Volume 143 — South Western Reporter

<p>1. Intoxicating Liquors (§ 198*) — :Indictment AND INFORMATION (§ 122*) — CRIMINAL Prosecutions — Affidavit — variance — “Then and There.”</p> <p>In an affidavit for violating the local option law, it was alleged that at an election held it was determined that the sale of intoxicating liquors should be prohibited in justice precinct No. 4, in a county and state named, and the necessary orders made and publication had, and that thereafter, on a date specified, a person named “did then and there sell intoxicating liquor” to a person named. The information followed the complaint, except that, instead of the words “then and there,” the words “thereafter in said justice precinct” were used. Held, that the affidavit sufficiently charges that the sale took place in justice precinct No. 4, and that there was no variance between the affidavit and the information in that respect; both affidavit and information charging the offense to have been committed in prohibited territory (citing Words & Phrases, vol. 8, p. 6946).</p> <p>[Ed. Note. — Eor other cases, see Intoxicating Liquors, Dec. Dig. § 198;* Indictment and Information, Cent. Dig. §§ 321-325; Dec. Dig. § 122.*]</p> <p>2. Criminal Law (§ 1052*) — Appeai^-Rec-ord — Exceptio ns.</p> <p>On appeal from a conviction for violation of the local option law, the action of the trial, court in overruling a motion for a continuance will not be considered, where there is no such motion in the record and no exception reserved to the action of the court in overruling the motion if one was presented.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent Dig. § 2659; Dec. Dig. § 1052.*]</p> <p>3. Criminal Law (§ 1090*) — Appeal—Necessity for Bill of Exceptions.</p> <p>On appeal from a conviction in a prosecution for violating the local option law, the question whether the court erred in permitting the minutes of the commissioners’ court to be introduced in evidence will not be considered where no bill of exceptions appears in the record.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2816; Dec. Dig. § 1090.*]</p> <p>4. Criminal Law (§ 400*) — Parol Evidence as to Precinct Boundaries.</p> <p>In a prosecution for the sale of intoxicating liquor in a certain justice precinct, the record of the precinct introduced by the state did not disclose what surveys were within the bounds of the precinct. Held, that oral evidence that the place where the liquor was sold was within the limits of the precinct was admissible, although the boundaries of a justice precinct are matters of record, and the record is the best evidence thereof.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 400.*]</p> <p>5. Intoxicating Liquors (§ 239*) — Criminal Prosecution — Instruction.</p> <p>Acts 1st Ex. Sess. 30th Leg. c. 8, regulate contests of local option elections, and, in a prosecution for selling intoxicating liquor in a local option territory after the time for contesting the election in such territory prescribed by this law has elapsed, the validity of the election upon the introduction of the orders of the commissioners’ court is presumed, and it was not error for the court to instruct that prohibition was in force in the territory described in the orders.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 239.*]</p> <p>6. Criminal Law (§ 1056*) — Criminal Prosecution-Instructions.</p> <p>In a prosecution for selling liquor in a local option territory, where accused claimed that the liquor was given to the state’s witnesses, he cannot complain of the failure of the court to define the word “sale,” if he does not request such an instruction, as, in misdemeanor cases, if the court fails to present any theory of the case desired by accused, it is his duty to request an instruction and except to the failure of the court to give the same, and, if he does not do so, the error of the court in that respect is not ground for reversal.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2668-2670; Dec. Dig. § 1056.*]</p> <p>7. Intoxicating Liquors (§ 167*) — Accomplices — Purchase of Liquor.</p> <p>Under Pen. Code 1895, art. 407, providing that, where the sale of intoxicating liquors has been prohibited, the fact that a person purchases liquor in violation of the law shall not render such person an accomplice, one who is requested by an officer tq purchase liquor of accused, and who makes such purchase with his own money knowing that accused would be prosecuted if he sold him the liquor, is not an accomplice of accused.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 167.*]</p> <p>8. Criminal Law (§ 814*) — Instructions— Conformity to Evidence.</p> <p>Where, in a prosecution for the sale of intoxicating liquor in local option territory, there was no evidence raising the issue that accused was acting as agent of the prosecuting witness in making, the sale, there was no error in refusing a special charge relating thereto.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. § 814.*]"</p> <p>9. Criminal Law (§ 304*) — Evidence—Judicial Notice — Beer as “Intoxicating Liquor.”</p> <p>Where, in a prosecution for the sale of intoxicating liquor in local option territory, there-is no evidence raising the issue that the article sold, which was beer, was not intoxicating, but the case was tried on the theory that it was intoxicating and prohibited, there was no error-in refusing an instruction based on the theory that the beer sold was not an intoxicating liquor, as under Acts 1st Called Sess. 31st Leg. c. 17, defining “intoxicating liquors” as including fermented liquor, tlie courts will take judicial knowledge that beer is an intoxicating liquor.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 716; Dec. Dig. § 304.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3736-3746; vol. 8, p. 7692.]</p> <p>On Motion for Rehearing.</p> <p>10. Cbihinal Law (§ 304*)—Judicial Notice.</p> <p>Judicial knowledge can be acquired by facts learned through former litigation, and courts properly take judicial notice of facts forming part of the common knowledge of every person of ordinary understanding and intelligence, and of such things as are generally known in their respective jurisdictions, and courts will extend the scope of judicial knowledge to keep pace with the advance of art, science, and general knowledge, when the facts are of such an age and duration as to have become a part of the common knowledge of well-informed persons.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 700-717; Dec. Dig. § 304.*]</p> <p>11. Criminal Law (§ 304*)—Judicial Notice-Presumption Against Accused.</p> <p>In a prosecution for violation of the local option law, taking judicial notice that beer is an intoxicating liquor is not indulging a presumption against accused, who was proved to have sold beer, without any evidence being introduced that beer is an intoxicating liquor.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 700-717; Dec. Dig. § 304.*]</p> <p>Davidson, P. J., dissenting.</p>

<p>1. Burglary (§ 28*) — Indictment—Time.</p> <p>An indictment alleging specifically that a burglary occurred on the 12th day of February is supported by evidence showing, that it was committed within the limitation and prior to the presentment of the indictment.</p> <p>[Ed. Note. — For other case's, see Burglary, Cent. -Dig. § 70; Dec. Dig. § 28.*]</p> <p>2. Criminal Law (§ 1097*) — Appeal—Statement op Facts.</p> <p>In the absence of a statement of facts, questions relating to the evidence cannot be considered on appeal.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2931-2939; Dec. Dig. § 1097.*]</p>

<p>Criminal Law (§ 1094*) — Appeal—Record.</p> <p>Where the record contains no exceptions to the rulings on evidence, nor any bill of exceptions to the charge, the judgment must be affirmed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. § 1094.*]</p>

<p>Appeal from Shelby County Court; E. W. Hooter, Judge.</p> <p>Hubie Ballard was convicted of a misdemeanor, and he appeals.</p>

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

<p>1. Appeal and Ebbob (§ 742*) —Assignments oí- Ebbob.</p> <p>Defendant telegraph company assigned error in admitting evidence of plaintiff’s grief resulting from failure to promptly deliver a telegram announcing the death of his stepson, and in refusing to direct that plaintiff could not recover, and the proposition under the assignment ivas that plaintiff “was not entitled to recover for mental anguish on his own account,” and the • statement thereunder was that decedent was plaintiff’s stepson, and there was no notice to defendant of any facts establishing any unusual or peculiar relationship between plaintiff and his stepson to permit plaintiff to recover for mental anguish in his own right. Held, that the statement was sufficient to authorize a consideration of the assignments of error.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Telegbaphs and Telephones (§ 68*) — Damages — -Mental Anguish — Peksons Entitled— Stepeathee.</p> <p>The relationship of stepfather would not of itself entitle the stepfather to recover damages for mental anguish by his inability to attend the stepson’s funeral, caused by delay in delivering a telegram.</p> <p>[Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.*]</p> <p>3. Appeal and Ebbob (§ 1053*) — Haemless Ebbob — Admission oe Evidence.</p> <p>Error in admitting evidence, in an action by a stepfather and his wife for damages for mental anguish by their inability to attend his stepson’s funeral, prevented by delay in delivering a death message, that the stepfather suffered mental anguish because of his inability to be present, was not ground for reversing a judgment for his wife, where the court charged that the jury should only find damages for mental anguish suffered by her, as it must be presumed that the jury did not consider such evidence.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4180; Dec. Dig. § 1053.*]</p> <p>4. Appeal and Ebbob (§ 930*) — Peesump-tions — Conduct op Juby — Following Instructions.</p> <p>It must be presumed, in the absence of a contrary showing in the record, that the jury followed the instructions..</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3757; Dec. Dig. § 930.*]</p> <p>5. Appeal and Ebbob (§ 1031*) —Harmless Ebbob — Presumptions.</p> <p>The mere possibility that an error in admitting evidence influenced the amount of the verdict will not require a reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.*]</p>

<p>Appeal from District Court, Tyler County; W. B. Powell, Judge.</p> <p>Action by the Houston Oil Company of Texas against William McGrew. From a judgment for defendant, plaintiff appeals.</p>

Green, Judge. Action by the Branch Banking Company against F. W. Johnston and the Wilson Grocery Company. From a judgment for plaintiff against both defendants and in favor of the Grocery Company against Johnston, the latter appeals.

<p>1. Receivers (§ 3*) — Nature of Remedy— Incidental to Other Proceedings.</p> <p>The right to appoint a receiver is a mere ancillary proceeding, and does not exist when it is the only relief sought by the plaintiff.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 3; Dec. Dig. § 3.*]</p> <p>2. Receivers (§ 3*) — Nature of Remedy-Incidental to Other Proceedings.</p> <p>Where persons, seeking a receiver as ancillary to a pending suit for the recovery of lands, in which they were defendants, were in possession of the land, and show no lack of good faith on the part of the plaintiff in bringing such suit, even though the plaintiff therein, owned adjoining land, on which were situated oil wells which might pump oil that petitioners would otherwise obtain from their land, the fact that they did not have sufficient means to prospect for oil on the land, and that, by the prosecution of the suit, it has been rendered impossible to contract with oil drillers on a rental or royalty basis, shows no such invasion of their rights as will entitle them to a receiver.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 3; Dec. Dig. § 3.*]</p>

<p>1. Vendor and Purchaser (§ 232*) — Bona Fide Purchasers — Possession as Notice.</p> <p>Where defendant, to plaintiff’s knowledge, was in possession, claiming under a verbal contract of sale from the common grantor, and had made valuable improvements and paid all of the purchase money, the question of the record of the deeds of the common grantor to those through whom plaintiff claimed and of the deed to plaintiff was immaterial.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-562; Dec. Dig. § 232.*]</p> <p>2. Costs (§ 238*) — Costs on Appeal — Immaterial Error.</p> <p>The finding that appellee had paid all but 817.25, erroneous in that he still owed 823.25, which error seemed a miscalculation by the court which might have been corrected if called to its attention by a motion for new trial, should not result in taxation of costs on appeal against appellee.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 908-919; Dec. Dig. § 238.*]</p> <p>3. Vendor and Purchaser (§ 187*) — Default in Payment — Forfeiture.</p> <p>Where defendant, in possession under oral contract of sale and still owing 880, agreed,to pay at the rate .of 810 a month, but the owner accepted much less for several months, and after the eight months had expired accepted $20, it was a waiver of compliance, and he could not assert a forfeiture.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 374, 375; Dec. Dig. § 187.*]</p> <p>4. Vendor and Purchaser (§ 186*) — Default in Payment — Forfeiture.</p> <p>Where vendee, who was in possession under an oral contract of sale, requiring stipulated payments under penalty of forfeiture, which was waived by frequent acceptance of partial payments, believed that he had paid the full amount, but alleged that, if he had not done so, he was ready to pay, it was proper for the court to allow him to pay the balance on such terms as would secure a prompt payment to the owner, and permit defendant to keep the property.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 373; Dec. Dig. § 186.*]</p> <p>5. Vendor and Purchaser (§ 232*) — Bona Fide Purchasers — Possession as Notice.</p> <p>Possession by defendant under an oral contract of purchase, known to plaintiff, who purchased from the common grantor, was notice to plaintiff of whatever right the defendant possessed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-562; Dec. Dig. § 232.*]</p>

<p>Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.</p> <p>Action by Hattie J. Bushong and another against Leslie Alderson and wife. From a judgment for defendants, plaintiffs appeal. Motion by appellants to dismiss.</p>

<p>Appeal from District Court, Potter County; W. M. Whitmire, Special Judge.</p> <p>Action by Louis Anthony and another against John P. Slaton and others. From a judgment for plaintiffs, defendant Slaton appeals.</p>

<p>Appeal from District Court, Baylor County; Jo. A. P. Dickson, Judge.</p> <p>Action by Polk County against J. W. Stevens. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and Error (§ 742*) — Assignments op Error — Sueeiciency.</p> <p>Sayles’ Ann. Civ. St. 1S97, art. 1018, requires plaintiff in error to file with the clerk of the court below, all assignments of error, distinctly specifying the ground on which he relies, and provides that all errors not distinctly specified are waived. Court of Civil Appeals Rule 24 (67 S. W. xv), is to the same effect. Rule 25 (67 S. W. xv) provides that, to be a distinct specification of error, it must point out that part of the proceedings contained in the record in which the error is complained of so as to identify it, and rule 26 (67 S. W. xv) provides that assignments of error which are only expressed in such general terms as that the court erred in its ruling upon the pleadings, etc., when there are more than one, is not sufficient. Held an assignment of error in overruling a motion for a new trial, which was not followed by a proposition elucidating the matter complained of, the assignment being treated in appellant’s brief as a proposition, would not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Trespass to Try Title (§ 40*) — Actions— Admission op Evidence.</p> <p>Where, in trespass to try title, defendant alleged that plaintiff was not an innocent purchaser for value without notice, and plaintiff sought to show that a book, in which was recorded the deed from the common grantor under which defendant claimed, was not a book of record, and it appeared that some of the conveyances shown by an abstract, approved by plaintiff as a lawyer, were shown in the abstract to have been recorded in the same book, it could not be said that the abstract of title, approved by plaintiff, was not material evidence.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 55-61; Dec. Dig. § 40.*]</p> <p>3. Trial (§i 168*) — Direction op Verdict— Uncontradicted Evidence.</p> <p>If the evidence on a question of fact was such that but one conclusion could be reached thereon by an unbiased mind, the ,court properly directed a verdict thereon.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 341, 376-380; Dec. Dig. § 168.*]</p> <p>4. Deeds (§ 211*) — Forgery—Evidence.</p> <p>Evidence in trespass to try title held to show that a deed upon which defendant relied was not a forgery.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647, 649; Dec. Dig. § 211.*]</p> <p>5. Evidence (§ 343*) — Ancient Documents.</p> <p>Where a deed attacked as a forgery was more than 30 years old at the time of trial, and had been duly recorded for more than 30 years, a certified copy of the record was admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1315-1330; Dec. Dig. § 343.*]</p> <p>On Rehearing.</p> <p>6. Appeal and Error (§ 232*) — Presentation in Lower Court op Grounds op Review-Objections to Evidence.</p> <p>Plaintiff urged on appeal that a certified copy of á deed, the original of which was attacked as a forgery, was improperly received in evidence, on _ the ground that it showed upon its face that it was a certified copy from the deed records of S. county, while the land was located in M. county, and the statute did not authorize the copy as evidence of title to land in M. county. The objection at trial was that it did not show that it was recorded in J. county and was not taken from a competent record, since when it purported to have been filed, S. county, from the records of which it was claimed to have been copied, was not organized, and the original deed was not of record in J. county. Held, that the objection to the certified copy of the deed first raised on appeal could not be considered, being different from that made below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1430, 1431; Dec. Dig. § 232.*] '</p> <p>7. Appeal and Error (§ 750*) — Assignments op Error — Waiver.</p> <p>At the trial of an action of trespass to try title, plaintiff objected to the admission in evidence of a certified copy of a deed, the original of which was attacked by an affidavit of forgery, on the ground that it purported to come from the records of S. county, when that county was not organized when the original was purported to have been filed, and it could not be shQwn that the deed was not of record in another county, but the assignment of error on appeal asserted that the certified copy was inadmissible, because plaintiff had filed an affidavit of forgery as to the original, which was called to the court’s attention when the admission of the evidence was objected to, and was followed by a proposition to the effect that a certified copy ot a recorded instrument which is attacked for forgery by the opposite party must be proved by the offering party to be genuine to make it admissible. Held that, even if the objection to the admission of a certified copy of the deed was sufficient to require consideration on appeal of the question that it was not admissible because it appeared upon its face to have been a certified copy from the deed records of S. county, while the land conveyed was in M. county, such question was waived by the assignment of error and the proposition following it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dee. Dig. § 750.*]</p>

<p>Appeal from District Court, Grayson County; B. L. Jones, Judge.</p> <p>Action by A. Hanson against the Texas Traction Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Trial (§ 295*) — Insteuctions—Construction Together.</p> <p>Where, in an action for injuries to a passenger defended on the theory that the injuries had been received prior to the accident, and that plaintiff suffered from a disease, charges that the burden was on plaintiff to prove the facts necessary to a recovery, and that unless the jury found from a preponderance of the evidence that plaintiff was injured as alleged, and that such injuries were proximately caused by the acts complained of, and a charge that, if plaintiff’s sufferings were caused prior to the accident or by disease, the verdict must be for the carrier, when construed together, were not objectionable as failing to make plaintiff’s right to recover depend on his proving by a preponderance of the evidence that the injuries were proximately caused by the negligence complained of.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 295.*]</p> <p>2. Trial (§ 260*) — Instructions—Requests.</p> <p>Where, in an action for injuries defended on the theory that the injuries had been received prior to the accident, or were occasioned by disease, the court properly placed the burden of proof on plaintiff, and required the jury to find that the injuries were proximately caused by the negligent acts complained of, refusal to give a special charge on the burden of proof that the injuries were not proximately caused by disease was not erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>3. Carriers (§ 347*) — Injuries to Passengers — Contributory Negligence — Question for Jury.</p> <p>A passenger who enters a coach with knowledge that it will be switched Is not as a matter of law guilty of contributory negligence by merely reclining in his seat, since he may rely on the carrier doing the switching in a careful manner.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 347.*]</p> <p>4. Damages (§ 158*) — Personal Injuries— Petition — Evidence—Admissibility.</p> <p>A petition in an action for injuries which alleges that plaintiff was permanently injured, in that the bones, cords, muscles, nerves, ligaments, and flesh in his head, neck, spine, back, body, arms, and legs, and especially in and near the cervical and upper dorsal vertebrae in his spinal column, were displaced and lacerated, is sufficient to justify the admission of evidence that he suffered b.y reason of the displacement of the spinous fluid inclosed within the spinal column.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 441-446; Dec. Dig. § 158.*]</p> <p>5. Trial (§ 120*) — Argument of Counsel-Evidence.</p> <p>Where, in an action for injuries, the evidence showed that plaintiff was 43 years old when injured, that prior thereto he was strong and healthy, except a slight weakness from recent treatment for an attack of rheumatism, that he weighed about 217 pounds, and had been sick very little during his life, and had an earning capacity of $100 per month, the argument of his counsel that the jury should consider whether or not plaintiff would have lived and retained his earning capacity for 20 years longer but for the injuries was justified by the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 120.*]</p> <p>6. Evidence (§ 474*) — Opinion Evidence-Nonexpert Witnesses.</p> <p>A nonexpert witness, well acquainted with a person, and present shortly after he was brought home after sustaining an injury, may testify that such person was unconscious when the witness left the house on the evening of the accident, and was conscious the following morning.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 474.*]</p> <p>7. Appeal and Error (§ 1050*) — Harmless Error — Erroneous Admission of Evidence.</p> <p>The error, if any, in permitting a nonexpert witness to testify to a fact, testified to by a physician, is harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1050.*]</p> <p>8. Evidence _(§ 542*) — Experts—Competency.</p> <p>A physician who knows the theory of taking of X-ray photographs is competent to testify that the bone can be distinguished from the flesh in an X-ray photograph, and that the bone will make a heavier shade than the muscles.</p> <p>[Bd. Note. — For other eases, see Evidence, Dec. Dig. § 542.*]</p>

Error from District Court, Lubbock County; L. S. Kinder, Judge. Action by W. J. Vesey against Alvis Blake, the Lubbock Development Company, L. W. Roberts and B. O. McWhorter, on notes and to foreclose a vendor’s lien, with cross-complaint by Roberts and McWhorter against Blake, seeking judgment over against him for any amount for which they were bound and that the land be sold and the proceeds applied to the satisfaction of plaintiffs’ judgment before execution against them.

<p>Rehearing Pending.)</p> <p>1. Constitutional Law (§ 241*) — Railroads (§ 226*) — Equal Protection oe the Laws — Statutes.</p> <p>Acts 31st Leg. c. 96, compelling railroad corporations to maintain water-closets at passenger stations, is not invalid as denying to railroad corporations the equal protection of the laws, because it does not apply to individuals, copartnerships, associations, and trustees, since, as a practical matter, railroads are owned and operated by corporations, and the Legislature may deal with practical conditions.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 241;* Railroads, Cent. Dig. § 740; Dec. Dig. § 226.*]</p> <p>2. Constitutional Law (§ 212*) — Police Power — Equal Protection oe the Laws.</p> <p>The Legislature in the exercise of its police power may single out occupations and im dividuals and impose on them additional burdens for the peace, good order, morals, or health of the community, and, so long as the classification made by the act is reasonable, the act is not in conflict with Const. U. S. Amend. 14, requiring the equal protection of the law, provided the act operates equally on all within the class.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 684, 705; Dec. Dig. § 212.*]</p> <p>3. Railroads (§ 224*) — Regulation—Statutes— Construction.</p> <p>Acts 31st Leg. c. 96, compelling railroad coi’porations to maintain water-closets at passenger stations, cannot be construed to apply to receivers operating railroads.</p> <p>TEd. Note. — Por other cases, see Railroads, Oent. Dig. §§ 734^737; Dec. Dig. § 224.*]</p> <p>4. Railroads (§ 226*) — Penal Statutes— Construction.</p> <p>Acts 31st Leg. c. 96, requiring railroad corporations to maintain water-closets at stations under penalties stated for failure so to do, is a penal statute, and the rules governing the construction of penal statutes are applicable.</p> <p>[Ed. Note. — Por other cases, see Railroads, Dec. Dig. § 226.*]</p> <p>5. Constitutional Law (§ 210*)— Equal Protection of the Laws — “Person.” _</p> <p>_ A corporation is a ‘“person” within the equal protection clause of Const. U. S. Amend. 14.</p> <p>[Ed. Note. — Por other eases, see Constitutional Law, Cent. Dig. §§ 679, 680; Dec. Dig. § 210.*</p> <p>Por other definitions, see Words and Phrases, vol. 6, pp. 6322-5335; vol. 8, p. 7752.]</p> <p>6. Constitutional Law (§ 241*) — Equal Protection oe the Laws — Regulation of Railroads.</p> <p>Acts 31st Leg. c. 96, compelling railroad corporations to maintain water-closets at passenger stations, though not applying to receivers operating railroads, is not invalid as denying to railroad corporations the equal protection of the laws, because the act creates a class, and treats all within the class alike.</p> <p>[Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. §§ 700, 701; Dec. Dig. § 241.*]</p> <p>7. Constitutional Law (§ 297*) — Due Process of Law.</p> <p>Acts 31st Leg. c. 96, requiring each railroad corporation operating a line of railroad in the state, for the transportation of passengers, to construct and maintain and keep in a reasonably sanitary condition, suitable water-closets at each passenger station, is not so indefinite and uncertain as to be incapable of being practically obeyed, so as to deprive railroad corporations of their property without due process of law.</p> <p>[Ed. Note. — Por other cases, see Constitutional Law, Cent.'Dig. §§ 832-834; Dec. Dig. § 297.*]</p> <p>8. Constitutional Law (§ 248*) — Equal Protection of the Laws.</p> <p>Acts 31st Leg. c. 96, requiring railroad corporations to erect and maintain water-closets at passenger stations, does not deny to railroad corporations the equal protection of the laws merely because it makes them liable for costs in civil or criminal prosecutions, while it exempts the state from such liability, since the proviso exempting the state from liability for costs adds nothing to the effect of the act; the state not being liable for costs even aside from the provision.</p> <p>[Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. § 703; Dec. Dig. § 248.*]</p>

<p>Appeal from District Court, Wilbarger County; S. P. Hutd, Judge.</p> <p>Action by Mrs. D. I. Owen against P. M. Morris. From a judgment for plaintiff, defendant appeals.</p>

Green, Judge. Partition by Mrs. E. B. Taylor and others against Mrs. Emily H. Schriver, guardian, and husband. Judgment for plaintiffs, and defendant Mrs. Emily H. Schriver, as guardian, appeals.

<p>Appeal from District Court, McLennan County; .Richard I. Munroe, Judge.</p> <p>An action by the Fidelity & Deposit Company of Maryland against J. B. Cranfill and another. From a judgment for plaintiff, .defendants appeal.</p>

<p>Appeal from Uvalde County Court; T. M. Milam, Judge.</p> <p>Action by I. R. Glenn against Nick Me-Eaddin. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>An action by the Fidelity & Deposit Company of Maryland against J. B. Cranfill and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Parties (§ 51*) — Contract Actions — Defendants — Privity of Contract — Necessity.</p> <p>Where plaintiff sued defendant grain company for breach of contract to furnish a car load of corn of a certain quality, defendant was not entitled to bring in as a codefendant a third person with whom it contracted to furnish a car load of corn of the same quality for the stated purpose of filling plaintiff’s order, with the view of obtaining judgment over against such third person for furnishing corn of an inferior quality; the two contracts being distinct, and there being no privity of contract between plaintiff and the third person.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 77-82; Dec. Dig. § 51.*]</p> <p>2. Parties (§ 93*) — Improper Parties — Manner off Objection.</p> <p>The proper manner of objecting to defendant bringing in another person as defendant to obtain judgment over against such other is by demurrer for misjoinder of defendants.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §| 153, 154; Dec. Dig. § 93.*]</p> <p>On Motion for Rehearing.</p> <p>3. Appeal and Error (§ 1099*) — Dismissal —Subsequent Appeal.</p> <p>'Though a prior appeal of plaintiffs in error was dismissed for a defect in the appeal bond which could have been amended in the appellate court, their refusal to amend the appeal bond is not ground for'dismissing the present writ of error at the request of defendant in error, who urged the dismissal of the prior appeal when the case might have been heard 'on the merits.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Dec. Dig. § 1099.*]</p>

<p>1. Bills and Notes (§ 457*) — Actions—Pab- • ties — Trustees.</p> <p>Though it may be implied from the designation of the payee in a note as trustee that others are beneficially interested, he, having the legal title may maintain a suit thereon without joining them as parties.</p> <p>[Ed. Note. — For other eases, see Bills and Notes, Dee. Dig. § 457.*]</p> <p>2. Appeal and Error (§ 1040*) — Review-Harmless Error — Pleading.</p> <p>Any error in overruling a special exception to the petition because not addressed to the court in which it was filed, which no statute requires, is harmless; such court having jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1040.*]</p>

<p>1. Pleading (§ 291*) — Execution of Wbit-TEN INSTRUMENT.</p> <p>Where a defendant in an action on a written instrument does not deny by affidavit the execution of the instrument as required by Rev. St. 1895, arts. 1265, 2318, he may not object to the introduction in evidence of the instrument on the ground that its execution has not been proved.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent Dig. §§ 864^879; Dec. Dig. § 291.*]</p> <p>2. REFORMATION OF INSTRUMENTS (§ 19*) — MUTUAL Mistake.</p> <p>Though equity will relieve from the effect of terms embodied in a written contract by a mutual mistake, yet mere proof of an antecedent verbal contract in terms variant from the contract reduced to writing, does not show mutual mistake.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §;§ 74-78; Dec. Dig. § 19.*]</p> <p>3. Pleading (§ 8*) — Mutual Mistake — Conclusions.</p> <p>An allegation in a pleading of a mutual mistake in a written instrument is but a legal conclusion, and the facts showing the mistake and that it was mutual must be distinctly alleged.</p> <p>Ed. Note. — For other cases, see Pleading, Cent. 'Dig. §§ 12-28%; Dec. Dig. § 8.*]</p> <p>4. Trial (§ 224*)— Instructions — Written Instructions — Necessity.</p> <p>Under Acts 28th Leg. c. 39, requiring the court to deliver a written charge unless the same is expressly waived by the parties, the court at the request of a party must charge in writing.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 516; Dec. Dig. § 224.*]</p>

<p>Appeal from District Court, Montague County; Clem B. Potter,,Judge.</p> <p>Action by J. A. Bolton against the Nocona National Bank. From a judgment for plaintiff, defendant appeals.</p>

B. Green, Judge. Action between the Browne Grain Company and another and R. D. Miller. From a judgment for the latter, the former appeal.

<p>Appeal from District Court, Midland County; S. J. Isaacks, Judge.</p> <p>Action by Ed Ericksen against S. D. Mc-Whorter. Judgment for defendant. Plaintiff appeals.</p>

Denton, Judge. Action by Ida F. Jones against the Supreme Lodge of the Fraternal Brotherhood. From a judgment for plaintiff, defendant appeals. Appellant issued to William H. Jones a benefit certificate for $2,000, payable at his death to his wife. On August 5, 1910, the insured died of apoplexy. He had paid all assessments required. This suit was brought by the wife to recover the amount of the benefit certificate.

<p>1. Master and Servant (§ 112*) — In juries— Negligence — Defective Fences.</p> <p>Since the presence or absence of a fence along a railroad right of way affects the degree of care required of employés for their own protection in operating trains, the company owes a duty to its trainmen to maintain such fence, making it actionable negligence for it to fail to maintain a fence permitting stock to get on the track, resulting in a derailment, killing an engineer.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 222; Dec. Dig. § 112.*]</p> <p>2. Master and Servant (§ 203*) — Assumption op Risk.</p> <p>The rule as to assuming the risk of dangers ordinarily incident to an employe’s work refers to the work done, in view of the conditions surrounding it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. § 203.*]</p> <p>3. Master and Servant (§ 293*) — Injuries— Negligence — Instructions.</p> <p>In an action for a railroad engineer’s death in a derailment, claimed to have been caused by failing to maintain a right of way fence, permitting cattle, which were struck, to get on the track, the court authorized the jury to find for plaintiff, though the track was fenced at the place of derailment, if the stock came through the fence upon the right of way, and it was defendant’s duty to exercise ordinary care to maintain it reasonably stock proof, and the fence was insufficient to turn cattle where they entered, and it was negligent for defendant to permit the fence to be in that condition. Held, that the charge correctly submitted the question of negligence in permitting the fence to be out of repair.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 293.*]</p> <p>4. Appeal and Error (§ 216*) — Objection Below — Instructions — Requests — Necessity.</p> <p>If defendant desired that an instruction which correctly submitted a question of negligence should refer to the circumstances from which its duty arose, it should have requested it, and failing such request, cannot complain of the omission on appeal.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. §§ 627-641, 660-676.]</p> <p>5. Master and Servant (§ 288*)— In juries— Assumption op Risk — Question por Jury.</p> <p>The fact that the right of way fence had been down for about 100 feet for a month or so, where the cattle., struck by decedent railroad engineer when his train was derailed, entered the right of way, would not make him assume the risk of injury, as a matter of law, from derailment by striking stock, if he had no knowledge of such condition of the fence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 288.*]</p> <p>6. Master and Servant (§ 288*) — Injuries-Jury Question — Negligence.</p> <p>Evidence, in an action for a railroad engineer’s death in a derailment, caused by striking stock, held to make it a jury question whether the engineer knew or ought to have known that the right of way fence was out of repair, so as not to be stock proof.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 288.*]</p> <p>7. Master and Servant (§ 289*) — Injuries— Contributory Negligence — Sufficiency of Evidence.</p> <p>Evidence, in an action for a railroad engineer’s death in a derailment, caused by striking cattle, held to make it a jury question whether decedent acted as an ordinarily prudent person in continuing with an ordinary lantern as headlight after the electric headlight had failed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 289.*]</p> <p>8. Master and Servant (§ 286*) — Injuries— Proximate Cause.</p> <p>If a railroad engineer, killed in a derailment, caused by striking stock, did not know that the fence was down, permitting the stock to get.on the track, any negligence in running at a high speed after the electric headlight failed could not have proximately contributed to the action, making it error to instruct that plaintiff could not recover in such case, where the evidence made it a jury question whether decedent knew that the fence was down.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. •§ 286.*]</p> <p>9. Death {§ 95*) — Action—Measube of Damages.</p> <p>The widow and minor children are entitled to recover for the wrongful death of their husband and father such amount as will compensate them for the pecuniary loss, if any, which they sustained because of his death; the amount recovered being apportioned by the jury.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 108-115, 120; Dec. Dig. § 95.*]</p> <p>10. Death (§ 99*) — Damages—Excessive Recovery.</p> <p>In an action for negligently causing the death of a railroad engineer, a recovery of $9,-500 by the widow, and $7,000 and $9,500, respectively, by his two minor daughters held not excessive.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*]</p>

Box, Speeial Judge. Action by Horace Word against Thomas M. Colley and another. From a judgment for defendants, plaintiff appeals. Appellant instituted the action of trespass to try title to an undivided half interest in 730 acres of land, part of the Brooks-Williams league of land in Cherokee county, Tex., described by metes and bounds in the petition.

<p>1. Husband and Wife (§§ 251, 262*) — Separate and Community Property.</p> <p>An interest in real estate inherited by a man is his separate property; but an interest purchased during his marriage is presumptively community property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 894, 913, 914; Dec. Dig. §§ 251, 262.*]</p> <p>2. Judgment (§ 747*) — Conclusiveness.</p> <p>A judgment, in trespass to try title, that defendant go hence without day, and recover his costs, merely denies a recovery to plaintiff, and does not vest any title in defendant, and is not sustainable as a muniment of title in defendant or those claiming under him.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1284-1296; Dec. Dig. § 747.*]</p> <p>3. Public Hands (§ 178*) — Conditional Certificates — Sales—Validity.</p> <p>Under Paschal’s Dig. art. 4167, invalidating sales of land under conditional certificates, a sale of land under -a conditional certificate passes no title, legal or equitable, to the purchaser.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 581; Dec. Dig. § 178.*]</p> <p>4. Husband and Wife (§ 249*) — Community Pbopebty — Title to Pbopebty Acquired by Adverse Possession — “Acquired” — “Claim” — “Owned oe Claimed.”</p> <p>Under Rev. St. 1895, arts. 2967, 2968, declaring that all property of the husband “owned or claimed” by him before marriage, and that “acquired” afterwards by gift, devise, or descent, shall be his separate property, and all property “acquired” by the husband or wife during the marriage, except that “acquired” by gift, devise, or descent, shall be the common property of the husband and wife, ownership resting, in adverse possession for 10 years, existing in part before marriage and in part after marriage, is community property; the word “acquired” denoting all property coming to husband or wife during coverture by title', other than by gift, devise, or descent; and the word “claim,” when applied to land, importing a legal or equitable right to the land; and the words “owned or claimed” signifying a legal or equitable ownership, or legal or equitable right to demand the land.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 887, 889-892; Dec. Dig. § 249.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 112-114; vol. 8, p. 7562; vol. 2, pp. 1202-1211; vol. 8, p. 7604; vol. 6, pp. 5130, 5131; vol. 8, p. 7743.]</p> <p>5. Husband and Wife (§ 249*) — Community Pbopebty — Acquisition of Title.</p> <p>The rule that a title when perfected, relates back to and takes effect from the time of its origin, and that the status of property, as separate or community, is determined by the character of the right in which it had its inception, does not apply where a.claim to property rests on adverse possession, partly before and partly during marriage, but' applies only where the right to the land is referred, in the first instance, to some legal or equitable claim before marriage.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 887, 889-892; Dec. Dig. § 249.*]</p> <p>6. Wills (§ 782*) — Construction—Election —“My Pbopebty.”</p> <p>Testator gave all “my” furniture and stock and the farm on which “1 now reside” to his wife for life, with remainder over, and directed that all legacies should be paid out of “my” estate. The residuary clause purported to pass only “my” property. Held, that the will disposed only of testator’s separate property, and did not purport to dispose of-community property, so as to require the wife to elect whether to take under the will or her own property.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig,, §§ 2018-2033; Dec. Dig. § 782.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4652-4654; vol. 8, pp. 7727, 7728.]</p>

F. Mullally, Judge. Action by William Stevens against D. C. Porter and others. From a judgment for defendant Porter and two other defendants, plaintiff and other defendants appeal.

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Habeas corpus by Rosa Schneider and another against Henry Schwabe. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Harris County Court; Clark C. Wren, Judge.</p> <p>Condemnation proceeding by Houston Belt & Terminal Railway Company, against Jacob Hornberger. From the judgment, plaintiff appeals, and defendant cross-appeals.</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Action by J. L. Bushong and another against Virgil R. Parker and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Morris County; P. A. Turner, Judge.</p> <p>Action between M. A. Conner and C. G. Conner and another. From a judgment for the latter, the former appeals.</p>

<p>Appeal from District Court, Montague County; Clem B. Potter, Judge.</p> <p>Action by Lee ‘Crenshaw against J A. Bishop. From a judgment granting insufficient relief, plaintiff appeals.</p>

<p>1. Intoxicating Liquors (§ 283*) — Illegal Sale of Liquor — Civil Damages — Statutes.</p> <p>The right of a wife to recover on a liquor dealer’s bond a penalty for the sale of liquor by the dealer to her husband, a habitual drunkard, depends solely on the statute, and may be extinguished by a repeal of the statute.</p> <p>[Ed. Note. — For.other cases, see Intoxicating Liquors, Dec. Dig. § 283.*]</p> <p>2. Statutes (§ 276*) — Repeal — Effect on Pending Litigation.</p> <p>Where a statute giving a special remedy is repealed without a saving clause in favor of pending litigation, a pending suit cannot be prosecuted after the repeal.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 371-373; Dec. Dig. § 276.*]</p>

<p>Appeal from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by R. C. Storrie against the Ft. Worth Stockyards Company and another. From a judgment for defendants, plaintiff appeals.</p>

H. Hoskins, Judge. Action by G. W. Williams against M. J. Connell. From a judgment for'plaintiff in the justice court, defendant appealed to the county court, where the appeal was dismissed, and from an order denying his motion to reinstate his cause of action plaintiff appeals.

<p>Appeal from District Court, Wise County; J. W. Patterson, Judge.</p> <p>Action by J. B. Brown against the Spring Garden Insurance Company of Philadelphia. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Landlord and Tenant (§331*) — Rental on Shares — Breach or Contract — Damages.</p> <p>A tenant of a farm on shares wrongfully ousted by the landlord may recover the value of his share, less the sums he could by. reasonable diligence have subsequently earned, and less the value of the labor he would have hired to market the crop.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1361; Dec. Dig. § 331.*]</p> <p>2. Landlord and Tenant (.§ 331*) — Rental on Shares — Breach oe Contract — Damages.</p> <p>A tenant of a farm of 66 acres, on shares, who claimed damages for his wrongful dispossession by the landlord, and who testified that he would have cultivated 50 acres in cotton and the remainder in corn, and that he would have raised a specified amount of cotton and corn, of a specified value, and would have received a half thereof clear of all expenses to him, tendered the issue that he would not have incurred any expense for the crops; and, though no witness gave an estimate to the contrary, a jury could disregard his opinion on the issue, especially with evidence of the lack of energy of the tenant, as bearing on the measure of damages.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 331.*]</p> <p>3. Appeal and Error (§ 1040*) — Harmless Error — Erroneous Rulings on Pleadings.</p> <p>Any error in overruling special exceptions to allegations in the petition is harmless, where the court does not submit issues presented by the allegations, and there is no evidence to sustain them.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4105; Dec. Dig. § 1040.*]</p>

<p>1. Venue (§ 79*)— Effect, of Transfer— Plea of Privilege.</p> <p>Acts 1st Called Sess. 31st Leg. c. 34, created for Tarrant county a court designated as the “county court of Tarrant county for civil cases,” with jurisdiction of civil cases other than probate matters to the exclusion of the “county court of Tarrant county,” and also made the county clerk the clerk of the new court. Acts 30th Leg. c. 1$3, provides that a court sustaining a plea of privilege by a defendant to be sued in the county of his residence must transfer the case to that county. Held, that where a cause for goods sold brought in another county was, on a plea of privilege, transferred to the “county court of Tarrant county,” the county clerk of that county properly filed and docketed the suit in the county court of Tarrant county for civil cases; the improper designation of the court being a mere irregularity not depriving the proper court of the jurisdiction vested in it by law.</p> <p>[Ed. Note. — For other cases, see Venue, Dec. Dig. § 79.*]</p> <p>2. Judgment (§ '443*) — Injunction — Excuses foe Failure to Defend.</p> <p>To entitle a person to equitable relief against a judgment, he must show that his failure to defend was due to no negligence on his part, and, where a person against whom suit was brought in a county other than his own hired an attorney, who interposed a plea of privilege and informed his client that that settled the case, and the client took no further steps to defend and did not know that the suit had been transferred to his own county and a default entered until execution issued, his ignorance of the law or the erroneous advice of his attorney, unconnected with any fault of his opponent, was not sufficient excuse.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§> 836, 838; Dec. Dig. § 443.*]</p> <p>3. Pleading (f 8*) — Conclusions—1Title.</p> <p>An allegation, in a petition for equitable relief from a judgment, that goods levied on under execution were not the goods of the judgment debtor, but were the separate property of his wife, is not insufficient as a conclusion, as it is not incumbent upon the pleader to allege the evidence upon which he expects to prove title.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%; Dec. Dig. § 8.*]</p> <p>4. Judgment (§ 408*) — Equitable Relief-Adequate Remedy at Law.</p> <p>Where a stock of goods levied on as that of a husband in fact belongs to the wife, equity will restrain the enforcement of the judgment, as by a proceeding at law to try the right of property the damages against the sheriff, both as to the goods seized and the remainder, would be released, the goods would have to be returned to the custody of the officer until the determination of the right thereto and would be subject to such other writs as might have been levied before the trial, and the wife would be deprived of the right to have the goods replaced and sold with the stock, so that the remedy at law would not be plain and adequate.</p> <p>[Ed. Note.- — For other cases, see Judgment, Cent. Dig. § 772; Dec. Dig. § 408.*]</p> <p>5. Appeal and Error (§ 251*) — Exceptions Below — Pasties.</p> <p>Where the question as to a misjoinder of parties or causes is not presented by a special exception in the trial court, the defect is not reviewable on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1476-1484; Dec. Dig. § 251.*]</p> <p>Conner, C. Ji, dissenting in part.</p>

<p>Appeal from District Court, Wise County; J. W. Patterson, Judge.</p> <p>Action by True Bros, against the 'St. Louis, Brownsville & Mexico Railway Company and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Action by Fleming & Roberson against the Fred Miller Brewing Company. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Appeal and Error (§ 71*) — Appellate Jurisdiction — Finality of Determination.</p> <p>Under Rev. St. 1895, art. 2989, as amended by Acts 30th Leg. c. 107, § 2, and by Acts 31st Leg. (1st Ex. Sess.) c. 34, which authorizes an appeal from an order granting, refusing, or dissolving an injunction, but not from an order refusing to dissolve an injunction, an order of a court, determining an appeal bond for an appeal from a justice’s court sufficient and denying the dissolution of an injunction to restrain a sale under execution of the judgment of the justice, is not a final judgment, and no appeal therefrom may be taken.</p> <p>[Ed. Note. — Eor other cases, see Anneal and Error, Cent. Dig. §§ 386-401; Dec. Dig. § 71.*]</p> <p>2. Appeal and Error (§ 65*) — Appellate Jurisdiction — Amount Involved.</p> <p>Under Rev. St. 1895, art. 996, which provides, that, in cases where a county court has appellate jurisdiction only, no appeal from its judgment can be prosecuted, save when the judgment or amount in controversy shall exceed ?100, an appeal cannot be taken from a judgment of such court, in an action appealed from a justice of the peace, where the amount claimed is but 895.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 315-328; Dec. Dig. § 65.*]</p>

<p>Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.</p> <p>Action by the Nacogdoches Compress Company and others against the Texas & New Orleans Railroad Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Oourt, Tarrant County ; Jas. W. Swayne, Judge.</p> <p>Action by O. C. Lamon against I. S. Smith. Prom a judgment refusing to revoke the appointment of a receiver, of firm property, defendant appeals.</p>

<p>Error to District Court, Hardin County; L. B. Hightower,' Judge.</p> <p>Action by Creighton-McShane Oil Company against James G. Tompkins and others. Judgment for plaintiff and defendants bring error.</p>

P. Mullally, Judge. Action by Ella G. Taylor and another against Prank Dunn, in which J. V. Tacka-berry intervened and by cross-action added as parties the Nueces Valley Irrigation Company and others. Prom a judgment for plaintiffs and some of the parties added by the cross-action, defendant Tackaberry and others appeal.

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Suit by William Cameron & Company, Incorporated, against the “Republic Guaranty & Surety Company and others, in which some of defendants filed a cross-action. From a judgment for plaintiff and for defendants on the cross-action, as stated, the defendant named appeals.</p> <p>The suit was by appellee Wm. Cameron & Co., Inc., against appellant and appellees J. W. Cantwell, Thomas M. Heck, Jonas E. Ulander, J. D. Buckley, and Harry Buckley. It appears from the record that on July 26, 1909, Heck and Ulander, as partners, by a contract in writing, undertook to furnish the material therefor and to build and complete for Cant-well, on or before November 1, 1909, and in accordance with an architect’s plans, etc., made a part of the contract, on land not specified, a two-story dwelling house, for which Cantwell was to pay them the sum of $3,474. The $3,474 was to be paid in parts, as the work on the house progressed; the parts to depend on estimates of the material furnished and work done, to be made weekly by the supervising architect, but 20 per cent, thereof was to be held by Cantwell, “as security,” it was recited, “for the faithful completion of the work, and may be applied, under the direction of the superintendent, in the liquidation of any damages under this contract.” The contract contained other stipulations which it is not thought necessary here to mention.</p> <p>At the time Heck & Ulander entered into the contract, they made and delivered to Cantwell a bond, executed by appellant as a surety, as follows:</p> <p>"Know all men by these presents: That we, Heck & Ulander and-, of the city of Ft. Worth, county of Tarrant, state of Texas, are held and firmly bound unto J. W. Cantwell, of said county and state, as well as to all persons who may become entitled to liens under the contract hereinoefore mentioned, in the sum of nineteen hundred dollars, lawful money of the United States of America, to be paid to the said J. W. Cant-well, and to said parties who may be entitled to liens, their executors, administrators, or assigns, for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, dated this 26th day of July, 1909., The condition of this obligation is such that if the above-bounden Heck & Ulander, his executors, administrators, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, and agreements in above-mentioned contract, entered into by and between the said Heck & Ulander and the said J. W. Cantwell, dated on the 20th day of July, 1909, for the construction of the work or works on the lot mentioned in the foregoing contract, and shall duly and promptly pay and discharge all indebtedness that may be incurred by the said Heck & Ulander, in carrying out the said contract, and complete the same, free of all mechanic’s lien, and shall truly keep and perform the covenants, conditions, and agreements in said contract and in the within instrument contained, on his part to be kept and performed, at the time and in the manner and form therein specified, as well as all costs, including attorney’s fees, in enforcing the payment and collection of any and all indebtedness incurred by said Heck & Ulander in carrying out the said contract, then the above obligation shall be void; else to remain in full force and virtue. This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract, according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person.”</p> <p>On and between August 19, 1909, and December 15, 1909, Wm. Cameron & Co., Inc., furnished Heck & Ulander, and they used in building the house, material of the value of $1,469.95, for which they never paid.</p> <p>On and between October 12,1909, and January 1, 1910, it seems, the Buckleys, as partners under the name of Buckley & Son, furnished said Heck & Ulander, and the latter used in constructing the house, material of the value of $358.95. During November, 1909, Heck & Ulander paid them sums aggregating $175, leaving unpaid on the material furnished the sum of $183.95.</p> <p>Cameron & Co., Inc., and Buckley & Son, to secure the sums respectively due them, each claimed to have taken all the steps required of them by the statute to fix liens as materialmen on land, shown to be lot 13, block 14, of the Bellevue Hill addition to Ft. Worth. The conclusion having been reached by the court that they were not entitled to claim liens against the property because it was Cantwell’s homestead, it is of no importance whether the steps taken constituted a compliance with the statute or not. Therefore they will not be stated.</p> <p>Said Cameron & Co., Inc., by their suit sought a recovery as against appellant and 1-Ieck & Ulander of said sum of $1,469.95 due them, and a foreclosure of the materialmen’s lien they claimed, as against Cantwell and-the Buckleys.</p> <p>Heck & Ulander answered the suit by general denials.</p> <p>Buckley & Son answered by a general denial, and by a cross-action sought as against Heck & Ulander and the surety company of the balance of $183.95 due them, and as-against the other parties a foreclosure of the materialmen’s lien they claimed they had acquired.</p> <p>Cantwell answered admitting, in effect, the allegations in the petition of Cameron & Co. and the allegations of Buckley & Son in their cross-action to be true, and by a cross-action against Heck & Ulander and appellant sought a recovery against them, for the-use and benefit of Cameron & Co. and Buckley & Son, of the amount of their claims, less the sum of $676, which he alleged was the “balance of the contract price for said-dwelling house, still in” his hands. On the trial it was determined that he was entitled to credits reducing the sum due by him to Heck & Ulander on the contract to the sum-of $587.50, which sum he paid into court.</p> <p>Appellant answered by exceptions, general and special, to the plaintiff’s petition and to-the answers of Buckley & Son and Cantwell, by a general denial of the allegations in-those pleadings, and specially that “the property on which the building covered by said contract was erected was and is the homestead of the defendant J. W. Cantwell and-was the homestead of said J. W. Cantwell-on- the 19th day of January, 1910, and for some weeks prior thereto, and that as said homestead was not subject to the fixing of a mechanic’s lien, said J. AY. Cantwell being a head of a family and entitled to exemptions against mechanics’ liens under the Constitution and statutes of the state of Texas.” By its pleadings appellant sought, in the event Cameron & Co. and Buckley & Son recovered against it, a judgment over against Cantwell for the balance in his hands of the contract price unpaid, and for a judgment over against Heck & Ulander for any sum which might be recovered against it by Cameron & Co. and Buckley & Son.</p> <p>A trial before the court without a jury resulted in a judgment as follows: In favor of Cameron & Co., Inc., and Buckley & Son, for the sums they respectively sued for, against Heck & Ulander and appellant; in favor of Cantwell, for the use and benefit of Cameron & Co., Inc., and Buckley & Son, for the sum of $1,639.70, being the aggregate of the sums found to be due said Cameron & Co., Inc., and said Buckley & Son; in favor of appellant against Heck & Ulander for the sum of $1,639.70; in favor of all the other parties to the suit against Cantwell for the sum of $587.50, that being the balance due by him on his contract with Heck & Ulander, and it appearing that he had paid said sum into court, it was ordered that Cantwell go without day, and that the mechanic’s and materialmen’s liens filed and claimed by Cameron & Co. and Buckley & Son as against the land on which the house had been constructed be “released, fully satisfied and discharged, and of no further force and effect.” The judgment directed that the sum paid by Cantwell into court be paid out by the clerk to Cameron & Go., Inc., and Buckley & Son “in the respective proportions of the judgments” in their favor, and that the payments so made should operate as a credit upon such judgments, as well as a credit for the total of said sum so paid into court in favor of Heck & Ulander against all the other parties given judgments against them.</p> <p>The appeal is by the Republic Guaranty & Surety Company alone.</p>

<p>1.Appeal and Error (§ 704*) — Presentation Below.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 1333, provides that the court shall, on request, state conclusions of fact and law separately, and the conclusions shall constitute a part of the record, and it shall be sufficient for the party excepting to the conclusions of law or judgment to cause it to be noted in the judgment entry that he excepts, when he may appeal without a statement of facts or further exceptions, but the transcript shall contain the conclusions of fact and law. Courts of Civil Appeals Bules, rule 27 (67 S. W. xv), provides that in cases submitted to the judge upon the law and facts the assignments of error shall be governed by the same rules as in other cases, and rule 28 (67 S. W. xv), provides that no assignments of error will be allowed in the appellate court where none is filed below, and District and County Court Buies, rule 101 (67 S. W. xxvii), requires appellant to file his assignments of error in the trial court as prescribed by statute, and permits appellee to file cross-assignments with Ms brief which may be incorporated therein, and need not be copied in the transcript, but that in such case a copy filed in the Court of Civil Appeals shall contain a certificate of the Trial Court showing that it is a copy of the brief filed. Held, that where in a trial by the court appellee did not complain below of the findings of fact or conclusions of law, or file cross-assignments of error below, or in his brief on appeal, merely attacking the findings by quoting from the statement of facts, the Court of Civil Appeals cannot review the sufficiency of the evidence to support the findings.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2939-2941; Dec. Dig. § 704.*]</p> <p>2.VENDOR AND PURCHASER (§ 227*) — BONA Eide Purchaser.</p> <p>Defendant was not an innocent purchaser of land for value if for several years before he purchased, and at that time he had actual notice of plaintiff’s claim of ownership.</p> <p>[Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent Dig. § 474; Dee. Dig. § 227.*]</p> <p>3. Vendor and Purchaser (§ 231*) — Bona Eide .Purchaser — Constructive Notice— Becordéd Deed.</p> <p>Defendant was not an innocent purchaser of land for value under the statute where, when he purchased from an independent executrix, deeds were on record, showing that decedent did not own the lands when his will was executed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dec. Dig. § 231.*]</p> <p>4. Vendor and Purchaser (f 231*) — Notice— Becording Subsequent Deed — Same Origin oe Title.</p> <p>Since Sayles’ Ann. Civ. St. 1897, art. 4640, making unrecorded deeds void as to subsequent purchasers for value without notice, only includes subsequent purchasers in the chain of title, the origin of whose title is subsequent to the title of the grantee in the recorded deed, plaintiff, claiming under an unrecorded conveyance from a decedent, was not charged with notice of a recorded deed subsequent in point of time from decedent’s independent executrix.</p> <p>[Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dee. Dig. § 231.*]</p> <p>5. Adverse Possession (§■ 31*) — Title bt Limitations.</p> <p>Ordinarily title by limitations may be acquired without reference to whether the real owner has notice of the doing of those things which under the statute matures the title by limitations.</p> <p>[Ed. Note. — Eor other cases, see Possession, Cent. Dig. §§ 128-133; § 31.*] Adverse Dec. Dig.</p> <p>6. Tenancy in Common (§ 15*) — Adverse Possession — Agkeements' Between Coten-ants.</p> <p>An agreement by one cotenant with another to assume control and management of the property as such for both of the cotenants would inure to the benefit of the successive owners of the interest of such other cotenant, placing the managing cotenant in the same fiduciary relation as regards adverse possession to such successors as to the original cotenant with whom he made the agreement until it was expressly repudiated.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.*]</p> <p>7. Tenancy in Common (§ 15*) — Adverse Possession.</p> <p>Where a tenant in common held the exclusive control of land under an agreement with his cotenant, limitations would not begin to run against the latter or his successors until they had actual notice of the claim of ownership of the tenant in possession.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.*]</p> <p>8. Tenancy in Common (§ 15*) — Adverse Possession — Notice.</p> <p>While actual notice of a claim of ownership by one tenant in common against his co-tenant may be made by circumstances as well as by direct proof, possession by one cotenant and payment of taxes and other acts not inconsistent with a holding for the joint benefit would not, if known to. the other cotenants, raise a presumption of an adverse claim,. it being essential that the cotenants out of possession be given either express notice or have knowledge of such unequivocal act as would raise a presumption that the possession .was adverse.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42^-82; Dec. Dig. § 15.*]</p>

<p>Appeal and Eeeoe (§ 882*) — Estoppel to Allege Eeeoe.</p> <p>Where appellant requested charges which were given on the only issue in the case, and tried the case upon the theory that there was evidence warranting its submission to the jury, he is estopped from claiming, on. appeal, that the testimony is not sufficient to sustain a verdict for appellees.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3602-3604; Dec. Dig. § 882.-*]</p>

<p>Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.</p> <p>Action by Adam Parker, as administrator of the estate of Pallie Watson, continued after the death of Parker by D. S. Dodson, administrator de bonis non, against E. M. Watson for an accounting. Judgment for plaintiff, and defendant appeals.</p> <p>This suit was originally instituted November 8, 1905, by Adam Parker, administrator of the estate of Pallie Watson, who died December 5, 1904, against F. M. Watson, as trustee, for an accounting and to recover a balance claimed to be due from said F. M. Watson to Pallie Watson at the time of her death. Said Parker has died since the institution of this suit, and D. S. Dodson was appointed administrator, and made party plaintiff herein, in lieu of said Parker. Recovery was sought on the following instrument:</p> <p>“Aledo, Texas, Oct. 24, 1890. “This is to certify that I have received for management of Pallie Watson the following amounts of money, and to be loaned at the best of my judgment:</p> <p>March 25, 1888, to cash.$ 800 00</p> <p>Aug. 20, 1888, to cash. 746 25</p> <p>April 15, 1889, to cash. 1,478 00</p> <p>Jan. 1, 1890, to cash. 2,147 44</p> <p>May 1, 1890, to cash. 1,131 80</p> <p>Total amount.$6,303 49</p> <p>—and have advanced to her the following amounts:</p> <p>July 1, 1888, bill of grub at old farm $ 12 85</p> <p>July 9, 1889, cash. 566 50</p> <p>July 20, 1890 . 2,939 25</p> <p>Total amount advanced to Pallie Watson.$3,518 60</p> <p>“This is a correct amount [account] except the interest that has accumulated on the money I have.</p> <p>“[Signed] F. M. Watson.”</p> <p>And also for money collected by said Watson on notes delivered to him for collection, for which he executed the following receipt:</p> <p>“May 5,1890.</p> <p>“Received of Pallie Watson for collection ten certain notes, in the following amounts and against the following parties: A. J. Ball, for $54.25 and interest; E. J. Oanifax, for $125 and interest; W. O. Dunlap, for $260 and interest; W. J. Fawks, for $84.50 and interest; Mrs. M. S. Ross, for $910 and interest; J. M. Abbott, for $121.87 and interest; Bob Ellis, for $40.25 and interest; Mrs. S. E. Pierce, for $195 and interest; J. W. Brown, for $45.60 and interest; S. Walker, for $120.08 and interest.”</p> <p>The petition alleged that the amount due Pallie Watson, as shown by the receipt above set out, as well as the amount collected on said notes, which is alleged to be in the aggregate sum of $2,040.71, was not paid to Pallie Watson during her lifetime, except the sum of $2,000 of the amount so collected by appellant on said notes, and that the full amount shown by said receipt, and $40.71 balance due on said collection, is still due and owing. Said petition further alleged that defendant had received, on the - day of December, 1890, proceeds of the sale of a certain lot in Alvarado, aggregating $550, and the proceeds of a judgment against John W. Ross, aggregating $728.24, one-fifth of said amounts being the property of said Pallie Watson, by reason of which appellant became indebted to said Pallie Watson in the further sum of $255.65.</p> <p>Appellant in addition to the general issue, pleaded a mistake in the instrument of October 24, 1890, above set out, in that he should have been credited in said statement with $800 in payment for what was known as the “Price Place,” and the sum of $2,600 paid for what was known as the “W. G. Ketchum Place,” alleging that said places were paid for by money in his hands belonging to said Pallie Watson, at her instance and request, and that said places were accepted by her. Defendant further pleaded payment of $2,000 on May 6,1893 for what was known as the “McConnell Place,” which he alleged was purchased for said Pallie Watson for the sum of $2,000, at her request, and that she accepted said place. Defendant pleaded other small payments, and also pleaded the statutes of limitation of four and ten years, and also laches and stale demand. He further pleaded a full settlement with Pallie Watson in her lifetime.</p> <p>The jury returned a verdict in favor of ap-pellee for the sum of $3,216.25, principal, with interest on same from October 24, 1890 to July 14,1891, at 8 per cent., and from that date to date of trial at 6 per cent.</p> <p>This is the third appeal in this case. See 50 Tex. Civ. App. 616, 111 S. W. 771, and 121 S. W. 209. On the first appeal, this case was reversed on account of the error of the court in excluding from the jury deeds offered by defendant to the Price place and to the I<et-chum place. On 'the second appeal, this cause was reversed for error in refusing to allow plaintiff to testify fully as to the transactions between himself and Pallie Watson, deceased; he having been called by defendant to testify to said transactions in part.</p>

<p>Appeal from District Court, Kinney County; W. C. Douglas, Judge.</p> <p>Action by Frank Payne against G. C. Cox. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and Ebbob (§ 1068*) — Questions Reviewable — Immaterial Questions.</p> <p>Where the jury did not find for plaintiff, any error in refusing a special charge predicated on a finding for him was immaterial.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4225-4230; Dec. Dig. § 1068.*]</p> <p>2. Appeal and Ebbob (§§ 1001, 1002*) — Vee-dict — Conclusiveness.</p> <p>Where the evidence as a whole shows that the testimony supporting the verdict is _ clearly false, the verdict must be set aside; but where the evidence is conflicting a verdict will not be set aside, because the appellate court is of the opinion that it is against the preponderance of the evidence.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3928-3937; Dec. Dig. §§ 1001, 1002.*]</p>

<p>‘Appeal from District Court, Harrison .County; W. C. Buford, Judge.</p> <p>Trespass to try title by J. E. Furrh against E. W. Dean and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>Action by Early, Foster & Co. against C. H. Cox. Judgment for plaintiffs. Defendant appeals.</p>

<p>1. Pahties (§ 58*)— Substitution — Grounds.</p> <p>Where, in an action on a note brought in the name of the president and principal stockholder of a corporation, the evidence showed that the note was purchased for the corporation and paid for by corporate property, it was not error to allow the corporation to make itself a party plaintiff.</p> <p>[Ed. Note. — For other eases, see Parties, Cent. Dig. § 88; Dee. Dig. § 58.*]</p> <p>2. Bills and Notes (§ 324*) — Transfers— Liability of Transferees.</p> <p>A transferee of a vendor’s lien note who transfers it without indorsement to a third person for a specified consideration is responsible only for the consideration received by him on it appearing that the note never had any legal existence, and the third person may tender back the note and demand the consideration paid, and, where the consideration cannot be returned to him, he may sue for its value.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 324.*]</p> <p>3. Bills and Notes (§ 459*) — Actions—Parties.</p> <p>Where a transferee of a vendor’s lien note transferred it without indorsement to a third person for a specified consideration, the third person suing for the consideration or its value on the ground that the note never had a legal existence should not make the makers of the note or indorsers thereon parties, for their liability, if existing, is only to the transferee.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 459.*]</p> <p>4. Bills and Notes (§ 460*) — Actions—Parties.</p> <p>Where a transferee of a note transferred it without indorsement to a third person who retained the note and sued thereon, he should not join the transferee as a party defendant with an indorser of the note.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1434-1443; Dec. Dig. § 460.*]</p>

<p>Appeal from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by the Trustees of the College of De Kalb against Jim Williams. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by the Trustees of the College of De Kalb, against Vance Stevens. From a judgment for defendant, plaintiffs appeal.</p>

Error from District Court, Hill County; W. C. Wear, Judge. Action by the Blum Independent School District against Gulf, Colorado & Santa Fé Bailway Company. There was a judgment for plaintiff, and defendant brings error. Blum independent school district sued and recovered judgment against the Gulf, Colorado & Santa Fé Bailway Company for $239.-42, for unpaid taxes, interest, and penalty, and the railway company has brought the case to this court by writ of error.

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Action by J. P. Drahn and others against the St. Louis, San Prancisco & Texas Railway Company and another. Prom a judgment for plaintiffs, defendants appeal.</p>

L. Camp, Judge. Action by Russell Story, a minor, by next friend, and others, against Ethel T. Drought and husband. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from District Court, Hopkins County ; R. L. Porter, Judge.</p> <p>Trespass to try title by Sylvia Pannell against Henry Askew and others. From the-judgment, plaintiff appeals.</p>

L. Hawkins, Judge. Action by Olah Case, for herself and as next friend of Edgar Case, a minor, against F. L. Minehew and his sureties on a guardian’s bond. Judgment for plaintiffs,'' and de^ fendants appeal.

<p>Appeal from District Court, Bastrop County; Ed. R. Sinks, Judge.</p> <p>Uriah Foster was convicted of murder in the first degree, and he appeals.</p>

<p>Appeal from District Court,. Cass County; P. A. Turner, Judge.</p> <p>Action by the Clark & Boice Lumber Company against D. P. Duncan. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Haskell County Court; A. J. Smith, Judge.</p> <p>Action by C. D. Astin against the Stamford Sewerage Company and another. From a judgment for plaintiff, defendants appeal.</p>

W. Timmins, Judge. Mandamus by J. C. Felton and others against the Kansas City, Mexico & Orient Railway Company. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. In this case the trial court sustained a general demurrer and quite a number of special exceptions to the plaintiffs’ petition and the latter declining to amend, the case was dismissed, and the plaintiffs have appealed.

<p>Appeal from District Court, Sherman County; D. B. Hill, Judge.</p> <p>Action by Tom Chambers against D. E. Harrington and R. E. Overton. From a judgment for plaintiff, defendants appeal.</p>

P. Huff, Judge. Actions by J. W. Swearingen and another against J. H. Myers and others, and- by the O. K. T. Investment Company and others against J. W. Swearingen and another. From a judgment for defendants in the first cause, plaintiffs therein appeal.

<p>1. Principal and Agent (§ 120*) — Action-Evidence of Agency.</p> <p>In an action for a balance due on hay sold, testimony of an agent of the plaintiff that he authorized another person to sell the hay to the defendant is proper to show the authority of such person to make the sale.</p> <p>[Ed. Note. — Eor other cases, see Principal and Agent, Dec. Dig. § 120.*]</p> <p>2. Appeal and Error (§ 1058*) — Hakmless Error.</p> <p>A refusal to permit a person, in whose hands hay was placed for sale by an agent, to testify that he told the agent he had sold the hay to the defendant is harmless error, where both the person and the agent were permitted to testify that the hay was sold to the defendant.</p> <p>.[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4200 — 4206; Dec. Dig. § 1058.*]</p> <p>3. Appeal and Error (§ 499*) — Exception Below — Sufficiency.</p> <p>A court on appeal will not review the refusal to allow account books to be introduced in evidence, where the bill of exceptions fails to give the grounds of objection to the testimony.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 499.*]</p> <p>4. Trial (§ 125*) — Improper Argument of Counsel.</p> <p>In an action for a balance due on hay sold, a reference in the argument of counsel for the defendant to the relative wealth of the parties, which had not and could not have been proved, unchecked by the court, was improper; and where, although counsel expressed a willingness to withdraw that statement, he did not do so, it was error.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.*]</p>

<p>1.- Justices oe the Peace (§ 91*) — Pleading — Sufficiency.</p> <p>In an action in the justice court, allegations of the petition of special damages as follows: “To cotton damaged so as to be of no value and destroyed in patch, 2,000 lbs., $80; to feed damaged and destroyed in field, $10; to time lost in herding stock out of field, $17.-50” — are sufficiently definite; technical rules of pleading not being strictly enforced in justices’ courts.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 307-323; Dec. Dig. § 91.*]</p> <p>2. Appeal and Error (§ 694*) — Findings and Conclusions — When Conclusive.</p> <p>Where a record on appeal contains no statement of facts, the findings and conclusions of the trial court are conclusive on the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2910; Dec. Dig. § 694.*]</p> <p>3. Appeal and Error (§ 909*) — Presumptions — Sufficiency of Evidence.</p> <p>In an action for injuries to property, the trial court found as a fact that the work causing the injury was done by an independent contractor, and concluded that the master was liable. The record on appeal contained no statement of facts. Held that, since the master may be liable under some circumstances for the negligence of an independent contractor, the court, in the absence of the evidence, was bound to presume that it was sufficient to sustain the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. § 909.*]</p>

Seeligson, Judge. Action by O. O. Luter against Louisa C. Ihnken and another. From a judgment sustaining a plea of privilege, interposed by defendant John Ihnken, and ordering a change of venue of the whole case, plaintiff appeals.

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action between Jim Cook and G. W. Seay. From a judgment for Seay, Cook appeals. Appellee moved to strike the statement of facts.</p>

<p>Appeal from District Court, Clay County; A. H. Carrigan, Judge.</p> <p>Action by D. R. Francis against C. B. Patterson. From a judgment for defendant, plaintiff appeals.</p>

<p>1.Appeal and Error (§ 468*) — Appeal ok Supersedeas Bond — Validity.</p> <p>Where a supersedeas bond was filed after the time during which it was required by law to be filed, and the record fails to show any order of court authorizing it to be filed and considered as an appeal bond, the bond is invalid as an appeal or supersedeas appeal bond.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 468.*]</p> <p>On Rehearing.</p> <p>2. Appeal and Error (§ 482*) — Rehearing— On Whose Application.</p> <p>Where appellee joined in a motion by sureties to quash a supersedeas bond, which was granted, a rehearing of the motion will not be granted on appellee’s application.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 482.*]</p> <p>3. Appeal and Error (§ 393*) — Supersedeas Bond — Holding Valid as Cost Bond.</p> <p>A bond purporting to be a supersedeas appeal bond cannot be held valid as an appeal cost bond in the court of Civil Appeals, the court having no power to reform the instrument.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 2095, 2096; Dec.Dig. § 393.*]</p> <p>4. Appeal and Error (§ 461*)— Bond — Ap-provaj>-Necessity.</p> <p>A bond filed as such cannot serve as a su-persedeas bond, where it was not approved by the clerk of the trial court as a bond in the case.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2235-2238; Dec. Dig. § 461.*]</p> <p>5. Costs (§ 260*) — Appeal—Failure to Per-eect.</p> <p>An appellant is liable for the costs of an attempted appeal which he fails to perfect.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. § 985; Dec. Dig. § 260.*]</p>

<p>Appeal from District Court, Potter County ; J. N. Browning, Judge.</p> <p>Action between J. E. Smyer and the Et. Worth & Denver City Railway Company. Prom a judgment for the latter, the former appeals.</p>

W. Simpson, Judge. Action by E. V. Harrison, on his own behalf and as next friend for his minor child, Ernest Harrison, against Thomas J. Freeman, receiver of the International & -Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals.

<p>Appeal from District Court, Coleman County ; John H. Goodwin, Judge.</p> <p>Action by G. S. Walker against W. E. Hill and others. From a judgment for plaintiff, the first named defendant appeals.</p> <p>This suit was brought by appellee to recover of Louis F. Alexander, as maker, upon four promissory notes alleged to have been executed in part payment of a tract of land described in appellee’s petition, and upon which a vendor’s lien is alleged to have been retained to secure the payment of said notes. Appellee alleged in his said petition that Alexander conveyed said land to J. W. Jolly, who assumed the payment of said notes; that Jolly conveyed said land to G. W. Johnson, who also assumed the payment of said notes; that Johnson conveyed said land to E. E. Edwards, subject to the payment of said indebtedness; and that said Edwards conveyed said land to appellant Hill, subject to said indebtedness. There was judgment for appellee upon said notes against the defendant Walker, Jolly, and Johnson and a judgment foreclosing said vendor’s lien. From said judgment an appeal has been prosecuted by appellant Hill only upon assignments of error indicated in the opinion.</p>

<p>1. Bbokep.s (§ 85*) — Action foe Commission —Admissibility of Evidence — Letter.</p> <p>In a broker’s action for commission, a letter written by defendant, after a meeting between himself and the broker, at which defendant had agreed to sell the land at §16.50 per acre, confirmatory of the broker’s claim that he had authority in an original agreement to sell for less than $20 an acre, and that 5 per cent, commission would be paid on whatever price the land was sold for, was admissible as bearing on the broker’s authority.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 85.*]</p> <p>2. Appeal and Error (§ 1060*) — Habmless Eeeoe — Misconduct op Counsel.</p> <p>A letter from the owner of land, admissible in a broker’s action for commission as bearing on his authority, was introduced with a remark indicating that it was written with a view to enticing prospective purchasers. Held, that the remark, though improper, was not prejudicial.</p> <p>[Ed. Note. — For other cases, see-Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*]</p> <p>3. Tbial (§ 133*) — Argument and Conduct op Counsei>-Action op Couet.</p> <p>Counsel, when interrupted in his speech, said, “Oh, yes, when we are boring into them, they jump to their feet and except,” and the court promptly reprimanded him, and instructed the jury not to regard his remark. Held, that such remark was not prejudicial.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 310; Dec. Dig. § 133.*]</p> <p>4. Teial (§ 1S7*) — Insteuctions—Peovince op Juey— Ceedibilty op Witnesses.</p> <p>Where a broker, in his action for commission, testified that defendant said he would give him $1 per acre if he would colonize it, and that he told the defendant that it was not equitable, that it was worth more to sell land for $35 per acre than for $15 per acre, and that he wanted 5 per cent, on whatever amount he could get for the land, and that defendant agreed to that, a requested instruction that the uncontroverted evidence showed that defendant agreed to pay 5 per cent, for selling the land, provided it sold at $20 per acre, was properly refused, as an invasion of the province of the jury to pass upon the credibility of the witnesses.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 414-419; Dec. Dig. § 187.*]</p>

<p>Appeal from District Court, Kaufman County; C. M. Smithdeal, Judge.</p> <p>Action by W. L. Mills and others against the Texas & New Orleans Railroad Company. From a judgment for plaintiffs, defendant appeals.</p>

A. Martin, Judge. Trespass to try title by the H. O. Wooten Grocery Company against W. O. Starkey and others. From a judgment for plaintiff, defendants W. O. Starkey and L. D. Starkey appeal.

W. Simpson, Judge. Action by R. E. Swilling against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. ' Appellee was injured while working for appellant company in the capacity of head bralseman on one of its freight trains. He received the injury between 3 and 4 o’clock in the morning at Denman switch or spur, a side track on appellant’s line of road. Den-man switch is between Bullard and Mt. Sel-man.

Error from District Court, Dallas County; Kenneth Foree, Judge. Action by S. Kirkgard against F. L. Beh-rens and others. There was a judgment for plaintiff, and defendants bring error.

<p>1. Judgment (§ 682*) — Res Judicata — Persons Concluded.</p> <p>Plaintiff under his deed of land from H. after final judgment in a suit between H. and defendant, adjudging the title to timber thereon to be in defendant, cannot claim the timber.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1203-1205; Dec. Dig. § 682.*]</p> <p>2. Exchange oe Property (§ 7*) — Failure op Consideration — Reverting Right.</p> <p>Where A. conveyed pine timber to L. in exchange for a conveyance of oak timber, and A. then conveyed the oak timber to N., and was fully paid therefor 'by N., if any right to the pine timber reverted from L. because of failure of the title to the oak timber, such right would be in N.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Dec. Dig. § 7.*]</p> <p>3. Subrogation (§ 23*) — Advancement to Pay Lien Notes.</p> <p>One merely advancing money with which to pay ofE vendor’s lien notes, with no understanding as to having a lien, is not entitled to subrogation.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. § 23.*]</p> <p>4. Vendor and Purchaser (§ 267*) — Vendor’s Lien — Effect of Payment and Discharge.</p> <p>Payment and discharge of a vendor’s lien by the vendee vests the legal title to the property in the vendee.</p> <p>[Ed. 'Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 75Í-758; Dec. Dig. § 267.*]</p> <p>5. Logs and Logging (§ 3*) — Sale of Standing Timber — Removal.</p> <p>The purchasers of standing timber having used only such means for removing it as was expressly authorized by the grant, without unnecessary injury to the land, are not liable for any injury to the land.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*]</p> <p>6. Negligence (§ 136*) — Fires—Directing Verdict.</p> <p>A peremptory instruction is properly given in an action by the owner of land against the owner of the standing pine timber, who was removing it for causing fire to run over the land, injuring young trees; there being no evidence of who or what caused the fire.</p> <p>[Ed. Note. — For other cases, see Negligence, Dec. Dig. § 136.*]</p>

Error from District Court, Upshur County; R. W. Simpson, Judge. Action by James H. Blaekstone against the Kansas City Life Insurance Company, in which defendant filed a cross-action. From a judgment for plaintiff and denying relief on the cross-action, defendant brings error.

<p>Error from District Court, Van Zandt County; R. W. Simpson, Judge.</p> <p>Action by J. O. Robertson against the Texas & Pacific Railroad Company. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from District Court, Grayson County; J. M. Pearson, Judge.</p> <p>Action by W. L. Scott against the Missouri, Kansas & Texas Railway Company of Texas. Prom a judgment for plaintiff, defendant appe.als.</p>

<p>1. Evidence (§ 318*) — Hearsay.</p> <p>•' A recital in a power of attorney executed by the purported heir is not evidence of heir-ship as against third persons.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. § 318.*]</p> <p>2. Trespass to Tex Title (§ 6*) — Title to Support Action.</p> <p>A plaintiff having possession when ousted by defendant in trespass to try title was entitled to recover as against defendant, a trespasser, though title to some of the land involved was outstanding in another.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9; Dec. Dig. 1 6.*]</p>

<p>Appeal from Bee County Court; T. M. Cox, Judge.</p> <p>Action by James Blair against the Nueces River Valley Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by N. M. Harper against L. H. Hughes, administrator of the estate of H. H. Rawlins, and another. From a judgment for the administrator, plaintiff appeals.</p>

<p>1. Evidence (§ 96*) — Counterclaim—Burden on Peooff.</p> <p>The burden is upon a defendant in conversion to prove the justness and correctness of a counterclaim by a preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Evideuce, Cent. Dig. §§ 119-121; Dec. Dig. § ,96.*]</p> <p>2. Appeal and Error (§ 1068*) — Haemless Eeeoe.</p> <p>Though an instruction in an action for conversion misstated the amount of the claim, it could not be complained of as prejudicial, where the jury found against the defendant on the whole claim.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4227; Dec. Dig. § 1068.*]</p> <p>3. Trial (§ 194*) — Instructions —Weight off Evidence.</p> <p>In an action for the conversion of cement blocks and machines, a charge that, after stating other items of damage, instructs the jury to add the reasonable rental value of the use of the machines for the number of days detained, if any, as may be shown by the evidence, is not improper as a charge on the weight of the evidence, as the qualification, if any, must be held to refer to the value of the use as well as the time.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 439-441; Dec. Dig. § 194.*]</p> <p>4. Appeal and Eeeoe (§ 1195*) — Subsequent Trial — Law oe the Case.</p> <p>On a subsequent trial .after reversal and remand on appeal, the decision of the appellate court is the law of the case.</p> <p>[Ed. Note. — For other cases, see Appe¡l and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195.*]</p> <p>5. Teoveb and Conversion (§ 1*) — Elements — “Conversion.”</p> <p>“Conversion” is any distinct act or dominion wrongfully exerted over another’s property in denial of his right or inconsistent with if.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 1; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol.- 2, pp. 1562^-1570; vol. 8, p. 7618.]</p> <p>6. Trover and Conveksion (§ 23*) — Defenses — Rights Under Contract.</p> <p>A building contract, which permits the owner on specified grounds and conditions to enter on and take possession of the premises and of materials, tools, machinery, etc., does not authorize the taking possession of materials and machinery not on the premises, and an unlawful taking possession of such property amounts to a conversion.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 163-166; Dec. Dig. § 23.*]</p> <p>7. Appeal and Error (§ 270*) — Reservation of Grounds — Exception.</p> <p>Under rules for district and county courts, No. 53 (67 S. W. xxiv), which requires the taking of bill of exceptions to orders of courts, a failure to take an exception or reserve a bill of exceptions to an order of a court overruling a motion to retax costs precludes review of the order.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. §270;* Costs, Cent. Dig. §305.]</p> <p>8. Appeal and Error (§ 173*) — Presentation and Reservation of Grounds.</p> <p>A party cannot complain on appeal of the failure of the court to sustain a plea of the statute of limitations, where there is no showing that the action of the trial court thereon was invoked, or that the issue was submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1120; Dec. Dig. § 173.*]</p> <p>9. Contracts (§ 175*) — Construction—Evidence — Construction by Parties.</p> <p>Evidence of a party to a building contract as to how he construed the written instrument was properly refused.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 766; Dec. Dig. § 175.*] •</p>

<p>1. Insurance (§ 819*) — Mutual Benefit Insurance — Suicide—Evidence.</p> <p>In an action on an insurance policy, evidence held sufficient to sustain a finding by the jury that the deceased did not step in front of the train by which he was killed with suicidal intent.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 819.*]</p> <p>2. Evidence (§ 588*) — Credibility—Interest of Witness — Party Causing Injury.</p> <p>In an action involving the question of whether a person stepped in front of a train with suicidal intent, the engineer of the train by which he was killed is an interested witness; and hence his credibility is for the consideration of the jury.</p> <p>[Ed. Note. — For 'Other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*]</p> <p>3. Appeal and Error (§ 970*) — Trial (§ 91*) — Discretion of Court — Evidence — Motion to Strike Out.</p> <p>Where, after witnesses have been fully examined and cross-examined, a motion is made to strike out their testimony, and it does not appear why objection was not made when the testimony was offered, the determination of the motion rests largely in the discretion of the trial judge, and, unless he has abused his discretion, the judgment will not be reversed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 970;* Trial, Dec. Dig. § 91.*]</p> <p>4. Trial (§ 83*) — Objection to Evidence-Sufficiency.</p> <p>If evidence is relevant to the issue, an objection, on the ground that it is immaterial and irrelevant, is properly overruled, although the testimony be incompetent..</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. |§ 193-210; Dec. Dig. § 83.*]</p> <p>5.Judgment (§ 256*) — Conformity to Verdict — Interest.</p> <p>Where the jury returned a verdict for a specific sum, the inclusion of interest in the judgment was improper.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 452; Dec. Dig. § 256.*]</p>

<p>Error from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by Anna Allen Wright against George Wright. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Henderson County; B. H. Gardner, Judge.</p> <p>Action by Adelia Richardson against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant (§ 285*) — Injuries —Jury Question — Existence of Defects.</p> <p>Evidence, in a switchman’s action for personal injuries by having his foot caught between the couplings while coupling cars, held to make it a jury question whether the coupling could have slid out of place by gravity, by reason of one end of the carrying iron being defective.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 285.*]</p> <p>2. Appeal and Error (§ 1002*) — Findings —Conflicting Evidence.</p> <p>The Court of Civil Appeals has no power to disturb findings of fact made on conflicting evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>3. Constitutional Law (§ 245*) — Equal Protection of Law — Employer’s Liability Act.</p> <p>The safety appliance act (Acts 31st Leg. c. 26), which required all cars used in intrastate traffic to be equipped with automatic couplers, and providing that no employé of a common carrier who may be injured shall be held to assume all risks of his employment, or to have been guilty of contributory negligence, if the carrier’s violation of any provision of the act contributed to the injury, does not contravene Const. U. S. Amend. 14, relating to equal protection of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 245.*]</p> <p>4. Constitutional Law (§ 245*) — Equal Protection of Law — Employer’s Liability Act.</p> <p>The employer’s liability act (Acts 31st Leg. [1st Ex. Sess.] c. 10) provides that, in an action against a common carrier by an employé, the employé shall not be held guilty of contributory negligence where the violation by the carrier of any statute enacted for the safety of employés contributed to the death of such employé. Held, that the statute did not violate Const. U. S. Amend. 14, relating to the equal protection of the law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 245.*]</p> <p>5. Master and Servant (§ 14*) — Master’s Liability — Constitutionality of Statutes — Abolishing Contributory Negligence.</p> <p>The Legislature had power to enact the safety appliance act (Acts 31st Leg. c. 26), providing that no employé of a common carrier shall be held guilty of contributory negligence if the carrier’s violation of any provision of the act contributed to the employé’s injury, as well as the employer’s liability act (Acts 31st Leg. [1st Ex. Sess.] c. 10), providing that no employé shall be held guilty of contributory negligence where the violation by a common carrier of a statute enacted for the safety of employés contributed to such employé’s death.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 14.*]</p> <p>6. Master and Servant (| 14*) — Master’s Liability — Constitutionality of Statutes — Assumption of Risk.</p> <p>The Legislature had power to enact the safety appliance act (Acts Slst Leg. c. 26), providing that any employé of a common carrier shall not be held to assume the risk of his employment if the carrier’s violation _of_ any provision of the act contributed to his injury, as well as to enact the employer’s liability act (Acts Slst Leg. [1st Ex. Sess.j e. 10), abolishing the defense of assumed risk where the carrier’s violation of a statute enacted for the safety of the employé contributed to the injury.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. § 14.*]</p> <p>7. Commerce (§ 10*) — Master’s Liability-Carriers — Application of Statutes.</p> <p>A state statute regulating the relation of common carriers to their employés is applicable to interstate commerce _ until Congress has acted upon the same subject.</p> <p>[Ed. Note. — Eor other cases, see Commerce, Cent. Dig. § 8; Dec. Dig. § 10.*]</p> <p>8. Statutes (§ 64*) — Invalidity in Part.</p> <p>A statute will be sustained as to those parts not clearly unconstitutional, unless the constitutional and unconstitutional parts are so commingled that they cannot be separated.</p> <p>[Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 58-66, 195- Dec. Dig.' § 64.*]</p> <p>9. Master and Servant (§ 129*) — Injuries —Proximate Cause.</p> <p>That a switchman, injured in coupling a car, saw the defect before he was injured would not prevent it from being the proximate cause of his injury.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]</p> <p>10. Master and Servant (§ 285*) — Injuries —Jury Question — Proximate Cause.</p> <p>Whether the proximate cause of injury to a switchman in coupling cars was a defect in the coupling, by which bars would not meet, or the switchman’s act in putting his foot against the coupling to push it in line, held a jury question.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. § 285.*]</p> <p>11. Negligence (§ 61*) — Proximate Cause.</p> <p>If an accident results from two causes, due to the negligence of different persons, but together the efficient cause of the accident, both are liable.</p> <p>[Ed. Note. — Eor other cases, see Negligence, Cent. Dig. §§ 74, 75; Dec. Dig. § 61.*]</p> <p>12. Master and Servant (§ 228*) — Injuries —Proximate Cause.</p> <p>If a switchman whose foot was injured in coupling cars was injured by the combined negligence of the company in permitting a defective coupling and of himself in putting his foot between the coupling, the company would be liable in damages for its negligence; the statute preventing plaintiff’s negligence from barring a recovery.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. §■ 228.*]</p> <p>13. Negligence (§ 140*) — Instructions— “Proximate Cause” — Definitions.</p> <p>The court charged, in an action for personal injuries, that the “proximate cause” of an injury was a cause without which it would not have happened, and which, in a natural and continuous sequence, produces an injury; and, in order to find that negligence is the proximate cause of an injury, it must appear that it was the natural and probable consequence of the negligence, and should have been foreseen as a result likely to occur in the light of the attending circumstances. Held, that the charge sufficiently defined proximate cause.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 378-381; Dec. Dig. § 140.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.]</p>

<p>Appeal from District Court, Harris County; W. P. Hamblen, Judge.</p> <p>Action by Della Griewe and another .against T. J. Freeman, receiver of the International & Great Northern Railroad •Company. From a judgment for plaintiffs, •defendant appeals.</p>

<p>Appeal from Dallam County Court; C. S. Harrington, Judge.</p> <p>Action by the J. N. Johnson Land Company against R. L. Moore. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error (§ 396*) — Notice of Appeal-Necessity.</p> <p>An appellate court cannot acquire jurisdiction where no notice of appeal was filed in the lower court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2099; Dec. Dig. § 396.*]</p>

<p>Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.</p> <p>Action by B. Hamman against the Wichita Falls & Wellington Railway Company of Texas. From a judgment of the county court for plaintiff, rendered on appeal from a justice’s judgment, defendant appeals.</p>

<p>1. Appeal and Error (§ 1005*) — Verdict— Conclusiveness.</p> <p>A verdict supported by the testimony of the successful party corroborated in some particulars and contradicted in others and approved by the trial court will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3955-3995%; Dec. Dig. §■ 1005.*]</p> <p>2. Evidence (§ 539*) — Opinion Evidence-Competency of Witnesses.</p> <p>An employé of 30 days’ experience in moving engines with pinch bars is competent to testify, in an action for injuries caused by .the slipping of a bar, that according to the way the bar slipped and the way it jerked he believed that the heel of the bar was worn off, and that that caused the slipping, to prove defects in the bar.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2349-2352; Dee. Dig. § 539.*]</p>

<p>Appeal from District Court, Hartley County; D. B. Hill, Judge.</p> <p>Action by Ben H. Stone against W. C. Stone and J. H. Mellroy to enforce the payment of notes and to set aside a conveyance of Stone to defendant Mellroy. Judgment for plaintiff, and defendant Mellroy appeals.</p>

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>Action by Sallie R. Lowmiller and another against James F. Heasley and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Clay County; A. I-I. Carrigan, Judge.</p> <p>Action by R. M. Woods against Davis, Pruner & Howell. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Contracts (§ 127*) — Awards—'Validity.</p> <p>An award under a building contract, providing for the arbitration of all differences, is valid both at common law and under the statute; it appearing that the contract was not made with intent to oust the courts of jurisdiction and that the award was bona fide.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 608-615; Dec. Dig. § 127.*]</p> <p>2. Principal and Surety (§ 82*) — Bond for Performance of Contract — Agreement to Arbitrate.</p> <p>Though a building contract containing a provision for arbitration of differences between the owner and the contractor was not signed by the sureties on the bond to secure performance, the bond having been executed contemporaneously with the contract and referring to its provisions, they were bound by the agreement to arbitrate.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 127; Dec. Dig. § 82.*] 8. Arbitration and Award (§ 27*) — Arbitration — Relationship—“Related by Affinity.”</p> <p>An award made by an arbitrator whose nephew married a sister of one of the principals is not invalid either under the common law or the statute, because of the relationship, for Rev. St. 1895, art. 48, providing that an arbitrator shall not be related to either party by consanguinity or affinity, means relationship by affinity in the third degree.</p> <p>[Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. §§ 137-140; Dec. Dig. § 27.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 245-247.]</p> <p>4. Arbitration and Award (§ 82*) — Award —Effect.</p> <p>Where an award recited that plaintiff had signed the agreement for arbitration and plain-tiif raised no question in the trial by arbitration as to his signing, the award was conclusive upon that issue.</p> <p>[Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. §§ 440-450; Dec. Dig. § 82.*]</p> <p>5. Appeal and Error (§ 1040*) — Review-Harmless Error.</p> <p>The sustaining of an exception to plaintiff’s supplemental petition, wherein he denied the execution of an agreement to arbitrate, is harmless, if erroneous, where plaintiff while testifying admitted that he was bound by the agreement.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dee. Dig. § 1040.*]</p> <p>6. Trial (§ 25*) — Arguments—Opening and Close.</p> <p>Where a defendant confessed and avoided plaintiff’s cause of action, and a demurrer was sustained to the answer of the second defendant who did not amend, the first-named defendant under district court rule 31 (67 S. W. xxiii), providing that plaintiff shall have the right to open and conclude unless the burden of proof of the whole case rests on defendant, or unless the defendant, or all of the defendants, shall admit plaintiff’s cause of action, in which case the defendant or defendants shall have the right to open and conclude, and Rev. St. 1895, art. 1299, providing that the party having the burden of proof shall be entitled to open and close, was entitled to open and close, though he did not admit the cause of action attempted to be set up by the second defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.*]</p> <p>7. Trial (§ 25* [ — Arguments—Opening and-Close.</p> <p>In an action by materialmen against the owners of a building which had burned during construction, where the owners confessed the materialmen’s cause of action, but set up that the materialmen were sureties on the bond of the contractor who had breached his agreement, and that they were liable under a certain award, the burden was upon the defendants, and they were, under district court rule 31 (67 S. W. xxiii) and Rev. St. 1895, art. 1299, entitled to the opening and close.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44r-75; Dec. Dig. § 25.*]</p> <p>8. Principal and Surety (§ 142*) — Liability of — Set-Off.</p> <p>Sureties upon the bond of a contractor, who was constructing a building which burned before completion, having furnished materials appropriated by the owners after the fire, are entitled to deduct the benefits received by the owners from their liability as sureties.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Dec. Dig. § 142.*]</p>

<p>1.Appeal and Error (§ 11*) — Proceeding by Both Remedies.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 1383, giving the right to take a case to the appellate court by an appeal or writ of error, a party may at the same time proceed by both remedies up to the time that he obtains a review on the merits by one or the other remedy; provided he does so within the time limited by statute and rules, and not under such circumstances as will result in depriving the adversary of some right guaranteed him by statute or the rules.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 39-46; 'Dec. Dig. § 11.*]</p> <p>2. Appeal and Error (§ 455*) — Writ oe Error — Perfecting Proceeding.</p> <p>The petition and bond for writ of error being filed in the trial court, and the bond approved by the clerk thereof, both within a year from rendition of judgment, jurisdiction is thereby given the appellate court, though citation in error is not issued till after lapse of the year.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2214; Dec. Dig. § 455.*]</p> <p>3. Appeal and Error (§ 407*) — Writ oe Error-Service oe Citation.</p> <p>Where on a Saturday, next to the last day of the year from rendition of judgment, defendant filed in the trial court its petition and bond for writ of error, and had the clerk thereof approve the bond, there was not such negligent failure to use proper diligence to procure service of citation in error as to deprive defendant of a right to a hearing on the merits under the writ, though its attorney then notified the clerk not to issue the citation till he saw him the next Monday, and discussed with him what the citation should contain, and though, after such discussion on Monday, the clerk told him that because of other official duties the citation could not be issued for several days, and it was not issued till nine days later, after which it was served with due diligence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2128-2132; Dec. Dig. § 407.*]</p> <p>4. Appeal and Error (§ 805*) — Abandonment.</p> <p>It is not an abandonment of a writ of error proceeding that after the perfecting thereof plaintiff in error, who had also taken an appeal in the same case, resisted the dismissal of the appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3174, 3175; Dec. Dig. § 805.*]</p> <p>5. Appeal and Error (§ 14*) — Hearing on Error After Dismissal oe Appeal.</p> <p>Defendant having prosecuted both an appeal and a writ of error in the same case, and plaintiff having had the appeal dismissed for failure of defendant to file briefs in time, instead of filing her briefs and having the case disposed of on the merits on her briefs and the record, without defendant being heard or allowed to file briefs, as she might under rule of court, she is deprived of no legal right, as a result of the delay, by defendant thereafter being allowed to be heard on the merits under its writ of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 14.*]</p>

<p>Error to District Court, Harris County; W. P. Hamblen, Judge.</p> <p>Action by J. O. Ross and others against Edward. H. Bailey. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. Pleading (§ 205*) — Demurrer—Pleading Constituting. '</p> <p>In a suit by a county against an irrigation canal company for reimbursement for repair of a bridge on a public road crossing the company’s canal, a pleading by defendant constituted a general demurrer, though styled a “plea in abatement,” where it stated that the duty to repair rested on the company and not on the county, and that the county could not create a charge against the company by voluntarily assuming the duty.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-510; Dec. Dig. § 205.*]</p> <p>2. Bridges (§ 21*) — Irrigation Canals — Repairs — Reimbursement of County.</p> <p>Under Rev. St. 1895, art. 3128, which requires an irrigation canal company to keep in proper repair bridges crossing its canal on public roads, and under article 4792, which empowers county commissioners to cause all necessary bridges to be kept in repair, on a company’s refusal to comply with its duty under article 3128, the county can make the repairs and enforce reimbursement from the company therefor without first applying for mandamus to compel the company to make them.</p> <p>[Ed. Note. — For other cases, see Bridges, Dec. Dig. § 21.*]</p>

<p>1. Appeal and Ebbor (§ 1002*) — Review-Verdicts — Conclusiveness.</p> <p>A verdict upon conflicting evidence is conclusive on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>2. Trial (§ 143*) — Questions por Jury-Conflicting Evidence.</p> <p>AVhere the evidence is conflicting, a peremptory instruction is properly refused.</p> <p>[Ed. Note. — For. other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]</p> <p>3. Brokers (§ 53*) — Compensation—Right to.</p> <p>Where a real estate broker with whom land was listed for sale interested another broker, who consummated a sale, the first one was entitled to a commission only if he was the procuring and efficient cause of the sale.</p> <p>[Ed. Note. — For other eases, see Brokers, Cent. Dig. § 74; Dec. Dig. § 53.*]</p> <p>4. Evidence (§ 122*) — Res Gestje — Declarations.</p> <p>In an action by a broker for compensation, evidence of his conversations with the parties with whom he negotiated the sale and with the vendor’s wife, who told him that the vendor would agree to whatever a co-owner decided, was admissible as res gestee, tending to show the services of the broker.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent Dig. §§ 339-350; Dec. Dig. § 122.*]</p>

<p>1. Master and Servant (§ 291*) — Actions for Injuries — Evidence — Weight and Sufficiency.</p> <p>In an action by a section foreman for injuries to his eyes, claimed to have been received while using a track drill, evidence held insufficient to raise any issue whether he was injured while cutting rails with a chisel or spike and maul, and hence a charge that the undisputed evidence showed that the injuries were received while plaintiff was using a track drill furnished by defendant was justified.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 291.*]</p> <p>2. Trial (§ 191*) — Actions for Injuries— Instructions.</p> <p>A charge that if the jury found that the defendant was guilty of negligence in failing to furnish its servant with a track drill which was in a reasonably safe condition for use and found other facts as specified, their verdict should be for the servant, is not subject to the criticism that it leaves to the jury only the question whether it was negligence to furnish an unsafe track drill, and takes from them the question whether the track drill was actually unsafe.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-435; Dee. Dig. § 191.*]</p> <p>3. Tbial (§ 253*) — Actions bob Injubies— Instbu ctions — Oonteibutoey Negligence.</p> <p>A charge to find for plaintiff if defendant was found negligent in furnishing its servant with an unsafe track drill, and it should be found that a person of ordinary care, upon being furnished such a drill, would have continued in defendant’s service, does not take from the jury the question of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. ■Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>4. Evidence (§ 471*)— Opinions — Statement oe Fact.</p> <p>A plaintiff suing for personal injuries, although not an expert, may testify that with his eyes in their present condition he could not pass a physical examination for section foreman, since it calls for a statement of fact as to his physical condition.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>5. Masteb and Sebvant (§§ 276, 278*) — Actions fob Injubies — Evidence—Weight AND SUEFICIENCT.</p> <p>In an action by a section foreman for personal injuries, evidence held to sustain a finding that the defendant was negligent in failing to furnish plaintiff a reasonably safe track drill, and that such negligence was the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954-972; Dec. Dig. ■§§ 276, 278.*]</p> <p>6. Masteb and Sebvant (§ 281*) — Actions foe Injubies — Evidence—Weight and SUF3ÍTCIENCT.</p> <p>In an action by a section foreman for injuries received through the use of a defective appliance, evidence held insufficient to show contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.*]</p> <p>7. Negligence (§ 122*) — Actions—Bubden of Pboof— Oonteibutoey Negligence.</p> <p>Where plaintiff’s pleadings and testimony do not show contributory negligence, the burden of showing such negligence is on the defendant if it has pleaded it as a defense.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 221-223, 229-234; Dec. Dig. § 122.*]</p>

<p>Pleading (§ 248*) — Petition—Amendments —New Cause oe Action.</p> <p>An amended petition curing defects in the original petition in an action on a note providing for 10 per cent, attorney’s fees, arising from the failure to allege the contract price of attorney’s services, or the reasonable value thereof, in the absence of a contract, does not set up a new cause of action, and defendant need not be cited to answer it.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 686-709; Dec. Dig. § 248.*]</p>

<p>1.Public Lands (§ 173*) — School Lands— Action Against County — Admissibility of Evidence — Notice of Rescission.</p> <p>In an action against a county to establish the title and right to possession of school lauds sold by the county to plaintiff’s remote grantor, and which, after breach of the contract by the purchaser, by failure to make due payment, had been recovered by the county in trespass to try title against the purchaser alone, without notice to plaintiffs, and after-wards leased by the county, the order of the commissioners’ court in 1892, directing the county attorney to bring suit on the school land notes, the' original petition filed by the county in the action, the judgment, entered in 1894, canceling the original contract of sale, the testimony of county officers as to such proceedings by the county, the order of the commissioners’ court, showing a lease of the lands, and the testimony of the lessees as to the lease and their occupancy thereunder were admissible in evidence, either under defendant’s issue of limitation, or as bearing on the issue of when and how notoriously defendant had elected to rescind the original contract, and as tending to show notice on the part of plaintiffs of defendant’s election to rescind and plaintiff’s acquiescence therein.</p> <p>[Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 544M551; Dec. Dig. § 173.*]</p> <p>2.Public Lands (§ 173*) — School Lands— Sale — Rescission—Rights of Grantee.</p> <p>Where a county sold its school lands, retaining a vendor’s lien, and on the purchaser’s failure to perform his contract brought an action to recover the land, these judicial proceedings, as such, to which none of the purchaser’s grantees were in any way parties, did not divest them of their right, upon proper conditions and within proper time, to tender and obtain specific performance of the county’s original contract of sale.</p> <p>[Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p> <p>3. Public Lands (§ 173*) — School Lands— Sale — Rescission—Nonpayment of Pub-chase Money — Notice to Grantees.</p> <p>Where no portion of the purchase price of school lands sold by a county has been paid, and default is made by the purchaser, his grantees and representatives, the grantor, if it acts promptly, may rescind the contract and retake possession of the land, without any notice to such grantees or their representatives, and thereby deprive them of any further rights or equities under the contract.</p> <p>[Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 544r-551; Dec. Dig. § 173.*]</p> <p>4. Public Lands (§ 173*) — School Lands— Sale — Abandonment by Pubchasee’s Grantee.</p> <p>Where the grantees of a purchaser of school lands, subject to a vendor’s lien, knew that the land represented a trust fund in the hands of the county, and that the county was insisting on a strict compliance with the contract of sale, and also knew, when they failed to make payments as required by the contract, that the land was possibly not worth more than the debt against it, and, being financially able to make such payments, deliberately elected not to do so, their election, under such circumstances, amounted to an abandonment of their rights under the contract.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. ■§§ 544-551; Dec. Dig. § 173.*]</p> <p>5.Vendor and Purchaser (§ 54*) — Contract of Sale — Puechasee’s Rights.</p> <p>The purchaser’s rights to land under .an executory contract of sale are merely to acquire the title to the land by complying with the contract of sale; and the superior title rests in the grantor until the purchase price has been .fully paid.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 85; Dec. Dig. § 54.*]</p> <p>6.Public Lands (§ 173*) — School Lands —Rescission by Vendor — Nonpayment by Purchaser — Notice to Infants.</p> <p>Under an executory sale of a county’s school lands, the county has a right, on failure by an infant purchaser to perform to rescind the contract and resume possession of the land, provided it elects to do so promptly, without notice to the minor of such rescission.</p> <p>[Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 544 — 551; Dec. Dig. § 173.*]</p> <p>7.Public Lands (§ 173*) — School Lands— Rescission by County — Rights of Infant Grantees.</p> <p>Where a county has made an executory contract of sale of its school lands as an entirety, it has no power to so change the contract as to affect detrimentally the rights and interest of the school fund; and hence a minor grantee of the purchaser, although he has no notice of the county’s rescission of the contract, cannot acquire an undivided interest with the school fund.</p> <p>[Ed. Note. — For other cases, see Public Lands, Gent. Dig. §■§ 544^551; Dec. Dig. § 173.*]</p> <p>8. Public Lands (§ 173*) — School Lands— Right to _ Rescind — Express Provisions.</p> <p>_ There is no distinction between an express provision and an implied provision in a county’s executory contract of sale of its school lands, so as to affect the county’s right to rescind on breach by the grantee; but, if there is an express provision that the grantee’s breach shall forfeit, all he had paid on the land, equity cannot intervene as a result of the grantee’s payment of a considerable part of the purchase price, though, if the right to rescind be expressed in the contract in language not clearly showing a forfeiture by the grantee of what he may have paid on the land, a court of equity might allow specific performance within a reasonable time.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p> <p>9. Public Lands (§ 173*) — School Lands— Sale — Rescission by Vendor.</p> <p>Where the contract for a county sale of school lands provides expressly that the purchaser’s breach of the contract shall forfeit all payments made, the mere fact that such payments amount to a considerable part of the purchase price will not warrant interference by a court of equity; but where the contract expressly reserves the vendor’s right to rescind for the purchaser’s breach, or such right is given by law, and the contract does not clearly declare a forfeiture of payments by the purchaser prior to the breach, equity may then allow specific performance within a reasonable time.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p> <p>10. Public Lands (§ 173*) — School Lands —Conveyance—Law of State as Part of Contract — Right to Rescind.</p> <p>The law of the state, as it existed at the time of the making of an executory contract of sale of its school lands, to the effect that the grantee took the land, subject to the right of the county to rescind for failure on the part of the grantee to comply with the contract, whether such right was expressly embodied therein or not, entered into the contract and became a part of it.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p> <p>11. Public Lands (§ 173*) — School Lands —Sale bt County — Action—Limitations.</p> <p>School land constituting a trust fund in a county, with specific limitations as to the manner in which the trust shall be performed, where it did not in fact pass as a result of the county’s executory contract of sale, title therein would not arise by limitation as a result of acquiescence by county officers.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p>

N. Browning, Judge. Trespass to try title by J. B. Williams against L. C. Barnes, revived by Williams’ widow and others on his death. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from District Court, Fayette County; B. G. Neighbors, Judge.</p> <p>Action by Louisa Kennon and another against Henry Miller and another. From a judgment for defendants, plaintiffs appeal.</p>

Action by the Board of Trustees of the Sheppard’s Home appointed by the Presbyterian Church, U. S. A., against Joe Wood and others. From.a judgment for defendants, plaintiff appeals.

<p>1. Clerks ox Courts (§ 74*) — Execution-Refusal to Issue — Bonds.</p> <p>A clerk of court was not liable on his ofiicial bond for refusal to issue an execution on a judgment where he had been enjoined from so doing.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 127-134; Dec. Dig. § 74.*]</p> <p>2. Execution (§ 172*) — Restraining Issuance — Effect—Res Judicata.</p> <p>A decree enjoining a district court clerk from issuing execution on the judgment was res judicata of the plaintiff’s right to an execution and a bar to his action against the clerk for refusal to issue it.</p> <p>[Ed. Note. — For other cases, see Execution, Dec. Dig. § 172.*]</p>

<p>Trial (§ 168*) — Questions oe Law and Fact —Direction ow Verdict.</p> <p>Where there is no controversy as to the-facts, or the inference to be drawn therefrom, the court may instruct the jury how to find, notwithstanding Sayles’ Civ. St. 1897, art. 1317, providing that the judge shall distinctly separate the questions of law from the questions-of fact, and shall instruct the jury as to the law, and shall submit all controverted questions • of fact to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 376-380; Dec. Dig. § 168.*]</p>

<p>Appeal from Travis County Court; R. E. White, Judge.</p> <p>Action by Nalle & Co. against R. B. Spencer & Co. and others. From the judgment, R. B. Spencer & Co. appeals.</p>

B. Muse, Judge. Action by E. E. Waller and others against the Western Bank & Trust Company, in which the Oriental Bank of New York intervened to recover an alleged balance due on certain notes after applying the proceeds of a sale of collaterals. From a judgment in favor of L. C. McBride, receiver of defendant Western Bank & Trust Company, against intervener, it appeals.

<p>1. Carriers (§ 134*) — Carriage oe Freight —Act oe God — Evidence.</p> <p>In an action against a carrier for damage to freight, evidence held to show that the damage was due directly and exclusively to a storm which could not have been guarded against by any care reasonably to be expected of the carrier, and it was not liable because the occurrence was an act of God.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 592, 607; Dec. Dig. § 134.*]</p> <p>2. Carriers (§ 119*) — Carriage oe Freight Liabiility — Act oe God.</p> <p>A carrier is not liable for damages caused by an act of God, when such damages are not contributed to by any negligence of the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 523-530; Dec. Dig. § 119.*]</p> <p>3. Carriers (§ 119*) — Carriage oe Freight —Liability—“Act oe God.”</p> <p>Where damage to freight was due directly and exclusively to an exceedingly severe windstorm, and no amount of care which could have been reasonably required of the carrier could have prevented the injury, the carrier was not liable, since an occurrence so unusual that it could not have been reasonably expected or provided against is an act of God.</p> <p>[Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 523-530; Dec. Dig. § 119.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 118-126.]</p> <p>4. Carriers (§ 119*) — Carriage oe Freight —Liability—Act oe God.</p> <p>A carrier is not required to procure cars of sufficient strength , to withstand a storm which it cannot reasonably anticipate as likely to occur.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 523-530; Dec. Dig. § 119.*]</p>

<p>1. Action (§ 25*) — Legal and Equitable-Abolition of Distinctions.</p> <p>The distinction between actions at law and suits in equity, so far as it affects the jurisdiction of the court to grant legal and equitable relief in the same suit on pleadings presenting legal and equitable grounds for relief, is not recognized.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 12A-159; Dec. Dig. § 25.*]</p> <p>2. Partition (§ 55*) — Right to Maintain— Issues.</p> <p>A plaintiff in partition of land in possession of defendant who denies that plaintiff is a eotenant, and who asserts sole ownership, may maintain the suit brought in the statutory form; and he need not establish his interest in the land on a pleading in the form of trespass to try title.</p> <p>[Ed. Note. — Por other cases, see Partition, Dec. Dig. § 55.*]</p> <p>3. Partition (§ 63*) —Issues — Burden of Proof.</p> <p>A plaintiff in partition of land in possession of defendant who asserts sole ownership must establish his right to the interest claimed, or to some interest; and where he does so he is entitled to partition.</p> <p>[Ed. Note. — Por other cases, see Partition, Dec. Dig. § 63.*]</p>

<p>'Appeal from Tyler County Court; R. A. Shivers, Judge.</p> <p>Action by E. E. Allen against the Burr’s Ferry, Browndell & Chester Railway Company. From a judgment dismissing the petition, plaintiff appeals, and defendant cross-appeals from a ruling excluding testimony.</p>

<p>1. Trial (§§ 260, 240*) — -Instructions—Argumentative Instructions — Covered by Charge.</p> <p>Special instructions which are argumentative and covered by the charge given are properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651, 561; Dec. Dig. §§ 260, 240.*]</p> <p>2. Damages (§ 59*) — Measure—Personal Injury-Loss of Time.</p> <p>One who lost time as the result of being practically disabled by an explosion of combustible materials loaded in a box car of the railway company was entitled to recover the value of the time, without any deduction for wages paid him as mere gratuity.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 110; Dec. Dig. § 59.*]</p>

Angelina County; James I. Perkins, Judge. Action by S. N. Berry against G. W. Bur-kitt and L. J. Bames, partners, doing business under tbe firm name of Burkitt & Bames. Judgment for plaintiff, and defendants appeal.

<p>Appeal from District Court, Refugio County; John M. Green, Judge.</p> <p>Action by John Bickford against tbe Refugio Land & Irrigation Company. From a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from District Court, Sabine County; W. B. Powell, Judge.</p> <p>Action by H. J. Butcher and others against W. J. Grant. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Dallas County Court; W. P. Whitehurst, Judge.</p> <p>Action by Scott Bros, against John P. Caldwell and wife. Prom a judgment for plaintiffs, defendants appeal.</p>

C. Scott, Judge. G. P. Noack was indicted for murder. Prom an order remanding him to the custody of the sheriff in habeas corpus proceedings, he appeals. Affirmed.

<p>Appeal and Error (§ 1011*) — Review—'Verdict.</p> <p>The appellate courts will not reverse the judgment of a trial court which is supported by-evidence, though conflicting.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]</p>