Volume 142 — South Western Reporter

A. Hill, Judge. John Bumgarner was convicted for the utterance of abusive language calculated to produce a breach of the peace, and appeals.

H. Russell, Judge. Action by Jeff Patterson and wife against Mrs. E. J. English and others to enjoin an execution, in which defendants brought a cross-action for damages on account of the temporary injunction. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from District Court, Midland County; S. J. Isaacks, Judge.</p> <p>Application by Mamie Brown for the removal of Z. T. Brown as guardian of the estate of Joe Brown, Jr. From a judgment of the county court denying removal, applicant appealed to the district court, and, from the judgment of that court denying removal, she appeals.</p>

<p>Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.</p> <p>Action by J. H. Funk and others against B. W. Miller. Judgment for defendant, and plaintiffs appeal.</p>

A. P. Dickson, Judge. Trespass to try title by J. M. Smith against H. P. Cook, in which defendant brought a cross-bill against his warrantor of title. Judgment for defendant, and that he should take nothing on his cross-bill, and plaintiff appeals.

<p>1. Constitutional Law (§ 169*) — Improvement of Contract — Repealing Remedy. .</p> <p>. A remedy subsisting when a contract is made becomes a part thereof, and a subsequent statute, which affects it so as to substantially impair the value of the contract, is unconstitutional and void.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 474; Dec. Dig. § 169.*]</p> <p>2. Constitutional Law (§ 99*) — Vested Right — Exemption.</p> <p>No one has a vested right in exemptions conferred by statute, and the Legislature may repeal the statute at will.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 204, 205; Dec. Dig. § 99.*]</p> <p>3. Constitutional Law (§ 180*) — Impairment of Contract Rights.</p> <p>The law in force when property is acquired affecting its liability to be taken in execution' does not become a part of the contract of purchase so that it may not be subsequently repealed.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 498-500; Dec. Dig. § 180.*]</p> <p>4. Exemptions (§ 8*) — Constitutional Law (§ ISO*) — Repeal of Exemption Law.</p> <p>The right to an exemption given by statute is to be determined by the law in force when the debt -was contracted, and not by that in force when the exemption is claimed, so that an exemption law in force when a debt was contracted became a part of the contract, so that it could not be repealed if such repeal materially impaired the contractual obligation.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent.'Dig. § 8; Dec. Dig. § 8;* Constitutional Law, Cent. Dig. §§ 498-500; Dec. Dig. § ISO.*]</p> <p>5. Appeal and Error (§ 931*) —Presumptions — Implied Bindings.</p> <p>The appellate court cannot imply a finding of a material fact not shown by the record, where the record shows that the judgment was based upon the express findings made.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3764; Dec. Dig. § 931.*]</p> <p>6. Exemptions (§ 148*) — Burden of Proof.</p> <p>Where the garnishee admitted the indebtedness to the debtor, the burden was upon the debtor to establish a plea that the fund in the garnishee’s hands was exempt.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 172; Dec. Dig. § 148.*]</p>

<p>1. Mortgages (§ 356*) — Trust Deed — Foreclosure — Posting of Notice.</p> <p>A foreclosure sale under a trust deed, in which the required notices of sale are prepared by the original trustee and his substituted trustee, signed by the substituted trustee, and posted, with the knowledge of the mortgagor, at the proper time and in the proper place, is valid, though the notices were not posted by the substitute himself.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1067; Dec. Dig. § 356.*]</p> <p>2. Mortgages (§ 356*) — Trust Deeds — Foreclosure Sale — Waiver.</p> <p>Where the maker of a trust deed knew of ■ the posting ■ of notices of a foreclosure sale, was present at the sale, and approved it, he thereby, in the absence of fraud or collusion made the sale his own act, and waived any defects as to notice.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dee. Dig. § 356.*]</p> <p>3. Mortgages (§ 369*) — Foreclosure Sale-Setting Aside Sale — Second Mortgagee. .</p> <p>In the absence of fraud or collusion, and where the maker of a trust deed has, upon a foreclosure sale, waived any defect as to the notice intended primarily for his own benefit, a second mortgagee cannot attack the validity of the sale.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1096; Dec. Dig. § 369.*]</p> <p>4; -Bankruptcy (§ 140*) — Title Acquired by Trustee.</p> <p>A, trustee in bankruptcy has no right to question a foreclosure sale under a trust deed, made by the bankrupt and his beneficiary in good faith and for a fair price, since he takes the property as it was in the hands of the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p> <p>5. Mortgages (§ 356*) — Sale Under Power —Posting Notices — Agent of Trustee.</p> <p>A trustee in a trust deed, authorized to give notices of sale, may delegate the posting of notices to a subagent, since the act is purely ministerial, and involves no discretion or, personal skill.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 356.*]</p>

<p>Appeal from District Court, Midland County; S. J. Isaacks, Judge.</p> <p>Action by B. F. Whitefield against B. A. Worthington. From a judgment for plaintiff, defendant appeals.</p>

<p>1. New Trial (§ 102*) — Newly Discovered Evidence — Diligence.</p> <p>Where a case had been pending in the trial court for over five years, and had been set down for trial a number of times, but for various reasons had been postponed, defendant, who went to trial without seeking a postponement or continuance, did not show such diligence as to entitle him to a new trial on the ground of newly discovered evidence.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 210-214; Dec. Dig. § 102.*]</p> <p>2. New Trial (§ 104*) — Newly Discovered Evidence — Cumulative Evidence.</p> <p>In an action upon a replevin bond, where the defendant introduced evidence as to the value of the property replevied, newly discovered evidence, showing that defendant’s testimony as to the value of the property was true, did not entitle him to a new trial, being only cumulative.</p> <p>[Ed. Note. — For other eases, see New Trial, Cent. Dig. §§ 218-220, 228; Dec. Dig. § 104.*]</p> <p>3. New Trial (§ 150*) — Newlt Discovered Evidence — Sufficiency oe Showing.</p> <p>Where a newly discovered witness refused to make an affidavit that he heard plaintiff make ¿ertain admissions, an affidavit by defendant that such witness would testify to hearing those admissions was not ground for new trial for newly discovered evidence.</p> <p>[Ed. Note. — For other cases, see New Trial, Dec. Dig. § 150.*]</p> <p>4. Trial (§ 191*) — Instructions—Assuming Facts.</p> <p>In an action upon a replevin bond, a charge, that if at the time defendant took the drill in controversy plaintiff owned the drill, and had not given his consent to the taking, etc., is not erroneous in assuming that the drill was owned by plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 191.*]</p> <p>5.Appeal and Error (§ 553*) — Bills op Exception — Ex Parte Affidavits.</p> <p>Even though the trial court wrongfully refused to give a bill of exceptions, ex parte affidavits improperly placed in the transcript cannot be considered on appeal in place of the bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 553.*]</p>

<p>1. Railroads (§ 44.°,*) — Injuries to Animals on Track — Negligence—Evidence.</p> <p>In an action for injury to an animal struck by a train at a point where the railroad company was not required to fence its tracks, evidence ' held not to show negligence in the operation of the train.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 160S-1G20; Dec. Dig. § 443.*]</p> <p>2. Railroads (§ 441*) — Injuries to Animals •on Track — Burden -of Proof.</p> <p>Where an animal was injured by a train at a place where the railroad company was not required to fence its tracks, the owner to recover must show negligence; and the burden is not satisfied when the facts presented ■are strongly doubtful about any negligence, or ■rest in conjecture for any conclusion of negli-feence.</p> <p>I [Ed. Note. — For other cases, see Railroads, ■Cent. Dig. §§ 1575-1093; Dec. Dig. § 441.*]</p>

B. Hill, Judge. Suit toy W. C. Nicliols and others against the' Commissioners’ Court of Floyd County and others. From a judgment for plaintiffs, defendants appeal.

<p>1. Appeal and Error (§' 192*) — Objections in TRIAL Court — Assignments op Error-Pleadings.</p> <p>An assignment of error attempting to attack the pleadings cannot be sustained where no basis was made therefor in the trial court.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1221-1225; Dec. Dig. § 192;* Pleading, Cent. Dig. §§ 1348-1354.]</p> <p>2. Appeal and Error (§ 216*) — Review • Omission to Charge — Request.</p> <p>Appellant cannot object to an omission of the court to charge, in the absence of presentation of a written special charge on the particular point or points.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Dec. Dig. $ 216;* Trial, Cent. Dig. § 627.]</p> <p>3. Trial (§ 253*) — Instructions—Ignoring Issues — Action by Principal por Accounting.</p> <p>Where plaintiff placed insurance policies in defendant’s hands for collection for the benefit of plaintiff’s creditors, an instruction, in an action to recover a surplus after settling with creditors, that if plaintiff placed the policies in the hands of defendant for collection, and _ payment of the proceeds to plaintiff’s creditors, plaintiff could not recover any part retained by; defendant, was erroneous, as ignoring an issue whether plaintiff was bound to pay the fees of an attorney employed by defendant to collect the policies.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>4. Principal and Agent (§ 69*) — Agent por Collection — Payment to Creditors— Surplus.</p> <p>Where plaintiff assigned insurance policies to defendant for collection and payment of the proceeds to plaintiff’s creditors, and defendant settled with the creditors on the basis of 70 cents on the dollar, any surplus belonged to plaintiff, and not to defendant.</p> <p>[Ed. Note. — Por other cases, see Principal and Agent, Dec. Dig. § 69.*]</p> <p>5.Trial (§ 252*) — Instructions—Request to Charge — Conformity to Issues.</p> <p>Where, in an action to recover a surplus collected on insurance policies assigned by plaintiff to defendant to be collected' by defendant through an attorney, and applied to the payment of plaintiff’s debts, all the evidence showed that at the time of the assignment there was some arrangement as to the employment of an attorney, plaintiff claiming that defendant was to furnish the lawyer free of charge, while defendant claimed that a certain attorney was agreed on, who was to be employed for a specified fee, a requested charge submitting the case on the theory that nothing was said about the employment of attorneys, except that defendant was authorized to act in the matter, was erroneous as submitting an imaginary issue.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]'</p> <p>■6. Limitation of Actions (§§ 100, 199*)— Agency — Action for Accounting.</p> <p>Plaintiff assigned insurance policies to defendant in July, 1902, for collection and payment of the proceeds to plaintiff’s creditors. As soon as plaintiff learned of an alleged misappropriation of a part of the proceeds he wrote defendant for a statement, which was sent in March, but not received until May, 1904. On April 23, 1906, plaintiff sued for an accounting. Held that, since limitations do not run against a principal and in favor of an agent, who has misappropriated the funds of the principal, until the misappropriation has been discovered, if reasonable diligence has been used, the action was not barred as a matter of law, since whether reasonable diligence had been used was for the jury.</p> <p>[Ed. Note. — Por other cases, see Limitation of Actions, Cent. Dig. §§ 487, 724; Dec. Dig. §§ 100, 199.*]</p>

<p>1. TRIAL (§ 125*)—Misconduct of Counsel —Argument to Jury.</p> <p>Where, in an action against a street railway company and another for personal injury, there was an issue as to which defendant caused the injury, it was improper for plaintiffs’ counsel, on the court overruling the company’s objection to argument to the jury that the company had the names of 45 witnesses which it failed to produce, to say: “Of course, that sort of thing sticks pretty hard, it would hurt me if I were in his shoes”—and to make other and similar disparaging remarks concerning the objections.</p> <p>[Ed. Note.—For other cases, see Trial, Dec. Dig. § 125.*]</p> <p>2. Trial (§ 122*) — Misconduct of Counsel —Argument to Jury.</p> <p>In a personal injury action against a street railway company, it was improper for plaintiffs’ counsel to tell the jury that they could consider, under the law, tile fact that defendant had not brought available witnesses there, as tending to show that the absent witnesses would testify adversely.</p> <p>[Ed. Note.- — For other cases, see Trial, Cent. Dig. § 299; Dec. Dig. § 122.*]</p> <p>S. Appeal and Error (§ 302*) — Motion fob New Trial — Presentation of Grounds— Sufficiency.</p> <p>That a ground of motion for new trial referred by mistake to the wrong bill of exceptions does not preclude review of the ground, where the trial court evidently knew the point raised.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 302.*]</p> <p>4. Trial (§ 253*)— Instructions — Refusal-Propriety.</p> <p>In a personal injury action, instructions requested by defendant, grouping certain fpcts which would entitle defendant to a verdict, were properly refused, where they ignored an issue of negligence.</p> <p>[Ed.- Note. — For other cases, see Trial, Dec. Dig. § 253.*]</p>

<p>Error from Lamar County Court; Rube S. "Wells, Judge.</p> <p>Action by J. S. Beckley against the Paris</p> <p>& Great Northern Railway Company. There was a default judgment for plaintiff, and defendant brings error.</p>

M. Rieger, Judge. Action by J. B. Cottrell against C. F. Car-mack and the Martin. Company. From a judgment for plaintiff, the last-named defendant appeals.

<p>1. Patents (§ 212*) — Patent Bights — Sale —Validity—Fraud—Sufficiency op Evidence.</p> <p>Evidence, in an action to recover the price paid for patent rights on the ground of fraudulent misrepresentations, held not to sustain a finding that the sale to K. of the right to sell the patented article in a certain state was induced by fraudulent representations.</p> <p>[Ed. Note. — For other cases, see Patents, De'd. Dig. § 212.*]</p> <p>2. Pleading (§ 290*) — Sworn Denials — ‘ ‘Partnership ” — “ Co- Conspirator. ’ ’</p> <p>In an action to recover money and property claimed to have been paid for patent rights, sold plaintiff by several defendants conspiring together to defraud him and induce him to purchase by fraudulent representations, allegations that defendant B. was a “partner” in the unlawful scheme did not allege such a partnership as the statute requires to be denied under oath; the word “partner” as used being synonymous with “co-conspirator.”</p> <p>[Ed. Note. — For other eases, see Pleading, Dec. Dig. § 290.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5101-5202; vol. 8, pp. 7740, 7747.]</p> <p>On Motion for Behearing.</p> <p>3. Appeal and Error (§ 1008*) — Findings —Conclusiveness — Findings by the Court.</p> <p>Findings of fact made by the court should be given the same weight on appeal as'special findings made by a jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3009; Dec. Dig. § 1008.*]</p> <p>4. Patents (§ 212*)— Patent Bigiits — Sale —Validity—Fraud—Sufficiency op Evidence.</p> <p>Evidence, in an action to recover the price paid for patent rights, claimed to have been sold to plaintiff by fraudulent representations, held to sustain a finding that the patented article was a worthless invention.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig; § 212.*]</p> <p>5. Patents (§ 212*)A-pAtent Bights — Sale —Validity—Fraud—Sufficiency op Evidence.</p> <p>Evidence, in an action to recover the price paid' for patent rights, claimed to have been sold to plaintiff by fraudulent representations, held to sustain a finding that the sale of the right to sell the patented article in a certain state to P. and others was fraudulent.</p> <p>.[Ed. Note. — For other cases, see Patents, Dec. Dig. § 212.*]</p> <p>6. Patents (§ 212*) — Patent Bights — Sale —Validity—Fraud—Sufficiency op Evidence.</p> <p>Evidence, in an action to recover the price paid for patent rights, held to sustain a finding that the sale of certain patent rights to H. was induced by false representations by one of defendants.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 212.*]</p> <p>7. Appeal and Error (§ 750*) — Assignments op Error.</p> <p>Where appellant did not assign error upon the specific findings of fact made, only the sufficiency of the evidence to sustain the judgment can be considered on appeal; the proper judgment having been rendered if the facts were as found by the court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3079; Dec. Dig. § 750.*]</p> <p>8. Patents (§ 212*) — Patent Bights — Sale —Validity—Fraud—Suppicienoy op Evidence.</p> <p>Evidence, in an action to recover the price paid by plaintiff for patent rights which he was fraudulently induced to purchase, held to sustain a finding that the appealing defendant was connected with the fraudulent conduct of the others so as to make him responsible therefor.</p> <p>[Ed. Note. — Eor other cases, see Patents, Dec. Dig. § 212.*]</p> <p>Key, O. J., dissenting.</p>

<p>1. Contracts (§ 346*) — Pleading and Prooe.</p> <p>Plaintiff cannot recover upon a contract different from that declared on.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1718-1753; D.ec. Dig. § 340.*]</p> <p>2. Assignments (§ 135*) — Action by As-signee-Evidence.</p> <p>In an action by an assignee of an account for a percentage of the premiums on certain insurance policies written by the assignor, alleged to be due under an oral contract between the assignor and the defendant, an insurance agent, testimony by the assignor that defendant told him that if he would procure $100,000 of business by Christmas he would give him a free trip to California, but that, before the time for the trip came, he resigned his position and knocked him out of the trip, was irrelevant.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. § 232; Dec. Dig. § 135.*]</p> <p>3. Appeal and Error (§ 1050*) — Harmless Error — Evidence Irrelevant to Issue.</p> <p>The admission of evidence in an action on an account not relevant to the issue was not prejudicial.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4154; Dec. Dig. § 1050.*]</p> <p>4. Evidence (§ 471*) — Matters op Form; or Opinion.</p> <p>In an action by an assignee of an account for a percentage of the first premiums ou certain policies written by the assignor, a witness for the plaintiff, in answer to a question as to whether he would have taken the policy if it had not been for what the assignor did, answered that he did not think he would have because the assignor had got his mind on it and he had been thinking about it. Held, that the answer was a statement of a fact, and not of a conclusion or opinion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2169; Dec. Dig. § 471.*]</p> <p>5. Witnesses (§ 275*) — Examination—Question to Party.</p> <p>In an action by the assignee of an account, it was reversible error to permit counsel for plaintiff to ask defendant whether he was not a pretty good suer, whether he had brought a good many suits, whether he had sued the maker of a note, who was one of the parties named in the account assigned, after it was paid, and to ask, “Now, at the time you filed these suits, you did not have the notes in your possession, did you?” since the questions were manifestly improper and prejudicial.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 967-975; Dee. Dig. § 275.*]</p> <p>6. Assignments (§ 138*) — Special Issues— Conformity to Issues Raised by Pleading.</p> <p>In an action by the assignee of an account for a percentage of the first premiums due the assignor on insurance policies issued to certain persons named, under a verbal contract between the assignor and the defendant, issues as to ■whether the defendant at a certain time and place promised to pay the assignor such percentage and as to whether the defendant at a certain time and place promised to pay the assignor such percentage in order to assist him in closing up and securing applications for certain policies while defendant was at that place, were not in conformity with the issues made by the pleadings.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 235-238; Dec. Dig. § 138.*]</p> <p>7. Tbial (§ 352*) — Special . Issues — Undue Prominence to Theory oe One of the Parties.</p> <p>The submission of special issues which give undue prominence and emphasis to the plaintiff’s contention and theory of the case is error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 844, 845; Dec. Dig. § 352.*]</p> <p>8. Appeal and Error (§ 742*) — Assignment op Error — Propositions and Statement.</p> <p>An assignment of error not followed by a proposition and statement sufficient to clearly define the ground upon which the assignment is predicated will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. § 742.*]</p>

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

<p>Appeal from Deaf Smith County Court; W. H. Bussell, Judge.</p> <p>Action 6y George H. Guinn and others against the Pecos & Northern Texas Railway Company and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Master and Servant (§ 278*) — Injury at Paper Cutter — Negligence — Evidence— Sufficiency.</p> <p>In an action for injury to the operator of a paper cutter caused by the blade unexpectedly falling, evidence held insufficient to show that the machine was defective.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Dec. Dig. § 278.*]</p> <p>2. Trial (§ 252*) — Submission of Issues.</p> <p>The propriety of an instruction is determinable by the evidence as well as by the pleading's, so that submission of an issue made by the pleadings, but unsupported by the testimony, is improper.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 252.*]</p> <p>3. Master and Servant (§ 264*) — Issues and Proof.</p> <p>An employé suing for injury caused by the unexpected falling of a paper cutter blade, on the theory that the machine was defective, could not recover on the theory of negligence in the sudden and unusual jarring of other machinery, causing the blade to fall.</p> <p>DEd. Note. — For other cases, see Master andServant, Dec. Dig. § 264.*]</p> <p>4. Master and Servant (§ 230*) — Minor Employes — Contributory Negligence.</p> <p>In an action for injury to a 17 year old operator by a paper cutter, caused by the blade unexpectedly falling, it was error to charge that the jury might consider- his age and experience on the issue of contributory negligence, where he had been instructed how to operate the machinery, had operated it for two months, and understood its use and dangers.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 230.*]</p> <p>5. Infants (§ 72*) — Injury to Child — Right to Recover.</p> <p>Parents being entitled _ to their minor child’s services during his minority, he is not entitled to recover in a personal injury action against his employer for. reduced capacity to labor during minority.</p> <p>[Ed. Note. — For other cases, see Infants, Dec. Dig. § 72.*]</p>

<p>Appeal from Titus County Court; W. E. Riddle, Judge.</p> <p>Action by L. M. Rogers against R. H. Fuller and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Insurance (§ 335*) — -Conditions—Performance.</p> <p>Insurance certificates covering cotton in storage required the insured to keep a set of books showing a complete daily record of the date at which each bail of cotton covered was purchased or received, from whom purchased or received, in what warehouse, compress, or yard stored, together with the original tag number or mark thereon with, its weight and classification, and a complete daily record of all shipments,- or sales, etc. Eeld that where plaintiff’s record showed no classification of the cottoD covered except as the same might be ascertained from the price per pound paid therefor in connection with the market price on the day of the purchase, and the custom of price variation above or below market as the cotton was above or below middling grade, there was no sufficient compliance with the provision requiring classification, which precluded a recovery on the policies.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. § 335.*)</p> <p>Levy, J., dissenting.</p>

<p>1. CORPORATIONS (§ 190*) — STOCKHOLDERS — Action on Behalf of Corporation.</p> <p>The owners of one half of the stock of a theater company excluded a stockholder who owned the other half of the stock from. participating in the management of the affairs of the company, and dissipated all of the assets of the company, or converted them to their own use, and made it impossible for the company to resume business, and, though requested, refused to recognize the legal existence of the company, or to recognize the other stockholder as such, and refused to hold any meetings of the stockholders to elect directors. Held, that the excluded stockholder had a right to sue to recover the value of the assets so converted for the benefit of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 190.*]</p> <p>2. Corporations (§ 190*) — Stockholders— Action Between Stockholders.</p> <p>Where stockholders dissipate or convert the assets of the corporation to their own use, making is impossible for it to resume business, and refuse to recognize the legal existence of the corporation or the rights of a stockholder, such stockholder, if he may not maintain a suit to recover the converted assets for the benefit of the corporation, because it no longer has a legal existence, has the right to recover for.the conversion of such part of the assets as was represented by his stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 190.*]</p> <p>3. Husband and Wife (§ 210*) — Wife’s Separate Property — Action—Parties.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 1200, provides that a husband may sue, either alone or jointly with his wife, for the recovery of any separate property of the wife, and, in case he fails or neglects to do so, that she may, by authority of court, sue in her own name. A married woman, owning one-half the capital stock of a theater company, brought suit against other stockholders, either for the benefit of the corporation, or, in the alternative, for her own benefit, and joined her husband ns plaintiff in the action. Held that, as any judgment would be binding on both the husband and wife, there was no misjoinder of parties.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Dec. Dig. § 210.*] »</p> <p>4. Limitation of Actions (§ 127*) — Computation op Period — Commencement op Action-Amendment op Pleading.</p> <p>Where an amended petition, in an action by a stockholder against other stockholders to recover for the benefit of the corporation or for himself, assets alleged to have been converted by defendants, was filed November, 1910, and purported to be an amendment of the original petition filed November, 1908, and September, 1908, was the date upon which defendants were alleged to have illegally acquired possession of the assets of the corporation, the action was not barred by the two-year statute Of limitations.</p> <p>[Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]</p>

J. Oxford, Judge. Action by Mrs. Lottie Perry and another against J. N. Groesbeeck, Sr., and others, for partition and for an accounting, in which Kate Frank intervened to cancel a deed of her separate property.

B. Daviss, Judge. Action by J. N. Scott against J. J. Beck-ham and John Keys, in which other parties were vouched in by defendant Beckham, for the purpose of settling their interest. From a judgment for plaintiff, defendants Beck-ham and Keys appeal.

<p>Appeal from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by the Sanders State Bank against W. E. Hawkins and another. From a judgment of dismissal, plaintiff appeals.</p>

<p>1. Master and Servant (§ 278*) — Injuries— Actions — Evidence.</p> <p>Evidence, in an action by a railroad fireman for injuries suffered by the engine being started while he was under the drivers cleaning the ash pan, held to show that the engineer knew that plaintiff was cleaning the ash pan when he started the engine.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Dec. Dig. § 278.*]</p> <p>2. Appeal and Error (§ 1066*) — Harmless Error — Instructions.</p> <p>In an action for injuries to a fireman while raising the ash pan by a lever by the engineer starting the engine without warning, any error in hypothesizing a charge on negligence on the fact that the engineer “in the exercise of ordinary care should have known at the time he moved the engine” that plaintiff was cleaning the ash pan, when the petition alleged that the engineer well knew that plaintiff was in a position of peril in doing the work and negligently moved the engine without warning him that it was being moved, was not reversible error, where the evidence conclusively showed that the engineer knew when he moved the engine that plaintiff was engaged in emptying the ash pan.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1006.*]</p> <p>3. TRIAL (§ 191*)— INSTRUCTIONS ASSUMING Facts — Province or Jury.</p> <p>In an action for injuries to a fireman by the engineer suddenly starting the engine while he was beneath the drivers raising the ash pan, in instructing that if in the discharge of his duties as fireman it became necessary for plaintiff to empty the ash pan, and if, when the train was stopped, plaintiff alighted from his engine and commenced emptying the pan, and the jury further believed from the evidence, that, while the plaintiff was so engaged, the engineer caused the engine to be moved, whereby plaintiff was injured, and if the jury further believed that the engineer knew, or in the exercise of ordinary care should have known, when he moved the engine, that plaintiff was engaged in cleaning the ash pan, and if the jury further believed that, in moving the engine at the time and under the' circumstances they find from the evidence such engineer did move such engine, he was guilty of negligence, they should find for plaintiff. Meld, that the instruction was not objectionable as assuming that plaintiff was necessarily in a place of danger while emptying the ash pan.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431; Dec. Dig. § 191.*]</p> <p>4. Trial (§ 192*) — Instructions—Assuming Facts.</p> <p>An instruction may assume a fact which is undisputed.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.*]</p> <p>5. Trial (§ 192*) — Instructions—Assuming Facts.</p> <p>Where the evidence in a locomotive fireman’s action for personal injuries by starting the engine, while the plaintiff was under the drivers cleaning the ash pan, conclusively showed that the engineer knew when he moved the engine that plaintiff was then emptying the ash pan, the court could assume in instructing that some injury should have been anticipated by the engineer to result from starting the engine while plaintiff was in that position.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.*]</p> <p>6. Trial (§ 256*) — Instructions—Requests —Omissions.</p> <p>Any error, in an instruction in a locomotive fireman’s action for personal injuries by starting the engine, while plaintiff was under the drivers cleaning the ash pan, in omitting the requirement that the engineer should have anticipated injury to plaintiff as a result of the removal of the engine in order to make his act negligence, was not affirmative error in the absence of the request of a special charge supplying the omission.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>7. Trial (§ 252*) — Instructions—Contributory Negligence — Applicability to Evidence.</p> <p>Where the undisputed evidence showed that, when a locomotive fireman was injured while cleaning an ash pan at the side of an engine, he was doing the work in the usual way and would not have been injured except for the engineer’s negligence in starting the engine without warning, a requested charge was properly refused that if the jury believed that there was a safe way for plaintiff to do the work, and a way to do it which was attended with danger, and plaintiff chose the latter, they should find for defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]</p>

<p>Appeal from District Court, Harris County: Norman G. Kittrell, Judge.</p> <p>Action by J. T. McCarthy and another against the Texas Loan & Guaranty Company. From a judgment for defendant,</p> <p>plaintiffs appeal.</p>

<p>Error to District Court, Harris County; W. P. Hamblen, Judge.</p> <p>Trespass to try title by 8. A. D. McClellan against F. E. Pye. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by tbe Harris Millinery Company against Mrs. L. Melcber and others. From a judgment sustaining defendants’ plea of privilege to be sued in another county, plaintiff appeals.</p>

L. Camp, Judge. Suit for partition by L. Thulemeyer against Dorothea Hoefling, Mary Hoefling, and others, with cross-action by Mary Hoefling. Decree for distribution to the plaintiff and others, after payment of the claim of Mary Hoefling, and Dorothea Hoefling and others appeal.

<p>1. Carriers (§ 280*) — Injury to Passenger —Mail Clerk.</p> <p>The care which a carrier of passengers is required to use is that which a very cautious, prudent, and competent person would exercise under the same circumstances.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1106; Dec. Dig. § 280.*]</p> <p>2. Carriers (§ 316*) — Injury to Passenger — Mail Clerk — Presumption op Negligence.</p> <p>AVhere plaintiff, a mail clerk on defendant’s train, was injured while attempting to alight at what he believed was the final stop. of the train by a sudden movement thereof without warning, plaintiff being a passenger, there was a presumption arising from the circumstances surrounding the accident that defendant was negligent.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1283-1294; Dec. Dig. § 316.*]</p> <p>3. CARRIERS (§ 320*) — PASSENGER—EVIDENCE.</p> <p>Where, in an action for injuries to a passenger by the sudden starting of a train as he was attempting to alight, plaintiff and another witness testified that they heard no bell or warning given of the contemplated starting of the train, evidence of two members of the crew that to the best of their knowledge warning was given by the ringing of the bell after the train had made its first stop, and did not move after making its final stop, did not establish, as a matter of law, that the warning was given.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 320.*]</p> <p>4. Garbiers (§ 320*) — Injury to Passengers — Care Required — Question for Jury. . , x</p> <p>. x Where a passenger tram was stopped to open a crossing before making its final stop, and plaintiff, a mail clerk, was injured while attempting to alight either at the first or final stop by a sudden movement of the train without warning, whether the care required of the carrier required it to see that no person was about to leave the train before starting the same was for the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 320.*]</p> <p>On Rehearing.</p> <p>5. Carriers (§ 320*) — Injury to Passengers —Time to Alight — Sudden Movement oe Train.</p> <p>A sudden movement of the train after having reached its final stop without warning, causing a mail clerk to fall therefrom and sustain injuries, is sufficient. to raise an issue of actionable negligence against the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 320.*]</p>

<p>1. Homestead (§ 146*)—Surviving Wife— Mortgages—Validity.</p> <p>A lot, dedicated by a widow as a homestead after the death of her husband, may be mortgaged by her, though she has minor children, and is occupying it as a homestead, whether the lot was acquired by her with her separate funds, or was the community property of herself and husband, notwithstanding Const, art. 16, § 50, providing that no mortgage on the homestead, except for certain purposes, whether created by the husband alone or with his wife, shall be valid.</p> <p>[Ed. Note.—For other cases, see Homestead, Cent. Dig. § 257; Dec. Dig. § 146.*]</p> <p>2. Witnesses (§ 150*) — Competency — Parties to Action by Heir.</p> <p>An action by one as surviving widow and sole heir of her deceased husband, though she be entitled to half the property sued for as survivor, is within Rev. St. 1895, ar't. 2302, prohibiting parties to a suit, brought by or against administrators, heirs, or representatives of a decedent, from testifying to transactions with him, so that defendants may not testify to payments made to deceased.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 653-657; Dec. Dig. § 150.*]</p>

<p>1. Appeal and Error (§ 302*) — Motion foe New T'eial — Statement of Grounds.</p> <p>A motion for a new trial on the ground of the insufficiency of the evidence to support the verdict, which did not point out wherein the evidence was insufficient, was too general to support an assignment of error on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.*]</p> <p>2. Money Received (§ 9*) — Third Persons.</p> <p>The fact that plaintiff loaned money to another which was used to obtain material placed upon defendant’s land would not of itself make defendant liable to plaintiff for such money, in absence of a showing of agency.</p> <p>[Ed. Note. — For other cases, see Money Received, Cent. Dig. § 31; Dec. Dig. § 9.*]</p> <p>3. Specific Performance (§ 121*) — Actions —Sufficiency of Evidence — Power to Convey.</p> <p>Evidence, in an action for specific performance of land under an agreement to convey in consideration of services, etc., held not to show that plaintiff had been threatened with ejection from the land, or that defendant has placed it beyond his power to convey as agreed.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 387-395; Dec. Dig. § 121.*]</p> <p>4. Vendor and Purchaser (§ 337*) — Damages for Improvements.</p> <p>Since a purchaser under a parol contract to sell land, who takes possession and makes valuable improvements thereon, is entitled to a decree of specific performance, he cannot abandon the land and sue for the value of his improvements, unless the vendor is unable to give title, though, were that the case, he could recover damages for the injury caused by the vendor’s failure to convey.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 985-990; Dec. Dig. § 337.*]</p> <p>5. Specific Performance (§ 12*) —Contracts Enforceable — Location of Land.</p> <p>A suit cannot be maintained in this state to compel specific performance of a contract to convey land located in the republic of Mexico.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 26-29; Dec. Dig. § 12.*]</p> <p>6. Evidence (§ 81*) — Presumptions — Foreign Laws.</p> <p>In absence of allegations or proof showing the laws of Mexico upon the subject, in a suit for specific performance, the rights of the parties must be determined by the laws of Texas, though the subject-matter of the action be situated in Mexico.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 102; Dec. Dig. § 81.*]</p> <p>7. Evidence (§ 81*)— Presumptions.</p> <p>In absence of a contrary showing, it will be presumed that the laws of the republic of Mexico are the same as those of Texas.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 102; Dec. Dig. § 81.*]</p> <p>8.Appeal and Error (§ 1177*) — Disposition — Verdict.</p> <p>Where the verdict is general, so that the appellate court cannot determine how much thereof was awarded as damages for items which plaintiff was entitled to recover, and how much for items for which he was not entitled to recover, the judgment must be reversed and remanded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507-4620; Dec. Dig. 1177.*]</p>

<p>1. Insurance (§ 336*)— Fire Policy — Provision Against Other Insurance — Violation — Eefect.</p> <p>Violation of a stipulation in a fire policy that it should be void if the insured then had or thereafter procured any other contract of insurance, whether valid or not, on the property covered, either in whole or in part, by the policy, forfeits the insurance.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 856-874; Dec. Dig. § 336.*]</p> <p>2. Insurance (§ 336*) — Fire Policy — Assignment — New Insurance — “Insured.”</p> <p>Plaintiff having procured a policy on a dwelling house, containing a stipulation that, if “the insured” procured other insurance on the property, the policy should be void, sold the property to the wife of H., retaining a lien for the unpaid portion of the price, and, with the insurer’s consent, assigned the policy, to which a rider was attached, providing that any. loss due the assured under the policy should be payable to plaintiff as her interest might appear. H. without the knowledge or consent of plaintiff or the insurer procured additional insurance on the property payable to plaintiff as her interest might appear. Held, that the conveyance and the assignment of the policy with insurer’s consent created a new contract of insurance between defendant and the grantee, who thereupon became the “insured” within the meaning of the provision against additional insurance.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 856-874; Dec. Dig. § 336.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3681.]</p> <p>3. Insurance (§ 311*) — Fire Policy — Construction — ‘ ‘Assured . ’ ’</p> <p>A fire policy provided that it should be void if “the insured” should have or procure any other contract of insurance on the property covered. Plaintiff, having sold the property on time, assigned the policy with the insurer’s consent, a rider being added providing that any loss ascertained and proven to be due “assured” under the policy should be payable to plaintiff as her interest might appear. Following the provision in the policy against additional insurance was a provision that if with the consent of the insurer an interest under the policy shall exist in favor of a mortgagee, or any other person, or corporation having an interest in the subject of the insurance other than the interest of the insured, the conditions “hereinbefore contained shall apply m the manner expressed in such provisions, and conditions of insurance relating to such interest as shall be written upon, attached, or appended to the policy.” Held, that the conditions referred to in such provision were not those contained in the rider, but those contained in the policy, and the grantee of the property, and not the grantor, being the “assured” within the rider, plaintiff could only recover in case of loss such an amount as could be recovered by the grantee, and was therefore subject to the defense that the policy was void because of the grantee procuring additional insurance without the insurer’s consent.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 704-70S; Dec. Dig. § 311*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 591, 592.]</p>

<p>Appeal from District Court, El Paso County; James R. Harper, Judge.</p> <p>Action by G. P. Sorey against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.</p>

T. Simmons, Judge. Action by John Mitchell against the J. Rosenbaum Grain Company. Judgment for plaintiff, and defendant appeals. The main track of the Chicago, Rock Island & Gulf Railway Company in North Ft. Worth -ran north and south. East of this track, and connecting with it, that company owned and used in the operation of its line of railway three other tracks, known as Nos. 1,2, and 3.

Seeligson, Judge. Action by O. B. Watters against R. A. Wiseman and others. There was a judgment for plaintiff, and the first-named defendant brings error.

<p>Appeal from District Court, Val Verde County; W. C. Douglas, Judge.</p> <p>Action by A. Grenig against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Kendall County; R. H. Burney, Judge.</p> <p>Action between Susie Brown Wentworth, executrix, and Edward Wentworth for partition. From a judgment for partition, the former appeals.</p>

Hooker,. Judge. ■ Action between the Waterman Lumber & Supply Company and L. Wheeler. From an adverse judgment, said company appealed. Wheeler moves to affirm, on certificate, the judgment.

<p>Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.</p> <p>Action by the Parker-Washington Company against J. P. Nelson and another, and defendants sought cross-relief against the San Antonio Traction Company. From a judgment against defendants on their cross-bill, they appeal.</p>

<p>Appeal from District Court, Wood County; R. W. Simpson, Judge.</p> <p>Action by W. A. Matkin against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hill County; W. C. Wear, Judge.</p> <p>Action by C. G. Doyal against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Fraud (§ 53*) — Exchange os Personal Property — Evidence.</p> <p>In an action for fraud inducing an exchange of property for a mule claimed by plaintiff to be worthless, evidence of the price paid by defendant for the mule about two months prior to the exchange was admissible on thequestion of extrinsic value.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 49; Dec. Dig. § 53.*]</p> <p>2. Trial (§ 244*) — Instructions —Repetition.</p> <p>Where the court in its instructions directed the jury’s attention to a fact testified to by a witness, it was error to again call the jury’s attention to that fact.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]</p> <p>3. Trial (§ 194*) — Exchange op Personal Property — Evidence—Instructions.</p> <p>Where, in an action for fraud inducing an exchange of property for a mule claimed by plaintiff to be worthless, a witness testified on direct examination that, according to his best judgment, the mule was one he had traded for about four years before, and that it was worthless when he owned it, and stated on cross-examination that he could not swear positively that it was the same mule, a charge that the evidence of the witness was admitted to show the true condition of the mule, but that the jury would not consider the same as binding on the defendant, was erroneous, as withdrawing the evidence from the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 439-466; Dec. Dig. § 194.*]</p>

<p>Appeal from District Court, Hale County; L. S. Kinder, Judge.</p> <p>Action by John E. Mclntire, guardian, against the First State Bank of Hale Center. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error (§ 1002*) —Verdict— CONOLUSIVENESS.</p> <p>A verdict on conflicting testimony will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§■ '3935-3937; Dec. Dig. § 1002.*]</p> <p>2. Trial (§ 234*) —Instructions — Preponderance op Evidence.</p> <p>Where the case depended on the credibility of the witnesses, and the court charged that plaintiff must recover on a preponderance of the testimony, and stated in submitting facts justifying a recovery by plaintiff, “if you believe from a preponderance of the evidence,” the refusal to charge that the burden was on plaintiff to prove material allegations by a preponderance of the evidence was not erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent Dig. §§ 534-538; Dec. Dig. § 234.*]</p> <p>3. Trial (§ 242*) — Instructions—Misleading Instructions.</p> <p>An instruction that plaintiff must recover on a preponderance of the evidence, and statements in subsequent paragraphs of the instructions submitting facts justifying a recovery by plaintiff, “if you believe from a preponderance of the evidence,” are not misleading as leading the jury to believe that they are peremptorily instructed to find for plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dee. Dig. § 242.*]</p> <p>4. Appeal and Error (§ 1062*) — Harmless Error — Erroneous Instructions.</p> <p>Where the verdict was based on a contract between the parties, the error in submitting the right to recover on a quantum meruit was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*]</p> <p>5. Trial (§ 260*) — Instructions—Refusal to Give Instructions Covered by the Charge Given.</p> <p>It is not error to refuse a requested charge in effect the' same as that given by the court, though a party is entitled to an affirmative presentation of his theory of the case.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 260.*]</p> <p>6. Appeal and Error (§ 1068*) — Harmless Error — Refusal of Instructions.</p> <p>Where an architect suing for compensation for preparing plans and specifications for a building did not recover any sum as compensation for superintending the construction of the building, the refusal to charge that he could not recover for superintending was not prejudicially erroneous to defendant.</p> <p>[Ed. Note. — For other cases, see. Appeal and Error, Cent. Dig. §§ 4225-4228; Dec. Dig. § 1068.*]</p> <p>7. Trial (§ 296*) —Instructions—Misleading Instructions.</p> <p>Where the court clearly charged defendant’s theory that, if plaintiff, suing for compensation for preparing specifications for a building, accepted the employment on the agreement that he should not be paid unless specified conditions were performed, the failure to include in another paragraph of the charge the facts which would authorize a verdict for defendant was not misleading.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713; Dec. Dig. § 296.*]</p> <p>On Rehearing.</p> <p>8. Work and Dabor (§ 4*) — Implied Promise.</p> <p>Where an architect made plans and specifications for another, the law implied a promise to pay for the work done.</p> <p>[Ed. Note. — For other cases, see Work and Labor, Dec. Dig. § 4.*]</p> <p>9. Contracts (§ 322*) — Action for Services —Confession and Avoidance — Burden of Proof.</p> <p>Where an architect proved that he prepared plans and specifications for another, the employer, asserting that he was not to pay for the work except on specified conditions, had the burden of proving that such conditions had not been performed.</p> <p>[Ed. Note. — For other cases,- see Contracts, Dec. Dig. § 322.*]</p>

<p>Appeal from District Court, Terry County; L. S. Kinder, Judge.</p> <p>Trespass to try title by James R. De Lay and another against George C. Wolffarth. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Damages (§' 67*) — Elements—Interest.</p> <p>A percentage of the value of the property, claimed as interest in an action for damages, is in fact part of the damages and not interest eo nomine.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 186, 136; Dec. Dig. § 67.*]</p> <p>2. Courts (§ 121*) — Cotjntt Courts — Jurisdiction — Amount in Controversy — Amendments.</p> <p>The county court is without jurisdiction if, at the time the original petition was filed, the total amount sued for, including interest, exceeds $1,000, and an amendment thereafter filed, seeking to recover less than $1,000, would not confer jurisdiction; but where the entire amount, including a percentage designated as interest, was less than $1,000 at the time the original suit was filed, the fact that thereafter the damage was increased by the lapse of time to a sum in excess of $1,000, as shown by amended petitions, did not deprive the county court of the power to render judgment for any sum within the limit of its jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 418-428; Dec. Dig. § 121.*]</p> <p>3. Limitation of Actions (§ 127*) — Commencement of Action — Amendment of Pleading — NEW Cause of Action.</p> <p>The petition, in an action for damages to two cars of bananas, received by defendant for transportation in October and November, 1906, was filed in January, 1908, and plaintiff thereafter and until October, 1909, filed amended and supplemental petitions, in all of which it was alleged that the cars of bananas sued for were the same cars for which damages were sued for in the original petition and each of the subsequent pleadings. Held, that the pleadings set out no new cause of action, and hence that the claim was not barred by the two-year statute of limitations.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 643-547; Dec. Dig. § 127.*]</p>

<p>1. Insane Persons (§ 61*)— Property — Ex-chan GE — V ALIDITY.</p> <p>The proper test of plaintiff’s right to rescission of a trade with defendants on the ground of his insanity' at the time thereof, where previously he had been adjudged insane, and confined in a state asylum, but prior to the trade had left under a furlough from its superintendent, is whether, at the time of the trade, he had sufficient mental capacity to understand and comprehend the nature and consequences of his acts, as to which defendants have the burden of proof.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 93-99; Dec. Dig. § 61.*]</p> <p>2. Trial (§ 244*) —Instructions — Unduly Emphasizing Party’s Theory.</p> <p>Where, in a suit to set aside plaintiff’s trade, on the ground of insanity at the time thereof, the court, after charging that though the jury believe plaintiff’s mind was impaired at such time, yet if they believe that at such time he had mental capacity to understand the nature and effect of such transaction, and did so understand it, verdict should be for defendant, instructs, “You are further and specially charged” that even though plaintiff may have been adjudged insane, still if the jury believe that, at the time of the trade, he had sufficiently recovered and had mental capacity to understand and comprehend the nature and consequences of his act, and did so understand, verdict should be for defendants, the words “specially charged” are not to be considered as unduly emphasizing defendants’ theory, but as pointing out an exception to the general rule of conclusiveness of a judgment.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]</p>

<p>1. Railroads (§ 400*)— Use of Streets — Rights of Pedestrians — Assumed Risk.</p> <p>Where a railroad operated tracks along a city street with a space between them habitually used by pedestrians, a person injured while so using the street was not negligent, as a matter of law, because she chose to travel it instead of other available highways.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1377; Dec. Dig. § 400.*]</p> <p>2. Railroads (§ 367*) — Right of Wav — Use —Due Care.</p> <p>While railway companies ordinarily have the exclusive right to the use of their tracks, except at public crossings, _ or such private ways as they may permit, it' is nevertheless their duty, not only for the safety of their passengers, but for that of any person who may be on the track, to keep a lookout.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1257; Dec. Dig. § 367.*]</p> <p>3. Railroads (§ 400*) — Operation in Street —Injuries to Pedestrians — Contributory Negligence.</p> <p>■ Defendant operated the railroad tracks within a street with a space between them which was commonly used by pedestrians. •Plaintiff’s wife, while traveling the space between such tracks, stopped, and after looking both ways, and seeing no train, placed her foot on one rail and tied her shoe string, and when she arose, an engine attached to a caboose struck her. The engine was running at ' a rate of speed in violation of a city speed ordinance, without signals, and if the railroad company’s employés had kept a lookout and kept the bell ringing, the injury would probably not have occurred. Held, that plaintiff’s wife was not negligent, as a matter of law.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1377; Dec. Dig. § 400.*]</p> <p>4.Railroads (§ 400*) — Persons on Track-Injuries — Discovered Peril — Questions for Jury.</p> <p>In an action for injuries to a pedestrian by being struck by a railroad train as she was walking along a track located in a city street, evidence held to require submission to the jury of the issue of discovered peril.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 400.*]</p>

<p>Sales (§ 130*} — Contraci1—Rescission.</p> <p>Where plaintiff sold defendant certain nuts which were to be shipped from New York to Texas by water and they were returned to defendant by purchasers as unmerchantable, evidence held insufficient to entitle defendant to rescind the contract therefor.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 130.*]</p>

<p>Carriers (§ 105*) — Delay in Transportation-Special Damages —Notice After Contract.</p> <p>Special damages for a carrier’s delay in transportation cannot be recovered where the carrier had no notice at the time of contract of the special facts; not even those accruing from delay occurring after it is given such notice.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. § 105.*]</p>

Error from Palo Pinto County Court; J. C. Houts, Judge. Action by C. J. Stewart against B. H. Latt-ner. Judgment for defendant on counterclaim on a cross-action, and plaintiff brings error.

<p>1. Evidence (§§ 271, 318*) — Self-Serving Declarations — Hearsay—Admissibility.</p> <p>A written declaration by a railroad conductor to the claim department of his employer that he did not push a person from a train, as alleged in an action later brought for injuries received, is inadmissible therein as self-serving and hearsay, where no attempt was made to impeach his testimony.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1068-1104, 1193-1200; Dec. Dig. §§ 271, 318.*]</p> <p>2. Evidence (§ 272*) — Admissions —Statements in Writing — Unexecuted Character.</p> <p>While, in an action for personal injuries, admissions made by the plaintiff in the presence of others are admissible as declarations against interest, a written statement neither written, signed, nor sworn to by such plaintiff, and the correctness of which he denies, is not admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Dee. Dig. § 272.*]</p> <p>3. Trial (§ 251*) — Instructions—Immaterial Issue.</p> <p>Where, in an action for injuries alleged to have been received from being pushed off a railroad train by a conductor, the question of proximate cause was not an issue, an instruction requiring the jury to find that the act of the conductor was the proximate cause of the injury was improper. '</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>4. Carriers (§ 364*) — Ejection oe Person Not a Passenger — Liability eor Injury.</p> <p>Though a person is not a passenger, the act of a conductor in pushing him from the train while it was moving at a dangerous rate of speed was negligence which would support a recovery for injuries received.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1447-1449, 1453; Dec. Dig. § 364.*]</p> <p>5. Carriers (§ 384*) — Ejection of Person Not a Passenger — Liability eor Injury-Instructions.</p> <p>In an action for injuries received by a person who went upon a train to do business with a passenger, and alleged to have been received by reason of his being pushed from the rapidly moving train by the conductor, an instruction that if the jury believed that the conductor in charge of the train in question “did not meet the plaintiff on the platform or steps, * * * or, if he did meet the plaintiff, did not shove, or push, or use any force to throw plaintiff off,” they should find for the defendant, required the jury to find tho immaterial issue as to whether the plaintiff met the conductor on the platform or steps in the affirmative before they could find in favor of plaintiff, and was improper.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 384.*]</p> <p>6. Tkiax. (§ 312*) — Misconduct of Judge — Communication with Jurors.</p> <p>Where the trial judge, upon learning by conversation with a juror after the jury had retired that they were having trouble in settling the cause, called the jury back into court without any. request on their part for instruction, in the absence of the plaintiff or his counsel, and gave them an oral instruction as to their duty or obligation to reach a verdict, it was improper and erroneous as a communication with the jury in a manner other than that prescribed by law.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. § 312.*]</p>

<p>Error from District Court, Lamar County; T. D. Montrose, Judge.</p> <p>Action by Eannie Carpenter against E. E. Carpenter. Judgment dismissing the petition, and the plaintiff brings error.</p>

<p>1. Master and Servant (§ 228*) — Injuries to Servant — Actions—Instructions.</p> <p>In an action for personal injury sustained after the passage of the act of the Thirty-First Legislature providing that contributory negligence is not a complete defense and can only result in a diminution of the amount recovered, a charge that, if plaintiff’s negligent act contributed to Ms injury, the verdict should be for the defendant, was erroneous.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 670; Dec. Dig. § 228.*]</p> <p>2. Triad (§ 296*) — Instructions—Errors— Cure by Other Instructions.</p> <p>Though the main charge correctly announced the rule that contributory negligence was not a complete defense in a personal injury action, but could result only in the diminution of the amount recovered, a special charge, instructing the jury that, if plaintiff’s negligent act contributed to his injury, there should be no recovery, was reversible error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713; Dec. Dig. 296.*]</p>

<p>1. Appeal and Error (§ 807*) — Reinstatement After Dismissal.</p> <p>Dismissal of a writ of error on defendant in error’s motion for want of prosecution is properly set aside for disposition of the cause on the merits where it appears that, on account of plaintiff in error’s insolvency, defendant in error would otherwise lose the security afforded by a supersedeas bond.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3177-3188; Dec. Dig. § 807.*]</p> <p>2. Appeal and Error (§ 753*) — Assignments op Error — Effect of Absence.</p> <p>In the absence from the record of assignments of error required by Sayles’ Ann. Civ. St. 1897, arts. 1018, 1415, and Courts of Civil Appeals rules 22, 23 (67 S. W. xv), the Court of Appeals can only determine from the record whether the pleadings support the judgment and whether that court has acquired jurisdiction; affirmance following a determination of those questions in the affirmative.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. § 753.*]</p>

<p>1.Insurance (§ 694*) — Mutual Benefit Society — Membership—Necessity of Adoption.</p> <p>The 'by-laws of a mutual benefit society expressly provided that applicants for membership should be balloted on by the local camp before being adopted, and that before becoming a member an applicant should be adopted by the camp at a regular meeting occurring at the camp hall within ‘ 60 days after the issuance of a benefit certificate. An application for membership executed by deceased stated that he understood the by-laws and mode of organization of the society, and waived all claim for benefits under his application until he should be regularly adopted, in accordance with the ritual, and until the certificate issued on the application should be delivered for adoption, and while he was in sound health, pursuant to the by-laws of the society. Held, that he never having been adopted, and his certificate never having been delivered because he failed or refused to present himself for adoption, he was not a member of the society, and his certificate was ineffectual.</p> <p>[Ed. Note. — Por other cases, see Insurance, Gent. Dig. §§ 1834, 1835; Dec." Dig. § 694.*]</p> <p>2. Insurance (§ 817*) — Mutual Benefit Society — By-Laws—Notice.</p> <p>Members of a fraternal beneficiary society are conclusively presumed to have notice of its by-laws.</p> <p>[Ed. Note. — Por other cases, see Insurance, Gent. Dig. §§ 1199-2002; Dec. Dig. § 817.*]</p> <p>3. Insurance (§ 724*) — Mutual Benefit Society — By-Laws—Waiver.</p> <p>Where the by-laws of a mutual benefit society provided that no officer or local camp was authorized to waive any of the provisions relating to the contract between a member and the society, and further prescribed that no person should become a member until duly adopted by his local camp, etc., the deputy head consul of the society, authorized to obtain new mem bers and to organize local camps, had no authority to waive such by-laws by taking the application of a member and communicating to him the secret work of the order.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 1866-1868; Dec. Dig. § 724.*]</p> <p>4. Insurance (§ 720*) — Mutual Benefit Society-Delivery of Certificate.</p> <p>Where the by-laws of a mutual benefit society provided for delivery of the member’s certificate only after his adoption in a regular meeting of the lodge, the delivery of a member’s certificate by the head officers to the clerk of the member’s local camp was not in itself sufficient to constitute a delivery to the member; he never having been legally adopted.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 1856; Dec. Dig. § 720.*]</p> <p>5. Insurance (§ 724*) — Mutual Benefit Society-Collection of Pees.</p> <p>Where an organizer of a mutual benefit society collected a membership fee on decedent’s application and also collected without official authority $1.80 camp dues of a 'beneficiary member, which sum was never paid to the camp, or received by the society, such collection did not estop the society from denying that decedent ever became a member; he never having been legally adopted.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 1866-1868; Dec. Dig. § 724.*]</p>

<p>1. Municipal Corporations (§ 703*)—Use op Streets—Regulation—Steam Engines.</p> <p>Under Dallas City Charter, c. 2, conferring on the city power to control and regulate the location and use of steam engines for the public safety, and giving the council exclusive control over the streets, etc., with the right to abate and remove obstructions, the city had power to adopt an ordinance making it unlawful to operate any steam engine over the streets, except on a railroad track, and on special permit secured from the mayor.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 703.*]</p> <p>2. Municipal Corporations (§ 703*)—Po-lice Power—Use of Streets.</p> <p>A city ordinance prohibiting the operation of steam engines over the streets except on permit issued by the mayor was a proper exercise of police power.</p> <p>[Ed. Note.—For other eases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. § 703.*]</p> <p>3. Municipal Corporations (§ 703*)—Use of Streets—Steam Rollers—Discrimination—Reasonableness.</p> <p>A city ordinance making it unlawful to operate or move any steam engine over the streets except on tracks and on special permit from the mayor, designating the streets over which the same may be transported, applied alike to all persons engaged in the operation of steam rollers, engines, etc., and was neither discriminatory nor unreasonable.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. § 703.*]</p> <p>4. Municipal Corporations (§ 703*)—Use of Streets—Permit by Mayor.</p> <p>A city ordinance prohibiting the operation of steam engines on the streets without a permit from the mayor, designating the streets over which the engine may be transported, was not invalid as giving absolute power to the mayor to arbitrarily and oppressively refuse to issue a permit, he being required to exercise his discretion in the enforcement of the ordinance for the benefit of the general public.</p> <p>[Ed. Note. — For other cases, see -Municipal Corporations, Dec. Dig. § 703.*]</p> <p>5. Municipal Corporations (§ 703*) — Usa op Streets — Ordinance—Construction— “Engine.”</p> <p>A city ordinance prohibited a movement of any engine’ propelled by steam over any street, except on tracks, but that the section should not apply to any engine used by any contractor engaged in street work, provided the consent of the mayor was first obtained to the use of the engine. Held, that a contractor’s steam roller was an engine within the meaning of such ordinance, and that it was not to be construed as limited to requiring the mayor’s consent only in case of a steam engine operated or moved on railway tracks provided for such purpose.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Dec. Dig. § 703.*</p> <p>Eor other definitions, see Words and Phrases, vol. 3, p. 2305.]</p> <p>6. Evidence (§ 113*) — Value.</p> <p>In an action for the loss of plaintiff’s horse which became frightened by the negligent operation of a steam roller on a city street, defendant’s evidence that eight months before the action plaintiff paid $175 for the horse, and in the same summer in which the horse was injured offered to sell it for $200, was inadmissible to show its market value when killed.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.*]</p> <p>7. Appeal and Error (§ 1057*)— Evidence —Exclusion—Prejudice.</p> <p>Where, in an action for loss of a horse, there was no assignment of error that the verdict was excessive, and the undisputed evidence would have justified a larger verdict, defendant was not prejudiced by the exclusion of evidence which solely referred to the value of the horse.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. § 1057.*]</p> <p>8. Municipal Corporations (§ 706*) — Frightening Animals — Use oe Streets— Steam Rollers — Instructions.</p> <p>Where plaintiff’s horse became frightened at defendant’s steam roller on the street, and received injuries making it necessary to kill him, an instruction that it was defendant’s duty to operate the roller with reasonably safe conduct and management, and in accordance with the provisions of the city ordinances, was not objectionable as placing on defendant the burden of proving that it had a permit issued by the mayor of the city authorizing the operation of the roller over the street, in accordance with the city’s ordinances.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. §. 706.*]</p> <p>9. Trial (§ 253*) — Instructions—Requisites.</p> <p>An instruction grouping the facts authorizing a verdict for plaintiff, and telling the jury that, if they found such facts, to find for plaintiff, was not objectionable because it did not require that the jury should find that plaintiff was not guilty of contributory negligence; such question being wholly covered in another instruction.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p>

<p>Appeal from Comanche County Court; J. M. Reiger, Judge.</p> <p>Action by A. C. Coker against the Ft. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Petition for writ of prohibition by Estey & Oamp and others against John Luther and others to compel the rescinding of restraining orders and writs of injunction, and to prohibit further interference with the enforcement of a judgment for relators.

<p>1. Evidence (§ 317*) — Hearsay — Depositions.</p> <p>Where, in an action for breach of warranty in the sale of a stallion, a witness in a deposition taken by plaintiff testified that witness had bred the stallion to sixteen mares, and obtained only four colts, and in a second deposition taken by defendant testified that he knew nothing of his own knowledge as to the number of colts born, but that all that he knew was that only four of the mare owners had paid for colts, and that the remainder reported that their mares bred to the horse had not brought colts, such second deposition showed that the witness’ testimony was hearsay.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]</p> <p>2. Trial (| 138*) — Questions bob Juey — Admissibility of Evidence — Admission — Question fob Court.</p> <p>The admissibility of testimony being for the court, and not for the jury, it was improper for the court to submit to the jury the question whether the answers given by a witness in his original deposition were hearsay.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 322; Dec. Dig. § 138.*]</p> <p>3. Sales (§ 425*) — Implied Warranty — Sound Pkice — Remedy oe Buyer.</p> <p>In a sale of chattels, a sound price warrants a sound article, and when a purchase is made without a special warranty, if the article proves unfit for the purpose for which it has been sold, the buyer may return it and demand a return of the purchase money, or he may keep the article, and recover as damages the difference between the value of the article as represented by the implied warranty and its real value.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§, 1207, 1208; Dec. Dig. § 425.*]</p> <p>4. Sales (§ 426*) — Special Warranty — Pee-FORMANCE.</p> <p>Where a contract for the sale of a stallion contained a written guaranty that he should be a satisfactory and sure breeder, provided he had proper care and exercise, and, if he failed, the sellers agreed to take him back and give to the buyer any stallion of equal value, provided he was returned to the sellers’ barns within a specified time in as sound and healthy condition as he was at the date of the contract, such warranty was exclusive; and hence, in case of an alleged breach thereof, the buyers were not entitled to rescind and recover back the purchase price in the absence of proof that the horse had been returned to the sellers’ barns within the time and in the manner provided by the contract.'</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1209; Dec. Dig. § 426.*]</p> <p>5. Sales (§ 426*) — Special Warranty — Breach — Return of Property.</p> <p>It, having an interest in a stallion alleged to belong to defendants O. Bros., sold a half interest to plaintiff on the representation that K. would purchase the other half, receiving a special warranty from O. Bros, that the horse was a satisfactory and sure breeder, and, if he failed in this regard, they would take him back and give him another horse of equal value, provided the horse sold was returned to O. Bros, at their barns in a sound and healthy condition by April 1, 1908. The horse not proving a sure breeder, plaintiff delivered him to K. in the fall of 1908, stating that he was not satisfactory, and that he wanted his money back. Held, that K. was not the agent of O. Bros, to receive the horse, and that plaintiff’s delivery to K. was not a compliance with the warranty.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1209; Dec. Dig. § 426.*]</p> <p>6. Appeal and Error (§ 1175*) — Review— Reversai>-Rendition of Judgment.</p> <p>Where plaintiff had not complied with a special written warranty given on the sale of a horse so as to entitle him to rescind, as against the sellers, the court should have granted the seller’s motion for judgment in an action on the warranty, and, not having done so, judgment would be rendered for them on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]</p>

A. Keeling, Judge. Action by M. J. Burke and others against the Trinity & Brazos Valley Railway Company. There was a judgment for plaintiffs, and defendant 'brings error.

<p>Commerce (§ 40*) — Interstate Commerce— Anti-Trust Laws.</p> <p>A contract for the sale of goods by a citizen of New York to a citizen of Texas, the goods to be delivered in New York to be transported to Texas by common carrier, constituted interstate commerce, and was therefore not within the anti-trust laws of Texas, and was not invalid because it contained a provision attempting to fix the price at which the goods should be resold by the buyer.</p> <p>[Ed. Note. — For other cases, see Commerce* Cent. Dig. § 29; Dec. Dig. § 40.*]</p>

<p>Appeal from District Court, Hays County; L. W. Moore, Judge.</p> <p>Action by Henry Simon against J. M. Nance. From a judgment in part for plaintiff, he appeals.</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by Osee Goodwin against Mrs. Rox-ana Gunter and others. Judgment for defendants, and plaintiff appeals.</p>

B. Hightower, Judge. Trespass to try title by S. M. Combs and. another against J. Z. Stringer and others. From a judgment in favor of defendant J. Z. Stringer, plaintiffs appeal.

W. Staton, Judge. Action by R. A. Wells against the Kansas City, Mexico & Orient Railway Company of Texas. There was a judgment for plaintiff in the justice court, and defendant appealed to the county court, and from a second judgment for plaintiff, defendant appeals.

<p>Error to District Court, San Saba County; Clarence Martin, Judge.</p> <p>Action by T. A. Gose against R. G. Coryell. Judgment for plaintiff, and defendant brings error.</p>

<p>Elections (§ 227*) — Preparation of Ballot — Dibectory Provisions.</p> <p>Under the election law of 1905 (Laws. 1905, 1st Called Sess. c. 11) § 74, requiring a voter to fold his ballot so as to expose the signature of the judge and hand it to the judge who shall number it and write thereon the number opposite the voter’s name, and stamp or write it with the word “voted” and deposit it in the' ballot box, the requirement as to the placing of the word “voted” is directory only, and if the other requirements are complied-with, the omission of that word does not invalidate the ballot.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 197-199; Dec. Dig. § 227.*]</p>

<p>1. Appeal and Error (¡? 750*) — Assignments op Eeroe — General oe Specific.</p> <p>The only error assigned was “that the trial court erred in overruling defendant’s amended motion for new trial, and riot granting him a new trial for the reasons therein set forth.” The grounds set forth in the amended motion for new trial were, first, that the court erred in overruling the appellant’s plea of privilege to be sued in H. county; second, that the court erred in overruling the appellant’s plea to the jurisdiction over the subject-matter; and third, that the court erred in overruling defendant’s application for a continuance. Held, that the assignment was too general to require consideration of the first and third grounds stated in the motion for new trial, but that the second ground urged, being fundamental error, would be considered by the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3,074-3083; Dec. Dig. § 750.*]</p> <p>On Rehearing.</p> <p>2. Appeal and Error (§ 742*) — Assignments oe Ebror — Propositions.</p> <p>Under rule 30 (67 S. W. xvi) for the Court of Civil Appeals, providing that each point under an assignment shall be stated as a proposition, unless the assignment itself discloses the point, where there are several points raised by an assignment, each point must be separately stated in the form of a proposition.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Pig. § 742.*]</p> <p>3. Appeal and ■ Error (§ 742*) — Assignments oe Eeroe — Propositions.</p> <p>Where an assignment raises more than one distinct proposition, it is not permissible to treat the assignment itself as a proposition raising all of the questions suggested, but these questions must be submitted as distinct propositions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>4. Appeal and Error (§ 742*) — Assignments oe Error — Propositions.</p> <p>An assignment of error containing within itself a correct proposition of law is insufficient where it is necessary to refer to the motion for new trial to ascertain the points raised by the assignment</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>5. Appeal and Error (§ 742*) — Assignments oe Error — Propositions.</p> <p>Even if it is permissible in an assignment of error to refer to the motion for new trial for the joints raised, if the motion presents several distinct grounds or points, the assignment must be disregarded as being multifarious.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>6. Appeal and Error (§ 742*) — Assignments o'e Error — Propositions.</p> <p>A portion of appellant’s brief covering two typewritten pages, and headed “First Proposition under First Assignment of Error,” but containing nothing except argument directed against the action of the trial court in overruling a motion for continuance, is in no sense a proposition under an assignment of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. § 3000; Dec. Dig. § 742.*]</p> <p>7. Appeal and Error (§ 736*) — Assignments oe Error — Distinct Questions.</p> <p>A single assignment of error may raise many distinct and separate propositions, provided the propositions following the assignment are separately stated.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. § 736.*]</p>

<p>RailRoads (§ 443*)—Crossing Accident-Killing Animals.</p> <p>In an action for killing plaintiff’s horses at a crossing, evidence held insufficient to show actionable negligence on the part of the railroad company.</p> <p>[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 443.*]</p>

<p>Appeal from Guadalupe County Court; J. M. Woods, Judge.</p> <p>Action by N. A. Hobbs and another against R. E. Robbins and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by Manuel Yndo against Antonio Rivas and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. PRINCIPAL AND' SURETY (§ 194*) — COSURETIES — Contribution — Sureties Held — Sureties Without Jurisdiction.</p> <p>Sureties residing beyond the jurisdiction of the court are not considered in determining what cosureties shall be held to contribution.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 605-623; Dec. Dig. § 194.*]</p> <p>2. Bankruptcy (§ 426*)— Discharge — Debts Excepted — Liabilities por Fraud.</p> <p>Act Cong. Feb. 5, 1903, c. 487, § 5, 32 Stat. 798 (U. S. Comp. St. Supp. 1909, p. 1310), excepting from the effect of a discharge in bankruptcy any liability for obtaining property by false representations, excepts a liability incurred by obtaining another surety for the bankrupt by false representations.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 426.*]</p> <p>3. Bankruptcy (§ 426*) — Statutes — Construction — Liberal Construction.</p> <p>Act Cong. Feb. 5, 1903, c. 487, § 5, 32 Stat. 798 (U. S. Comp. St. Supp. 1909, p. 1310), excepting from a discharge in bankruptcy any liability for obtaining property by false representations, should be liberally construed so as to prevent a discharge from relieving against a liability which would not exist but for the bankrupt’s fraudulent conduct.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 426.*]</p>

<p>Appeal from District Court, Lamar County; T. D. Montrose, Judge.</p> <p>Action by the City of Paris against E. F. Bray and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Upshur County Court; W. A. Phillips, Judge.</p> <p>Action between J. H. Gosden and others and J. J. Hammock and others. Prom the judgment, J. H. Gosden and others appeal.</p>

<p>1. Appeal and Error (§ 544*) — Questions Presented eor Review — Bill oe Exceptions — Necessity.</p> <p>In the absence of a bill of exceptions, the denial of a continuance will not be reviewed on appeal, since, under the direct provisions of District Court Rule No. 55 (67 S.- W. p. xxiv), such rulings can become a part of the record only when preserved in the bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 544.*]</p> <p>2. Appeal and Error (§ 548*) — Review— Bill oe Exceptions — Necessity.</p> <p>In the absence of a bill of exceptions, the admission of evidence cannot be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2436; Dee. Dig. § 548.*]</p> <p>3.Corporations (§ 513*) — Actions—Pleading — Change oe Name.</p> <p>In an action by a lumber corporation on an account for lumber sold, a petition alleging that since the sale the name of the corporation had been changed, but that no other change had been made, and that the present corporation succeeded to all the rights, liabilities, and contracts of the former corporation, was not defective in failing to allege an assignment of the account.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 513.*]</p>

L. Camp, Judge. Bill of interpleader by Josephine H. Frost against J. P. Withers, J. H. Kirkpatrick, and Charles Armstrong. The first and last named defendants interpleaded, and, from a judgment for the last, the first-named defendant appeals.

L. Camp, Judge. Action by George L. Hume, for whom, after his death, Winifred Hume, his executrix, ivas substituted, against Leon Le Compte and others. From a judgment for defendants plaintiff appeals.

<p>1. Acknowledgment (§ 56*) — Deed by Mab-bied Woman — Fbaud.</p> <p>Though the deed of a wife be properly certified by the notary taking her acknowledgment, it may be avoided by her, if the acknowledgment does not speak the truth, and was obtained by fraud, provided the grantee had notice before he paid the purchase money.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. § 315; Dec. Dig. § 56.*]</p> <p>2. Husband and Wife (§ 15*) — Conveyance by Wife — Delivery of Deed — Voidness fob Fbaud.</p> <p>If execution of a deed by a married woman was procured by fraud, she might attack it, though it had been lawfully delivered, the same as if possession of it had been obtained and record made of it by fraud, so that, in such case, question of delivery is immaterial.</p> <p>[Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 90-99; Dec. Dig. § 15.*]</p> <p>3. Pbincipal and Agent (§ 24*) — Existence of Agency — Question fob Juey.</p> <p>Evidence of existence of agency held sufficient to carry the question to the jury.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 722, 723; Dec. Dig. § 24.*]</p> <p>4. Pbincipal and Agent (§ 22*) — Existence of Agency — Evidence.</p> <p>Declarations of an agent are not admissible to prove agency, and should not be admitted in evidence until the relation is established prima facie by other proof.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*]</p> <p>5. PRINCIPAL AND AGENT (§§ 22,.23*) — EXISTENCE of Relation — Evidence.</p> <p>Evidence held to make a prima facie showing of agency, so that it was not error to admit testimony of agents containing statements as to their agency.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. §§ 22, 23.*]</p> <p>6. Fraud (§ 64*) — Questions foe Jury.</p> <p>Fraud in fact is peculiarly within the province of the jury.</p> <p>[Ed. Note. — For other cases, see Fraud, Dec. Dig. § 64.*]</p>

<p>1. Bbokebs (§ 88*) — Actions fob Compensation-Commissions.</p> <p>In an action for a broker’s commission for procuring a tenant for defendant’s premises, an instruction that plaintiff should recover if defendant agreed to pay the plaintiff a commission for securing a tenant, and plaintiff secured such tenant, and introduced him to defendant “for the purpose and with the intent of leasing” the premises in question “for a period of 10 years,” and that afterward the defendant did rent such premises to that person, or if no contract was made between plaintiff and defendant, if plaintiff, with the consent of defendant, procured a tenant for the premises, and defendant accepted such services, was misleading, as the intent of the broker in introducing the prospective tenant was not a sufficient basis for the recovery, in the absence of a contract to pay a commission and a showing that the party introduced was able and willing to make a lease for 10 years.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent Dig. §§ 121-127; Dec. Dig. § 88.*]</p> <p>2. BrokeRS (§ 40*)—Actions for Compensation-Production of Tenant.</p> <p>That a party presented by plaintiff, a broker, entered into a lease with defendant, will not support a recovery of commissions, unless plaintiff was employed to procure a tenant.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 38; Dec. Dig. § 40.*]</p> <p>3. Brokers (§ 54*)—Actions for Compensation-Production of Tenant.</p> <p>To entitle a broker to a commission for presenting a party to make a lease as per contract with the owner of property, the party must be ready and willing to enter into such a lease.</p> <p>[Ed. Note.—Eor other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*]</p> <p>Rainey, C. X, dissenting.</p>

<p>Appeal from District Court, Clay County; A. H. Carrigan, Judge.</p> <p>Suit by T. H. Nichols against Joseph A. Dunham and another; S. E. Schmittou being made a party on suggestion of defendants. From the judgment Schmittou appeals.</p>

<p>Appeal from District Court, Lamar County; T. D. Montrose, Judge.</p> <p>Action by Mrs. Georgia Boston and others against the Paris & Great Northern Railroad Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Witnesses (§ 149*) — Competency—Action Against Executors ok I-Ieiks — Conversations and Transactions with Decedent.</p> <p>Though defendant was executrix and heir of P. and sole beneficiary under his will, yet the action being against her personally, and it being alleged that, as trustee for plaintiffs, P. invested money belonging to them in property, taking the title in his own name, and that he never repudiated the trust, and that defendant has taken possession of the property, and has refused to deliver it to them, and the will not having purported to dispose of the trust property, Sayles’ Ann. Civ. St. 1897, art. 2802, providing that in actions by or against executors, “in which judgment may be rendered for or against them -as such,” neither party may testify to a transaction with or statement by deceased; and that this shall apply to an action by or against heirs of a decedent, arising out, of any transaction with him, does not apply, so as to render plaintiffs incompetent to testify to conversations, and transactions with P.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 651, 652; Dec. Dig. § 149.*]</p> <p>2. Witnesses (§ 159*) — Competency—Actions • Against Executors or Heirs — Conversations and Transactions with Decedent.</p> <p>That plaintiffs are claiming as heirs of a decedent, other than the one whose statements they seek to prove, in no wise makes applicable, where otherwise inapplicable, Sayles’ Ann. Civ. St. 1S97, art. 2802, as to incompetency of a party to an action by or against executors or heirs to testify to a transaction with or statement by deceased.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 666-669, 671-682; Dee. Dig. § 159.*]</p> <p>3. Estoppel (§ 88*) — By Deed — Covenants— After-Acquired Title.</p> <p>A covenant of general warranty in a deed passes to the covenantee any title to the land subsequently acquired by the covenantor.</p> <p>[Ed. Note; — Eor other cases, see Estoppel, Cent. Dig. §§ 99-107; Dec. Dig. § 38.*]</p> <p>4. Limitation op Actions (§ 103*) — Resulting Trusts.</p> <p>In case of a resulting trust, the statute does not begin to run against an action by the cestuis que trust till repudiation of the trust by the trustee, and notice to them thereof.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 506-510; Dee. Dig. § 103.*]</p>

<p>1. Homestead (§ 57*) — -Burden oj? Establishment.</p> <p>In trespass to try title, in which plaintiff claimed under a purchase at a sale under a trust deed executed by defendant, the burden was upon defendant to show that the property was a homestead, making the trust deed void.</p> <p>[Ed. Note. — For other eases, see Homestead, Cent. Dig. § 84; Dee. Dig. 57.*]</p> <p>2. Appeal and Error (§ 1012*) — Review-Findings— Conclusiveness.</p> <p>A finding should not be disturbed on appeal, if it is not so opposed to the weight of the evidence as to he without support.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 3990-3992; Dec. Dig. § 1012.*]</p> <p>3. Homestead (§ 57*) — Evidence.</p> <p>Evidence, in trespass to try title, in which plaintiff claimed under a purchase at a sale under a trust deed executed by defendant, held to sustain a finding that the land covered by the trust deed was not defendant’s homestead.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 85; Dec. Dig. § 57.*]</p> <p>4. Trial (§ 382*) — Trial bt Court.</p> <p>In a trial b^. court,_ the judge has all the i powers of a jury in passing upon the credibility of witnesses and the weight of the testimony, and hence may consider witness’ manner of testifying and his interest in the result.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 898; Dec. Dig. § 382.*]</p> <p>5. Evidence (§ 594*) — TJncontbadicted Evidence.</p> <p>A court or jury is not bound to accept the uneontradicted statements of a witness as true.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2431; Dec. Dig. § 594.*]</p> <p>6. Trespass to Try Title (§ 38*) — Actions— Burden op Proof.</p> <p>In trespass to try title, in which plaintiff claimed under a purchase at a sale under a trust deed executed by defendant, defendant had the burden of proving the failure of the trustee to post notices of sale as required by the trust deed.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.*]</p> <p>7. Appeal and Error (§ 1011*) — Review-Findings — Conclusiveness.</p> <p>The fact that the evidence would have supported a finding contrary to that made by the trial court would not justify a reversal of his judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]</p> <p>8. Mortgages (§ 356*) — Sales—Posting of Notices — Presumptions.</p> <p>It is presumed, in support of a sale under a trust deed, that the proceedings at the sale were regular, where the trustee’s deed is regular in form and purports to be executed pursuant to the power conferred in the trust deed, so that in such case it would be presumed that notices of sale were posted in a manner sufficient to sustain the validity of the sale, though it is not presumed that the trustee posted the notice of sale in person, or that it was done in his presence under his direction, unless the trust deed required the posting to be in that way.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1063-1067; Dee. Dig. § 356.*]</p> <p>9. Appeal and Error (§ 931*) — Review—Presumptions — Aiding Finding.</p> <p>In trespass to try title, in which plaintiff claimed under a purchase at a sale under a trust deed executed by defendant, which sale defendant claimed was void because notice of sale was not posted, if a .recital in the trustee’s deed that notice of sale had been duly posted was necessary to sustain the trial court’s finding that the notice of sale was duly posted, the appellate court must assume that such a recital was contained in the deed, it being before the trial court so that it presumably was governed by its legal effect.</p> <p>[Ed. Note. — F'or other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.*]</p> <p>10. Mortgages (§ 356*) — Trust Deeds — Posting Notice of Sale.</p> <p>A provision of a trust deed requiring notice of sale to be posted did not contemplate that the trustee should personally post the notice.</p> <p>[Ed. Note — For other cases, see Mortgages, Cent. Dig. §§ 1063-1067; Dee. Dig. § 356.*]</p> <p>11. Trespass to Try Title (§ 41*) — Actions —Sufficiency of Evidence.</p> <p>Evidence in trespass to try title, in which plaintiff claimed under a sale under, a trust deed executed by defendant, held to sustain a finding that the presumption that notice of sale was duly posted was not overcome.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.*]</p>

<p>1. Appeal and Error (§ 742*) — Assignments of Error — Refusal of Instructions.</p> <p>An assignment of error complaining of the refusal to properly instruct on an issue raised in a special charge will not be considered where appellant does not in the statement or argument inform the appellate court whether or not the issue thus raised has been presented in the general or in a special charge.</p> <p>[Ed. Note. — Por other eases, see Appeal and Error, Cent. Dig. §i 3000; Dec. Dig. § 742.*J</p> <p>2. Trial (§ 256*) — Instructions—Requests —Necessity.</p> <p>Where the court in portions of its charge covers in a general way issues raised by the pleadings, of which there is evidence, it need not be more specific in grouping the facts bearing on an issue, unless requested by a special charge correct in form, and applicable to the case.</p> <p>[Ed. Note. — Por other eases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>3. Trial (§ 256*) — Instructions—Requests— Necessity.</p> <p>Where, in an action for injuries to a passenger while alighting, the negligence of a third person was not specially pleaded, and the testimony as to the acts of the third person was admissible only under the general issue as to liability, and such issue was presented in a general way in the main charge, the failure to do more was not affirmative error, in the absence of any requested instructions thereon.</p> <p>[Ed. Note. — Por other eases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>4. Trial (§ 260*) — Instructions—Requests.</p> <p>Where, in an action for injuries to a-passenger while alighting, the court, at the request of the carrier, charged that, if the train stopped at the station a reasonably sufficient length of time for the passenger to alight in safety in the exercise of ordinary diligence, and she failed to do so, and attempted to alight after the train started, the carrier was not liable, the refusal to give other charges requested by the carrier on the subject of contributory negligence, on the termination of the relation of carrier and passenger, and the duty of the carrier after such termination, was not erroneous under the rule that, where a party requests more than one special charge covering an issue and the court gives one general in its terms, the party cannot complain because of the refusal to give another which is more specific.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>5. Carriers (§ 318*) — Injuries to Passengers — Pailure to Assist Passenger to Alight — Evidence.</p> <p>In an action for injuries to a passenger while alighting, evidence held to authorize a finding that the conductor saw, or might have seen, the passenger while attempting to alight, and that she required assistance in alighting because of her physical condition.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 318.*]</p> <p>6. Trial (§ 234*) — Instructions—Misleading Instruction.</p> <p>A charge in an action for injuries to a passenger while alighting that the burden was on the passenger to establish his case, but, where the burden has been met, the carrier, to defeat a recovery, must show by preponderance of the evidence that the passenger was guilty of some one or more of the acts pleaded by it, and that such acts were negligent and contributed to the injury, etc., is not objectionable as misleading in causing the jury to believe that they must not consider the evidence of the passenger’s witnesses on the issue of her negligence.</p> <p>[Ed. Note. — Eor other cases, see Trial, Dec. Dig. § 234.*]</p> <p>7. Trial (§ 233*) — Instructions—Reference to Pleadings.</p> <p>Where, in an action against a carrier for injuries to a passenger while alighting, contributory negligence was the only defense pleaded beyond a general denial, a charge that the 'burden was on the carrier to show that the passenger was guilty of one or more of the acts pleaded by it was not objectionable, because referring the jury to the pleadings to ascertain the issues.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§. 527-530; Dec. Dig. § 233.*]</p> <p>8. Carriers (§ 344*) — Injuries to Passengers — Burden oe Proof.</p> <p>A carrier alleging that a passenger suing for personal injuries received while attempting to alight from a train at her station was guilty of contributory negligence has the burden of proving the defense.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 1399; Dec. Dig. § 344.*]</p>

<p>1. Theaters and Shows (§ 6*)—Injuries to Persons—Question eor Jury.</p> <p>In an action for (he drowning of plaintiff’s minor son in a swimming pool at defendant’s natatorium, whether defendant was negligent in failing to provide sufficient competent attendants to guard against injuries to persons using the pool held for the jury.</p> <p>[Ed. Note.—For other cases, see Theaters and Shows, Dec. Dig. § 6.*]</p> <p>2. Trial (§ 110*) —Misconduct ox Counsel —Reference to Indemnity Insurance.</p> <p>In an action for the death of plaintiff's minor son by being drowned in defendant’s swimming pool, a question asked defendant if it was not a fact that he was so convinced that it was a dangerous place that he induced an indemnity company to make a bond for him was reversible error, though not answered, and though the court directed the jury that the ■question propounded was not evidence, and that they should not consider it in arriving at their verdict, and that they should not allow the question to have any influence on them in returning a verdict.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 110.*]</p> <p>S. Theaters and Shows (§ 6*) — Natatorium —Skilled Attendants — Care Required.</p> <p>Where defendant maintained and operated a swimming pool for the benefit of the public, he was not bound to provide a sufficient number of skilled attendants to insure the safety of the patrons using the pool, but was only bound to exercise ordinary care to provide a reasonably sufficient number of competent attendants for such purpose.</p> <p>[Ed. Note. — For other cases, see Theaters and Shows, Dec. Dig. § 6.*]</p> <p>4. Theaters and Shows (§ 6*) — Dangerous Place — Instructions—Insurer.</p> <p>In an action for the death of plaintiff’s minor son in defendant’s swimming pool, an instruction that defendant was bound to provide a sufficient number of skilled attendants to “insure” the safety of patrons using the pool was ■objectionable in the use of the word “insure,” as requiring too high a degree of care.</p> <p>[Ed. Note. — For other cases, see Theaters and Shows, Dec. Dig. § 6.*]</p> <p>5. Death (§ 14*)— Statutes — Personal Liability.</p> <p>Under Rev. St. 1895, art. 3017, subd. 2, providing that an action for actual damages on account of injuries causing the death of any person may be brought when the death is caused by the wrongful act, negligence, unskillfulness, or default of another, one maintaining a swimming pool for the use of the public, in which plaintiff’s minor son was drowned, was only liable for his own negligence in failing to provide sufficient competent attendants to guard against such occurrences, but was not liable for any negligence on the part of the attendants provided in failing to promptly rescue ■decedent on his falling into danger.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 16; Dec. Dig. § 14.*]</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action between M. I. Manowitz and. George R. Gaenslen. Erom a judgment for the latter, the former appeals. On motion to dismiss appeal.</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Action by H. Y. Moore against the City of Cameron. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Lee County Court; John H. Tate, Judge.</p> <p>Suit by Hermann Dube and others against Hugo Gest and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from Runnels County Court; R. S. Griggs, Judge.</p> <p>Action by M. P. Middleton against G. W. Nibling and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Lubbock County Court; John R. McGee, Judge.</p> <p>Action by R. A. Stoker against the Pecos & Northern Texas Railway Company. From a judgment for plaintiff-, defendant appeals.</p>

<p>Appeal from District Court, Donley County; J. N. Browning, Judge.</p> <p>Action by J. H. Saunders against Connally & Shaw. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Coryell County; J. H. Arnold, Judge.</p> <p>Action by Lam & Rogers and another against the St. Louis Southwestern Railway Company of Texas. From a judgment for defendant, plaintiffs appeal.</p>

E. Amerman, Judge. Action by Raymond Dickson against Louis Seharff, as administrator of H. W. Wil-Items, deceased, and another. From an order sustaining a plea of privilege and a special exception, plaintiff appeals.

<p>1. Appeal and Ereos (§ 1062*) — !Review-Harmless Eebor.</p> <p>The submission of an issue concluded against defendant by his admission of record is not prejudicial to defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 4212-4218; Dec. Dig. § 1062.*]</p> <p>2. Sales (§ 364*) — Actions—Instructions.</p> <p>In an action upon an account for lumber sold and delivered, where defendant contended that certain shiplap and siding was included in a list of lumber, which plaintiff agreed to furnish at a stipulated price, a charge that, if defendant ordered a bill of lumber at an agreed price, which bill included the shiplap and siding, then verdict on that issue should be for defendant, and otherwise for plaintiff, was correct.</p> <p>[Ed. Note. — Por other cases, see Sales, Dec. Dig. § 364.*]</p>

<p>Appeal from District Court, Tom Green County; J. W. Timmins, Judge.</p> <p>Action by W. A. Griffin against J. A. Williams and another. From a judgment of dismissal, plaintiff appeals.</p>

<p>1. Courts (§ 121*) — County Courts — '“Jurisdiction or County Court” — Amount in</p> <p>Controversy — Interest.</p> <p>The interest recoverable on the amount of the damages for injuries to live stock during transportation from the date of the injuries to the date of the commencement of the action is recoverable as damages, and cannot be excluded in determining the jurisdiction of the county court, within Const, art. 5, § 16, limiting jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-426; Dec. Dig. § 121.*]</p> <p>2. Couets (§ 169*) — County Courts — Jurisdiction — Amount in Controversy.</p> <p>Where three carriers were jointly sued in the county court for damages to live stock during transportation, and the action against one carrier was in excess of $1,000, the amount in controversy was in excess of the jurisdiction of the county court, and the entire case must be dismissed, especially in the absence of any request by plaintiff to dismiss the action as against such carrier.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 100.*]</p>

<p>1. Appeal and Error (§ 719*) — Review—Assignment op Errors — “Error Apparent on Face op Record.”</p> <p>In an action against a city to recover a balance due on a street-paving contract, an alleged error, in that, on the undisputed evidence, plaintiff could not recover on a ground, the determination of which would require an examination of almost the entire record; including the pleadings and evidence contained in a lengthy statement of facts, was not an “error apparent on the face of the record,” within Rev. St. 1895, art. 1014, authorizing a review of such errors- without assignment.</p> <p>[Ed. Note. — For other cases, see Appeal and ■ Error, Cent. Dig. § 2968; Dec. Dig. § 719.* For other definitions, see Words and Phrases, vol. 3, p. 2459.]</p> <p>2. Municipal Corporations (§ 407*) — Street Improvements — Special Assessments.</p> <p>Const, art. 11, §§ 5-7, authorizing municipal corporations to levy taxes, etc., have no application to proceedings for the improvement of streets, the cost to be paid in cash, two-thirds to be derived from special assessments on abutting property, and the other one-third in improvement bonds of the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 407.*]</p> <p>3. Municipal Corporations (§ 864*) — Street Improvements — Special Assessments — Deficit— ‘Debt. ’ ’</p> <p>Where a city took proceedings to improve a street, the cost to be paid, two-thirds from assessments on abutting property and one-third by city bonds, that a part of the assessments levied were uncollectible did not require that the city foresee such event, and treat the uncollectible portion as a debt, within Const, art. 11, § 5, providing that, no debt shall ever be created by any city, unless at the same time provision is made to assess and annually collect a sufficient sum to pay the interest thereon and create a sinking fund of at least 2 per cent.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 864.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1864^-1886; vol. 8, p. 7628.]</p> <p>4. Municipal Corporations (§ 374*) — Street Improvements — Balance of Price —Interest.</p> <p>Where a street improvement contractor sued primarily on an improvement contract for money due for work fully performed, and to be paid for when so performed, and not on a warrant for the balance due', which merely evidenced the city treasurer’s authority to pay the money, and it appeared that the city had failed to take proper steps to protect itself against defaulting property owners assessed for the improvement, and also that moneys collected from such assessments had been illegally diverted to other purposes, the city was liable for interest on the amount due.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 374.*]</p> <p>5. Municipal Corporations (§ 374*) — Street Improvement Contract — Unpaid Balance — Action—Parties.</p> <p>Where, in a suit by a municipal contractor against a city for a balance due on an improvement contract, the city claimed that its treasurer was a defaulter to the amount of $4,-014, claimed to have been appropriated, but not paid or credited on plaintiff’s claim, the city’s claim against its treasurer was separate and distinct from plaintiff’s right of action; and hence the city was not entitled to have the treasurer made a party defendant, and to recover over against him and his bondsmen to the extent of such alleged credit, in case plaintiff recovered against the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 374.*]</p> <p>6. Appeal and Error (§ 1036*) — Review-Parties — Prejudice.</p> <p>In an action by a city contractor to recover a balance due on a street improvement contract, the city was not prejudiced by an order dismissing the city treasurer and his bondsmen, against whom the city sought to recover over for an alleged credit claimed to have been misappropriated and unpaid on such contract, where the undisputed evidence showed that such sum had been duly paid and credited.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Dee. Dig. § 1036.*]</p>

<p>1.Tbespass to Tby Title (§ 32*) — Pleading — Description oe Land.</p> <p>A petition in trespass to try title, where plaintiff claimed an undivided 160 acres of a tract of 276 acres, itself part of a survey of 354 acres, after cutting off a tract of 78 acres, which described the 354 acres as “the International & Great Northern Railroad Company Survey No. 56, situated in Houston county, Tex., about 18 miles east of the city of Crockett, and being the same patented to the said International & Great Northern Railroad Company on or about the -’day of -, A. D. -, and more fully described by Exhibits A. and B. hereto attached and made a part hereof, and being 276 acres more or less,” to which are attached exhibits containing a description, by metes and bounds, of the entire survey No. 56, and also of the 78 acres to be taken off, sufficiently identified the land.</p> <p>[Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dee. Dig. § 32.*]</p> <p>2. Trespass to Try Title (§ 52*) — Recovery op Part op Larger Tract — Damages por Cutting Timber. ,</p> <p>Where plaintiff, in trespass to try title, claims an undivided 160 acres of a tract of .276 acres, and damages for defendant’s cutting of timber on the larger tract, which had formerly been all wooded, and recovers and has set off to him 160 acres of the tract, not previously defined, except by the location of plaintiff’s improvements, which gives him a fair and equitable proportion of the land, he must take the land as it is, and is not entitled to any damages for the value of timber cut.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 83, 84; Dec, Dig. § 52.*]</p> <p>3. Adverse Possession (§ 107*) — Rights Acquired — Setting Opp Part Adversely Held.</p> <p>Where plaintiff in possession of a portion of a larger survey claims 160 acres of the survey, and also claims a specific 160 acres surveyed by a certain surveyor, and establishes his claim to an undivided 160 acres, though failing to prove a claim to a specific portion, he is entitled to have 160 acres surveyed out of the larger tract by the court.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 624; Dec. Dig. § 107.*]</p> <p>4. Trial (§ 260*) — Instructions —Refusal op Requested Instruction.</p> <p>A requested instruction which has been ■ substantially embodied in the instructions given is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>1. Railroads (§ 350*) — Crossing Accident— Negligence — Watchman — Question for Jury.</p> <p>In an action for death at a railroad crossing, whether the crossing was so dangerous as to require the railroad company, in the exercise of ordinary care, to station a flagman or watchman there, held for the jury.</p> <p>[Ed. Note. — Por other cases, see Railroads, Dec. Dig. § 350.*]</p> <p>2. Railroads (§ 307*) — Crossings—Duty to Station Watchmen.</p> <p>In order to raise an issue whether a railroad was negligent in failing to station a watchman at a public crossing at which a traveler was killed, it was not necessary to show that persons about to use the crossing were prevented from discovering. the approach of trains by permanent obstructions, it being sufficient that the location of the crossing and the conditions surrounding it, together with the switching of cars and the operation of defendant’s trains, rendered the crossing unusually hazardous.</p> <p>[Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 972-977; Dec. Dig. § 307.*]</p> <p>3. Railroads (§ 351*) — Crossing Accident —Discovered Peril — Instructions.</p> <p>Where, in an action for death at a railroad crossing, the evidence was sufficient to authorize submission of the issue of discovered peril, an instruction that if the engineer saw decedent and discovered her peril in time to have avoided striking her by the use of all means at hand to stop the locomotive, but failed to use all such means, such failure, if any, would be negligence, and if it directly and proximately caused decedent’s death, it would render defendant liable, although decedent may have been negligent, was not erroneous, as imposing a greater burden on defendant than the law required in requiring the use of all means at hand to stop the locomotive, as it required no greater duty than what was obviously necessary under the particular facts of the case.</p> <p>[Ed. Note. — Por other cases, see Railroads, Dec. Dig. § 351.*]</p> <p>4. Appeal and Error (§ 719*) — Assignments op Error — Necessity.</p> <p>An instruction to the giving of which no error is assigned cannot be considered on appeal.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982; Dec. Dig. § 719.*]</p> <p>5. Death (§ 104*) — Measure op Damages— Instructions — Pecuniary Benefits.</p> <p>In an action for death, an instruction authorizing recovery, in case the jury found for plaintiffs, of such sum as, if immediately paid, would be a fair compensation to plaintiffs for the loss of pecuniary benefits sustained by them by decedent’s death, was not erroneous in so far as it further defined pecuniary benefits to mean, not only money, but such loss as the evidence showed plaintiffs had suffered directly and proximately from decedent’s death, and which should be valued in money, including in the case of plaintiff’s minor children, the reasonable pecuniary value of nurture, care, and education, which they would receive from their deceased parent during their minority, had she lived, as being an unnecessary explanation and tending to induce the jury to believe that injured persons were entitled to compensation for any kind of injuries, or to believe that pecuniary benefits for which plaintiffs were entitled to recover included benefits other than money benefits.</p> <p>[Ed. Note. — Por other cases, see Death, Dec. Dig. § 104.*]</p> <p>6. Trial (§ 255*) — Request to Charge — Necessity.</p> <p>If defendant, in an action for death of a wife anjd mother, desired a charge, limiting plaintiffs’ recovery to the pecuniary loss which the husband sustained, to be ascertained by deducting the cost of maintaining the wife from the value of her services, he should have requested such charge.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.*]</p> <p>7. Appeal and Error (§ 525*) — Record—Instructions — Refusal—Signing by Trial Judge.</p> <p>Refusal of an instruction cannot be reviewed on appeal, where the notation of refusal is not signed by the presiding judge, as required by Rev. St. 1895, art. 1320.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent Dig. §§ 2376-2379; Dec. Dig. § 525.*]</p> <p>8. Appeal and Error (§ 827*) — Submission —Vacation—Amendment of Record. '</p> <p>Under the express provisions of Courts of Civil Appeals Rule 22, as amended March 15, 1911 (142 S. W. xii), a submission of an appeal will not be set aside in order to permit appellant to have the record amended, so as to show that a special charge requested was in fact refused.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Dec. Dig. § 827.*]</p> <p>9. Evidence (§ 49*) — Judicial Notice — Handwriting of Trial Judge.</p> <p>Where the Court of Civil Appeals was not familiar with the handwriting of the trial judge, it could not take judicial notice that the word “refused,” written on a request to charge, was written by the trial judge.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 71; Dec. Dig. § 49.*]</p> <p>10. Trial (§ 269*) — Request to Charge-Refusal — Identification.</p> <p>The writing of the word “refused,” on a request to charge by the trial judge, is insufficient to certify the refusal thereof, under Rev. St. 1895, art. 1320, providing that the presiding judge, when he refused a request, shall note distinctly such refusal, and shall subscribe his name thereto.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. § 676; Dec. Dig. § 269.*]</p> <p>11. Trial (§ 260*) — Request to Charge — Instructions Given.</p> <p>It is not error to refuse a requested charge substantially covered by instructions given.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>12. Appeal and Error (§ 1005*)-Review-Verdict — Evidence.</p> <p>A judgment will not be reversed on appeal because the verdict is not supported by the evidence or is against the evidence, where the case was properly submitted to the jury, and there is any evidence in the record which, if true, would support the verdict which has been approved by the trial court, it not appearing that the jury was influenced by passion or prej udice.</p> <p>[Ed. Note. — For other cases, sée Appeal and Error, Cent. Dig. §§ 3948-3954; Dec. Dig. § 1005.*]</p> <p>13. Trial (§ 133*) — Misconduct op Counsel —Improper Argument — Action op Court.</p> <p>Where the court instructed the jury not to consider improper remarks of plaintiff’s counsel as to the amount of the verdict they should allow, but that the court would instruct them as to the law, counsel’s statement will be regarded as without prejudice.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.*]</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by Martha Gregory and others against Charles W. Green. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by B. F. Thompson and others against the Southwestern Telegraph & Telephone Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Trial (§§ 194, 240, 244*) —Instructions— Chasse on Facts.</p> <p>Where in trespass to try title to certain -school land, the state’s evidence conflicted with that of defendant as to the time of defendant’s settlement, and tended to show that defendant had not settled at the time he made his application, and also negatived the bona fides of his settlement and occupancy of the land, the abandonment of his former home and the good faith of his settlement on the land in controversy, being sharply contested, instructions that a valid settlement on school land might be made in a tent, and the fact that defendant was the owner of a large body of other land and commodious improvements thereon, would not prevent his buying the land in question if, in purchasing it, he complied with the law as to settlement, residence, and improvements, was improper as argumentative, on the weight of the evidence, and as singling out particular facts and charging on their legal effect.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. §§ 194, 240, 244.*]</p> <p>2. Public Lands (§ 173*) — School Land-Settlement.</p> <p>In trespass to try title to certain school land, an instruction that a valid settlement on such lands for the purpose of purchasing the -same might be made in a tent was improper, ■as tending to lead the jury to believe that settlement in a tent was a compliance with the law.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 173.*]</p> <p>3. Trial (£ 229*) —Instructions—Burden oe Proof — Repetition.</p> <p>In trespass to try title, the court having .already charged on the burden of proof, it was improper to give special charges that the burden was on the state to prove by a preponderance of the evidence all the facts necessary to entitle it to recover, and that the jury would decide all issues in the case according to the preponderance of the evidence, thus laying special stress on such question.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. -Dig. § 229.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Bettie P. Kelley against the Dallas Consolidated Electric Street Railway -Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Drains (§ 18*) — Drainage District — Employment of Counsel — Statutes.</p> <p>Acts 30th Leg. c. 40, § 43, providing that all contracts with drainage commissioners shall be in writing, does not apply to a contract with an attorney for legal services which is governed by section 51, authorizing the commissioners to employ counsel on terms approved by the county judge, and an oral contract for legal services is enforceable.</p> <p>[Ed. Note. — Eor other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. § 18.*]</p>

<p>Appeal from Montgomery County Court; S. A. McCall, Judge.</p> <p>Action by Austin & Riley against the First State Bank of Montgomery. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Schools and School Districts (§ 61*)— Public Schools — Superintendent op Public Instruction.</p> <p>Under Acts 29th Leg. c. 124, § 25, providing that the Superintendent of Public Instruction shall have the right to hear and determine all appeals from the decisions of subordinate school officers, an appeal to, and a decision by the superintendent is a condition precedent to a right of any party complaining, of the decisions of a subordinate officer to bring the matter in controversy before the courts.</p> <p>[Ed. Note. — For other cases, see Schools and. School Districts, Dee. Dig. § 61.*]</p> <p>2. Appeal and Error (§ 1008*) — Review-Findings.</p> <p>A finding by the trial judge that 30 days was a reasonable time for a party to perfect an appeal to the Superintendent of Public Instruction will be deferred to on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent Dig. §§ 3955-3978; Dec. Dig. § 1008.*]</p>

Action by the S. R. Smythe Company against the Ft. Worth Glass & Sand Company. A judgment in favor of plaintiff was reversed by the Court of Civil Appeals (128 5. W. 1136), and plaintiff brings error.

Appeal to Court of Civil Appeals of First Supreme Judicial District. Consolidated actions by W. P. McFaddin and others against D. R. Sims, in which the Texas & New Orleans Railroad Company and two others were garnishees, and by the Wilson Hardware Company against F. J. Duff and another.

<p>1. Criminal Law (§ 1149*) — Appeal—Discretion of Court — Election of Offenses.</p> <p>Since the question of whether the state will be required to elect upon which count it will rely, when the indictment contains several counts charging different felonies, is for the trial court’s discretion, there was no reversible error, in a prosecution for rape, in which the indictment charged intercourse on several distinct occasions, in refusing to require the state to elect until the state’s testimony in chief was closed, the district attorney having elected to rely upon a particular count at the close of prosecutrix’s examination, in which she testified as to acts of intercourse charged in the several counts, after which the court instructed the jury not to consider any testimony, except that offered to support the count relied upon by the state.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1149.*]</p> <p>2. Criminal Law (§ 369*)— Evidence — Other Offenses.</p> <p>In a prosecution for rape, in which the state relied upon a particular offense, evidence of acts of sexual intercourse between accused and prosecutrix, committed on other occasions, was admissible.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.*]</p> <p>3. Omminal Law (§ 095*) — Continuance-Absent Witnesses.</p> <p>Accused was charged with raping his own daughter, who testified that all of the acts of intercourse occurred at night at their home, and that accused and prosecutrix always slept together in one bed, and the other two children slept in the other bed. Accused denied sleeping or hawing intercourse with prosecu-trix, and moved for a continuance, because of the temporary absence of his 17 year old son in another state, and, when the motion was overruled, telegraphed him to come, but the son did not arrive until verdict was rendered, having been prevented by sickness from arriv-. ing earlier. The son’s affidavit shows that, until about four months before the trial, he had resided continuously with his father, and knew that he had never slept with prosecutrix. Accu'sed was indicted October 28th, and the trial was called November 11th. Hold, that it was error to deny a continuance, in view of the materiality of the son’s evidence, and especially in view of the fact that accused was unable to employ attorneys to defend himself. ,</p> <p>[Ed. Note.' — Eor other cases, see Criminal Law, Cent. Dig. §§ 1323-1327; Dec. Dig. § 595.*]</p> <p>Davidson, P. J., dissenting in part.</p>

<p>Appeal from District Court, Cass County; P. A. ■Turner, Judge.</p> <p>S. J. Carlisle was convicted of burglary, and he appeals.</p>

<p>1. Homicide (§ 300*) — 'Trial—Instructions —SELF-DEFENSE—WORDS OE ACTS PROVOKING A Difficulty.</p> <p>A charge that if defendant used words or did acts, either or both of which provoked the difficulty, and that he did so for the purpose or with the intention of provoking a difficulty, he could not rely, on self-defense, is proper, it not being necessary to point out the particular acts of provocation on the part of defendant.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.*]</p> <p>2. Homicide (§ 300*) — Trial—Instructions —Self-Defense—Applicability to Issues and Evidence.</p> <p>In a homicide case, where it appeared that deceased had lived with defendant’s wife before her marriage to defendant, that he had deserted her, and afterwards tried to alienate her from defendant, and that defendant had deceased make a written statement acknowledging all of such former relations, and his efforts to alienate defendant’s wife from him, and that when this .statement was signed, defendant said, “Get out of here, you dirty cur,” and turned away from deceased, but that deceased came toward him with a large spring-back knife open, whereupon defendant shot and killed deceased, an instruction on self-defense that a reasonable apprehension of death or great bodily harm will excuse a person using all necessary force to protect his life or person, that there need not be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and that he was not bound to retreat to avoid the necessity of killing his assailant, and that if before defendant killed deceased the latter had made an attack on defendant which caused him,.knowing the disposition of deceased, to have a reasonable expectation of death, or serious bodily injury, and that acting under such reasonable fear, he killed deceased, he was entitled to an acquittal, was not objectionable as not covering the facts of the case.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.*]</p> <p>3. Homicide (§ 300*) — Trial—Confusing oe Misleading Instkuctions.</p> <p>Nor was such instruction objectionable as entangling matter of self-defense with that of manslaughter and provoking thé difficulty in such manner as to cause the jury to be unable to draw the proper distinction in the case.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Dec. Dig. § 300.*]</p> <p>4. Criminal Law (§ 414*) — Declarations— Self-Serving Declarations — Effect.</p> <p>Where the state in a prosecution for homicide puts in evidence the declarations of defendant, which were exculpatory and set up self-defense, it is bound by them, unless they are proven to be false, so as to entitle defendant to an acquittal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 936; Dec. Dig. § 414.*]</p> <p>5. Criminal Law (§ 649*) — Adjournments.</p> <p>Where some of the petit jurymen who had been summoned in a homicide case were not present, and attachment for them was issued on which they were brought into court, the refusal of defendant’s motion to postpone the case until they should be brought in was not erroneous.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1512-1515; Dec. Dig. § 649.*]</p> <p>6. Criminal Law (§ 1178*) — Appeal—Briefs —Exceptions Not Disclosed.</p> <p>Exceptions not disclosed in appellant’s brief will not be reviewed.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, ^Cent. Dig. §§ 3011-3013; Dec. Dig. §*</p>

<p>Appeal from District Court, Cherokee County; James I. Perkins, Judge.</p> <p>Abram Earle was convicted of hog theft, and he appeals.</p>

S. Kinder, Judge. Action by H. C. Ferguson against Mrs. Mattie Fain for an injunction against execution on a judgment rendered in another county against plaintiff herein. From a judgment dissolving a temporary injunction, plaintiff appeals.

<p>1. Boundaries (§ 3*) — Conflicting Elements — Calls and Distances — “Back Line.”</p> <p>Where a grantor owned land located on the south side of a bayou and conveyed a portion of it by a description beginning at a point on the bayou and extending south a stated number of varas to a stake in the prairie on “back line,” the grantee took to the south line of the grantor’s land, though it -was located at a greater distance from the bayou than indicated by the description.</p> <p>[Ed. Note. — Eor other cases, see Boundaries, Gent. Dig. §§ 30-33, 38-40; Dec. Dig. § 3.*]</p> <p>2. Boundaries (§ 8*) — Corresponding Lines.</p> <p>Where the owner of a large grant conveyed the eastern portion thereof, the northeast corner and the east line of the tract conveyed corresponding in calls and distances with the northeast corner and the east line of the grant as described in the patent, it must be assumed that the southeast corner of the tract conveyed also corresponded with the southeast corner of the grant, though the distance call of the west line of the tract conveyed was too short to extend across the grant.</p> <p>[Ed. Note. — For other eases, see Boundaries, Dec. Dig. § 8.*]</p> <p>3. Boundaries (§ 9*)— Construction — Sepá-rate Deeds.</p> <p>Deeds of parts of a grant of land, executed to different persons on the same day, will be construed together in determining the boundary lines.</p> <p>[Ed. Note. — For other cases, see Boundaries, Dec. Dig. § 9.*]</p> <p>4. Partition (§ 95*) —Decree — Construction.</p> <p>In case of repugnancy between a description by metes and bounds of the land vested in the widow by a partition decree and the general language of the decree, the manifest intention of the parties to the instruments upon which decedent’s title was founded should be effectuated if it can be reasonably ascertained, and for that purpose the report of the commissioner, the surveyor’s map, and field notes accompanying it, should be construed together.</p> <p>[Ed. Note. — For other cases, see Partition, Dec. Dig. § 95.*]</p> <p>5. Trespass to Try Title (§ 41*) — Actions —SUFFICIENCY OP EVIDENCE.</p> <p>Evidence, in trespass to try title by heirs to recover a strip in the south end of a grant of land, held, to show an intention that the south line of the land awarded to the widow in partition proceedings should extend to the south line of the grant, but that a certain other tract in the grant was not awarded to her.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Dec. Dig. § 41.*]</p> <p>6. Boundaries (§ 3*) — Metes and Bounds— Reference to Other Instruments.</p> <p>That calls for distances in a deed are insufficient to convey all of a tract of land owned by the grantor will not control, where references in the deed to a partition decree and to the corners of adjoiners make it evident that it was the intention to convey the entire tract.</p> <p>[Ed. Note. — For other cases, see Boundaries, Dec. Dig. § 3.*]</p> <p>7. Deeds (§ 93*) — Construction—Intent of Parties.</p> <p>The intent of the parties to a deed, if deducible therefrom, will prevail unless contrary to a rule of law, and, when plainly ascertained, arbitrary rules of construction are not permissible.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 231, 232; Dee. Dig. § 93.*]</p> <p>8. Deeds (§ 93*) — Construction—Intent of Parties.</p> <p>The intention of the parties to a deed is ascertained by considering all of its provisions, and when ascertained will not be defeated by ambiguities or inconsistencies therein.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 231, 232; Dec. Dig. § 93.*]</p> <p>9. Pleading (§ 36*) — Mistake—OonolusiveNESS.</p> <p>An inadvertent error in a pleading will not work an estoppel against the pleader, where his request to make a trial amendment to correct the error should have been granted by the trial court.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 81-86; Dec. Dig. § 36.*]</p> <p>10. Trespass to Try Title (§ 40*) — Actions —Admission of Evidence.</p> <p>In trespass to try title by heirs to recover a strip of land which plaintiffs claimed was not included within the boundaries of a tract set apart to the widow in partition and conveyed by the widow to defendants’ grantors, a levy map of the land made and filed in 1896 was not admissible to limit the deed executed by the widow in 1889.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Dec. Dig. § 40.*]</p>

<p>Receivers (§ 35*) — Appointment on Ex Paste Hearing — Propriety.</p> <p>To warrant appointment of a receiver on an ex parte hearing, the petition must not only state facts sufficient'to authorize 'the' appoint-ment, but must further, show that there is no other remedy to protect plaintiff, and that there is such pressing necessity for haste in the appointment that plaintiff would probably suffer irreparable loss if the appointment should be delayed until notice to defendant and full hearing.</p> <p>[Ed. Note. — For other cases, see Receivers, Dec. Dig. § 35.*]</p>

Error from District Court, Johnson County; O. L. Lockett, Judge. Action by William Hicks and others against J. W. Armstrong and others. Judgment for plaintiff John S. Hicks against defendant Armstrong and for defendant Armstrong against the other plaintiffs and for defendant Mortgage & Trust Company of Pennsylvania establishing a lien under a deed of trust, and plaintiffs and defendant Armstrong bring error.

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Jack Hill was convicted of crime, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Herbert Byons, alias Snowball, was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, King County; Jo. A. P. Dickson, Judge. Application of F. P. Sayers for a writ of habeas corpus to admit to bail. Writ denied, and applicant appeals.</p>

Error from District Court, Travis County; Geo. Calhoun, Judge. Action between the American Construction Company and J. A. Jackson. There was a judgment for the latter, and the former brings error.

<p>Appeal from District Court, Montgomery County; L. B. Hightower, Judge. Action by E.. F. Howard against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Milam County; J. R. Scott, Judge. Action by J. Q. A. Wentworth, as next friend, against the Union Central Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Ellis County; F. L. Hawkins, Judge. Habeas corpus by William Shedd for his release on bail. From a judgment refusing bail, he appeals.</p>

<p>Appeal from Comanche County Court; J. M. Reiger, Judge. Action by Cunningham & Burton against the Ft. Worth & Rio Grande Railway Company. Judgment for plaintiffs, and defendant appeals.</p>