cotulla against M. J. Barlow. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Houston County Court; E. Winfree, Judge.</p> <p>Action by R. L. Warren against Cato Woods and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Tyler County; W. B. Powell, Judge.</p> <p>Action by W. T. Stewart against J. R. Chapman and others. Prom a judgment for plaintiff against defendant Kirby Lumber Company, it appeals.</p>

Appeal front District Court, Bowie County; P. A. Turner, Judge. Action by H. C. Barker against the St. Louis Southwestern Railway Company of Texas. From a judgment for defendant, plaintiff appeals. Appellant made a shipment of cattle from a point in Arkansas to Mt. Vernon, Tex., via Texarkana, and was accompanying the same.

A. Cunningham, Judge. Action by D. V. Hill against the First State. Bank of Bonham. From a judgment for plaintiff, defendant appeals. On July 15, 1910, and for about two months prior thereto, J. A. Freeman, who was located in Bonham, had an account with and conducted his business with appellant bank. He was engaged in the commission and brokerage business.

<p>1. Libel and Slander (§ 34*) — Privileged Matter — Actual Malice.</p> <p>A publication libelous in its nature cannot be made the basis of an action for. libel if the matter is privileged, unless there is proof, of actual malice, as provided by Laws 1901, c. 26, § 3.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 113; Dec. Dig. § 34.*]</p> <p>2. Libel and Slander (§ 48*) — Privileged Publications — Requisites.</p> <p>While Laws 1901, c. 26, § 3, provides, that a reasonable or fair comment on or criticism of the official acts of public officials and of other matters of public concern published for general information shall be privileged, other statements, if statements of fact as distinguished from the mere opinion of the writer, in order to be privileged, must be “fair, true, and impartial.”</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 144-147; Dec. Dig. § 48.*]</p> <p>3. Libel and Slander (§ 80*) — Libelous Statements — Privilege—Petition.</p> <p>A petition for libel, alleging that defendant published of and concerning plaintiff, a member of the state Legislature and chairman of the committee on municipal corporations* that during the hearing of proposed amendments to Galveston city charter, plaintiff engaged in villification, slander, misrepresentation, and profanity, that no such public exhibition among the many given by plaintiff and another had ever equalled that before the committee, and that it outdid everything of the kind ever presented before a committee of the Legislature, charged the making of statements of fact as distinguished from comment or criticism, and was therefore not objectionable on the ground that the matter stated was privileged.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 184-186; Dec. Dig. § 80.*]</p> <p>4. Appeal and Error (§ 1042*) — Review-Rulings on Pleadings — Prejudice.</p> <p>Where no innuendo or explanation was necessary to show that an alleged libelous publication was intended to refer to plaintiff, and the statements therein were libelous, and entitled plaintiff to general damages unless true, defendant was not prejudiced by the court’s action in striking out certain immaterial allegations by way of innuendo.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. § 1042.*]</p> <p>5. Libel and Slander (§ 118*) — Special Damages.</p> <p>Where defendant published a libelous publication concerning plaintiff’s conduct as a member of a legislative committee, injury to plaintiff’s political career and his opportunities to secure public offices were proper elements of special damage.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 345, 346; Dec. Dig. § 118.*]</p> <p>6. Appeal and Error (§ 1068*) — Review.</p> <p>Where the jury in an action for libel awarded plaintiff general damages only, defendant was not prejudiced by the court’s refusal to submit a particular element of special damages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228; Dec. Dig. § 1068.*]</p> <p>7. Evidence (§ 472*) — Opinions — Matters for Jury.</p> <p>In an action for libel, the opinion of witnesses as to the effect the article had on plaintiff’s reputation and standing in the community was inadmissible; the matter being for the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195; Dec. Dig. § 472.*]</p> <p>8. Appeal and Error (§ 1051*) — Harmless Error — Evidence.</p> <p>In view of the presumption of injury from a libelous publication which is neither privileged nor true, where the facts stated are such on their face as to expose plaintiff to public hatred, contempt, or ridicule or to impeach his reputation, the erroneous admission of the opinions of witnesses as to the effect of the words is not prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4169; Dec. Dig. § 1051.*]</p> <p>9. Libel and Slander (§ 28*) — Libelous Publication — Defenses—Other Publication.</p> <p>Where defendant published a libelous article against plaintiff, it was no defense that defamatory statements to the same effect were published in another newspaper at the same time.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 104; Dec. Dig. § 28.*]</p> <p>10.Libel and Slander (§ 123*) — Libel Per Se — Instructions.</p> <p>Where a defamatory publication was such that it necessarily must, or as a natural and probable result would, tend to injure plaintiff’s reputation, and expose him to public hatred, contempt, or ridicule, or impeach his reputation, and was therefore libelous per se as provided by Laws 1901, c. 26, it was proper for the court to instruct the jury that the publication was libelous per se.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § 123.*]</p> <p>11.Libel and Slander (§ 41*) — Statutes— Qualified Privilege.</p> <p>Laws 1901, c. 26, relating to libel, defines the matters which shall be privileged, and cannot be made the basis of an action for libel without proof of actual malice, and then provides (section 4) that nothing in the act shall be construed to take away any existing defense to a civil action for libel. Held, that the provision of section 4 did not so qualify the definition of privileged matter given in the preceding sections as to retain the defense of conditional or qualified privilege so as to make a fair and impartial account of such matters as are privileged under the statute, privileged in fact, though untrue, in case they are published without actual malice.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 127-129; Dec. Dig. § 41.*]</p> <p>12.Trial (§ 252*) — Instructions—Applicability to Evidence.</p> <p>Where there was no attempt to prove that an alleged libelous publication was either literally or substantially true, the court did not err in refusing to charge that defendant need only establish that the statements were substantially true.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 59(3-612; Dec. Dig. § 252.*)</p> <p>13. Libel and Slander (§ 124*) — Instructions — Damages.</p> <p>In an action for libel; a request to charge that the jury could not include damages suffered by plaintiff that resulted from any other publication than the one declared on was properly modified so as to read that the jury would render no judgment against defendant for damages except such, if any, as were naturally or proximately caused by its own action, but the fact that the action of another may have contributed to the injury and damage constituted no defense in the action being tried, or to the amount of recovery.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 365-373; Dec. Dig. § 124.*]</p> <p>14. Appeal and Eekor (§ 1064*) — Harmless Error — Request to Charge — Modification.</p> <p>While a party is entitled to have charges requested by him either given or refused as asked, yet there is no prejudicial error in a modification of a request which renders the request more intelligible.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4219-4224; Dec. Dig. § 1064.*]</p>

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Suit by Henry S. Judson and another against C. R. and B. B. Bell. From an order granting an injunction in vacation, defendants appeal.</p>

<p>Error to District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by J. E. Smith against the Queen City Lumber Company. Judgment for defendant, and plaintiff brings error.</p>

Condemnation proceedings by the Houston, Belt & Terminal Railway Company against Jacob Hornberger. Erom an award of the commissioners, defendant appealed to the county court where judgment was rendered for defendant. An appeal was taken, and the Court of Civil Appeals granted an injunction restraining defendant from granting the judgment. On motion to dismiss the injunction.

<p>1. Trial (§ 252*) — Instructions — Applicability to Facts.</p> <p>A requested charge not correctly presenting the law applicable to the facts is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 596; Dec. Dig. § 252.*]</p> <p>2. Tbial (§ 203*) — Refusal of Instructions.</p> <p>Where the court in submitting the case omitted any reference to one issue presented by the petition, and limited the consideration of the jury to other matters, in determining the liability of defendant, the refusal of a charge'that plaintiff could not recover by reason of the matter so alleged was not reversible error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. § 203.*]</p> <p>3. Trial (§ 251*) — Instructions—Issues.</p> <p>Where the petition sought a recovery for personal injuries received by a father and his two. minor sons, and limited a recovery for loss of time to the time lost by the father, a charge allowing a recovery for any time lost by the father and the children was erroneous .because a charge on issues not made by the pleading.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>4. Appeal and Error (§ 1140*) — Erroneous Instructions — Curing by Remittitur — Harmless Error.</p> <p>Where a petition by a father for himself and as next friend of two minor children sought a recovery for personal injuries sustained by them, and alleged damages for time lost by the father, and the jury found a verdict for each, the error in a charge authorizing a recovery for time lost by the father and the children could not be cured by a remittitur of sums awarded the children, since the error might have enlarged the verdict for the father.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1140.*]</p> <p>5. Appeal and Error (§ 187*) — Misjoinder-Objections in Lower Court.</p> <p>The objection that a petition embracing three distinct and independent causes of action for three separate persons sustaining personal injuries improperly joins causes of action can only be corrected on proper objection in the trial court.</p> <p>LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3185; Dec. Dig. § 187.*]</p>

<p>1. Appeal and Error (§ 759*) — Beiefs — Copying Assignments of Eeeoe.</p> <p>Under the court rules, appellant must correctly copy his assignments of error in his brief, and is subject to censure for willfully copying therein material matter not contained in his assignments.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>2. Appeal and Eeeoe (§ 766*) — Briefs— Waiver of Defect.</p> <p>Where appellant did not personally prepare his brief, and the appellate court’s refusal to consider some assignments of error probably involving fundamental error, because not correctly copied into appellant’s brief, would work great injustice to him, the appellate court may, in its discretion, hear the appeal upon its merits, notwithstanding appellant’s violation of the court rules in incorrectly copying his assignments of error into his brief.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3101; Dee. Dig. § 766.*]</p> <p>3. Set-Off and Counterclaim (§ 33*) — Wrongful Attachment — Different AtI-TAOIIMENTS.</p> <p>Where defendant levied several wrongful attachments against plaintiff’s property, the second one only being levied upon cotton, an amount paid by defendant to plaintiff, after satisfying plaintiff’s debt from the proceeds of a sale of the cotton, could only be set off against plaintiff’s right to recover for the wrongful attachment of the cotton, making it error to authorize it to be set off against any damages sustained by plaintiff from the attachments generally.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Dec. Dig. § 33.*]</p> <p>4. Attachment (§ 379*) — Wrongful Attachment — iJuby Question — Undisputed Questions.</p> <p>Where the undisputed evidence in an action for wrongful attachment showed facts making the attachment wrongful, it was error to submit the question whether it was wrongful to the jury; only disputed questions of fact and the amount of damage being for it.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1376, 1377; Dec. Dig. § 379.*]</p> <p>5. Set-Off and Counteeolaim (§ 33*)— Wrongful Attachment — Set-Off of Contract Liability.</p> <p>In a suit for damages for the unlawful seizure of exempt property under legal process, plaintiff’s indebtedness to defendant cannot be offset against his right to damages.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Dec. Dig. § 33.*]</p> <p>6. Exemptions (§ 133*) — Wrongful Attachment-Damage.</p> <p>The seizure under writ of attachment of unpicked cotton growing on the debtor’s homestead was unlawful, making its severance by the creditor’s direction wrongful, so as to authorize the debtor to recover damages for its seizure.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 161; Dec. Dig. § 133.*]</p> <p>7. Attachment (§ 375*) — Wrongful Attachment-Measure of Damages.</p> <p>The owner of cotton wrongfully attached was entitled to recover its value, less the amount received by him from the proceeds of a sale thereof, in the absence of his consent to its sale, and’ the application of the proceeds to the payment of his indebtedness.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1394; Dec. Dig. § 375.*]</p> <p>8. Attachment (§ 375*) — Wrongful Attachment.</p> <p>If the grounds alleged for attachment were not true, the party could recover at least nominal damages, even if he suffered no actual damage.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1387; Dec. Dig. § 375.*]</p>

<p>Appeal from District Court, Grimes County; S. W. Dean, Judge.</p> <p>Action by J. W. Greenwood against tbe Jefferson Fire Insurance Company of Philadelphia. Judgment for plaintiff, and defendant appeals.</p>

E. Woodson, Special Judge. • Action by Richard Di Palma and another against Josephine Crosby and others to vacate a judgment. Prom a judgment for plaintiffs, defendants appeal.

<p>Appeal from District Court, Comanche County; J. H. Arnold, Judge.</p> <p>Action by R. T. Janes against Claude Cox and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Hale County; L. S. Kinder, Judge.</p> <p>Action by C. B. Cox against the Pecos & Northern Texas Railway Company and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>Evidence (§ 460*) — Contbact bob Commissions — Pabol Evidence.</p> <p>An addition was platted, the plat being recorded, but only part of the addition was known by its name. Plaintiff contracted to sell all of the lots “known as” the named addition, except those already sold. A receipt for payments of lots sold recited that the defendants had received from plaintiff certain money as credit on a contract concerning the sale of lands in the named addition. Held, that parol evidence was not admissible to show that the contract referred to only that part of the addition known by its name; it being the obvious intention of the parties to include all the addition.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.*]</p>

<p>Appeal from District Court, Navarro County; I-I. B. Daviss, Judge.</p> <p>Action by Robert L. Gordon against the American Patriots of Springfield, Illinois. From a judgment for defendant, plaintiff appeals.</p>

B. Mills, Judge. Action by the Farmers’ & Merchants’ Bank against Daniel Best. There was a judgment for defendant in the Justice Court, from which plaintiff appealed to the County Court. From a judgment there rendered for plaintiff, defendant appeals.

<p>Appeal from District Court, Marion County ; P. A. Turner, Judge.</p> <p>Action by Sam Burks against L. A. Burks. From a judgment for plaintiff, defendant appeals..</p>

<p>1. Carriers (§ 363*) — Ejection of Passenger —Place.</p> <p>While a carrier is not bound ordinarily to awake a sleeping passenger that he may disembark at his station, and, after he is carried by without fault of the carrier, he becomes a trespasser subject to ejection, the carrier is nevertheless bound not to put him off at an unsafe placé¡ which might jeopardize his health or likely injure his life.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1445, 1446; Dec. Dig. § 363.*]</p> <p>2. CarRiebs (§ 351*) — Ejection of Passenger — Statutes.</p> <p>Paschal’s Dig. art 4892, prohibiting the ejection of passengers between stations, having been omitted from the revision of the statutes, and not having been re-enacted, is no longer the law of the state.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 351.*]</p> <p>3. Carriers (§ 383*) — Passengers—Ejection —Proper Place — Question for Jury.</p> <p>In an action for wrongful ejection of a passenger, evidence held to require submission to the jury of the question whether the place of ejection was proper.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1492-1496; Dec. Dig. § 383.*]</p> <p>4. Carriers (§ 369*) — Ejection of Passenger — Injuries—Proximate Cause.</p> <p>Plaintiff, a lad 13 or 14 years old, who had never been in the state before, was carried by. his station while asleep some time after 2 o’clock in the morning, and then ejected in the country, where there was no house near by, some 2% miles past the station, and just after the train had passed over a long bridge and trestle. He testified that the conductor told him that the station was about a mile back, and that, when he struck the trestle, it was so dark that he was required to cross by “cooning it”; that, when he got part way across, he saw another train coming onto the trestle by which he was greatly frightened, though he escaped unhurt, reaching the opposite side of the bridge before the train passed, but this frightened him to such an extent and caused such a nervous shock that he was thereafter unable to sleep or rest at night because of nightmares and dreams, which resulted in serious mental injury. Held, that the carrier’s breach of duty in ejecting plaintiff at an improper place was the proximate cause of such injury.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 369.*]</p> <p>5. Trial (§ 253*) — Instructions.</p> <p>In an action for injuries to a passenger caused by his alleged wrongful ejection at an improper place, a request to charge that if the carrier made the usual announcement of the station in a manner loud enough to be heard by passengers, and the train stopped a reasonable length of time at the passenger’s destination, but he failed to alight because of his being asleep, and was carried by the station, then he became a trespasser, and the carrier was entitled to eject him, and it was the jury’s duty to find for defendant, was properly refused as omitting the carrier’s alleged negligence in ejecting plaintiff at .an improper place, and as failing to submit the question of negligence to the jury.</p> <p>[Ed. Note. — Eor other cases, see Trial, Dec. Dig. § 253.*]</p> <p>6. Trial (§ 252*) — Instructions — Applicability to Evidence</p> <p>Where a passenger after being carried by his station was ejected at an alleged improper place, and there was no evidence of any demand and refusal to pay fare to the next station, a request to charge that if plaintiff was expelled on account of his failure to pay fare to the next station, provided the conductor had no reason to believe that putting him off at the particular place would result in injury, plaintiff could not recover, was properly refused.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]</p> <p>7. Carriers (§ 13*) — Free Pass Law — Application.</p> <p>Acts 30th. Leg. c. 42, prohibiting carriers from transporting passengers gratis, does not prevent railroad companies on carrying a passenger past his station at night by mistake from carrying him free to the next station.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Dec. Dig. § 13.*]</p> <p>8. Appeal and Error (§ 1060*) — Review-Prejudice.</p> <p>Where the preponderance of the evidence was not against the verdict which was not excessive, and there was no reason to believe that the verdict was affected by comment of plaintiff’s attorney to the jury on defendant’s exceptions, and an alleged improper statement of the law, such acts were not reversible error.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent Dig. § 4135; Dec. Dig. § 1060.*]</p> <p>On Rehearing.</p> <p>9. Negligence (§ 61*) — “Proximate Cause.”</p> <p>To constitute a negligent act the proximate cause of an injury, it is not necessary that it be the sole cause, but it is sufficient if it is a concurring cause from which the result might reasonably have been contemplated as involving the result which actually happened under the circumstances, it not being necessary that the injury in the precise form in which it in fact resulted should have been foreseen; it being sufficient that it appears after the accident to have been a natural and probable consequence (quoting 6 Words & Phrases, p. 5760).</p> <p>[Ed. Note. — For other cases, see Negligence, Oent. Dig. §§ 74, 75; Dec. Dig. § 61.*]</p> <p>10. Carriers (§ 363*) — Injuries to Passengers — Ejection—Improper Place.</p> <p>Where the conductor of a passenger train ejected a lad traveling alone at night after he had been carried 2% miles beyond his destination, owing to his being asleep when the train stopped at his station, the conductor was charged with knowledge of the nature of the roadbed and trestles the boy would be required to recross to go back to his destination, and with the knowledge of the schedule of trains which he would probably meet in the course of his journey, which should be considered in determining whether the conductor was negligent in ejecting him at that point, and whether ejection there would probably result in injury or harm to him.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1445, 1446; Dec. Dig. § 363.*]</p>

<p>Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.</p> <p>Action by Port Arthur Rice Milling Company against the Beaumont Rice Mills and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Error to District Court, Smith County; R. W. Simpson, Judge.</p> <p>Action by the Chickasha Milling Company against I. H. Crutcher and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by John Blohopolo against the Mecca Fire Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Johnson County Court; J. B. Haynes, Judge.</p> <p>Action by Hugh Hunt and wife against Alta Souther. From a judgment for plaintiffs, defendant appeals.</p>

H. Carrigan, Judge. Action by Charles Kuehn against Joe Lane and wife and another. Prom a judgment for plaintiff foreclosing a judgment lien, defendants Lane appeal.

Action by Neil P. Anderson and others ■against the Chicago, Rock Island & Pacific Railway Company. From a judgment by default for plaintiffs, affirmed by the Court of ■Civil Appeals (130 S. W. 182), defendant brings error.

<p>Application for mandamus by Henry Roth and others against Joseph Murray, Clerk of Court.</p>

<p>Receivers (§ 163*) — Claims—Interest.</p> <p>A holder of a note executed by a corporation in the hands of a receiver, if entitled - to recover, is entitled to judgment for interest to the date of the judgment, if the corporation is solvent; while, if the corporation is insolvent, interest must be allowed only to the date of the beginning of the receivership proceedings.</p> <p>[Ed. Note. — For other cases, see Receivers, Dec. Dig. § 163.*]</p>

On motion for rehearing. Granted, and former judgment (140 S. W. 432) reversed, and judgment of Court of Civil Appeals (128 S. W. 418) reversed, and cause remanded.

IT. Burney, Judge, Proceedings by Joe Dienger for the probate of tbe will of Johanna Uile, deceased. From a judgment admitting the will to probate, Mary Beversdorff appeals.

<p>1. Dismissal and Nonsuit (§ 58*) — Motion to Dismiss Petition — Effect.</p> <p>A motion to dismiss the petition is in the nature of a demurrer thereto, admitting the truth of all material allegations for the purpose of testing its sufficiency.</p> <p>[Ed. Note. — Por other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 134-139; Dec. Dig. § 58.*]</p> <p>2. Appeal and Error (§ 750*) — Assignment op Ebroe — Effect.</p> <p>If. appellant predicates its assignment of error upon a certain inference as to plaintiff’s ground for recovery, appellant cannot complain on appeal of any injury from indulging in such inference.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Dec. Dig. § 750.*]</p> <p>3. Statutes (§ 117*) — Titles and Subjects —Invalidity.</p> <p>Acts 31st Leg. c. 47, is entitled “An act to regulate the presentation and collection of claims for personal services or for labor rendered or for overcharges on freight, etc., against any person or corporation doing business in this state, and providing a reasonable amount of attorney’s- fees, to be recovered in cases where the amount of such claim shall not exceed $20,” etc., and section 1 permits a recovery of attorney’s fees in all suits on such claims without regard to the amount thereof. Held, that the statute was unconstitutional because its provisions are not embraced within the title.</p> <p>[Ed. Note. — For other cases, see Statutes, Dec. Dig. § 117.*]</p> <p>4. Justices oe the Peace (§§ 141, 145*) — Appeal— Power of Review.</p> <p>Under the Constitution, the district court has no power to revise the judgments of justice’s courts except where it is given appellate jurisdiction and where the amount in controversy exceeds $20 exclusive of costs.</p> <p>[Ed. Note. — Por other cases, see Justices of the Peace, Dec. Dig. §§ 141, 145.*]</p> <p>5. Judgment (§ 423*) — Equitable Relief-Grounds of Relief.</p> <p>Equity will grant relief from a judgment which is void for lack of jurisdiction over the subject-matter or parties, or which was procured by fraud, accident, or mistake, but will not grant relief where it was merely erroneous, the court having jurisdiction.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 797-801; Dee. Dig. § 423.*]</p> <p>6. Justices of the Peace (§ 31*) — Jurisdiction.</p> <p>The court’s jurisdiction of the subject-matter must be determined from the nature of the cause of action asserted when the suit was begun, and if a justice of the peace had jurisdiction over the subject-matter when the action was begun, the fact that the debt sued for was after-wards extinguished would not deprive him of jurisdiction to render judgment, though the judgment rendered might be erroneous.</p> <p>[Ed. Note. — Por other cases, see Justices of the Peace, Cent. Dig.. § 71; Dec. Dig. § 31.*]</p> <p>7. Courts (§ 1*) — Jurisdiction—Test.</p> <p>The test of jurisdiction is whether the court has power tp enter upon the inquiry, and not whether its determination is correct.</p> <p>[Ed. Note. — Por other cases, see Courts, Dec. Dig. § 1.*]</p> <p>8. Justices of the Peace (§ 119*) — Judgment —Jurisdiction—Attorney’s Pees.</p> <p>If a justice of the peace had jurisdiction of the parties and of a suit to recover for personal services, the fact that the law did not authorize a l'ecovery of a sum asked for as attorney’s fees did not deprive the court of jurisdiction so as to make its judgment, awarding attorney’s fees, void, it being merely erroneous.</p> <p>[Ed. Note. — Por other cases, see Justices of the Peace, Dec. Dig. § 119.*]</p> <p>9. Courts (§ 17*) — “Jurisdiction”—Subject-matter.</p> <p>Jurisdiction of the subject-matter is the power to hear and determine cases of the general class to which the particular proceedings belong.</p> <p>[Ed. Note. — Por other cases, see Courts, Dec. Dig. § 17.*</p> <p>Por other definitions, see Words and Phrases, vol. 4, pp. 3876-3885; vol. 8, pp. 7697, 7698.]</p>

<p>Insurance (§ 723*) — Representations — “Risk Assumed.”</p> <p>Under Acts 31st Leg., 1st Called Sess. c. 36, § 8, as amended by Acts 31st Leg. 2d Called Sess., c. 22, § 1, providing that all benefit certificates issued by fraternal associations shall be noncontestable on account of any statement or representation made unless material to the risk assumed, the term “risk assumed” must be taken to mean the hazard of the contract determined by the perils menacing the life of the insured, and hence a false representation that defendant had never had a certain practicably incurable disease was material to the risk and would avoid the policy which provided that a false answer to such question avoided the policy, even though the applicant died of a wholly different disease.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6245-6246.]</p>

<p>1. Venue (§ 17*) — Action eor Land — Waiver oe Objections.</p> <p>Right of a defendant to have a suit concerning land brought in the county where it lies, under Rev. St. 1895, art. 1194, § 14, is waived by failure to object on suit being brought in another county, though the suit be against unknown heirs, cited by publication.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 28-31; Dec. Dig. § 17.*]</p> <p>2. Judgment (§ 495*) — Validity — Presumptions.</p> <p>In the absence of proof to the contrary and to sustain a judgment concerning land, it will be presumed that an attorney ad litem was appointed to represent unknown heirs cited by publication.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 933, 934; Dec. Dig. § 495.*]</p> <p>3. Judgment (§ 497*) — Recitals — Sufficiency.</p> <p>A judgment, reciting that service of citation against unknown heirs was perfected according to law, sufficiently shows that the citation was sufficiently published.</p> <p>[Ed. Note. — For other cases, see Judgment, Gent. Dig. §§ 937, 93S; Dec. Dig. § 497.*]</p> <p>4. Vendor and Purchaser (§ 231*) — Notice.</p> <p>A judgment concerning land, rendered in a county other than where the land lies, is not constructive notice to one purchasing before the judgment is recorded in the latter county.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dec. Dig. § 231.*]</p> <p>5. Appeal and Error (§ 757*) — Briefs—Requisites.</p> <p>Appellant’s brief should contain all such facts from the record as are pertinent to the proposition made under an assignment of error.</p> <p>[Ed.'Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dee. Dig. § 757.*]</p> <p>6. Vendor and Purchaser (§ 238*) — Bona Fide Purchasers.</p> <p>Defendant in trespass to try title cannot rely on want of notice to his predecessor of a judgment as constituting him an innocent purchaser, where the judgment does not affect the title conveyed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 238.*]</p>

W. Simpson, Judge. Action by Ruth E. Rupe and others against W. D. Austin and another. From a judgment for plaintiffs against defendant named, he appeals.

<p>1. Appeal and Error (§ 1033*) — Harmless Error — Instruction Favorable to Appellant.</p> <p>In an action upon an account for work done, which defendant claimed was discharged by a settlement, an instruction that if the jury believed that the work. was completed in accordance with the contract, and that there was no final settlement, verdict should be for plaintiff, was not harmful to defendant though erroneous in imposing on plaintiff the burden of refuting the affirmative defense of settlement.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]</p> <p>2. Trial (§ 296*) — Instruction — Cure of One Instruction by Another.</p> <p>In an action upon an account, which defendant claimed had been discharged by an accord and satisfaction, where twO instructions charged that plaintiff must establish his case by preponderance of evidence, an instruction charging that a settlement would be binding, unless there was a mutual mistake, could not have misled the jury into believing that plaintiff was relieved of the burden of establishing his plea of mutual mistake.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713; Dec. Dig. § 296.*]</p> <p>3. Trial (§ 253*) — Instructions — Applicability to Issues.</p> <p>Where defendant pleaded an accord and satisfaction, and plaintiff pleaded that it was not binding because of mutual mistake, requests by piaintiff which ignored the issue of mutual mistake were properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §1 613-623; Dec. Dig. § 253.*]</p> <p>4. Accord and Satisfaction (§ 12*) — Part Payment — Acceptance.</p> <p>Where there was a controversy between parties as to the amount due on an account, the creditor’s acceptance of a check, stating that it was in full satisfaction for all demands, works' an accord and satisfaction.</p> <p>[Ed. Note. — For- other cases, see Accord and Satisfaction, Cent. Dig. §§ 92-97; Dec. Dig. § 12.*]</p> <p>5. Contracts (§ 284*) — Building Contracts —Construction.</p> <p>A building contract providing that the contractor agreed to pay the subcontractor when all the work was accepted by the architect did not make the architect a judge of whether the work was completed according to specifications.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 2S4.*]</p> <p>6. Contracts (§ 305*) — Performance — Acceptance-Equitable Estoppel.</p> <p>That a contractor accepted work done by a subcontractor, and failed to complain that it was not in accordance with the contract, did not estop him from asserting that the work was inferior, for such conduct did not induce the subcontractor to change his position in any particular.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1469; Dec. Dig. § 305.*]</p>

<p>1. Joint Adventures (§ 4*) — Profits and Losses — Division—Presumption.</p> <p>Where plaintiff and defendant, independent ice manufacturers, jointly contracted to ice railroad cars for certain car lines, and the eontracts were silent as to the relative duties of plaintiff and defendant, and also concerning the division of profits and losses, it would be presumed that the duties of the parties and the division of profits and losses were to be equal, though such presumption was not conclusive.</p> <p>[Ed. Note. — For other cases, see Joint Adventures, Dec. Dig. § 4.*]</p> <p>2. Partnership (§ 20*) — Evidence — Contract-Contemporaneous Construction.</p> <p>Plaintiff and defendant had had separate contracts with certain refrigerator lines, by which they furnished one-half of the ice necessary for the refrigerator cars. Plaintiff, whose plant was adjacent to the track of the T. Railway, furnished the ice for the cars switched over that road, and defendant, whose plant was nearest the G. and R. I. roads, furnished the ice for ears being transported over them, and, in case of a shortage, each would purchase ice from the other, paying therefor at a specified rate. Thereafter plaintiff and defendant joined in single contracts with the car companies, by which they agreed jointly and severally to furnish the necessary ice for the cars. Thereafter plaintiff and defendant continued to ice the cars in the same manner as before, dividing the business as before, until there was a change of management in defendant company, when it was first claimed that plaintiff and defendant were partners under the contract. Held, that, in accordance with the contemporaneous construction of the contract by the parties, there was no partnership relation, and that plaintiff and defendant were each entitled to the profits and subject to the losses occurring in a severance of the business in the same manner as previously conducted.</p> <p>[Ed. Note. — For other cases, see Partnership, Dec. Dig. § 20.*]</p> <p>McKenzie, J., dissenting.</p>

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Action by James G. Burleson and others against T. H. Davis, as receiver of the Union Trust Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>Error to District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by W. B. Cunningham against W. B. Fordtran and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Witnesses (§ 361*) — Impeachment — Corroboration.</p> <p>Where the undisputed evidence showed that a passenger had a ticket, a question as to whether he knew it was against the laws for a man to ride without having purchased a ticket, with his affirmative answer, did not amount to an attack on the passenger’s character, and it was error to admit evidence of his good reputation for truth and veracity.</p> <p>[Ed. Note.- — For other cases, see Witnesses, Dee. Dig. § 361.*]</p> <p>2. Witnesses (§ 361*) — Impeachment — CORROBORATION.</p> <p>That the testimony of a party was contradicted by that of the adverse party did not justify evidence of the party’s good reputation for truth and veracity.</p> <p>[Ed. Note. — Fbr other cases, see Witnesses, Dec. Dig. § 361.*]</p> <p>3. Carriers (§ 376*) — Injuries to Passengers — Liability—Negligence.</p> <p>The liability of a carrier for the misconduct of its agent at a station in confining in the station room a passenger ejected from the train for his failure to pay fare or produce a ticket does not depend on negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 376.*]</p>

<p>Appeal from District Court, Waller County; Wells Thompson, Judge.</p> <p>Action by A. A. Muske and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.</p>

<p>Brokers (§ 60*) — Commissions — When Eaened.</p> <p>A broker procured a purchaser who entered into a contract for the purchase. The purchaser, though not satisfied with the title, agreed to complete the transaction, if the owner would execute a bond not called for by the contract. The owner and the purchaser could not agree on the bond, and voluntarily rescinded the contract. Seld, that the broker had earned his commissions.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 91; Dec. Dig. § 60.*)</p>

<p>1. Appeal and Error (§ 1040*) — Harmless Error — Exceptions to Pleading.</p> <p>Any error in overruling- an exception to part of the petition was harmless to defendant where the issues were fairly submitted to the jury, and it does not appear that the matter complained of came to the jury’s attention.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 40S9-4105; Dee. Dig. § 1040.*]</p> <p>2. Street Railroads (§ 117*) — Death op Child on Track — Jury Questions.</p> <p>In an action against a street railroad company for death of a child struck by a car, held, under the evidence, jury questions whether the company was negligent, or the child was guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*]</p> <p>3. Street Railroads (§ 93*) — Injury to Pedestrians — Diability.</p> <p>A street railroad company is liable for injury to a pedestrian resulting from breach of the company’s duty to know that its track is clear, unless the injured person was guilty of contributory negligence, or went upon the track so near the approaching car that the motorman, by using ^ordinary care, could not have avoided the injury after the person was seen or might have been seen.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*]</p> <p>4. Evidence (§ 588*) — Weight—Credibility op Witnesses.</p> <p>A jury can believe or disbelieve any witness giving contradictory testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2437; Dee. Dig. § 588.*]</p> <p>5. Trial (§ 139*) — Province -op Jury — Weight op Evidence.</p> <p>Where the evidence raises a substantial issue of fact, its weight is for the jury, and not for the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. § 139.*]</p> <p>6. Death (§ 99*) — Infants—Damages—Ex-cessiveness. -</p> <p>Three thousand five hundred dollars to each of the parents of a boy under 11 years old was not excessive recovery for his negligent death where he was unusually large for his age, intelligent, and greatly assisted his parents in their work.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. '§§ 125-130; Dec. Dig. § 99.*]</p>

<p>1. Adverse Possession (§ 194*) — Pbesump-tio ns — Grant.</p> <p>A legal presumption of a grant may be based upon long-continued possession and use; such presumption being a rule of law adopted upon principles of public policy for the purpose of quieting title.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 595-602; Dec. Dig. § 104.*]</p> <p>2. Adverse Possession (§ 104*) — Presumption op Grant.</p> <p>Acquiescence of A. in B.’s possession under a claim of title from C., the common source of title, does not justify or support a presumption of- a conveyance from A. to B.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 595-602; Dec. Dig. § 104.*)</p> <p>3.Trial (§ 252*) — Instructions — Applicability to Issues.</p> <p>Where the evidence in trespass to try title does not raise the issue of a presumption that plaintiff’s grantors had ever executed a deed or release to the land in controversy to defendants’ predecessors, an instruction authorizing the jury to conclude that such a deed or release had been executed is erroneous as being inapplicable to the issues.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]</p> <p>4.Vendor and Purchaser (§ 244*) — Bona Fide Purchase — Evidence.</p> <p>Evidence, in an action of trespass to try title, held sufficient to authorize a finding that a conveyance from a common grantor to defendants’ predecessors was in pursuance of a sale or contract made by such grantor prior to his conveyance to plaintiff’s grantors, and that at the time he purchased plaintiff’s grantor had knowledge of such sale or contract of sale.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. § 244.*]</p> <p>5.Deeds (§ 114*) — Indefinite Description-Selection op Land prom Larger Tract.</p> <p>Where defendant establishes a right to the recovery of a certain number of acres of land conveyed to his grantors with the right to select the tract from a larger tract, he will be eonfin-ed to the land occupied and claimed by his grantors.</p> <p>[Ed. Note. — For other cases, see’Deeds, Cent. Dig. § 829; Dec. Dig. § 114.*]</p>

<p>Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.</p> <p>Action by Amanda Hobrecht and others against the San Antonio & Aransas Pass Railway Company. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>1. Judgment (§ 143*) — Default—Vacation-Excuses.</p> <p>In order to obtain the vacation of a judgment entered against plaintiff in a prior action by default, she was bound to show that she had been prevented by the fraudulent act of the adverse party, without fault or negligence on her part, from making her defense to the suit, and that she had a good legal or equitable defense to the original demand.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 269-291; Dec. Dig. § 143.*]</p> <p>2. Judgment (§ 162*) — Default—Vacation-Evidence. .</p> <p>. In a suit to vacate a default judgment; evidence held to sustain a finding that plaintiff had knowledge of the suit in time to have defended the same, and, not having done so by reason of her own negligence, was not entitled to a vacation thereof.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 319-322; Dec. Dig. § 162.*]</p> <p>3. Trusts (§ 89*) — Resulting Trust — Payment oe Money — Evidence.</p> <p>Evidence held’ to warrant a finding that defendant made the payments of purchase price for certain real estate in question, the title to which was conveyed to plaintiff, and that defendant was therefore entitled to a decree declaring him the owner of the land.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 134-137; Dec. Dig. § 89.*]</p> <p>4. Trusts (§ 89*) — Resulting Trust — Evidence — Degree of Proof.</p> <p>The rule that, in order to show that a deed, absolute on its face, is intended as a trust, the testimony of more than one witness is required obtains only in cases where it is sought to establish a trust by proving the declaration of a deceased trustee or when the trustee is testifying to the trust in his own interest.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 134r-137; Dec. Dig. § 89.*]</p> <p>5. Trusts (§ 134*) — Trust Property — Acquisition of Homestead by Trustee.</p> <p>Homestead rights cannot be created in real estate in favor of a trustee as against the cestui que trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 177; Dec. Dig. § 134.*]</p>

<p>Application for mandamus by J. S. Bradford against J. T. Robison, Land Commissioner.</p>

<p>Appeal from District Court, Harris County; W. P. Hamblen, Judge.</p> <p>Action by Brooke Smith and others against G. L. Wood and wife. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Continuance (§ 26*) — Absence of Witness — Diligence.</p> <p>Defendant applied for a continuance of the second trial of an action for absence of a witness, who had been present and testified in detail at the first trial, which occurred more than a year before. The witness was not a resident of the county, but was temporarily sojourning in another state for his health. No effort had been made to take his deposition, and by agreement the stenographic notes of his testimony on the first trial were read as his evidence on the second. Held, that the motion was properly denied for lack of diligence.</p> <p>(Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 74-93; Dec. Dig. § 26.*]</p> <p>2. Trial (§ 194*) — Request to Charge-Weight of Evidence.</p> <p>In an action on a policy, a request to charge that a custom, if any, of accepting overdue payments of dues and assessments from members in good health, did not waive a subsequent default by a sick member, was properly refused as on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 489-441, 446-454, 456-466; Dec. Dig. § 194.*]</p> <p>3. Appeal and Error (§ 742*) —Assignments of Error — Form—Rules.</p> <p>Assignments of error not followed by propositions, and which were not propositions in themselves, and which were not followed by a statement of the facts pertinent thereto with reference to the pages of the record where the facts could be found, as required by Court of Appeals Rule 31 (67 S. W. xvi), will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

<p>Appeal from District Court, Chambers County; L. B. Hightower, Judge.</p> <p>Action by J. I.. Cannon against the Lone Star Canal Company. Judgment fór plaintiff, and defendant appeals.</p>

<p>Appeal from Palo Pinto County Court; J. C. Houts, Judge.</p> <p>Action by Alice Samuels against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Taxation (§ 549*) — Delinquent Taxes— Compensation of Officers.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 5232i, entitling county collectors of taxes to $1 for each correct assessment of land to be sold, for preparing the delinquent list, etc., and allowing county clerks the same fee for making out and recording the data for each delinquent assessment, such officers are entitled tó a fee for each tract assessed, though the delinquent taxpayer has listed several tracts in one rendition.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1043-1050; Dec. Dig. § 549;* Counties, Cent. Dig. § 107.]</p> <p>2. Taxation (§ 549*) — Delinquent Tax List —Fees—Right to.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 5232j, requiring county collectors and county clerks to prepare delinquent tax lists, etc., without any request by the commissioners’ court, their right to the fees for such service, prescribed by article 5232i, does not depend upon their having been called upon by that court to perform the services for which they claim compensation.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1043-1050; Dec. Dig. § 549;* Counties, Cent. Dig. § 107.]</p>

Error from Bexar County Court; P. H. Shook, Judge. Action between Roy Campbell and Antonio Prieto. From the judgment, Campbell brings error. On motion to strike the statement of facts.

<p>1. Tbial (§ 25*) — Right to Open and Close.</p> <p>District Court rule 31 (67 S. W. xxiii) provides that plaintiff shall have a right to open and conclude, unless defendant admits that plaintiff has a good cause of action, as alleged, except as it may be defeated by the facts of the answer established at trial; and Rev. St. 1S95, art. 1297, provides that the party upon whom burden of proof rests shall first introduce his evidence. Reid, in an action to recover an amount deposited with defendant banker, against which he refused to honor a check, in which defendant admitted giving a deposit slip for the sum alleged, but claimed that the credit was given in consideration of plaintiffs’ agreement to drill wells to a certain depth, and that they falsely represented that the wells had been driven as ' agreed, that it was error to deny defendant the right to open and close.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.*]</p> <p>2. TRIAL (§ 251*) — Instructions—Applicability to Issues.</p> <p>In an action against a banker to recover an alleged balance, defendant claimed that he gave plaintiffs credit for a certain sum in consideration of their boring wells for him to. a depth of not exceeding 500 feet, provided plaintiffs did not obtain sufficient water before reaching such depth; and that they falsely represented to him that the wells driven would supply sufficient water. The court instructed to find for defendant if plaintiffs agreed to bore the wells to a depth to reach a sufficient flow of water to furnish an adequate water supply, but did not bore the wells to a depth sufficient to reach such quantity. Held, that the instruction was erroneous, as requiring a finding that plaintiffs guaranteed to furnish a sufficient supply of water, in order to authorize defendant to recover, when, under the agreement as alleged by defendant, plaintiffs were only bound to sink the wells to a depth of 500 feet in attempting to procure an adequate water supply.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 592; Dec. Dig. § 251.*]</p> <p>3. Work and Labor (§ 14*) — Partial Performance.</p> <p>If plaintiffs, who agreed to dig wells for defendant, not exceeding 500 feet, unless they sooner got water, believed that they had obtained a sufficient quantity of water to comply with their contract, and immediately upon learning of their mistake offered to return and finish the wells to that depth, if they did not sooner obtain water, and defendant refused to allow them to continue the work, they could recover for the work already done upon the quantum meruit.</p> <p>[Ed. Note. — For other cases, see Work and Labor, Cent. Dig. §§ 29-33; Dee. Dig. § 14.*]</p> <p>4. Set-Off and Counterclaim (§ 28*) — Subject-Matter.</p> <p>In an action to recover a part of an amount alleged to have been deposited with defendant as a banker, on the ground that defendant refused to honor a check drawn thereon, defendant alleged that the alleged deposit was credited to plaintiffs in his bank in consideration of plaintiffs’ drilling certain wells on defendant’s land to a depth of 500 feet, unless a sufficient supply of water for defendant’s stock was sooner obtained; and that plaintiffs dug wells, and falsely represented that they had obtained sufficient, when in fact the wells would not furnish a sufficient water supply, and one of the wells was crooked, so that it could not be sunk to a greater depth; and that, upon plaintiffs’ representation that it was properly dug, defendant purchased casing therefor to a certain amount, which could not be withdrawn, in order to sink the well deeper, because of the manner in which it was dug, compelling defendant to sink another well, leaving the casing and well an entire loss. Held, that defendant’s cross-action arose out of the same transaction as the right of action set up by plaintiffs.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 47, 48; Dec. Dig. § 28.*]</p>

<p>Appeal from District Court, Bexar County; > J. L. Camp, Judge.</p> <p>Action by S. A. Boedker against E. D. I-Ienry. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Comanche County Court; J. M. Beiger, Judge.</p> <p>Action by George Montgomery against the Ft. Worth & Bio Grande Railway Company. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Waters and Water Courses (§ 247*)— Water Rights — Actions—Petition.</p> <p>A petition which alleges that plaintiffs were the owners and in possession of land described, in the semiarid region of the state, that the lands had been supplied with water for irrigation from a ditch under an ancient grant, that defendant operated another ancient ditch under an ancient grant for the irrigation of other lands described, that the two ditches had been continuously used by the owners of the lands, who had shared in the use of the water proportionately, that defendant unjustly began to use practically all of the waters, and during a season unreasonably consumed practically all of the available water, and thereby deprived plaintiffs of their just proportion, causing damages alleged in detail, and which prays for an injunction, states a cause of action for the determination of the water rights of the parties.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 314; Dec. Dig. § 247.*“]</p> <p>2. Waters and Water Courses (§ 156*)— Grants eor Irrigation — Rights Acquired.</p> <p>The Mexican government granted, on February 5, 1824, a large number of grants of water to various grantees. On a subsequent day, it granted grants of water for other land, using the same language. Few grants were subsequently made. Each grant granted to the grantees “1 day of water with its corresponding labor of land.” The original grantees of both lands used the water for irrigating their lands concurrently. Held, that the grants did not give any superior right to any of the grantees, but the grants distributed to each water rights in common.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 174-183; Dec. Dig. § 156.*]</p> <p>3. Waters and Water Courses (§ 156*)— Water Rights.</p> <p>Where grantees of water rights have only equal rights in the waters of a stream, each must use the water with a due regard to the rights of the other grantees.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 17A-183; Dec. Dig. § 156.*]</p>

A. Stevens, Judge. I. E. Wiseman having recovered judgment against J. R. Cottingham and others in a suit for land, Mamie Cottingham Chambliss and others brought a bill of review, and from a decree in their favor Wiseman appeals.

<p>Appeal from District Court, Hill County; W. C. Wear, Judge.</p> <p>Action by W. W. Renfro against the Texas Central Railway Company. From a judgment for defendant, plaintiff appeals.</p>

M. Reiger, Judge. Action by T. H. Tuggle against the Brown Grain Company. From a judgment for plaintiff rendered by the county court on appeal ,from a justice’s judgment for plaintiff, defendant appeals.

<p>Appeal from Travis County Court; R. E. White, Judge.</p> <p>Action by J. G. Smith against Harris Jones. From a judgment for defendant, plaintiff appeals.</p>

<p>Adverse Possession (§ 71*) — Possession Under “Deed.”</p> <p>A deed by a widow as the legal representative of her husband, which recites that, in consideration of an advancement to an heir of the part due him, to be deducted from the interest due him as an heir, in the final settlement of the estate, the tract conveyed is inventoried at a specified sum per acre and accepted by the heir as grantee .on that valuation, and which grants a tract described, and which contains a general warranty clause, and which provides that, on the failure of title, the heir need not account for the value of the land in the final partition of the estate, is a deed within Rev. St. 1895, art. 3342, giving title to one holding under a deed for five years.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 405-429; Dec. Dig. § 71.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1919-1924; vol. 8, p. 7630.]</p> <p>Jenkins, J., dissenting.</p>

<p>Appeal from McLennan County Court; Tom L. McCullough, Judge.</p> <p>Action by the Cooper Grocery Company against J. Homer Gaddy. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from McLennan County Court; Tom L. McCulloch, Judge.</p> <p>Action by E. S. Klein against J. H. Eaton. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Trial (§ 296*) — Instructions—Cure of Error.</p> <p>In a suit against connecting live stock eár-riers for injury to a shipment under bills of lading limiting the liability of each carrier to its own line, an instruction that the measure of damages as to injured cattle was the difference between the reasonable market value of the cattle at the destination as they were and as they would have been_, if they had been properly handled, and an instruction that the measure of damages for cattle which died in transit was their reasonable market value at the destination at the time and in the condition they would have arrived, had they not died, were not erroneous, as to the initial carrier, as holding that carrier for injuries occurring after the shipment left its line, where instructions on the issue of liability limited the carrier’s liability to its own line.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-718; Dec. Dig. § 296.*]</p> <p>2. Appeal and Error (§ 1061*) — Harmless Error — Instructions.</p> <p>In an action against carriers for injury to a live stock shipment, any error in an instruction authorizing recovery if defendants were negligent, and if “by reason thereof” the cattle were injured, instead of requiring a finding that the injury was “proximately caused” by the negligence, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219-4224; Dec. Dig. § 1064.*]</p> <p>3. Carriers (§ 227*) — Live Stock —Injury to Shipment — Pleading—Sufficiency.</p> <p>A petition against carriers for injury to a live stock shipment, describing the property as “499 head of cattle from 3 to 10 years old,” and, further, as “said live stock,” sufficiently described the property.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 953-956; Dec. Dig. § 227.*]</p> <p>4. Jury (§ 136*) — Peremptory Challenges —Number—Codependants.</p> <p>Where connecting carriers made a common defense to the same attorneys at suit for injury to live stock in transit, and did not require separate jury lists, it was not error to limit- the number of their peremptory challenges to six between them.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 609; Dec. Dig. § 136.*]</p> <p>5. Evidence (§ 543*) — Expert Opinions— Qualifications — Market Value op Cattle.</p> <p>Witness was properly permitted to testify to the market value at their destination of cattle injured in transit, though he did not expressly state that he was acquainted with such market value at that point, where it appeared that he had been engaged in the live stock business more than 20 years, and had a ranch near the destination, and testified to the market value of the cattle at the destination in the condition in which they should have been delivered.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2356%-2358; Dec. Dig. § 543.*]</p> <p>On Motion for Rehearing.</p> <p>6.Appeal and Error (§ 216*) — Right to Complain — Instructions.</p> <p>One cannot complain of the omission of the trial court to instruct on a certain point, where an instruction thereon was not requested in the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. §§ 627-641.]</p> <p>7.Appeal And Error (§ 730*) — Assignments op Error — Review.</p> <p>Under an assignment of error to omission to instruct on a certain point, the Court of Civil Appeals cannot review refusal of an instruction on that point, where reference to the refused charge in the assignment and in the statement thereunder is merely incidental to the assignment.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. § 730.*]</p>

<p>1. Corporations (§ 467*) — Powers—Accommodation Indorsement.</p> <p>A corporation has no power to make, indorse, or otherwise become liable on commercial paper for the mere accommodation of another person or corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1831; Dee. Dig. § 467.*]</p> <p>2. Bills and Notes (§ 237*) — “Accommodation Indorsement.”</p> <p>An “accommodation indorsement” is the execution of commercial paper, without consideration, to lend credit to the accommodated party.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 563, 564, 567-569; Dec. Dig. § 237.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 74; vol. 8, p. 7561.]</p> <p>3. Corporations (§ 463*) — Execution oe Notes — Corporate Liability.</p> <p>Plaintiff, owning a controlling interest in a corporation, sold his stock to S., who paid half cash, and to cover the balance arranged to give the joint note of himself and the corporation for the balance, with the understanding that he was to put into the stock and assets of the corporation merchandise equal in value to the amount of the joint notes executed by himself and the corporation, which he did. Meld, that the practical effect of such transaction was a purchase of the goods by the corporation from S., in payment for which the corporation assumed and agreed to pay certain of his obligations; and, the transaction having been assented to by all the stockholders and directors, the corporation was liable on the notes.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 463.*]</p> <p>4. Corporations (§ 487*) — Contracts—Ultra Vires Acts — Repudiation.</p> <p>Where a corporation received a large addition to its assets in consideration of its execution of certain notes to pay debts of S., it, having received and retained the benefits of the contract, was estopped to claim that it was ultra vires.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1894; Dec. Dig. § 487.*]</p> <p>5. Appeal and Error (§ 209*) — Review-Questions not Raised at Trial.</p> <p>An objection that there was no proof of the market value of goods delivered to a corporation in consideration of its executing certain notes to secure debts of S. could not be raised for the first time on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1296; Dec. Dig. § 209.*]</p>

<p>1. Judgment (§ 743*) — Res Judicata.</p> <p>Plaintiff in trespass to try title was not entitled to offer testimony to show that the land was covered by a certain patent under which he held, where it had been adjudged in a suit to which he was a party that the land belonged to another survey.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1253, 1275-1277; Dec. Dig. § 743.*]</p> <p>2. Tenancy in Common (§ 38*) — Actions Between Tenants — Right to Recover.</p> <p>One tenant in common can recover against a cotenant only for the undivided interest he shows in the land.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 100-118; Dec. Dig. §*</p> <p>3. Judgment (§ 735*) — Recitals — Conclusiveness — Facts Not in Issue — Sheriff's Return — Effect.</p> <p>Recitals in a sheriff’s return on an ordei-of sale in a former suit, and in the order for a deed, that the purchaser was an heir of a certain person are insufficient to establish that fact; it not being before the court for adjudication, on the confirmation of the sale.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1203-1205; Dec. Dig. § 735.*]</p> <p>4. Judgment (§ 497*) — Service—Collateral Attack — Jurisdiction — Process — Judgment Record — Effect.</p> <p>If a judgment recites nothing concerning service on defendants, the whole record may be looked to in another suit to determine whether sufficient service was had.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 937, 938; Dec. Dig. § 497;* Partition, Cent. Dig. § 307.]</p> <p>5. Appeal and Error (§ 662*) — Statement of Facts — Conclusiveness.</p> <p>The Court of Civil Appeals is bound by the statement of facts, having no right to look to the court’s findings for the evidence.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2850-2852; Dec. Dig. § 662.*]</p> <p>6. Partition (§109*) — Sale—Rights of Purchasers — Invalidity of Order of Sale.</p> <p>Interveners in trespass to try title, being heirs who were cited as unknown in a partition suit, at a sale under which plaintiff’s predecessor in title purchased, were- not bound to tender the amount paid for the land at the sale, or the costs adjudged against the land, as a condition to recovering the land on the ground of the invalidity of the judgment in partition.</p> <p>[Ed. Note.- — For other cases, see Partition, Cent. Dig. §§ 375-397; Dec. Dig. § 109.*]</p> <p>7. Trespass to Try Title (§ 50*) — Attorney’s Fees — Right to Allowance.</p> <p>Any necessity for a defense in trespass to try title having been avoided by plaintiff’s dismissal, it was error to award a fee to an attorney appointed for unknown defendants, where the contest proceeded between interven-ers, as plaintiffs, and the original plaintiff, as defendant.</p> <p>[Ed. Note. — For other cases, see Trespass to-Try Title, Dec. Dig. § 50.*]</p> <p>On Appellant’s Motion for Rehearing.</p> <p>8. Judgment (§ 499*) — Collateral Attack —Burden of Proof.</p> <p>In a collateral attack on a former judgment for insufficiency of service by publication, parties asserting its invalidity were bound to-show affirmatively from the record that the publication was insufficient.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. § 940; Dec. Dig. § 499.*]</p> <p>0. Peocess (§ 188*) — Return—Sufficiency.</p> <p>A return upon a citation, reciting its publication once in each week for eight successive weeks, etc., with a following inconsistent recital that the publication was made on May 15th and 25th and July 6th, is not sufficient to show defective service, on collateral attack on the judgment rendered.</p> <p>[Ed. Note. — Por other cases, see Process, Cent. Dig. §§ 181-180; Dec. Dig. § 138.*]</p> <p>10. Paetition (§ 55*) — Costs — Prayek — Necessity.</p> <p>That a petition for partition did not pray costs, and the citation did not show a claim therefor, did not prevent a sale of interests of absent defendants for costs.</p> <p>[Ed. Note. — Por other cases, see Partition, Cent. Dig. §§ 148-182; Doc. Dig. § 55.*]</p> <p>11. Partition (§ 114*) — Costs — Adjudication of Lien — Power.</p> <p>In partition, costs awarded against absent defendants, including a.fee to an attorney appointed for them, were properly made a lien against their share.</p> <p>[Ed. Note. — Por other cases, see Partition, Cent. Dig. §§ 440-440; Dec. Dig. § 114.*]</p>

<p>Contracts (§ 346*) — Breach—Issues, Proof, and Variance.</p> <p>Plaintiff alleged the execution of two contracts between his assignor and defendants for certain millwork; that defendants had accepted work for which they had not paid, whereupon plaintiff’s assignor had refused to furnish the balance of the material; that the contracts had been canceled; and that by receiving and using the material defendants became liable therefor. It was also alleged that it was agreed that defendants were to pay 80 per cent, of the price of the material when the same was furnished. The testimony showed the execution of the contracts, as alleged, except on one of them was indorsed, “payments to be made on basis of 80 per cent, of the price of material as estimated by architects.” Held that, there being no controversy that the material was furnished to the extent claimed, and that the price had not been paid, and there being no claim that defendants had not paid, because no estimate had been made by the architects, or the amount due ascertained, there was no sufficient variance to justify direction of a verdict for defendants.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1718-1753; Dec. Dig. § 346.*]</p>

<p>Appeal from' District Court, Collin County; J. M. Pearson, Judge.</p> <p>Trespass to try title originally brought by Emaline Yealock against I. T. Yealock and another. Pending the suit iilaintiff died, and G. T. McDonough, her executor, was substituted. Defendant I. T. Yealock also died, and Lydia Yealock, as his executrix and widow, and Eskridge Yealock, his .son, were substituted. Judgment for plaintiff and defendants appeal.</p>

<p>Appeal from Taylor County Court; Thos. A. Bledsoe, Judge.</p> <p>George Woody was convicted of crime, and appeals.</p>

<p>Criminal Law (§ 1090*) — Appeal—Bill op Exceptions — Necessity.</p> <p>Matters set out in a motion for new trial requiring verification in some way, by the court or bystanders cannot be reviewed in the absence of a bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1090.*]</p>

<p>Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.</p> <p>Fred Hickman was convicted of carrying a pistol, and he appeals.</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Jack Oney was convicted of crime, and appeals.</p>

L. Lockett, Judge. Action by Sidney Brown, by R. B. Brown, his next friend, and by R. B. Brown individually, against the Valley Mills Cotton Oil Company. Judgment for plaintiffs, and defendant appeals.

Error from District Court, Lynn County; Jas. R. Robinson, Judge. Action by Martha I. Ray against Jennie Scott and others. Judgment for plaintiff, .and defendant Scott and another bring error.

E. Amerman, Judge. Action by O. Armstrong against the Houston Belt & Terminal Railway Company, in which defendant interpleaded C. E. McKnee-ley and another. From a judgment of the County Court on appeal from Justice Court, C. E. McKneeley appeals.

<p>Appeal from Val Verde County Court; C. K. McDowell, Judge.</p> <p>Action by John Hutto, for whom J. G. Griner was substituted, against the Del Rio Water Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Foard County; S. P. Huff, Judge.</p> <p>Action between John W. Offield and J. T. Cates. From a judgment for the former, the latter appeals.</p>

A. P. Dickson, Judge. Action by R. W. Warren-against the Knox City Milling Company; certain persons intervening. Judgment for plaintiff and interven-ers, and defendant appeals.

<p>1. Judgment (§ 919*) — Res Adjudicata— Plea of Former Adjudication — Sufficiency.</p> <p>A plea of former adjudication, which alleges that all the matters set up in the answer of defendant have been adjudicated adversely to him and in favor of plaintiff, in an action between the parties, as shown by the pleadings in such action and the verdict of the jury and the judgment of the court, etc., sufficiently shows that the former trial was on the merits; the allegation that the judgment was rendered on the verdict of the jury being equivalent to an allegation of the trial on the merits.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1795-1803; Dec. Dig. § 949.*]</p> <p>2. Trial (§ 68*) — Order of Proof — Discretion of Court.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 1298, authorizing the court in its discretion to allow a party to supply an omission in testimony, it is not error to admit proper evidence for plaintiff after defendant has closed his case, unless defendant will be prejudiced thereby.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 158-163; Dec. Dig. § 68.*]</p> <p>3. Trial (§ 62*) — Evidence—Rebuttal.</p> <p>Where, in an action on a note, plaintiff proved the facts necessary to authorize a recovery, including attorney’s fees prayed for, and defendant gave evidence on the issue of failure of consideration, it was proper to permit plaintiff to introduce the record of a former adjucation of that issue adversely to defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§i 148-150; Dee. Dig. § 62.*]</p> <p>4. Partnership (§ 101*) — Contribution-Purchase of Patent Rights — Consideration.</p> <p>Where plaintiff and defendant as partners purchased patent right contracts, and plaintiff paid the entire price, and defendant gave plaintiff a note for one-half thereof, the fact that the contracts were valueless did not constitute a defense of want of consideration by defendant against the collection of the note by plaintiff.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 155; Dec. Dig. § 101.*]</p> <p>5. Trial (§ 139*) — Question for Jury — Evidence.</p> <p>Where there is any such legal evidence as raises an issue of fact on which fair men may differ, the issue is for the jury.</p> <p>[Ed. Note. — For other cases, see Trial. Cent. Dig. §§ 332, 333, 33S-341; Dec. Dig. § 139.*]</p>

<p>1. Appeal and Error (§ 968*) — Jury (§ 85*) — Review—Discretion op Trial Court —Examination of Jurors — Scope.</p> <p>Though the scope of the preliminary examination of jurors rests in the discretion of the trial judge, it may be reviewed by the appellate court.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3843; Dec. Dig. § 968;* Jury, Dec. Dig. § 85.*]</p> <p>2. Jury (§ 92*) — Preliminary Examination — Laying Foundation for Peremptory Challenge.</p> <p>■ The refusal of the trial court to permit the defendant to ask jurors on voir dire whether any of them were indebted to plaintiff's attorney was an abuse of discretion on the part of the trial court, for the defendant had the right to peremptorily challenge jurors, and the question was proper to enable him to intelligently exercise that right.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 420-422; Dec. Dig. § 92.*]</p> <p>3. Carriers (§ 227*) — Carriage of Live Stock — Actions—Issues.</p> <p>In an action against a railroad for damages to a shipment of hogs, where there was no allegation that the hogs were injured by reason of delay, evidence that the shipment was not made as soon as agreed upon was irrelevant and improperly admitted.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 056; Dec. Dig. § 227.*]</p> <p>4. Appeal and Error (§ 699*) — Record — Questions Presented for Review.</p> <p>Where the record did not show that a requested instruction was presented to the trial court, and contained neither the signature of the trial judge nor any recital that requests were filed, the refusal of such request cannot be reviewed over objections of the ap-pellee.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 2929; Dec. Dig. § 699.*]</p> <p>5. Carriers (§ 230*) —"Carriage of Live 'Stock — Actions—Instructions.</p> <p>In an action against a railroad for injuries to a shipment of hogs, an instruction that if the defendant failed to exercise ordinary cane in the handling of the train so as to avoid unusual jarring, and if such jarring injured the hogs, then it would be liable, even though it transported the hogs with reasonable care and dispatch, was erroneous and misleading, though upon close analysis it might be construed as allowing a recovery either for the jarring or for delay.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. § 230.*]</p> <p>6. Trial (§ 194*) — Instructions —Weight of Evidence.</p> <p>In an action against a railroad for damages to a shipment of hogs, some of which escaped from the stock pens and were recovered, an instruction that the hogs which escaped were not delivered with reasonable care and dispatch was not upon the weight of the evidence, for the animals were never delivered at all.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 465; Dec. Dig. § 194.*]</p> <p>7. Carriers (§ 230*) — Carriage of Live Stock — Instructions.</p> <p>While a carrier of live stock is, in the absence of a special contract, bound only to transport shipments within a reasonable time after they are delivered to it, an instruction to that effect is improper in an action against such carrier, where there was a special contract to transport live stock within a stated time.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. § 230.*]</p> <p>8. Carriers (§ 210*) — Carriage of Live Stock — Propensities of Animals.</p> <p>It is the duty of a railroad which transports hogs to provide stock pens reasonably calculated to prevent their escape, and, while a carrier of live stock is not liable for injuries caused by the inherent vice of the animals, the railroad is liable for an escape of hogs which rooted out of pens not reasonably calculated to hold them.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 924; Dec. Dig. § 210.*]</p>

<p>Appeal from District Court, Travis County; 'George Calhoun, Judge.</p> <p>Action by Clyde D. Caswell and others against the American Construction Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Damages (§ 40*) — Elements — Doss oe Profits.</p> <p>Lost profits, proximately caused by wrongful acts, when capable of reasonable ascertainment, are a proper element of damages.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. § 40.*]</p> <p>2. Damages (§ 40*) — Loss of Profits.</p> <p>. Alleged profits, which are merely conjectural and incapable of being ascertained with any reasonable degree of certainty, do not afford a proper basis for the recovery of damages.</p> <p>[Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. § 40.*]</p> <p>3. Municipal Corporations (§ 671*) — Obstruction of Street-Action for Damages —Special Damages.</p> <p>Loss of profits to an established business, ■occasioned by the unlawful obstruction of a public street, so as to constitute a nuisance is a special loss peculiar to the party thus injured. even though others similarly situated may suffer a like loss from the same cause.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1447; Dec. Dig. § 671.*]</p> <p>4. Damages (§ 176*) — Evidence—Loss of</p> <p>Profits — Amount of Business.</p> <p>In order to show a loss of profits to an established business, it is permissible to show the amount of business done by complainant in a corresponding- period of time not too remote, and the business done by complainant during the time of such obstruction.,</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 471; Dee. Dig. § 176.*]</p> <p>5. Municipal Corporations (§ 671*) — Obstruction of Street — Fencing off Building Materials.</p> <p>Fencing a portion of a public street, for the purpose of protecting building material thereon, without an ordinance of the municipality permitting the erection of such fence, is unlawful even though such building material be law-' fully deposited on such street.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 671.*]</p> <p>6. Municipal Corporations (§ 105*) — Proceedings of City Council — Ordinance.</p> <p>A resolution of a city council is not an ordinance where the charter prescribing the manner in which ordinances must be passed was not complied with.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 223; Dec. Dig. § 105.*]</p> <p>7. Evidence (§ 501*) — Opinion Evidence-Conclusions and Matters of Opinion.</p> <p>In many cases it is permissible for a non-expert witness to give his opinion, upon fácts stated by him, showing that he is possessed of sufficient information to form an intelligent opinion as to the matter about which he testifies.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. § 501.*]</p> <p>8. Appeal and Error (§ 1052*) — Harmless Error — Admission of Evidence.</p> <p>It is not reversible error to permit a witness to give, his opinion upon facts stated by him, where it appears that the jury could not have reasonably come to a different conclusion from such facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. % 1052.*]</p> <p>9. Trial (§ 252*) — Instructions—Abstract Instruction.</p> <p>It is not error to refuse to give a charge which is abstractly correct, where there is no evidence upon which to predicate such charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596-612-; Dec. Dig. § 252.*]</p>

<p>Appeal from Johnson County Court; J. B. Ilaynes, Judge.</p> <p>Action by G. E. Stewart and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Lubbock County; L. S. Kinder, Judge.</p> <p>Action by A. G. McAdams Lumber Company against J. J. Dillard and another. Judgment for plaintiff, and defendant Dillard appeals.</p>

<p>Error from Hardeman County Court; W. S. Bannister, Judge.</p> <p>Action by the Chillicothe Land Company against J. C. Ward, in which defendant in-terpleaded C. L. Lloyd. From a judgment for Lloyd on an appeal to the county court from a judgment of a justice’s court, plaintiffs bring writ of error.</p>

<p>Appeal from Lavaca County Court; W. R. MeCutchan, Judge.</p> <p>Action by Patton & Schwartz against T. A. Hill & Son. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Cooke County; Clem B. Potter, Judge.</p> <p>Action by J. W. Flowers and others against J. W. Ross, Ancil H. Ross, the Wa-ples-Painter Company, and another, in which defendants Ross prayed for an injunction against the Waples-Painter Company. From a judgment for plaintiffs and defendants Ross, the Waples-Painter Company appeals.</p>

A. Stevens, Judge. Action by A. C. Richter against M. Valdez, in which a writ of garnishment was issued against F. IT. Lithgow, and in which J. A. Armengol filed a plea of intervention, claiming that he had obtained a writ of garnishment which was entitled to precedence. From a judgment in favor of plaintiff Richter, Armengol and others appeal.

<p>1. Mortgages (§ 333*) — Trust Deeds — Sale.</p> <p>A trustee must strictly follow the provisions of the trust deed in making a sale thereunder; his powers being wholly derived therefrom.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1013; Dec. Dig. § 333.*]</p> <p>2. Mortgages (§ 342*) — Trust Deeds — Validity of Provisions — Substitution of Trustee.</p> <p>A trust deed provided that, if the named trustee failed or refused to act or became disqualified, the legal holder of the secured note could appoint, by writing, a substituted trustee with the same powers, and that the deed given by the trustee or his successor shall be prima facie evidence of the truth of the recitals therein, of default in payment, of the request of the trustee to sell, the advertisement of the sale, and proceedings, and any facts authorizing the substitute trustee to act. Held, that the provision was valid.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 342.*]</p> <p>8. Mortgages (§ 341*) — Trust Deeds — Foreclosure — Evidence.</p> <p>Evidence held to show a valid sale under a trust deed by a duly authorized substituted trustee.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 341.*]</p> <p>4. Mortgages (§ 359*) — Foreclosure—gALE —Land goLD.</p> <p>A trustee under a trust deed was no.t bound to first sell that part of the land covered by the deed in which a purchaser from the mortgagor before foreclosure owned no interest, at least in the absence of request from such purchaser.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1074; Dec. Dig. § 359.*]</p>

<p>Error to District Court, Harris County ; Norman G. Kittrell, Judge.</p> <p>Trespass to try title by B. F. Weems against W. "L. Noland and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from District Court, Comanche County; J. M. Keiger, Judge.</p> <p>Action by E. A. Whiteside against the Ft. Worth & Bio Grande Bailway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1.Appeal and Error. (§ 771*) — Dismissal-Delay in Filing Brief.</p> <p>Though Rev. St. 1895, art. 1417, and Court of Civil Appeals Rule 39 (67 S. W. xvi), require appellant to file his brief in the trial court five days before the filing- of the transcript in the Court of Civil Appeals, and said rule makes failure to so file cause for dismissal, dismissal is not required, and will not be granted, where good cause is shown for delay, as continued severe sickness of counsel, preventing compliance.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3105; Dec. Dig. § 771.*]</p> <p>2. Banks and Banking (§ 165*) — Collections — Warrants to Tax Assessor — Assignment and Payment — Debt of Assessor to County.</p> <p>A county tax assessor, being indebted to defendant bank, gave to it an order, on the proper authorities, for such warrants as might be issued to him for fees as assessor, and gave a second order to plaintiffs, his deputies, for what he owed them, for services, which they indorsed to defendant, and it undertook to collect for them. Thereafter the assessor’s warrant, which was for more than enough to satisfy the claims of defendant and plaintiffs, was issued by the State Comptroller, indorsed by the assessor to defendant, and by it collected of the tax collector of the county. Held, that notwithstanding the assessor, unknown to plaintiffs and defendant, owed the county for excess fees, when the warrant was collected, the money when collected became the property of defendant to the amount of its claim, and the excess subject to plaintiffs’ claim, and the county owned none of it, so that defendant having paid therefrom to the county what the assessor owed the county, leaving nothing- for plaintiffs, and refusing to pay them, was guilty of conversion, and liable to them.</p> <p>• [Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 165.*]</p> <p>3. Frauds, Statute of (§ 34*) — Agreement to Answer for Debt of Another.</p> <p>The agreement of defendant bank to collect and pay over to plaintiffs what F. owed them, as evidenced by his written order, indorsed by them to it, is not an undertaking to answer for the debt or default of another, within the statute of frauds.</p> <p>[Ed. Note. — For other cases, see Frauds. Statute of, Gent. Dig. § 54; Dee. Dig. § 34.*]</p> <p>4. Assignments (§ 15*) — Fees of Tax Collectors — Public Policy.</p> <p>The transfer by a county tax assessor to his deputies of his fees in payment of what he owed them for services is not contrary to public policy.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. § 23; Dec. Dig. § 15.*]</p>

<p>1. Vendor and Purchaser (§ 296*)- — Vendor’s Lien Notes — Rights oe Holder.</p> <p>The assignee of vendor’s lien notes is a mere lienholder, and, like a mortgagee, cannot before foreclosure claim right of possession; but he can foreclose against a building removed from the land.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 296.*]</p> <p>2. Action (§ 47*) — Parties (§ 25*) — Joinder-</p> <p>Contract and Tort.</p> <p>Suit against the maker of vendor’s lien notes for the debt and for foreclosure and against his grantees for tort in removing a building from the land did not constitute a mis-joinder of causes of action nor of parties defendant.</p> <p>[Ed.-Note. — For other cases, see Action, Dec. Dig. § 47;* Parties, Dec. Dig. § 25.*]</p> <p>3. Judgment (§ 205*) — Torts — Double Recovery.</p> <p>In an action by the holder of vendor’s lien notes against the purchaser’s grantees for removing a house from the land, judgment, charging them with the amount of damage done to the security by the removal less the proceeds that may be realized from a sale of the house under foreclosure, does not constitute double recovery.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. § 205.*]</p>

<p>Appeal from Cooke County Court; C. R. Pearman, Judge.</p> <p>Action by the City of Gainesville against the People’s Home Telephone Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trusts (§§ 17, 18*) — Creatiokt — Express Trusts — Validity oí? Oral Trust.</p> <p>,i An agreement need not be in writing, in order that it may create an express trust in lands.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 15-24; Dec. Dig. §§ 17, 18.*]</p> <p>2. Trusts (§ 13*) — Creation —Express Trusts — Consideration.</p> <p>An agreement to pay one-half of a mortgage note for purchase money borrowed to pay for land is a valuable consideration, which will support an agreement by the maker of the note to hold half the land in trust for the promisor.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 11; Dec. Dig. § 13.*]</p> <p>3. T r u s t s (§ 35*) — Creation — Express Trusts — Agreement.</p> <p>An agreement, based on sufficient consideration, made before the purchase of land, that the land should be taken in the name of the purchaser and for the benefit of both parties is, where the land was actually purchased and the beneficiary offers to comply with the agreement, sufficient to create an express trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §| 45-50; Dec. Dig. § 35.*]</p> <p>4. Trusts (§ 361*) — Establishment—Conditions Precedent — Performance by Plaintiff.</p> <p>To create a trust, either express or resulting, in land, the party who seeks its establishment must, either at the time or before the purchase, furnish or agree to pay the purchase money or a proportional share thereof, so that where, in an, action to establish an express trust, the only consideration relied on to support the trust was an agreement to pay one-half of a note, given by the alleged trustee to obtain the purchase price, and the agreement proved was that the trustee should give the note and a mortgage to secure the money which he borrowed, and that the note should be paid from the rentals of the land, and there is no showing that the person claiming the trust either agreed to or ever did do anything to make the land produce rents, no right to have a trust established is shown.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 556-559; Dec. Dig. § 361.*]</p>

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Action by Ben C. Jones & Co. against the Gammel-Statesman Publishing Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Error from Harris County Court; A. E. Amerman, Judge.</p> <p>Action by Gaar-Scott & Co. against Herman Miller and wife. There was a judg•ment for plaintiff, and defendants bring error.</p>

<p>1. Insurance (§ 726*) — Mutual Benefit In-SUE AN CE — Co NTBACT.</p> <p>An application to a fraternal benefit society recited that applicant agreed not to thereafter, while a member of the society, engage in any of the named prohibited occupations, except at the same time recognizing the full force and effect of the society’s bylaws limiting or extinguishing the certificate of any member engaged in such occupations, and that applicant would conform to all bylaws then in force or thereafter adopted, and further agreed that the answers and agreement as set out in the application should form the basis of the contract between him and the society, and to conform to all laws, usages, and customs thereof then in force or thereafter adopted, and that the application and laws of the society should form the sole basis of admission to membership and of the certificate to be issued. Held, that the application, together with the certificate and by-laws with their amendments, constituted the contract of insurance between insured and the society.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Gent. Dig. §§ 1870-1S72; Dec. Dig. § 726.*]</p> <p>2. Insurance (§ 748*) — Mutual Benefit Insurance — Eobfeituke—Sale of Intoxicants.</p> <p>Where the application to a fraternal benefit society stated that the applicant was not engaged in the sale of malt liquors, and would not thereafter engage in that business, and the certificate and by-laws provided that the certificate should be void if insured thereafter engaged in the sale of malt liquors, the benefit'certificate was rendered void by insured thereafter engaging in the sale of malt or intoxicating liquors.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1893, 1S94; Dec. Dig. § 74S.*]</p> <p>3. Insurance (§ 819*) — Mutual Benefit Insurance — Action—Sufficiency -of Evidence.</p> <p>Evidence in an.action on a fraternal benefit certificate held to show that insured was engaged in performing duties incident to the sale of intoxicating liquors when he died.</p> <p>[IOd. Note. — For other cases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. § 819.*]</p> <p>4. Insurance (§ 748*) — Mutual Benefit Insurance — Forfeiture of Certificate — Sale of Intoxicants.</p> <p>If insured was engaged in performing duties incident to the sale of intoxicants when he died, prohibited by the certificate and bylaws of the society, the fact that he received no compensation would not prevent the forfeiture of the certificate pursuant to its provisions.</p> <p>LEd. Note. — For other cases, see Insurance, Cent. Dig. §§ 1893, 1894; Dec. Dig. § 748.*]</p> <p>5. Appeal and Error (§ 1175*) —Disposition — Rendition of Judgment for Defendant.</p> <p>Where the uncontradicted evidence in an action on a mutual benefit certificate showed that insured had engaged in a prohibited occupation, so as to avoid the policy, the appellate court will reverse a judgment for plaintiff, and render judgment for defendant.</p> <p>rEd. Note. — F.or other cases, see Appeal and Error. Cent. Dig. §§ 4573-45S7; Dec. Dig. § 1170.*]</p>

<p>Highways (§ 181*) — Collision with Automobile— CONTRIBUTORY NEGLIGENCE — PROXIMATE Cause.</p> <p>Where a horse became unruly and ran in front of an approaching automobile, it was the duty of the driver of the machine, upon discovering the possibility of an accident, to use all means, consistent with the safety of himself and others, to avoid injuring the driver of the horse, and, where he failed to do so, plaintiff’s possible negligence in going on the highway, where automobiles were likely to be met, with an unruly horse, became the condition and not the proximate cause of the injury, and would not bar a recovery therefor.</p> <p>[Ed. Note. — For other cases, see Highways, Dec. Dig. § 181.*]</p>

<p>Appeal from District Court, Atascosa County; W. W. Walling, Special Judge.</p> <p>Suit by R. R. Smith against T. L. Richardson and others, to restrain the sale of certain land to pay a judgment against one Young. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>1. Nuisance (§ 50*) —Damages — Diminution of Maeket Value.</p> <p>In an action for damages to residence property caused by the erection of a cotton gin and operating the same so as to constitute a permanent nuisance, the measure of damages is the difference between the market value of such property immediately before the construction of the gin and its reasonable market value after the gin was put in operation.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 119; Dec. Dig. § 50.*]</p> <p>2. Nuisance (§ 49*) — Action eos Damages —Evidence oe Injury.</p> <p>In an action for damages to residence property from a continuing nuisance, where the evidence showed the market value of plaintiffs’ property immediately before the nuisance and immediately after, and did. not show any change in such difference, the jury. could infer that the difference existed at the time of the trial.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 115-117; Dec. Dig. § 49.*]</p> <p>3. TRIAL (§ 251*) — Instructions—Ooneormity to Issues.</p> <p>An instruction, in an action for depreciation in the value of property caused by defendants’ maintenance of a nuisance, as to whether defendants in locating a cotton gin on a certain street made a reasonable or unreasonable use of the lot on which it was located, and to find for defendants if there was no unreasonable use, was properly refused, since the question at issue was not whether defendants exercised proper care in the location of the cotton gin, but whether plaintiffs’ property was damaged, and, if so, the extent of such damage.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 590, 595; Dec. Dig. § 251.*]</p> <p>4. Nuisance (§ 54*) — Action eob Damages— Instructions — Damages.</p> <p>Where there was evidence, in an action for depreciation in residence property caused by defendants’ maintenance of a cotton gin, that the increase of the damage from railroad trains, a canning factory, dust from the street, and odors from a sewer, by the erection of the gin, was so slight as to be trivial, an instruction that if the damage to the property was caused by railroad trains, etc., and any increase due to the gin was trivial, plaintiffs could not recover, was properly given.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 130; Dec. Dig. § 54.*]</p> <p>5. Trial (§ 312*) — Custody oe Jury —Instructions After Submission oe Cause.</p> <p>After the jury had failed to agree, the court called them back, and without request, hut in the presence of appellants’ counsel, who made no objection, instructed them orally that he would like them to go back and render a verdict if they could, telling them to be friendly and to discuss the case from an impartial standpoint. Held, that the action of the court was not reversible error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. § 312.*]</p> <p>6. Witnesses (§ 268*) — Cross-Examination —Value oe Property.</p> <p>Where plaintiff, in an action for damages to his residence property by a cotton gin, testifies as to the value of the property, he may on cross-examination be asked what he would take for the property at the time of the trial; the question being designed to test his good faith.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948; Dee. Dig. § 268.*]</p> <p>7. Appeal and Error (§ 1056*) — Review-Harmless Error — Exclusion of Evidence.</p> <p>Where the evidence was sufficient to support a verdict, the exclusion of evidence that would not have affected the result was not reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]</p>

<p>Appeal from District Court, Atascosa County; W. W. Walling, Special Judge.</p> <p>Action by R. R. Smith against T. B. Richardson and others. Judgment for defendants, and plaintiff appeals.</p> <p>Reversed and rendered.</p>

H. Arnold, Judge. Action by Hay Slack and another against Mrs. Annie Moss and others. Prom a judgment granting partial relief, both parties appeal.

<p>1. Removal of Causes (§ 26*) — Diverse Citizenship.</p> <p>Where neither party to a suit is a resident of the state where it is begun, there is no right of removal to the federal courts on the ground of diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 60-63; Dee. Dig. § 26.*]</p> <p>2. Depositions (§ 45*) — Interrogatories— Statutes.</p> <p>Under the statute, the party taking depositions may file interrogatories and serve notice upon the adverse party, who is entitled to cross-examine, by cross-interrogatories filed before the issuance of the commission; but, if cross-interrogatories are not filed, the adverse party, if he wishes further information from the deponent, must make him his own witness, propounding direct interrogatories and giving the opposite party notice and opportunity to cross-examine; and hence such direct interrogatories are objectionable if they propound leading questions.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. § 67; Dec. Dig. § 45.2*]</p> <p>3. Appeal and Error (§ 1058*) — Review-Harmless Error.</p> <p>The exclusion of the proffered testimony of a witness is not prejudicial error where the same witness and other witnesses later testify to the facts sought to be shown by the proffer.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4206; Dec. Dig. § 1058.*]</p> <p>4. Master and Servant (§ 291*) — Actions— Instructions.</p> <p>A petition by plaintiff, a brakeman, alleged that a coupling failed, that plaintiff in the discharge of his duty and after the engineer had given a stop signal, went between the cars to open and adjust the knuckle, and that the engineer, without any signal or warning, negligently moved the car upon which plaintiff was working, and thus crushed plaintiff’s hand. Eeld that, as the gist of the negligence alleged was the moving of the train while plaintiff was between the cars, an instruction authorizing a recovery by plaintiff, without a finding that the train was moved without a signal, was not erroneous.</p> <p>. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1136; Dec. Dig. § 291.*]</p> <p>5. Trial (§ 141*) — Questions op Law eor Court.</p> <p>In an action by a brakeman injured while opening the knuckle on a car so that a coupling might be made, where the uncontro-vei’ted evidence showed that the engine was operated exclusively by signals, the question as to the duty of the engineer to obey signals was one of law for the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § S36; Dec. Dig. § 141.*]</p> <p>6. Appeal and Error (§ 1062*) — Review— Harmless Error.</p> <p>In an action by a brakeman injured by the hacking down of the engine upon a car on which he was working, where the court was authorized as a matter of law to charge that it was the duty of the engineer to obey signals, a charge submitting that question to the jury was not prejudicial to the defendant.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*]</p> <p>7. Master and Servant (§ 297*) — Injuries to Servant — Actions—Instructions.</p> <p>In an action by a brakeman injured by the backing of the engine against a car on which he was working, a charge authorizing a recovery if the engineer, in the exercise of ordinary care and by the use of the means at hand, could have stopped the engine in obedience to signals, did not warrant a finding that when the engineer was given a signal to stop he was under an absolute duty to stop the engine.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1197; Dec. Dig. § 297.*]</p> <p>8. Trial (§ 295*) — Instructions—Construction as a Whole.</p> <p>In an action by a brakeman injured by the backing down of the train upon the car on which he was working, a charge authorizing a recovery in case the engineer, in the exercise of ordinary care, and by the use of the means at hand, could have stopped the engine in obedience to a signal given, when construed with the entire charge, other paragraphs of which told the jury that, if the engineer obeyed the signal to stop the engine, and did stop it in the usual manner, then no recovery could be had, was not erroneous in informing the jury that the engineer was under an absolute duty to stop the engine as soon as he received the signal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p> <p>9. Trial (§ 296*)— -Instructions — Construction as a Whole.</p> <p>In an action by a brakeman injured by the backing down of a train upon the car on which he was working, a charge authorizing a recovery if the engineer failed to obey a signal to stop the engine, when considered with that portion of the charge permitting the jury to find that the engineer was negligent if he failed to obey a signal and permitted the engine and cars to move backward until they collided, did not inform the jury that it was the duty of the engineer to stop the engine as quickly as possible.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dee. Dig. § 296.*]</p> <p>10. Master and Servant (§ 291*) — Injuries to Servant — Instructions—Applicability to Pleadings.</p> <p>In an action by a brakeman injured by the backing down of a train upon the cars between which he was working, a charge that, if the engineer failed to obey a signal to stop, he was guilty of negligence, was applicable to the allegations of the petition that the signal was given the engineer to stop so that plaintiff might go between the cars, and that he relied upon the engineer to stop the train, as it was his duty to do, but that the engineer failed to stop, for, the engineer having knowledge that the brakeman was between the cars, it would be his duty to exercise ordinary care to obey the signals and avoid injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1136; Dec. Dig. § 291.*]</p> <p>11. Trial (§ 260*) — Instructions—Instructions Covered by Others.</p> <p>The refusal of a requested charge covered by the charge as given was not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>12. Appeal and Error (§ 731*) — Assignments op Error — Requisites.</p> <p>An assignment of error, in a personal injury case, that the verdict is greatly excessive, is too indefinite for consideration.</p> <p>[Ed. Note. — For other cases, see' Appeal and Error, Cent. Dig. § 3017; Dec. Dig. § 731.*]</p> <p>13. Appeal and Error (§ 302*) — Motion for New Trial — Grounds.</p> <p>A ground alleged in a motion for new trial in an action for personal injuries that the verdict is excessive, without pointing out wherein it is excessive, is too general to be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 174A-1752; Dec. Dig. § 302.*]</p>

M. Jeter, Judge. Action by W. D. Twiehell against W. A. Askew and others to reform a judgment and to restrain the enforcement thereof until reformed. From a judgment denying relief, plaintiff appeals.

<p>Appeal from Haskell County Court; Joe Irby, Judge.</p> <p>Action by A. B. Mason against X. L. Thomason. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Carriers (§ 318*)—Injury to Passengers —Acts of Brakeman—Scope of Author-it r.</p> <p>Where the conductor of a train testified that a brakeman was stationed at the place where plaintiff claimed he boarded the train, whose duty it was to assist passengers on and off, and when everything was “all right” to give the signal to the conductor, who would in turn signal the engineer, and the brakeman testified that he was between the two coaches and assisted people on and off the train, that the conductor depended on the brakeman and chair car porter to know that everything was ready to go, such proof was sufficient to show that the brakeman’s act in shutting the vestibule door of a car while plaintiff was on the lower step, thus preventing his return to the car, was within the scope of his employment.</p> <p>[Ed. Note.—Eor other cases, see Carriers, Cent. Dig. § 1307; Dec. Dig. § 31S.*]</p> <p>2. Carriers (§ 282*) — Transportation of Passengers—Negligence.</p> <p>Where a brakeman, knowing that plaintiff, an officer, had entered the train to look for certain criminals, and that plaintiff was standing on the lower step of a coach, shut the vestibule door against plaintiff, preventing his reentry into the coach and leaving him in a perilous position, so that it was necessary for him to jump from the train, the railroad company was negligent, whether plaintiff was a .trespasser or a passenger.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1107; Dec. Dig. § 282.*]</p> <p>3. .Carriers (§ 314*)—Negligence of Servant-Scope of Authority—Pleading.</p> <p>Where a complaint against a carrier for injuries to plaintiff alleged that the vestibule door was closed on him, so that he was compelled to jump from the car after the train started, by one of defendant’s employés in charge of the train, such allegation was tantamount to an averment that the employé was acting within the scope of the duties imposed on him by defendant.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1273, 1275%; Dec. Dig. § 314.*]</p> <p>4. Appeal AND ERROR (§ 1064*) — Instructions — Prejudice.</p> <p>That an instruction given for defendant assumed a fact in dispute was not prejudicial to the latter, when it did not, in any event, warrant a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4221; Dec. Dig. § 1064.*]</p> <p>5. Trial (§ 240*) — Instructions—Argumentativeness.</p> <p>An instruction that plaintiff was bound, in leaving defendant’s train, to take proper care to prevent injury, and could not recover if, in leaping from the train, he acted recklessly, and thereby contributed to his own injury, and that when plaintiff found the cars in motion it was his right to demand that defendant’s officers stop the train, and if !he had been carried beyond his home he could have recovered compensation for returning and all damages that he may have sustained on account thereof, but he had no right to endanger his life or limbs by jumping from the cars, in order to prevent being carried from his home, when he found the cars in motion, and if he did so jump, and the injuries complained of were the result thereof, you will find for defendant, was properly refused as argumentative.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.*]</p> <p>6. Carriers (§ 338*) —Injuries — Perilous Position — Contributory Negligence.</p> <p>Where defendant carrier wrongfully and negligently placed plaintiff in a perilous position by shutting the vestibule door, so that he could not return to the coach, and plaintiff, under the influence of sudden fright by reason thereof, jumped from the train, and was injured, defendant could not defeat recovery for the injuries sustained, on the theory that plaintiff was negligent.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1352; Dec. Dig. § 338.*]</p> <p>7. Trial (§ 260*) — Requested Charge — Instruction Given.</p> <p>Where the court charged that, if plaintiff boarded defendant’s train to look for suspected burglars, and at the time he got off the train was moving so rapidly as to make it dangerous for plaintiff to alight, and at the time he jumped from the train he knew it was moving at a dangerous rate of speed, then he could not recover, such instruction sufficiently presented the defense of contributory negligence, ant authorized a refusal of a requested charge on such issue.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>1. Tbial (§ 295*) — Instructions—Construction as a Whole.</p> <p>A general instruction correctly defining negligence was • not objectionable, where the question of negligence was specifically applied to the facts by the charge as a whole.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p> <p>2. Master and Servant (§ 293*) — Injuries to Servant — Instructions.</p> <p>In an action for injuries to a servant while operating a planing machine, the court charged that if the jury believed that plaintiff was in the performance of his duties for the defendant, and while in the discharge of such duties was in the act of planing a short piece of lumber, which was pushed from under his hand, which fell on the knives, and if plaintiff was inexperienced with the use of the machine, and it was of a highly dangerous character, and plaintiff had not been instructed, etc., and this was negligence which was the proximate cause of the injury, and plaintiff was not himself negligent, he was entitled to recover, was not objectionable for failure to explain what were plaintiff’s duties under the pleadings and the entire evidence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1160; Dec. Dig. § 293.*]</p> <p>3. Master and Servant (§ 293*) — Injuries to Servant — Dangerous Machine — Instructions.</p> <p>Where plaintiff was injured while operating a planing machine, a charge submitting to the jury whether plaintiff was in the discharge of his duties, and whether in doing so his hand was cut by the planing knives, and whether he was inexperienced and unacquainted with the use of the machine, whether it was dangerous, and whether defendant had failed to instruct plaintiff, etc., sufficiently covered the question whether plaintiff saw the knives plainly and knew the danger of placing his hand against them, and that if he did no warning was necessary, but he assumed the risk of his own negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. § 1160; Dec. Dig. § 293.*]</p> <p>4. Master and Servant (§ 291*) — Instructions — Shutting Burden of Proof.</p> <p>An' instruction that if the jury believed from the evidence that, at the time plaintiff, defendant’s servant, was injured, he was not in the performance of some duty for defendant, then to return a verdict for defendant, merely indicated that plaintiff could not recover if he was not in the performance of his duty, and was therefore not objectionable as shifting the burden of proof on defendant to prove that plaintiff at the time of his injury was not in the performance of his duty.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1140-1144; Dec. Dig. § 291.*]</p> <p>5. Tbial (§ 234*) — Instructions—Burden oi? Proof.</p> <p>An instruction that the burden of proof was on plaintiff to establish “his case” by a preponderance of the evidence was not objectionable for failure to clearly state what “his case” was.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 537; Dec. Dig. § 234.*]</p> <p>6. Trial (§ 139*) — Questions for Court or Jury.</p> <p>Whether there is sufficient evidence to go to the jury is a question for the court, but whether the evidence preponderates in favor of one party or the other is for the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 338-341; Dec. Dig. § 139.*]</p> <p>7. Master and Servant (§ 278*) — Injuries . to Servant — Failure to Warn.</p> <p>Evidence held to warrant a finding that plaintiff, a minor servant, was directed to operate a dangerous planing machine according to his own judgment and without instruction or warning as to the danger involved in the work, and, having been injured without contributory negligence, the master was responsible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 972; Dec. Dig. § 278.*]</p>

B. Keith, Judge Action by H. E. Starr against the Ft. Worth & Rio Grande Railway Company and others. Judgment for plaintiff against the Ft. Worth & Rio Grande Railway Company and against him in favor of the Texas & Pacific Railway Company, and both parties appeal.

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by Mrs. Addie Smith, against Oswald Herman and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge. Mollie Thompson was convicted of theft, and she appeals.</p>

<p>Appeal from Eastland County Court; E. A. Hill, Judge. Hubert Watts was convicted of carrying a pistol, and appeals.</p>

<p>Appeal from Wilbarger County Court; J. A. Nabers, Judge. Action by the Cohn-Friedlander & Martin Company against the Norwood Dry Goods Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Wilbarger County Court; J. A. Nabers, Judge. Action by Koch, Sehaffner & Adler against the Norwood Dry Goods Company. Judgment for plaintiff, and defendant appeals.</p>