Volume 146 — South Western Reporter

<p>Criminal Law (§ 1064%*) — Appeal—Motion for New Trial — Grounds—Verification.</p> <p>A motion for new trial, on the ground that the court erred in permitting witnesses named to testify, cannot, be considered on appeal, when in no way verified.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676, 2S87, 2948; Dec. Dig.- § 1064%.*]</p>

<p>Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.</p> <p>O. F. Gould was convicted of violating the Sunday law, and he appeals.</p>

<p>Criminal Law (§ 1097*) — Appeal—Statement of Facts — Review of Evidence.</p> <p>Without a statement of facts, grounds for a new trial that the verdict was contrary to the evidence and the instructions erroneous cannot be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2802, 2864, 2926, 2934, 2938. 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]</p>

<p>1. Criminal Law (§ 1099*) — Appeal—Statement of Pacts — Necessity.</p> <p>Where there is no statement of facts in the record on appeal, in a misdemeanor case prosecuted in the county court, but only a document which purports to be a statement of facts, but which is not copied nor certified in the record, it cannot be considered.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1099.*]</p> <p>2. Criminal Law (§ 1087*) — Appeal—Record — Contents—Piling of Bill of Exceptions.</p> <p>Where the record does not show the filing of the bill of exceptions in the lower court, the bill cannot be considered.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2770-2781; 2794; Dec. Dig. § 1087.*]</p> <p>On Motion for Rehearing.</p> <p>3. Criminal Law (§ 1099*) — Appeal—Statement of Pacts — Time for Piling.</p> <p>A statement of facts in the record on appeal in a misdemeanor ease prosecuted in the county court, which, shows that it was agreed to and signed by the attorney for the state and the defendant, approved by the judge, and filed, all after the expiration of the 20 days allowed by law therefor, though within the limits of time granted by the court, does not authorize the court to consider it.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]</p>

<p>Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.</p> <p>H. Muckleroy was convicted of aggravated assault, and he appeals.</p>

<p>Criminal Law (§ 1144*) — Appeal — Presumptions.</p> <p>In the absence of a statement of facts, it must be presumed that the trial court submitted all the law applicable to the evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2786-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]</p>

<p>Appeal from District Court, Hill County; C. M. Smithdeal, Judge.</p> <p>West Alexander was convicted of theft of hogs, and appeals.</p>

<p>Appeal from District Court, Anderson County; B. H. Gardner, Judge.</p> <p>Judge Burton was convicted of murder in the second degree, and appeals.</p>

<p>Error from District Court, McLennan County; Marshall Surratt, Judge.</p> <p>Action by Waco Cotton Pickery against the St. Louis Southwestern Railway Company of Texas. ' From a judgment for plaintiff, defendant appeals.</p>

<p>1. Trespass to Tey Title (§ 39*) — Transfer of Headright Certificate — Evidence — Admissibility.</p> <p>A plaintiff in trespass to try title who claims title from the holder of a headright certificate may show by circumstances a conveyance of the certificate by the holder.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 54; Dec. Dig. § 39.*]</p> <p>2. Trespass to Try Title (§ 41*) — Transfer of Headright Certificate — Evidence — Admissibility.</p> <p>The evidentiary value of circumstances essential to authorize the presumption that a missing conveyance in a chain of title was made is derived from their tendency to show an acquiescence in the title asserted by the claimant under the conveyance; such acquiescence presupposing knowledge on the part of the alleged grantor that adverse rights are set up by such claimant, which knowledge may be inferred from circumstances such as possession, coupled with open and notorious claim of ownership.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.*]</p> <p>3. Trespass to Try Title (§ 39*) — Presumption of Missing Conveyance in Chain of Title.</p> <p>Where, in trespass to try title to recover the east third of a survey under a headright certificate granted in 1838, plaintiff claimed title through a conveyance of the certificate by the owner prior to 1840, and the survey was not divided until 1876, at which time the survey was divided into the east third and the west two-thirds, evidence of deeds conveying portions of the west two-thirds after the partition and of possession under the deeds and payment of taxes on portions of the west two-thirds was admissible as evidence of title in plaintiff to the east third, as showing a conveyance of the headright certificate sought to be established by circumstances alone.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 54; Dec. Dig. § 39.*]</p> <p>4. Evidence (§ 273*) — Declarations — Admissibility.</p> <p>Where the title of plaintiff in trespass to try title depended on a conveyance of a head-right certificate by the original holder- thereof, and a conveyance was attempted to be proved by circumstantial evidence alone, declarations of the original certificate holder since deceased that he owned the land and that he had not sold his certificate were admissible on the issue of acquiescence as showing that he asserted a claim to the land at the time when plaintiff relied on an adverse claim.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. § 273.*]</p> <p>Willson, C. J., dissenting in part.</p>

<p>Appeal from District Court, McLennan County; Marshall Surratt, Judge.</p> <p>Action by A. A. Beno against the Missouri, Kansas & Texas Eailway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Trespass to Try Title (§ 35*) — Actions —Admission oe Evidence.</p> <p>Where, in trespass to try title for a tract claimed by plaintiff as heir of C. her father, defendants claimed that plaintiff was estopppd from claiming title as heir because she had elected to take under a will of L., devising such tract to her, evidence was admissible, as against the plea of estoppel, to show that all the property devised to plaintiff in fact belong-, ed to her father, and had been placed in A.’s’ name in trust for plaintiff’s father to protect it from debts, so that L. had no title to the property devised to plaintiff; not requiring plaintiff to elect as to taking under the will; such evidence not being an attempt to raise a trust without pleading it.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.*]</p> <p>2. Trespass to Tey Title (§ 35*) — Pleading — Proof.</p> <p>Under the ordinary pleadings in trespass to try title, neither party can introduce evidence of an equitable right.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.*]</p> <p>3. Wills (§ 781*) — Election.</p> <p>To require one taking under a will to elect whether she will take under the will or as heir, testatrix’s intention to that effect must be clearly shown in the will, or arise from the most necessary implication.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 2013-2017; Dec. Dig. § 781;* Executors and Administrators, Cent. Dig. § 696.]</p> <p>4. Wills (§ 781*) — Election — Taking as Heir.</p> <p>A devisee under a will cannot be compelled to elect if the property devised to her would have belonged to her as heir independent of the will.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 2013-2017; Dec. Dig. § 781;* Executors and Administrators, Cent. Dig. § 696.]</p> <p>5. Wills (§ 781*) — Election—Necessity.</p> <p>Where plaintiff was the only person to whom specific property was devised, and the only other devise was in the residuary clause, which gave the balance “of any and all property that may be mine .at the time of my death” to testátrix’s grandson, plaintiff was not put to an election as to whether she should take under the will property devised to her, which did not belong to testatrix, but belonged to plaintiff independent of the will.</p> <p>[Ed. Note. — Por other cases, see Wills, Cent. Dig. §§ 2013-2017; Dee. Dig. § 781;* Executors and Administrators, Cent. Dig. § 696.]</p> <p>6. Wills (§ 792*) — Election — Foundation oe Doctrine.</p> <p>The doctrine of election in the law of wills is founded upon actual intention, and an election made by a devisee in ignorance of material facts is not binding upon him, especially where no one is injured thereby.</p> <p>[Ed. Note. — For other cases, see Wills, Cent, Dig. §§ 2061-2063; Dec. Dig. § 792;* Executors and Administrators, Cent. Dig. § 696.]</p> <p>7. Wills (§ 717*) — Elections.</p> <p>One who accepts a devise under a will must adopt the whole instrument, so far as he is interested therein.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1711-1716; Dec. Dig. § 717.*]</p> <p>8. Wills (§ 487*) — Construction — Intention oe Testator.</p> <p>While testator.’s intention must be obtained from the language of the will, proof of the peculiar circumstances surrounding the testator, the condition of his affairs, his attitude toward his natural beneficiaries, etc., is permissible to discover such intent.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1023, 1026-1032; Dec. Dig. § 487.*]</p> <p>9. Wills (§ 487*) — Paeol Evidence.</p> <p>Parol evidence is not admissible to contradict, add to, or explain a will by proving testatrix’s declarations before, at, or after the execution of the will.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1023, 1026-1032; Dec. Dig. § 487.*]</p> <p>10. Appeal and Ebkor (§ 204*) — Presentation Below — Objections to Evidence.</p> <p>Where in trespass to try title in which plaintiff claimed as heir, and defendant claimed that plaintiff was estopped to claim title because she had elected to take the same land under a will, defendant cannot first object on appeal to evidence that the land devised to plaintiff in fact belonged to her independent of the will as being held in trust for her father.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1258-1280; Dec. Dig. § 204.*]</p> <p>On Motion for Rehearing.</p> <p>11. Appeal and Error (§ 882*) — Estoppel to Allege Error.</p> <p>Appellants cannot complain on appeal of the admission of evidence which they themselves caused to be admitted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]</p>

Action by Charles Wolf against Frank Wilhelm and others, in which part of defendants filed a cross-answer. From a judgment for defendants, plaintiff appeals.

<p>Error from District Court, Bexar County; J. L. Camp, Judge.</p> <p>■ Action by Adolph Zander and others against Otto Schultze and others. Judgment for defendants, and plaintiffs bring error. Affirmed.</p> <p>The following is the map referred to in the opinion:</p> <p>Au gust Zamder Lot Numb.eR 3 a. 3 A. 5 ¿°Jo A. -f /W.'S goa* 7 ?'/ FH0H 36 " P£CAfi ON OLD OlTCH BS5.5.27” W’7}ftSi. SNOOK CoRNER »Nt.C OF CHERRY 6S3.6 Che.rrx St. V Pí.um St.</p>

<p>1. CORPORATIONS (§ 503*) — 'VENUE—AC,TION on Contract — “Cause op Action” — “Arose.”</p> <p>Plaintiff, from its office in G. county, by telephone, agreed with defendant’s manager at its office in E. county to sell cotton seed delivered f. o. b. in G. county, payable in P. county by draft with bill of lading attached, the seller to pay the freight and to sell cotton seed from other points and divert it to P. county. Rev. St. 1895, art. 1194, subd. 23, provides that a suit against a private corporation may be commenced in any county in which the cause of action arose. Held, that the “cause of action” comprehended the agreement between the parties, its performance by one, and its breach by the other, and that the acts to be done under the agreement constituted a performance in E. county, so that no cause of action “arose” in G. county; and hence that the defendant was entitled to a change of venue.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 1935-1939, 1942-1946; Dec. Dig. § 503.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1015-1019; vol. 8, p. 7598.]</p> <p>2. Sales (§ 179*) — Action por Price — Defenses — Inferior Quality.</p> <p>A buyer who unloads and accepts goods without knowledge of their condition at the time of taking possession may defend the seller’s action for the price by setting out such inferior quality.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 456-468; Dec. Dig. § 179.*]</p>

B. Hightower, Jr., Judge. Action by Pat Manning against the Beaumont, Sour Dake & Western Railway Company and others. Prom a judgment for plaintiff and against the defendant named, it appeals.

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Action by F. M. Pannell against W. A. Boswell and another. Judgment for plaintiff, and defendants appeal.</p>

Goodwin, Judge. Action by the Owosso Carriage & Sleigh Company against C. K. Sweet, in which McIntosh & Warren were garnisheed. Judgment in part for plaintiff, and defendant .garnishee appeals.

B. Powell, Judge. Suit by H. D. Applegate and another against the Texas & Ohio Lumber Company. A receiver was appointed, and R. L. Weath-ersby intervened. Prom a decree denying his claim, the intervener appeals.

<p>Appeal from District Court, Tyler County; W. B. Powell, Judge.</p> <p>Action by John W. Blunt and others against the Houston Oil Company and others. From a judgment for defendants, plaintiffs appeal.</p>

R. Sinlrs, Judge. . Action by Mrs. R. L. MeDavid and husband against the Houston Chronicle Printing Company. From a judgment sustaining & demurrer to the petition, plaintiffs appeal. Mrs. R. L. MeDavid and her husband, Doc MeDavid, brought this suit against the Houston Chronicle Printing Company, a private corporation, for damages on account of an alleged libel.

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by F. P. Miller and wife against J. H. Nations and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Insueance (§ 663*) — Actions—Evidence.</p> <p>, In an action by the beneficiary of a life insurance policy, where the wife of the insured claimed she was entitled to the proceeds under an agreement with her husband, whereby he was to insure his life in consideration of her agreeing to the transfer of their homestead, the admission in evidence of the application of the wife as guardian of her minor son, wherein she listed another insurance policy as his property, was proper, where the application was considered in determining the amount of life insurance available for the wife and son of the deceased.</p> <p>[Ed. Note. — Por other cases, see Insurance, Dec. Dig. § 663.*]</p> <p>2. Appeal and Error (§ 1060*) — Review-Harmless Error.</p> <p>In an action by the beneficiary of a life insurance policy, where the wife of insured claimed that she was entitled to the proceeds owing to an agreement with the insured, the admission of her application as guardian of her minor son showing that another life insurance policy was scheduled as the property of her son was harmless, if erroneous; it appearing that other witnesses had testified as to the entire amount of insurance carried by the deceased.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4163-4160, 4166; Dec. Dig. § 1060.*]</p> <p>3. Husband and Wipe (§ 249*) — Community Estate — What Constitutes.</p> <p>An insurance policy on the life of the husband is no part of the community estate of a husband and wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 887, 889-892; Dec. Dig. § 249.*]</p> <p>4. Husband and Wife (§ 249*) — Community Estate^Claims of Wife.</p> <p>A wife cannot claim the proceeds of an insurance policy on the life of her. husband, eren though the premium be paid out of their community estate, unless the payments are made with intent to defraud her.</p> <p>[Ed. Note. — Eor other cases, see Husband and V\ fe, Cent. Dig. §§ 887, 889-892; Dec. Dig. 249.*1</p> <p>6.• Insubance (§ 665*) — Actions—Evidence.</p> <p>In an action where the wife of the insured contested the right of a beneficiary to the proceeds of a policy, the premium of which had been paid out of the community estate of the husband and wife, evidence held insufficient to show that such payments were a fraud on the wife.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1707-1728; Dee. Dig. § 665.*]</p> <p>6. Husband and Wife (§ 119*) — Separate Estate of Wife.</p> <p>The wife’s signing of a deed to the marital homestead is a valuable consideration which will support an agreement on the part of the husband to convey the property purchased with the proceeds to the separate estate of the wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 424-429; Dec. Dig. § 119.*]</p> <p>7. Appeal and Error (§ 219*) — Presentation of Grounds of Review in Court Below.</p> <p>In an action tried to the court where no finding of fact was made on certain evidence, and there was no special request therefor, a party cannot on appeal complain of the court’s failure to make such finding.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315-1324; Dec. Dig. § 219.*]</p> <p>8. Trial .(§ 382*) — Trial by Court — Evidence.</p> <p>In an action tried to the court, he may discard the uncontradicted evidence of one witness, if deeming it unworthy of belief.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 898; Dec. Dig. § 382.*]</p> <p>9. Appeal and Error (§ 1012*) — Review— Findings of Court.</p> <p>A finding of fact by the trial court which disregards the uncontradicted evidence of one witness is binding on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992; Dec. Dig. § 1012.*]</p> <p>10. Appeal and Error (§ 846*) — Review-Province of Appellate Court.</p> <p>In an action by the beneficiary of an insurance policy, where the proceeds were claimed by the wife of the insured, who alleged that the insured had agreed to make her the beneficiary of such policy in consideration of her signing a deed to their homestead, and the trial court failed to make a finding of fact on such issue, though making other particular findings, the appellate court can neither imply such finding nor determine the existence of the agreement for itself.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3347-3362, 3366; Dee. Dig. § 846.*]</p> <p>11. Insurance (§ 585*) — Right to Proceeds.</p> <p>In an action by the beneficiary of an insurance policy, where the wife of the insured claimed the proceeds under an ajleged agreement that, in consideration of her signing a deed to their homestead, so that the insured could purchase. incumbered property, he would take out sufficient insurance to pay off the incumbrance in case of his death, the carrying of insurance in favor of his estate and the only child of the marriage, who was coheir with the wife to the incumbered property, must be considered as a partial performance of his agreement, and hence where such insurance, together with that of which the wife was beneficiary, was more than the amount of the incumbrance, the wife could not, under this agreement, claim the proceeds of an insurance policy of which another was beneficiary.</p> <p>[Ed. Note, — For other cases, see Insurance, Cent. Dig. §§ 1461-1468; Dec. Dig. § 585.*]</p>

<p>1. Landlord and Tenant (§ 167*) — Liabilities FOB INJURIES TO PERSONS ATTENDING.</p> <p>A railroad company maintained an amusement pavilion, and granted, in writing, to a third person the exclusive privilege of selling enumerated commodities for a percentage of the gross receipts. The company sought to show that the third person, under a parol lease, leased exclusively the entire first floor of the pavilion, including concrete walks surrounding a room situated on the floor; but the evidence showed that neither the second story of the pavilion nor the boats of the company could, with any degree of convenience, be reached or used by it or its patrons without using at least a part of the concrete pavement surrounding and forming a part of the first floor. Held, that the company reserved rights in the first floor, and was liable to a patron for injury caused by defects therein.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent.Dig. §§ 668-679 ; Dec.Dig. § 167.*]</p> <p>2. Landlord and Tenant (§ 167*) — Liability tor Injuries to Persons Attending.</p> <p>A railroad company which leases a pavilion maintained by it for amusement purposes, and which gives the lessee the exclusive control and management thereof, is not liable for injuries to a patron on the premises; but where it reserves rights in the premises where an injury to a patron occurred, and while a patron of the company used the premises, it was liable, notwithstanding the lease.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent.Dig. §§ 668^679; Dec.Dig. § 167.*]</p> <p>3. Trial (§ 253*) — Instructions—Ignoring Issues.</p> <p>Where, in an action against a railroad company for injuries to a patron on its amusement grounds, the evidence raised the issues whether a third person was in the exclusive control of the premises as lessee, so as to relieve the company from liability, and as to what territory was covered by the third person’s lease, and whether the company had surrendered its right to the use and enjoyment of the portion of the premises; where the injury occurred, a special charge, authorizing a verdict for the company if the third person was a lessee of the company, was properly refused, because ignoring issues.</p> <p>[Ed. Note. — Fof other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>4. Trial (§ 260*)— Instructions — Refusal of Instructions Covered by Charge Given.</p> <p>It is not error to refuse a request to charge sufliciently and correctly covered by a Charge given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>5. Landlord and Tenant (§ 167*) — Liabilities for Injuries.</p> <p>The mere fact that a lessee of the first floor of a pavilion, owned and maintained by a railroad company for purposes of amusement for its patrons, agreed, for a consideration, to keep the premises in proper condition did not relieve the company from liability for injury to a patron resulting from the lessee’s failure so to do.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent.Dig. §§ 668-679; Dec.Dig. § 167.*]</p> <p>6. Trial (§ 253*) — Instructions — Ignoring Issues.</p> <p>Where, in. an action against a railroad company for injuries to a patron on its amusement grounds, there was evidence of a joint liability of a lessee of the company .and the company, and evidence of the negligence of the company in failing to discover and remove a tank causing the injuries complained of, without regard to the persons whb placed the tank there, a special charge that, if the premises had been leased to a third person, and he permitted the tank to remain where it was, and the company had nothing to do with placing it there and did not know that it was there, the verdict must be for it was properly refused as ignoring the issues.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>7. Landlord and Tenant (§ 167*) — Liability TOR PERSONAL INJURIES.</p> <p>Where a railroad company maintaining amusement grounds granted to a third person the exclusive privilege of selling commodities on the first floor of a pavilion on the grounds for a percentage of the sales, and subject to the obligation of the third person to keep the floor free from obstructions, and the parties contemplated that they should have joint rights to the use of a part of the first floor, where a patron was injured, the company could not escape liability for the injury, caused by an obstruction on the floor, merely because the company did not expressly reserve the right to use the part of the premises where the injury occurred.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent.Dig. §§ 668-679 ; Dec.Dig. § 167.*]</p> <p>8. Landlord and Tenant (§ 167*) — Liability tor Personal Injuries.</p> <p>A railroad company maintaining amusement grounds and granting to a third person the e: .elusive privilege of selling commodities on thu first floor of a pavilion on the grounds for a commission, subject to his obligation to keep the floor free from obstructions, is liable for injuries to a patron, caused by an obstruction on the floor, where it or its agents of em-ployés knew of the obstruction and failed to take steps to avoid the injury.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent.Dig. §§ 668-679; Dec.Dig. § 167.*]</p> <p>9. Landlord and Tenant (§ 167*) — Evidence —Instructions.</p> <p>Where, in an action against a railroad company maintaining amusement grounds for injuries to a patron, caused by an obstruction on the first floor of a pavilion on the grounds, there was evidence that the company had granted to a third person the exclusive privilege to sell, for a percentage, commodities, on condition that he should keep the first floor free from obstructions, an instruction that, if the jury failed to find that the placing of the obstruction or the leaving of it at the place where the accident occurred was negligence on the part of the company, its agents or employes, the verdict must be for it was properly refused, because relieving the company from liability, merely because it or its agents, or employes would not have made ■ the discovery of the obstruction, though other employés would have done so by the use of ordinary care.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, CentDig. §§ 668-679 ; Dec.Dig. § 167.*]</p> <p>10. LANDLORD AND TENANT (§ 167*) — EVIDENCE — Instructions.</p> <p>A railroad company owning and maintaining amusement grounds and granting to a third person the exclusive privilege of selling for a percentage commodities, subject to the condition that he shall keep the first floor of a pavilion on the grounds free from obstructions, is liable for injuries to a patron, caused by'an obstruction on the first floor, where either the company or its agents or employés or the third person failed to exercise proper care; the third person having a right to the joint use of the property.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant. Cent.Dig. §§ 668-679 ; Dec.Dig. § 167.*]</p> <p>11. Negligence (§ 138*) — Burden of Proof —Instructions.</p> <p>In an action for negligence, the court need not expressly charge that the burden is on plaintiff to establish his case by a preponderance of the evidence; but the court’s charge as a whole must lead tine jury to understand that such burden is on plaintiff.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 354-370; Dec. Dig. § 138.*]</p> <p>12. Negligence (§ 138*) — Burden of Proof —Instructions.</p> <p>In an action for a personal injury negligently inflicted, instructions which state the issues, define negligence, and inform the jury that if they are satisfied from the evidence that the things necessary to a recovery have been proven to find for plaintiff, while, if they fail to find enumerated facts, the verdict must be for defendant, sufficiently charge that plaintiff has the burden of proving the negligence complained of.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 354-370; Dec. Dig. § 138.*]</p> <p>13. Landlord and Tenant (§ 169*) — Personal Injuries to Patrons — Evidence—Burden of Proof.</p> <p>Where, in an action against a railroad company maintaining amusement grounds for injuries to a patron, the evidence showed that the company had granted to a third person the exclusive right to sell commodities on the grounds for a percentage, subject to his agreement to keep the first floor of a pavilion on the grounds free from obstructions, and that the injury to'the patron'resulted from negligence, the burden of proving that the third person had the exclusive management and control of the premises, so as to relieve the company from liability, rested on it.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 644-646, 663 — 667, 681-684; Dec. Dig. § 169.*]</p> <p>14.Evidence (§ 213*) — Settlement for Injuries to Infants — Admissibility.</p> <p>In an action by an infant for a persona) injury, evidence of his father’s proposal to settle is inadmissible, in the absence of proof of the authority of the father to act for the child.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. § 213.*]</p> <p>15. Appeal and Error (§ 742*) — Assignments of Error — Propositions.</p> <p>Under Courts of Civil Appeals rulei32 (67 S. W. xvi) providing that the propositions under an assignment must be stated separately, a proposition, under an assignment complaining of the admission of evidence, that it -was error to allow a witness to testify to what he saw third persons doing, and that it was error not to permit .the witness to state what instructions he gave them, is objectionable as containing two separate propositions, and the assignment will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>16. Evidence (§ 151*) — Injuries to Patrons —Evidence—Admissibility.</p> <p>Where, in an action for injuries to a patron on amusement grounds, caused by a tank falling on him, a witness testified that he saw third persons playing with the tank, and he fixed the time and place, the refusal to permit him to testify why he gave them certain instructions was not erroneous.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 440; Dec. Dig. § 151.*]</p> <p>17. Appeal and Error (§ 742*) — Assignments of Error — Instructions.</p> <p>An assignment of error complaining of the giving of an instruction will not be considered, where the proposition thereunder contains two separate propositions of law, one that the charge is on the weight of the evidence, and the other that it gives undue prominence to plaintiff’s contention, in violation of Courts of Civil Appeals rule 32 (67 S. W. xvi).</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>18. Appeal and Error (§ 216*) — Questions Keviewable — Instructions.</p> <p>A proposition, under an assignment complaining of the giving of an instruction, that the court should have informed the jury of matters not embodied in the instruction raises a question that can only be presented by a requested special charge covering the omitted matters.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216.*]</p> <p>19. Trial (§ 256*) — Instructions — Bequests.</p> <p>An instruction, given by the court on its own motion, is not erroneous, merely because it fails to cover an issue raised by the testimony; but such issue must be covered by a special request to charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>20. Appeal and Error (§ 742*) — Assignments Complaining of Instructions — Propositions.</p> <p>An assignment complaining of an instruction will not be considered, where the proposition thereunder contains two separate and distinct propositions of law, one that the instruction failed to apply the law to the facts, and the other that it was misleading, in violation of Courts of Civil Appeals rule 32 (67 S. W. xvi).</p> <p>[Ed. Note. — For other cases, see Appeal and Error,- Cent. Dig. §' 3000; Dec. Dig. § 742.*]</p> <p>21. Appeal and Error (§ 742*) — Assignments Complaining of Instructions — Propositions. «</p> <p>An assignment" of error complaining of an instruction will not be considered, where the proposition thereunder contains two separate propositions, one that the charge was misleading, and the other that it was so framed as to convey to the jury an intimation of the opinion of the court, in violation of Courts of Civil Appeals rule 32 (67 S. W. xvi).</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>22. Trial (§ 244*) — Instbuctions — Endue Prominence to Facts.</p> <p>An instruction, in an action for injuries to a patron on amusement grounds owned and maintained by a railroad company, which had granted an exclusive privilege to a third person, that, if the jury failed to find that the premises where the accident occurred were under the control of the company, or if they failed to find that the placing of the obstruction at the place where the accident occurred was negligence on the part of the company, its agents or employés, the verdict must be for it was not objectionable as giving undue prominence to any part of the testimony on the issue of whether the company or the third person had control of the premises.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]</p> <p>23. Appear and Error (§ 742*) — Assignment op Error — Instructions — Propositions.</p> <p>An assignment of error complaining of an instruction will not be considered, where the proposition thereunder contains two distinct propositions, one that the charge was misleading, and the other that it was on an issue not made by the testimony, in violation of Courts of Civil Appeals rule 32 (67 S. W. xvi).</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>24. Theaters and Shows (§ 6*) — .Instructions — Misleading Instructions.</p> <p>An instruction, in an action against a railroad company for injuries to a patron on its amusement grounds, caused by the falling of a gas tank, that, if the injury occurred on the property under the control of the company, and on which it had invited the general public for purpose of amusement, and if the tank was left by its agents in such a position as to be dangerous to persons of the age and intelligence of plaintiff, and if such action on the part of the company was negligence, the verdict must be for plaintiff was not objectionable as misleading.</p> <p>[Ed. Note. — Por other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.*]</p> <p>25. Trial (g 194*) — Instructions — Weight oe Evidence.</p> <p>Where, in an action against a railroad company for injuries to a patron on its amusement grounds, the issue was whether the premises where the accident occurred were under the control of the company, or under the control of a third person having an exclusive privilege to sell commodities thereon, subject to the obligation to maintain the premises free from obstructions, and the evidence showed that a gas tank fell on plaintiff, a child two years old, a charge that, if the injury occurred on the property under the control of the company, and on which it had invited the general public for the purpose of amusement, and if the tank was left by the agents of the company in a place dangerous to persons of the age and intelligence of plaintiff, and such action was negligence, the verdict must be for plaintiff was not objectionable as on the weight of the testimony.</p> <p>TEd. Note. — Por other cases, see Trial, Cent. Dig. §§ 413, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p>

<p>1. Carriers (§ 222*) — Injubies to Live Stock — Ownership.</p> <p>Where a carrier receives live stock for transportation, and bills the same in the name of the shipper, the carrier is liable to him for injuries to the stock from its negligent failure to perform its duty in transporting the same, notwithstanding persons, other than the shipper, had some interest in the stock, whether it was received for transportation under an express written contract of carriage, or under an implied contract.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 952; Dec. Dig. § 222.*]</p> <p>2. Evidence (§244*) — Live Stock — TRANSPORTATION — Stopping por Feed and Water — Evidence.</p> <p>Where a carrier armed its conductor in charge of a cattle train with blanks to be signed by the shipper, requesting that the stock remain in the cars 36, instead of 28, hours, as authorized by the federal statute, the carrier thereby constituted the conductor its agent for that purpose, so that conversations showing the reasons prompting the shipper to sign such a request, and declarations by the conductor when he procured the same, were admissible on the question of the shipper’s negligence in failing to stop the cattle for feed and water at one point, rather than another.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.*]</p> <p>3. Carriers (§ 228*) — Transportation op Cattle — Negligence—Evidence.</p> <p>Where plaintiff pleaded a failure to feed and water his cattle at W., and that the cattle were fed and watered at E., over plaintiff’s protest, followed by a general allegation of negligence and damages because of the acts complained of, evidence that damage to the shipment was increased as the result of the cattle being fed and watered at E. instead of W. was admissible.</p> <p>[Ed. 'Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]</p> <p>4. Trial (f 252*) — Transportation op Live Stock — Stoppage por Peed and Water-Instructions.</p> <p>Plaintiffs did not refuse to permit the unloading of their cattje at W. for feed and water, and would have had them unloaded there but for the assurance of defendants’ employes that if they were not so fed and watered, and plaintiffs would sign a 36-hour permit, the shipment would reach destination without being unloaded for feed and water in transit. Held, that the court properly refused to charge that, if plaintiffs were negligent in not permitting the shipment to be unloaded at W. instead of E., and additional injury resulted therefrom, the jury should find for defendants as to such additional injury.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>5. Carriers ' (§ 230*) — Transportation op Live Stock — Instructions.</p> <p>An instruction that, if it was the carrier’s duty to unload plaintiffs’ cattle for feed and water at W. instead of E., and by'ordinary care and dispatch, defendants could not have transported the cattle to destination within the 36-hour time limit, then the measure of plaintiffs’ damages would be the difference between the damages to the cattle, had they been unloaded at W., and the damages they sustained by being unloaded at E., if they were in fact damaged, was properly refused, as eliminating plaintiffs’ claim for damages, if any, because of defendants’ negligence, other than that arising from failure to feed and water at W. instead of E.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]</p> <p>6. Trial (§ 260*) — Refusal op Instructions —Instructions Given.</p> <p>It is not error to refuse requested charges covered by instructions given.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>7. Appeal and Error (§ 203*) — Evidence— Objections — Motion to Strike — Exceptions.</p> <p>Evidence received by deposition will not be reviewed on appeal, where the record contains no bill of exceptions to the court’s action in overruling a motion to suppress, and does not show that objections were urged to the introduction of any of the evidence when offered, or that any motion was made to strike out any part thereof after it was introduced.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 1064; Dee. Dig. § 203.*]</p> <p>8. Appeal and Error (§ 1051*) — Evidence-Prejudice.</p> <p>Erroneous reception of certain evidence by deposition of a witness is not reversible error, where another witness testified to the same facts without objection, and there was no opposing evidence in the record to show that he was not testifying from memory.</p> <p>[Ed. Note. — Por other cases, see' Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>9. Appeal and Error (§ 1040*) — Review-Prejudice.</p> <p>Where the court’s charge confined plaintiffs’ recovery to the proper measure of damages, . the overruling of a special exception to plaintiffs’ petition, in so far as it sought to recover double damages, was not prejudicial.</p> <p>[Ed. Note. — Por other eases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>10. Carriers (§ 228*) — Transportation op Cattle — Damages—Evidence.</p> <p>Evidence as to the effect of holding plaintiffs’ cattle and hogs on the cars an additional 24 hours was not inadmissible, because the proof did not show that the cattle and hogs were actually confined in the cars as much as 24 hours over the usual time; it appearing that the total delay in transit was as much or more than 24 hours.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]</p> <p>11. Carriers (§ 228*) — Transportation op Live Stock — Delat—Evidence.</p> <p>In an action for damages for delay of cattle and hogs transported from T. to Kansas City, Missouri, it appearing that C. was about 35 or 40 miles nearer Kansas City than T., evidence as to the usual time from C. to Kansas City from 1898 to within the last two or three years, in the absence of anything in the record tending to show that the time should not have been as short as that formerly taken was not objectionable for remoteness.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960;. Dec. Dig. § 228.*]</p>

<p>Appeal from District Court, Wichita County; P. A. Martin, Judge.</p> <p>Action by H. M. Trueheart against R. E. Montgomery and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by S. Joachim and others against Hugh Hamilton and others. From a judgment for plaintiffs, defendants appeal.</p>

N. Browning, Judge. Action by Florence L. (Taylor) Plines against John Sparks and others. From a judgment for plaintiff in part and for defendants in part, plaintiff appeals.

<p>Landlord and Tenant (§ 48*) — Breach oe Contract by Lessor — Instructions—Damages.</p> <p>In an action for defendant’s failure to furnish plaintiff all of an agreed number of acres for the raising of a crop, it was not error for the court to refuse to instruct the jury to deduct from the damages an amount which plaintiff was shown to have earned or by the use of diligence might have earned by engaging in a similar or different business, and to instruct that, if defendant tendered plaintiff certain other land on which plaintiff could have raised the crop, they should deduct from the damages the net value of the crop plaintiffs would probably have raised on the land tendered, and also that,, if the other land was less desirable in location and plaintiff declined to accept it, it would relieve defendant in part from the full amount of damages.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 114-116; Dec. Dig. § 48.*]</p>

<p>Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.</p> <p>Action by J. H. King against the Nacog-doches & Southeastern Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Stbeet Railroads (§ 118*) — 'Operation-Actions — Issues.</p> <p>Where a motorman used proper care to prevent an injury as soon as he realized the danger and that plaintiff would attempt to drive in front of his car, the issue of discovered peril was not raised.</p> <p>[Ed. Note. — Eor other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*]</p> <p>2. Appeal and Error (§ 216*) — Review— Presentation of Grounds op Review in Court Below — Objections.</p> <p>The failure to charge fully as to an issue cannot be complained of where the request was not made for any further charge on that issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216.*]</p> <p>3. Appeal and Error (§ 1050*) — Review-Harmless Error.</p> <p>In an action against a street railway company for injuries to a horse and wagon caused by a collision with a street ear, the exclusion of evidence that defendant’s witness, who was a passenger on the car at the time of the accident, had not boarded the ear at the point he testified to have entered it whether offered for impeachment or other use, was harmless, if erroneous.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*]</p> <p>4. Evidence (§ 246*) — Relevancy—Ownership.</p> <p>In an action against a street railway for injuries to a horse and wagon, a letter written by plaintiff’s attorney, in which he refers to the horse and vehicle as being the property of another, is admissible to show that plaintiff was not the real owner.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 945-949; Dec. Dig. §■ 246.*]</p>

<p>Appeal from Hardeman County Court; W. S. Banister, Judge.</p> <p>Action by Riley & Huffstetler against E. B. Baggett. From a judgment for plaintiff, defendant appeals.</p>

Action by F. M. Hedrick against Emma Smith and others, in which defendant named reconvened. From a judgment for defendants, plaintiff appeals.

<p>Appeal from District Court, San Saba County; Clarence Martin, Judge.</p> <p>Action by Walter Tips against J. G. Gay and others. From the Judgment, plaintiff appeals.</p>

<p>Error to District Court, Runnels County; John W. Goodwin, Judge.</p> <p>Action by C. T. Hanz against W. C. Black. Judgment for plaintiff, and defendant brings error.</p>

<p>1.Trover and Conveesion (§ 32*) — Pleading.</p> <p>A petition, in an action by a wife for the conversion of her separate property by a creditor of her husband; which alleges that defendant, with intent to defraud her of the value of described property, induced the sheriff to believe that defendant had a mortgage on the property, given by some other person than herself, and directed the sheriff to forcibly seize possession of the property described, and that the sheriff, pursuant to the 'direction of defendant, seized the property described, and has withheld the same from her,' and that defendant converted the property to his own use by the means aforesaid, states a cause of action as against the objection that it does not allege the means by which defendant persuaded the sheriff to take possession of the property.</p> <p>[Ed. Note. — For other cases, see Trover and’ Conversion, Cent. Dig. §§ 191-202; Dec. Dig. § 32.*]</p> <p>2.Trover and Conversion (§ 60*) — Dam, ages — Punitive Damages.</p> <p>One entitled to recover actual damages for the conversion of his property is entitled to exemplary damages, where the acts of conversion were committed maliciously and in an oppressive manner.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 281, 282; Dec. Dig. § 60.*]</p> <p>3.Trover and Conversion (§ 32*) — Pleading — Actual and Punitive Damages.</p> <p>A wife who sues for the conversion of her separate property by a creditor of her husband must allege that the property was her separate property, and that defendant, at the time of the conversion, was apprised thereof, and allege the facts surrounding the parties at the time of the conversion to show that the acts of conversion were malicious and oppressive, so as to justify the recovery of actual and punitive damages.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 191-202; Dec. Dig, " 32.*]</p> <p>4.Chattel Mortgages (§ 139*) — Bona Fide. Purchaser.</p> <p>The failure of a married woman to file- and record a schedule of her separate property, as provided by Rev. St. 1S95, arts. 4655, 4659, does not invalidate her right thereto as. against a mortgagee of the husband; such mortgagee not being an innocent lienholder of the property.</p> <p>[Ed. Note. — For other cases, see Chattel' Mortgages, Cent. Dig. § 238; Dec. Dig. §, 139.*]</p> <p>5.Husband and Wiee (§ 149*) — Separate Property oe Wife — Mortgage by Husband.</p> <p>Rev. St. 1895, art. 2967, providing that a. husband shall, during the marriage, have the sole management of his wife’s separate property, does not invest him with a right of property in the wife’s separate property, nor give-him the right of disposition thereof; and he-has not, by reason of such possession, the right to mortgage the property to his creditor, though the wife has failed to file a schedule of her property, as provided by articles 4655, 4659.</p> <p>[Ed. Note. — For other cases, see Husband, and Wife, Cent. Dig. §§ 573, 574; Dec. Dig. §, 149.*]</p>

<p>Appeal from District Court, Webb County; J. F. Mullally, Judge.</p> <p>Action by Petra C. Farrell against M. T. Cogley and others to construe will. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Public Lands (§ 172*) — Assignment oe Homestead Right — Equitable Interest.</p> <p>Const, art. 14, § 6, gives to every head of a family without a" homestead 160 acres of public land on condition that he locate and occupy the same three years. ■ Sayles’ Ann. Civ. St. 1897, art. 4170, provides that no assignment of a homestead donation right by the occupant or settler before the patent has been .obtained shall be valid unless by deed duly authenticated as required by law. Held, that the statute contemplated the assignment of an occupant’s homestead claim, and, upon three years of continuous occupancy, the settler or his assignee has a vested right in the equitable fee-simple ownership, and may demand a patent investing him with legal title.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dec. Dig. § 172.*]</p> <p>2. Public Lands (§ 178*) — Conveyance by Settler — Bona Fide Purchasers — Registration — Deeds Subject.</p> <p>A conveyance of the equitable ownership of a homestead settler in the public domain, acquired by the completion of three years of continuous occupancy, was subject to registration with the county court, so as to be constructive notice to subsequent purchasers, though the grantor was not then the legal owner because proper proof had not been made entitling him to a patent.</p> <p>[Ed. Note.' — For other cases, see Publiib Lands, Cent. Dig. §§ 579-582; Dec. Dig. 1 178.*]</p> <p>3. Vendor and Puechasee (§ 238*) — Bona Fide Purchaser.</p> <p>A purchaser of land from one who was himself an innocent purchaser for value without notice of a prior deed was protected, irrespective of whether such second purchaser had notice of the prior deed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 580-582; Dec. Dig. § 238.*]</p> <p>4.Vendor and Purchaser (§ 242*) — Bona Fide Purchasers — Notice — Burden oe Proof.</p> <p>The burden of showing that a subsequent purchaser had actual notice of a prior unrecorded deed was upon the persons claiming under such deed in trespass to try title against them.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. § 242.*]</p>

T. Lyttleton, Judge. Action by W. F. Edmonds against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. On the night of December 11, 1910, Bliss Elizabeth Edmonds, at Shreveport, La., received a telegram, informing her of the death of her mother at Washington, D. C., and requesting her to notify the rest of the family.

<p>1. Teial (§ 237*) — Instructions—Degree of Proof Required — “Satisfactory Evidence” — “Sufficient Evidence.” '</p> <p>An instruction in a civil action, that plaintiff was required to establish his case to the satisfaction of the jury, was error, since the jury might find for plaintiff if they believed from'the_ preponderance of the evidence that he was entitled to recover; “satisfactory evidence” or “sufficient evidence” meaning the amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt (citing Words & Phrases, vol. 7, p. 6335).</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 542, 548-551; Dec. Dig. § 237.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6762.]</p> <p>2. Eminent Domain (§ 281*) — Recovery by Former Owner — Defense — Payment for Land.</p> <p>In an action to recover two strips of land, where the issue presented was one of boundary, and where one of defendants claimed that a portion of the strips belonged to it, on which a public road had been established, a peremptory verdict for such defendant is properly instructed, where ' the uncontradicted evidence showed that plaintiff had been fully paid therefor.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 776, 780; Dee. Dig. § 281.*]</p> <p>3. Appeal and Error (§ 759*) — Briefs—Assignments of Error.</p> <p>Assignments of error not briefed in accordance with the rules will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dee. Dig. § 759.*]</p>

<p>1. Insurance (§ 451*) — Health Insurance-Construction oe Policy.</p> <p>Under a health policy dated September 19, 1910, insuring the holder till October 1, 1910, and for such further periods, stated in the renewal receipts, as the payment of the specified premium would maintain the -policy in force, against illness and disease, if not .contracted before the policy had been maintained in continuous force for 30 days, there could be no recovery for an illness contracted October 1, 1910, although the policy was thereafter renewed.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1164-1187; Dec. Dig. § 451.*]</p> <p>2. Insurance (§ 375*) — Health Insurance —Estoppel to Deny Liability — Authority oe Agent.</p> <p>A health policy issued September 19, 1910, to run until October 1, 1910, and for such further periods, as the payment of the specified premium would maintain the policy in force, excepted illness contracted before the policy had been in continuous force for 30 days. Insured contracted an illness within such excepted time, and thereafter continued the policy and took receipts from the insurer’s agent, authorized to issue receipts but not to issue policies, and was assured by him about November 19th, when he was sick and the premium was due, that, if he kept paying premiums, he would get his money without trouble. HelcL, that the issuance of renewal receipts was not the issuance of new policies, but continued in force the old contract, under which insured had never become entitled to indemnity; and the agent’s assurance was not a. waiver of the thirty day stipulation in the policy.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Oent.Dig. §§ 948, 951, 956-965; Dec.Dig. § 375.*]</p>

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Action by P. H. Groesbeek and another against W. L. Hayes and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Carriers (§ 211*) — Live Stock.</p> <p>A railroad company’s responsibility for live stock attaches as soon as the cattle are delivered in pens for shipping, so that the duty of feeding and watering cattle in the pens, made necessary because of delay in shipment, was upon the carrier in' absence of contract to the contrary executed before the cattle were actually loaded.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.*]</p> <p>2. Cabbiebs (§ 211*) — Live Stock — Feeding AND WATERING.</p> <p>Though the contract of carriage required the shipper to feed and water the cattle while in the pens before shipment, he was not bound to do so, where no facilities for doing so were furnished by the company, not being required to drive them some distance from the pens for feed and water.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.*]</p> <p>3. Cabbiebs (§ 227*) — Live Stock — Injuries —Admission of Evidence.</p> <p>In an action for damages for a breach of contract of shipment of cattle by failure to water them in the pens, defendant could not show, under the general denial, that the failure to have water at the cattle pens was due to an unavoidable accident; such evidence being affirmative matter which must be pleaded.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 953-956; Dec. Dig. § 227.*]</p> <p>4. Evidence (§ 471*) — Conclusion of Witness.</p> <p>Evidence that a carrier’s failure to furnish facilities for watering cattle at the stock pens before shipment was due to an unavoidable accident was a mere conclusion of the witness.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>5. Appeal and Ebbob (§ 959*) — Pleading (§ 236*) — Discbetion of Tbial Court — Amending Answer.</p> <p>The refusal to permit defendant, in an action for delay in shipping cattle, to withdraw its announcement and amend its answer so as to set up in detail the cause of the delay in shipment, was within the trial court’s discretion and not reviewable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3825-3833; Dee. Dig. § 959;* Pleading, Dec. Dig. § 236.*]</p>

<p>Appeal from District Court, ífalls County; Richard I. Munroe, Judge. ,</p> <p>Suit by John Sutherland against M. W. Cabiness. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Coleman County; J. P. Ledbetter, Special Judge.</p> <p>Action by N. H. Smith against the Western Union Telegraph Company. Erom a judgment for plaintiff, defendant appeals.</p>

A. Turner, Judge. Action by Y. D. Williams against the City of Texarkana, Tex. Judgment for plaintiff, and defendant appeals.

Robinson, Judge. Action by the Beaumont Land & Building Company against James E. Ferguson and others. Judgment was rendered in favor of plaintiff and also in favor of James E. Ferguson against the Empire Life Insurance Company, a codefendant, which appeals.

<p>1. Railboads (§ 482*)—Operation—Fires— Actions—Evidence.</p> <p>Proof that cotton lying on a depot platform was ’ignited by sparks from an engine operated by a railway company makes out a prima facie case of negligence, entitling the owner of the cotton to recover from the company, unless rebutted by evidence as to condition of the engine and the care in its management.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1730-1736; Dec. Dig. § 482.*]</p> <p>2. Railroads (§ 480*) — Operation—Actions —Pikes—Burden of Proof.</p> <p>In an action against a railway company for negligently setting fire to property, where the petition alleged that the company was charged with the duty of providing for use in its engines of fuel oil, which is used by all the best equipped railway systems in Texas, if it was negligence to use coal' instead of oil, the burden was on plaintiff to show that fact.</p> <p>[Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1709-1716; Dec. Dig. § 480.*] 8. Railroads (§ 485*) — Operation—Fires— Actions — Instructions.</p> <p>In an action against a railway company for negligently setting fire to property, a charge that the fact that sparks from the company’s engine set fire to the property made out a pri-ma facie case, which could only be rebutted by proof that the company used ordinary care in selecting a fuel generally used by railway companies, and requiring such ordinary care to be proved by a preponderance of the evidence, placed the burden of disproving negligence as to the fuel used on the company, and was erroneous.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.*]</p> <p>4. Railroads (§ 482*) — Operation—Fires— Actions — Burden of Proof. '</p> <p>Although the emission of sparks from a railway engine setting fire to property makes out a prima facie case of negligence requiring proof of rebuttal to prevent a recovery, it is error to require the company to overcome this prima facie case by a preponderance of the evidence ; it being entitled to a verdict if the evidence is equally balanced.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1730-1736; Dec. Dig. § 482.*]</p> <p>5. Railroads (§ 455*) — Operation — Fires— Diability— Selection of Fuel.</p> <p>A railway company is not bound to use in its engines the best approved fuel generally used by railway companies in order to avoid the emission of sparks; it being sufficient if it exercises ordinary care in the selection of fuel.</p> <p>[Ed. Note — For other cases, see Railroads, Cent. Dig. § 1672; Dec. Dig. § 455.*]</p> <p>6. Railroads (§ 460*) — Operation—Fires— Contributory Negligence.</p> <p>The owner of property destroyed by fire set by sparks from a railway engine cannot recover from the railway company if he places the property near the track without exercising ordinary care; the rule that a person may be liable for negligence notwithstanding contributory negligence of the other party if after the discovery of the danger he does not use adequate means to prevent injury not applying to cases of injuries to property.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1681; Dec. Dig. § 460.*]</p> <p>7. Railroads (§ 464*) — Operation—Fires— Excessive Speed.</p> <p>Where, at the time a railway engine emitted sparks setting fire to property, it was being run at a rate of speed in excess of that permitted by a city ordinance, this would not of itself make the railway company liable, unless such excessive speed was the proximate cause of the emission of sparks.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §| 1687-1689; Dee. Dig. § 464.*]</p> <p>8. Trial [§ 237*) — Instructions—Degree of Proof Required.</p> <p>A charge that plaintiffs must establish their right to recover by a preponderance of the evidence, but need not prove it beyond a reasonable doubt, is improper in a civil case; the reference to reasonable doubt having a tendency to mislead the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 542, 548-551; Dec. Dig. § 237.*]</p> <p>9. Railroads (§ 481*) — Operation—Fires— Actions — Evidence.</p> <p>In an action against a railway company for negligently" setting fire to cotton on a depot platform, bills of lading issued by the company are not admissible in evidence, although the company in the bills reserved the right to have the cotton compressed, where they did not exercise that right, and it was not claimed that the cotton was held by the compress company and placed on the platform by direction of the company.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]</p>

<p>Appeal from District Court, Hill County; C: M. Smithdeal, Judge.</p> <p>Action by L. Fred against. O. J. Moseley and others. From an order dissolving a temporary injunction and refusing to grant another, plaintiff appeals.</p>

Action by 'D. 0. Kennedy against W. A. Worth and the Concho, San Saba & Llano Valley Bailway Company. From a judgment for plaintiff, the Concho, San Saba & Llano Valley Bailway Company appeals.

Appeal froDi District Court, Harrison County; W. C. Buford, Judge. Proceedings by the Missouri Pacific Railway Company and others for the establishment of claims against the fund in the hands of the receiver of the Texas Southern Railway, in which.the St. Louis. Union Trust. Company appeared and made objections. From a judgment allowing and classifying the claims, the St. Louis Union Trust Company appeals.

<p>Appeal from District Court, Harrison County ; H. T. Lyttleton, Judge.</p> <p>Consolidated actions by the United States & Mexican Trust Company, later the Orient Trust Company, and by R. L. Jennings and by W. A. Ohatterton against the Texas Southern Railway Company for the foreclosure of a mortgage, and for a receiver. From a judgment determining the amounts of the claims of the St. Louis & San Francisco Railway Company and others against the proceeds of a sale of the property, the St. Louis Union Trust Company, holding receiver’s certificates, appeals.</p> <p>The Texas Southern Railway properties were by an order of the district court placed in the hands of a receiver on application of mortgage creditors. Later there was a decree of foreclosure and sale, and the railway properties were bought in by the highest bidder therefor. The sale was confirmed by the .court. This amount of money realized from the sale was to be thereafter distributed by the court among a number of creditors present, and asking for orders for payment and distribution to their demands as their priorities might entitle them to participate therein. The 20 railway companies, appellees here, were among the number. Their respective claims were contracted and created by the receiver as such in his necessary operation of the railway, and are for car rentals, car repairs, damage to cars, and loss of car equipment, cars destroyed by fire, and traffic balances. The trial court classified and directed their payment as operating expenses of the receiver. The appellant trust company is the holder of receiver’s certificates issued by the receiver under authority of the court, and is contesting the payment of the respective claims of the appellees. On the former appeal as between these same parties here (126 S. W. 308), the judgment of the court in so far as it classified and directed the payment of these appellees’ claims as necessary operating expenses of the receiver was sustained, and in so far as it directed, payment on an equality basis with the receiver’s certificates, held by appellant, was reformed as to direct payment of appellees’ claims in priority of appellant’s certificates, but in so far only as it determined the amounts of the appellees’ claims was reversed and remanded, with instructions to determine the amounts found to be due. After the reversal the court adjudicated the amounts of the demands of the respective appellees, and the present appeal is from that order. It was finally determined on a former appeal by appellant that the receiver’s certificates held by it were properly classified and payable next after the operating expenses of the receiver, and not on equality basis with the operating expenses. Union Trust Co. v. Texas Southern Ry. Co., 126 S. W. 296, writ of error denied.</p>

<p>Appeal from. Frio County Court; S. T. Dowe, Judge.</p> <p>Action by Charlie Obets against Earnest Maney. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Tom Green County; J. W. Timmins, Judge.</p> <p>Action by P. B. Bennett against the Gulf, Colorado & Santa Fé Railway Company. From a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from Bexar County Court; Leo Tarleton, Special Judge.</p> <p>Action by Ora Baird against H. B. Thompson. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Brown County; John W. Goodwin, Judge.</p> <p>Action by A. M. Stewart against the Ft. Worth & Rio Grande Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Mrs. M. F. Mitchell and others against N. B. Fisk, with cross-action by Fisk against J. N. Ford. Judgment for plaintiffs against Fisk and in favor of Fisk against defendant Ford, and said defendant appeals.

<p>Appeal from Bowie County Court; Joe Hughes, Judge.</p> <p>Action by Fairbanks, Morse & Co. against M. D. Tilson and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Hill County; F. E. McKee, Special Judge.</p> <p>Action by W. W. Carpenter against the Trinity & Brazos Valley Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Charles Fagnani was convicted of violating the prohibition law, and appeals.</p>

<p>Appeal from District Court, Brown County; John W. Goodwin, Judge.</p> <p>Good Wooldridge was convicted of seduction, and he appeals.</p>

<p>1. Fraud (§ 36*) — Representations—Right to Relief.</p> <p>Though a person who traded laúd for notes, upon representations of the holders that such notes were good and well secured by the vendor’s lien on real estate sold, conveyed the notes to another before he had knowledge of their worthless character, he is not thereby precluded from bringing deceit for false representations.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 31, 32; Dee. Dig. § 36.*]</p> <p>2. Fbaud (§ 49*) — Issues, Pboof, and Variance.</p> <p>Where, in. an action for deceit in inducing a sale of land for worthless notes, plaintiff’s petition alleged that he received nothing of value, when he resold the notes, he was properly permitted to show that he received a conveyance of land for the notes, to which the grantor had no title.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 44, 45; Dec. Dig. § 49.*]</p>

<p>Courts (§ 121*) — Jurisdiction—Amount Involved — Plow Determined.</p> <p>In determining whether a court has jurisdiction on foreclosure of a chattel mortgage, the value of the chattels mortgaged, and not the amount due, determines the amount in controversy.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-426, 428; Dec. Dig. § 121.*]</p>

Error from District Court, Galveston County; Robert G. Street, Judge. Trespass to try title by Maco Stewart against Louise Profit and others. From a judgment for plaintiff as to a part only of the land involved, lie brings error.

<p>1. Infants (§ 18*) — Custody and Contboi^-JUBISDICTION OF COUETS.</p> <p>A pleading, showing that the welfare of a minor requires an order from the district court or judge, authorizes the exercise of the judge’s discretion, and it is not necessary that the proceeding be either habeas corpus or for divorce.</p> <p>[Ed. Note. — Eor other cases, see Infants, Cent. Dig. § 18; Dee. Dig. § 18.*]</p> <p>2. Infants (§ 18*) — Control and Custody-Jurisdiction of Courts.</p> <p>Under Const, art. 5, i 8, the supervisory control of infants is vested exclusively in the district courts and the judges thereof.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 18; Dec. Dig. § 18.*]</p> <p>3. Injunction (§ ' 144*) — Subject of Relief —Protection of Minors.</p> <p>A petition, alleging that plaintiff without her fault had been wrongfully abandoned by her husband, taking children with him, that he had been unkind and cruel to her, that she would amend her petition stating cause for divorce, and that she was financially able to provide for her children and was then in possession of a homestead where she desired to continue, and that she believed the husband intended to remove the children from the state, for which she prayed an injunction, was sufficient to show a controversy over the custody of the children and authorize the court to grant a temporary injunction.</p> <p>TEd. Note. — For other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dee. Dig. § 144.*'</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Bill by the Crosbyton Southplains Railroad Company against J. A. Baker. From a decree for plaintiff, defendant appeals.</p>

<p>1. Appeal and Errob (§ 742*) —Assignments — Propositions—Relevancy.</p> <p>A proposition that the measure of damages was different from that charged by the court is not germane to the assignment of error that the court erred in a paragraph of the charge because it assumed negligence on the part of the defendant and charged on the weight of evidence, and hence will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Appeal and Eeeob (§ 221*) — Review-</p> <p>Question Not Raised Below.</p> <p>An alleged error in charging as to the measure of damages will be disregarded on appeal, where the question was not raised in the court below, or in any way brought to its attention.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. '§§ 1353-1368; Dec. Dig. § 221.*]</p> <p>3. Appeal and Ebbob (§ 739*) — Assignments of Ebbob — Effects.</p> <p>An assignment of error, that the court erred in a paragraph of the charge because it assumed the defendant’s negligence and charged on the weight of evidence, is objectionable, because it presents two separate propositions and does not under either of them separately present any ground of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3034-3036; Dec. Dig. § 739.*]</p> <p>4. Appeal and Eeeok (§ 1032*) — Review— Haemless Ebbob.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047-4051; Dec. Dig. § 1032.*]</p> <p>An alleged erroneous charge as to the measure of damages does not constitute reversible error, where the appellant does not complain of the amount of the verdict or that it is unjust, or undertake to show that it was injured by the error.</p>

<p>LANDLORD AND TENANT (§ 331*) — CONSTRUCTION.</p> <p>Plaintiff purchased a quarter section from defendant upon which defendant had sown 37 acres of-wheat, and the parties agreed that defendant should harvest and thresh the wheat and pay to plaintiff at the thresher one-third of the wheat threshed as rent. Held, that on defendant’s breach of contract plaintiff could recover the market value of one-third of the wheat threshed at the place it was threshed, with interest thereon from the time of threshing.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dee. Dig. § 331.*]</p>

<p>1. Indemnity (§■ 9*) — Construction — Extent of Liability.</p> <p>Where grantor of land delivers to his grantee a note to indemnify him against liability on certain vendors’ lien notes, and it is not intended that such note shall represent liquidated damages, if the grantee is subsequently compelled to pay the vendors’ lien notes, he can recover .from the grantor only the amount he was compelled to pay, and not the face of the indemnity note.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 16, 17; Dec. Dig. § 9.*]</p> <p>2. Judgment (§ 255*) — Evidence to Sustain —Recoveex Against Surety.</p> <p>Where a defendant pleads that he was a surety on the contract sued on,^ and there is no conflict in the evidence on this issue, a recovery against him should be only as surety and not as principal debtor.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 445; Dec. Dig. § 255.*]</p> <p>3. Indemnity (§ 12*) — Liability.</p> <p>Where a transfer of a vendor’s lien note was not recorded when a release of the land from the lien of the note executed by the transferror was placed on record by the owner of the land, who had no knowledge of such transfer, the transferee cannot subsequently foreclose the lien as against such owner, and if the owner permits a foreclosure and pays the judgment, he cannot recover over against a person indemnifying him against liability on such note.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. § 27; Dec. Dig. § 12.*]</p>

<p>1. Highways (§ 184*) — Automobile Accident —Burden of Beoof.</p> <p>In an action for a wrongful death caused by a team becoming frightened through the negligent operation of an automobile upon a highway by the defendant’s minor son, the burden was on plaintiff to show that the driver of the automobile was negligent as alleged in the petition, and that his negligence was the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 471-474; Dec. Dig. § 184.*]</p> <p>2. Highways (§ 169*) — Right to Use — Automobiles.</p> <p>Automobiles have the same rights upon a public highway as any other means of conveyance, and liability for injury occurring to other travelers upon the highway from their use does not attach merely because of the character of the machine.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. § 458; Dec. Dig. § 169.*]</p> <p>On Motion for Rehearing.</p> <p>3. Negligence (§ 136*) — Peremptory Instruction.</p> <p>A peremptory instruction should not be given in a negligence case, unless the evidence is^ such that there is no room for ordinary minds to differ as to the conclusions to be drawn.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dee. Dig. § 136.*]</p> <p>4. Highways (§ 184*) — Automobile Accident — Negligence — Evidence — Sufficiency.</p> <p>In an action for a death caused by a team being frightened by an automobile, alleged to have been negligently operated by the defendant’s minor son, evidence held to sustain the jury’s findings that the driver of the automobile was not negligent, and that he was competent, and that it was not negligent for defendant to permit him to drive the machine. •</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 471-474; Dec. Dig. § 184.*]</p> <p>5.Negligence (§ 117*) — Pleading—Answer.</p> <p>An answer which in certain paragraphs set up contributory negligence, 'but did not in such paragraphs point out the matters constituting contributory negligence, was not insufficient where such matters were specifically set out in other paragraphs.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 195-197; -Dec. Dig. § 117.*]</p> <p>6.Appeal and Error (§ 725*) — Brief — Assignment— Sufficiency.</p> <p>Where an assignment of error in an appellant’s brief stated that the court erred in overruling a special exception to the defendant’s answer, and the special exception referred to and set out in the statement in support of the assignment was that the special answei to the plea of assumed risk was insufficient to constitute any defense in the action under the law, the assignment was insufficient, in that it failed to point out any specific error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3002-3005; Dec. Dig. § 725.*]</p> <p>7.Appeal and Error (§ 1040*) — Harmless Error — Overruling Exceptions to Answer.</p> <p>The overruling of exceptions to allegations in an answer as to assumed risk, if error, was harmless, where the court did not submit the issue of assumed risk.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>8.Evidence (§ 474*) — Opinion Evidence — Ability to Handle Automobile.</p> <p>In an action for death caused by a team becoming frightened by an automobile, operated by defendant’s minor son, the petition alleged that the boy, by his age, inexperience, and lack of strength, was unable to properly handle the automobile, and which was known by the defendant, who negligently permitted him to drive the machine, and these allegations were put in issue by a general denial. Two witnesses stated that they had ridden in automobiles many times, and could tell from observation whether a party was able to handle an automobile, and that they had observed the handling of the automobile by the boy and had riddén with him. Held, that such witnesses were properly permitted to state that the boy was a careful driver and able to handle a machine, and, in their opinion, on the day of the accident was a careful driver of the automobile, and knew how to handle it.</p> <p>[Ed. Note. — For other cases, see Evidence, • Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*]</p> <p>9. Evidence (§ 471*) — Opinion Evidence-Conclusions.</p> <p>Where, in an action for, a death by the negligent operation of an automobile upon the highway, the witness had testified fully to the circumstances under which he was occupying and using defendant’s automobile at the time of the accident, a question asked him on cross-examination as to whether he had “borrowed” the automobile was properly excluded, as calling for a conclusion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>10. Negligence (§ 140*) — Instruction — Pkoximate Cause.</p> <p>An instruction, in a negligence case, that the proximate cause is one which in natural and continuous sequence produces an event and without which the event would not have occurred, but that it must have been the natural and probable consequence of the negligence, and ought to have been foreseen as likely to occur by a person of ordinary prudence, did not in legal effect charge the jury that they must find that the precise injury, and no other, must have been foreseen and contemplated before the plaintiff could recover, nor did it preclude recovery in the absence of proof that the precise injury was foreseen by any person of ordinary prudence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 378-381; Dec. Dig. § 140.*]</p> <p>11. Appeal and Ereoe (§ 742*) — Assignment of Error — Sufficiency.</p> <p>Where an assignment of error in an appellant’s brief stated that the court erred in a certain paragraph of his general charge, and the paragraph objected to submitted more than one proposition of law, and the proposition under the assignment stated that the paragraph objected to was upon the weight of the evidence and did not announce correct principles of law, such assignment and proposition failed to conform with rule 29 (142 S. W. xii), requiring assignments to be separately presented, or with rule 32 (142 S. W. xiii), providing that the propositions, if more than one under one ground of the assignment, shall refer to it and be stated separately.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>12. Trial (§ 296*) — Instruction — Burden of Proof.</p> <p>Where, in a negligence case, the court in a general charge states that “the burden is upon the plaintiff to prove by a preponderance of the evidence * * * the facts * * * submitted in this charge or in any special charge,” special instructions which are correct, when construed together with this instruction, do not erroneously place the burden of proof.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]</p> <p>13. Negligence (§ 138*) — Action—Instructions.</p> <p>An instruction in a negligence case that the burden was upon the plaintiff to prove by a preponderance of the evidence the facts submitted in such instruction, or in any special instruction given as material to his right to recover, only required the plaintiff to prove by a preponderance of evidence such facts as were submitted to the jury in the general charge, or in any special charge material to his right to recover, and did not require him to prove contributory negligence when no issue thereon was submitted to the jury, nor did it require him to disprove affirmative defenses.</p> <p>[Ed. Note. — For other cases, see Negligence, Gent. Dig. §§ 354-370; Dec. Dig. § 138.*]</p> <p>14. Appeal and Error (§ 742*) — Brief—Assignments — Sufficiency.</p> <p>Where the appellant grouped in his brief seven assignments of error, and presented but one proposition’ thereunder, such assignments and proposition could not be considered on account of failure to comply with rule 29 (142 S. W. xii), requiring assignments to be separately presented, and rule 32 (142 S. W. xiii), providing that the propositions, if more than one under one ground of assignment, shall refer to it, and be stated separately.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. § 742.*]</p>

<p>Appeal from District Court, Hunt County; R. L. Porter, Judge.</p> <p>Action by I. S. Gillenwater against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Attachment (§ 118*) — Affidavits—Sufficiency. '</p> <p>An affidavit in attachment that defendant is justly indebted to plaintiff on a customer’s draft for $564, dated October l4, 1910, due and payable at sight and now long since due, that such draft is fully set out in plaintiff’s petition, and reference made thereto for a.full description, was sufficient under Rev. St. 1895, art. 180, subd. 1, requiring that the affidavit state that the defendant was justly indebted, and the amount.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 211-213; Dec. Dig. § 118.*]</p> <p>2. Appeakance (§ 19*)- — Jurisdiction.</p> <p>Where attachment was levied on the property of a nonresident, and service was had on him under the statute by notice served on him in another state, and he filed a motion to quash the attachment and appeared and filed an answer, jurisdiction was complete as though he had been served within the state, and did not depend upon the attachment.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 79-90; Dec. Dig. § 19.*]</p> <p>3. Principal and Agent (§ 119*) — Authority of Agent — Negotiable Instruments— Burden of Proof.</p> <p>Where, in an action on a draft, a plea non est factum was filed, the burden was on plaintiff to establish that a person who executed it as the agent of defendant had authority to do so.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 391-401; Dec. Dig. § 119.*]</p> <p>4. Principal and Agent (§ 123*) — Authority of Agent — Negotiable Instruments— Sufficiency of Evidence.</p> <p>In an action on a draft, executed by one as defendant’s agent, defendant denying the agency, testimony of an attorney for plaintiff that he presented the draft to defendant and asked him if it was his, and he said it was, but that he had stopped payment of it, did not show an admission of liability on the draft, and was insufficient to rebut positive testimony of defendant and his authorized agent that the person signing had no authority.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 42CL429; Dec. Dig. § 123.*]</p>

<p>1. Railkoads (§ 411*) — Animals on Track-Cattle Guards.</p> <p>Sayles’ Ann. Civ. St. 1897, arts. 4523, ■ 4525, 4527, requiring cattle guards where a ■railroad enters a field or inclosure, and making the company liable for any damages from its failure to supply them, did not require a railroad company to place cattle guards at the entrance of á planked trestle at the edge of a-switch yard connected with the station, beyond-which the right of way was fenced on both sides to an unplanked trestle.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. § 411.*]</p> <p>2. Railroads (§ 411*) — Fences — Injury to Animals — Liability. '</p> <p>Where a railroad company leaves the right' of way unfenced, and animals go upon the track and are injured, the company is liable when the injury results from the cattle coming in contact with trains, but not otherwise, unless it results from negligence on the part of the' company.</p> <p>[Ed. Note. — For other .cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. § 411.*]</p> <p>3. Railroads (§ 443*) — Injury to Animals —Evidence—Sueíticiency.</p> <p>In an action for injury to animals at a railroad trestle, after going upon the right of way at a point not fenced, evidence held insufficient to show that they were struck by a train.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*]</p>

<p>Appeal from Karnes County Court; A. J. Parker, Judge.</p> <p>Action by J. D. Stewart against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1.Monopolies (§ 17*) — Combinations Prohibited — Restbaint of Trade — “Conspiracy in Restraint oe Trade.”</p> <p>Anti-Trust Law (Acts 28th Leg. c. 94) §§ 3, 4, provide that all monopolies and conspiracies in restraint of trade are illegal, and that any of the following acts will constitute a conspiracy in restraint of trade, to wit, where two or more corporations, engaged in buying or selling merchandise or produce, enter into an agreement to refuse to buy from or sell to any other person, etc., any such article. Plaintiff and defendant grain dealers made an agreement whereby plaintiff agreed not to buy grain from the growers thereof or from curbstone brokers or other persons not regularly engaged in the grain business. Held, that the contract was void as contravening the statute.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1454-1461; vol. 8, p. 7613.]</p> <p>2. Monopolies (§ 21*) — Action on Contract — Sufficiency of Evidence — Terms of Contract.</p> <p>Evidence, in an action by one grain dealer against another for breach of a contract to sell and deliver oats, held to show that the contract bound plaintiff not to buy grain from the growers or other persons not regularly engaged in the grain business.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. § 21.*]</p> <p>3. Monopolies (§ 21*) — Enforcement of Contracts.</p> <p>In view of Anti-Trust Law (Acts 28th Leg. c. 94) §§ 3, 4, providing that an agreement made in violation of the act should be “absolutely void and not enforceable either in law. or equity,” the' buyer could not maintain an action for damages for breach of a contract to sell grain which included provisions in restraint of trade contrary to the act.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 15; Dee. Dig. § 21.*] '</p>

<p>1. Insurance (§ 163*) — Fire Insurance — Property Insured — “Grain”—“Bran.”</p> <p>A fire policy on stock of “grain” in a building occupied as grain warehouse covers the-part of the stock therein consisting of “bran,”" a product from grinding wheat.</p> <p>[Ed. Note. — For other cases, see Insurance,. Cent. Dig. §§ 339-346; Dec. Dig. § 163.*</p> <p>For other definitions, see Words and Phrases,, vol. 4, pp. 3145-3146.]</p> <p>2. Evidence (§ 471*) — Conclusions.</p> <p>One’s testimony that his books were kept, according to the usual and ordinary systfem adopted by business men in similar enterprises-is not objectionable as a mere conclusion.</p> <p>[Ed. Note. — For other cases, see Evidence,. Cent. Dig. §§ 2149-2185; Dec. Dig. § 471;* Witnesses, Cent. Dig. §§ 833-836, 988.]</p> <p>3. Appeal and Error (§ 1050*) — Harmless-Error — Admission of Evidence.</p> <p>Any error in admission of evidence is-harmless; the witness having, in other parts, of his testimony, stated, without objection, substantially the same facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec-Dig. I 1050.*]</p>

Blanton, Judge. Action by Ed Dupree and another against the First National Bank of Merkel. There was a judgment for defendant, and plaintiffs bring error.

<p>Appeal from District Court, Reeves County; S. J. Isaacs, Judge.</p> <p>Trespass to try title by George L. Anthony against J. F. Ball and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal and Ebeob (§ 1001*) — Review op Facts — Sufficiency op Evidence.</p> <p>The finding of the jury supported by the testimony will not be disturbed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]</p>

<p>1. Eminent Domain (§ 303*) — Property Adjoining Street — Use by Railroad — Odors.</p> <p>One owning property adjoining a street in which a railway track was built may recover for noise, vibration, smoke, noxious vapors, cinders, and the increased danger from fire incident to and resulting from the operation of trains, if such matters are sufficient to reduce the value of the property.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 815-817; Dec. Dig. § 303.*]</p> <p>2: Damages (§ 153*) — Complaint.</p> <p>A complaint, in an action against a railroad for damages to adjoining property from noise, vibration, smoke, etc,, was not insufficient as seeking a double recovery, though it alleged “by reason, etc., * * * the plaintiffs had been damaged in the sum of $5,000, etc., and, that said action of the defendants constituted a nuisance, and by reason of said nuisance plaintiffs’ property has been damaged in the sum of $5,000.”</p> <p>[Ed. Note. — For other cases, see Damages,. Cent. Dig. §§ 422-425; Dec. Dig. § 153.*]</p> <p>3. Pleading (§ 433*) — Objections to Complaint — Cure by Verdict.</p> <p>Though a complaint, in an action against a railway for damages to property from noise, vibration, smoke, etc., incident to the operation of the road, contained allegations which might be construed as seeking a double recovery, the overruling of a demurrer thereto was harmless, whore from the proof and the verdict it is evident that a double recovery was neither sought nor had.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1451-1477; Dec. Dig. § 433.*]</p> <p>4. Eminent Domain (§ 298*) — Railroad in Street — Injuries from Construction — Evidence.</p> <p>In an action for injuries to property adjoining a street in which a railroad was built, a witness testifying as to the damages should state what the market value of the property was just before and what it was just after the tracks were laid, and a refusal to permit him to testify as to whether the lot was of greater or less value after the laying of the track was proper.</p> <p>[Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. § 807; Dec. Dig. § 298.*]</p> <p>5. Eminent Domain (§ 284*) — Nuisance from Construction — Damages — Permanent Injury.</p> <p>A plaintiff, in an action against a railroad for injury to adjoining property from noises, vibrations, smoke, etc., from a railway built in a public street, is entitled to damages for any present or prospective injury which would lessen the value of the property and is not limited to damage from such negligence in the construction and operation of the road as occurred prior to a sale of the property.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 789, 799; Dec. Dig. § 284.*]</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by C. L. Jones against the Rapid Transit Railway Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Vendos and Purchaser (§ 306*) — Remedies oe Purchaser — Recovery oe Earnest Money.</p> <p>Though a contract for. the sale of land was so indefinite as to the person to whom the deed should be made, and as to the payee of the notes for the balance of the price, that it could not be specifically enforced, where it clearly provided that the vendor’s agent deposited $1,000 as a guaranty that he, as agent for the vendor, would 'cause a sufficient warranty deed to be delivered to the purchaser, and the purchaser deposited a like sum as a guaranty that he would, upon delivery of the deed, pay the price, the contract was sufficient to enable either party to maintain a suit to recover his deposit upon breach by the other.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 873-876; Dec. Dig. § 306.*]</p> <p>2. Principal and Agent (§ 188*) — Actions —Parties.</p> <p>The purchaser’s agent in making the contract of purchase was not a proper or necessary party to a suit by the purchaser to recover his deposit of earnest money on the vendor’s failure to consummate the sale.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 711, 712; Dec. Dig. § 188.*]</p> <p>3. Venue (§ 22*)— Codeeendants — Distinct Causes oe Action.</p> <p>Under Rev. St. 1895, art. 1194, subd. 4, providing that, where defendants reside in different counties, the suit may be brought in either county, the cause of action asserted against one defendant must be the same as that against the other, so that where, in an action by the purchaser to recover a deposit of earnest money, and to forfeit the vendor’s deposit, brought against the vendor, the purchaser’s agent in making the contract of sale, and others, the action against the agent was on his personal guaranty that the deposit should be returned, if the sale was not consummated, while that against the other defendants was that they fraudulently claimed a forfeiture after breaching the contract themselves, the causes of action were distinct, so that the defendants, other than the agent, could not be sued in a county in which they did not reside.</p> <p>[Ed. Note. — For other eases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.*]</p> <p>4. Venue (§ 22*) — Codeeendants—Distinct Causes oe Action.</p> <p>Evidence, in an action by a purchaser to recover his deposit of earnest money, as well as the vendor’s deposit upon the latter’s failure to convey, held to show that the guaranty of the purchaser’s agent, who was made a defendant, that the purchaser’s deposit should be returned was the personal guaranty of the agent, so that the action could not be maintained as to the defendants, other than the agent, in the county of the agent’s residence; such other defendants not residing in such •county.</p> <p>[Ed. Note. — For other eases, see Venue, Cent. Dig. §§ 35-37; Dee. Dig. § 22.*]</p> <p>5. Venue (§ 32*) — Residence—'Waives of Pkivileqe.</p> <p>In an action by a purchaser of land to recover his deposit of earnest money and the vendor’s deposit, because of the vendor’s forfeiture thereof by his breach, the answer concluded: “Wherefore, having answered, these defendants pray that they may be discharged with their costs; that it be adjudged that the plaintiff forfeit his $1,000 deposit; and they pray for general relief.” Held,, that the quoted part of the answer was not in legal effect a cross-action, so as to waive defendants’ plea of privilege to be sued in another county, even if the filing of a cross-action would do so.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dee. Dig. § 32.*]</p>

<p>Appeal from District Court, Hill County; C. M. Smithdeal, Judge.</p> <p>Action by H. W. Carter and wife against John C. Givens and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Insurance (§ 818*) — Mutual Benefit Insurance — Action—Admissibility of Evidence.</p> <p>In an action on a benefit certificate, in which there was an issue as to whether deceased, a woman, had died of an abdominal ailment or disease, evidence that “about 25 per cent, of the married women of the -United States have trouble down in the abdominal front” was inadmissible.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2003-2005; Dec. Dig. § 818.*]</p> <p>2. Appeal and Error (§ 1050*) — Harmless-Error — Admission of Evidence.</p> <p>In an action on a benefit certificate, where the defense was that deceased, a woman, had died from an abdominal ailment or disease which she had not disclosed in her application for insurance, the admission of evidence that “about 25 per cent, of the married women of the United States have trouble down in the-abdominal front” was harmless, in view of findings that deceased practiced no fraud upon the defendant, and made no untrue statement to-defendant’s medical examiner, and that she did not know or have good reason to believe that she had a disease of any kind when she secured the certificate.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§' 4153-4160, 4166; Dec. Dig. § 1050.*]</p> <p>3. Insurance (§ 818*) — Mutual Benefit Insurance-Action on Certificate — Admission of Evidence.</p> <p>Where defendant, in an action on its benefit certificate, claimed that at the time the insured was reinstated in August she was not in good-health, so that the attempted reinstatement was ineffectual, evidence by the surviving husband that deceased had been doing nearly all of her household work up to the day she was taken sick, at the time of her last illness in the following September, was admissible.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2003-2005; Dec. Dig. § 818.*]</p> <p>4. Evidence (§ 560*) — Expert Testimony— Contradiction.</p> <p>In an action on*a benefit certificate, where-the defense was that the death of insured was-caused by an abdominal ailment or disease which the insured had failed to disclose in her-application, and where physicians, who operated on deceased, testified that they had found some-evidence of womb trouble which might have contributed to her death, evidence of the surviving husband that neither of these physicians, had ever advised him that the deceased had such trouble was admissible as bearing on the weight to be given the testimony of the physicians.</p> <p>[Ed. Note. — For other cases, see Evidence,. Cent. Dig. § 2380; Dec. Dig. § 560.*]</p> <p>5. Appeal and Error (§ 724*) — Assignments-of Error — Sufficiency.</p> <p>An assignment of error which points out no specific error, and which does not refer to the page of the transcript where the bill of exceptions referred to therein may 'be found, is not entitled to consideration.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error. Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. $ 724.*]</p> <p>6. Appeal and Eebor (§ 733*) — Assignments of Beroe — Specification of Eeeoe — Sufficiency of Evidence.</p> <p>An assignment of error, merely reciting that the court entered a judgment and found against the defendant for the amount sued for, with interest, to which action the defendant excepted, on the ground that the said finding was contrary to the law and the evidence, is too general to be considered.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3025-3027; Dec. Dig. § 733.*]</p>

<p>Appeal from District Court, Anderson County; B. H. Gardner, Judge.</p> <p>Action by W. M. Hamilton and others, trustees, against A. L. Bowers, Mayor, and others. ’ From a decree for defendants, plaintiffs appeal./</p>

<p>Appeal from District Court, Harris County; Charles E. Ashe, Judge.</p> <p>Suit by S. K. Warrener against Nick Lam-brecht and another to contest an election. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Shelby County ; L. B. Hightower, Judge.</p> <p>Action by B. L. Aycock against Tom Thompson. Judgment for defendant, and plaintiff appeals.</p>

Action by C. G. McKinney against E. F. Rowson & Co. From a judgment of a justice for plaintiff, defendant appealed, and from a judgment of the county court, sustaining a general demurrer and special exceptions to plaintiff’s petition, he appeals.

<p>Appeal from District Court, Lavaca County; M. Kennon, Judge.</p> <p>Action by W. P. Wells against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.</p>

M. Milam, Judge. Action by Smith Land Company against H. C. Tevebaugh. From a judgment of the ■county court, dismissing an appeal from a judgment of a justice of the peace, defendant appeals.

<p>Appeal from District Court, Hartley County; D. B. Hill, Judge.</p> <p>Action by Hanan & Son against J. A. Hill. From a judgment for plaintiffs, defendant appeals.</p>

Kittrell, Judge. Actionby Lockhart H. Wallis against Mrs. C. Bonin and others, in which Ira Mixon intervenes. Prom a judgment in part for plaintiff and in part for intervener and two defendants, intervener and such defendants appeal.

<p>Appeal from District Court, Jefferson County; D. B. Hightower, Jr., Judge.</p> <p>Action by D. A. Crews against the Gulf Grocery Company and others. From a judgment for plaintiff, defendants appeal.</p>

B. Hightower, Judge. Action by Raymond Bass, by next friend, Marion T. Bass, against the receivers of the Kirby Lumber Company. From the refusal of a motion to set aside an order granting a nonsuit and dismissing a motion to reinstate, plaintiff appeals.

<p>Appeal from Taylor County Court; T. A. Bledsoe, Judge.</p> <p>Action by Will Stith and others against John L. Graham. From a judgment for defendant on appeal from a justice, plaintiffs appeal.</p>

<p>Appeal from District Court, Anderson County; B. H. Gardner, Judge.</p> <p>Trespass to try title by Robert Jones against W. R. Petty and others. From a judgment for defendants, plaintiff appeals.</p>

Error from District Court, Lubbock County; L. S. Kinder, Judge. Action on a note and for foreclosure of a deed of trust by L. M. McCrummen against M. G. Abernathy and wife. Judgment for plaintiff, and defendants bring writ of error.

<p>Appeal from District Court, Potter County ; J. N. Browning, Judge.</p> <p>Action by Rolla De Bord against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff. Defendant appeals.</p>

W. Doremus, Special Judge. Action 'by Eula B. Holland, suing for herself and as next friend of Georgia Lee Holland, an infant, against J. T. Gloss. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from Oldham County Court; T. B. Jones. Judge.</p> <p>Action by William Balfour against the Prairie Cattle Company, Limited. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Action by B. D. McLarry against the Studebaker Bros. Company of Texas and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Contracts (§ 352*) — Cancellation—Effect-Question of Fact.</p> <p>The cancellation of a contract by mutual agreement does not 'as a matter of law abrogate the right of either party to recover damages resulting from breaches before the cancellation; the right to recover such damages usually depending upon the intention of the parties at the time of cancellation, which is generally a question of fact. •</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1200, 1824-1828; Dec. Dig. § 352.*]</p> <p>2. Frauds, Statute of (§ 144*) — Right to Plead — Waiver.</p> <p>A lessor waived his right to. plead the insufficiency of the lease under the statute of frauds as preventing its enforcement, where he urged the statute as a bar to its enforcement as to only a part of the term covered by the lease, and himself pleaded and sought to rely on an oral contract for the whole term.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 351; Dec. Dig. § 144.*]</p> <p>3. Frauds, Statute of (§ 125*) — Part Performance.</p> <p>Though a lease was insufficient under the statute of frauds, if the lessee with the lessor’s knowledge and acquiescence, as part performance of the contract, furnished supplies and boarded the lessor and his hands when he had not agreed to do so, the lessor will be liable for the reasonable value of such part performance, of which he received the benefit.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 275-277%; Dec. Dig. § 125.*]</p> <p>4. Landlord and Tenant (§ 48*) — Breach by Lessor — Measure of Damages.</p> <p>The lessee’s damages for the lessor’s breach of a valid lease would be what the entire term of the lease was worth to him, provided he had not breached it, or it had not been canceled by mutual agreement, in which latter event he could only recover for such just claims as he had at the time of the cancellation.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 114 — 116; Dec. Dig. § 48.*]</p>

Error from District Court, Lubbock County; W. R. Spencer, Judge. Action by the Alfalfa Lumber Company against Z. D. & J. W. Agnew, in which J. N. Leard was interpleaded, and against whom defendants filed a cross-action. Default judgment against Leard, and he brings error.

S. Banister, Judge. Proceedings between the Quanah, Acme & Pacific Railway Company and Hardeman County relative to the laying out of a public road. Prom the judgment, the railway company appeals.

<p>1. Justices oe the Peace (§ 119*) — Judgment — Validity—-Pkocess.</p> <p>A judgment by a justice of the peace without service of citation was void, and the defendant was entitled to have it annulled.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 373-376; Dec. Dig. § 119.*]</p> <p>2. Justices op the Peace (§ 135*) — Judgment — Injunction.</p> <p>A bill to enjoin execution of a judgment of a justice of the peace, alleging that it was based on citation purporting to have been served on a defendant thereunder, but alleging that he was not served, but not alleging facts showing the invalidity of the judgment for want of proper process and service, nor negativing facts to prevent the running of the statute of limitations against his action to set it aside, was insufficient.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 426-447; Dee. Dig. § 135*]</p>

<p>SnEKnnrs and Constables (§ 90*) — Execution oí? Wkit — Indemnity Bond — Right to Demand.</p> <p>. Rev. St. 1895, art. 4901, requires each sheriff to execute process directed to him, and make return thereof, and provides that any sheriff who fails to do so or makes a false return shall be liable as for contempt, and also liable to the party injured for damages sustained. EoU, that for want of statutory authority a sheriff could not demand an indemnity bond as a condition to executing a regular writ of restitution issued on a valid judgment in forcible detainer proceedings, so that, on his refusal to execute the writ without a bond, he could be compelled to do so by mandamus.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 129, 130; Dee. Dig. § 90.*]</p>

S. Kinder, Judge. Action by J.- N. Parris against P. S. Woody, consolidated with action by H. W. Brown against J. N. Parris, P. S. Woody, and T. H. Buster. Judgment in favor of Parris against all parties to the suit, and in favor of defendant Brown against Woody and Buster, and Brown and Buster separately appeal.

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action by S. A. White against the Southern Kansas. Railway Company of Texas. From a judgment for plaintiff, plaintiff appeals.</p>

<p>1. Judgment (§ 743*) — Conclusiveness — Matters Concluded—Title and Right to Real Property.</p> <p>Grantor’s wife, who had not joined in the deed, sued the grantee to recover 200 acres as her homestead and obtained judgment for the right and possession of the land, and that the deed conveying it be canceled in so far as it attempted to convey the homestead, and this judgment was affirmed on appeal. The grantee then sued the grantors to obtain judgment for an estate in remainder for an undivided half Interest in the land. Held, that the former judgment was conclusive against the grantors’ right to any title or interest in the homestead.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1275-1277; Dec. Dig. § 743.*]</p> <p>2. Judgment (§ 460*), — Setting Aside — Fraud—Sufficiency of Allegations.</p> <p>Allegations, in a suit by a grantee to set aside a judgment for a homestead obtained.by the grantor’s wife, that the judgment divesting title out of the grantee and vesting it in the wife was a fraud on the grantee, and that that part of the judgment was rendered by accident or mistake of which he was not aware at the time, are insufficient, even on direct attack, to authorize the setting aside or correction of the judgment.</p> <p>Linu. Cent. Dig. §§ 879-891; Dec. Dig. § 460.*!</p> <p>3. Homestead (§ 217*)—Action by Grantee —Grounds.</p> <p>The fact that a grantor’s wife, after a judgment against the grantee for the title and possession of a definite part of the land conveyed as her homestead right, do6s not thereafter occupy the premises, gives the grantee no right to any title or interest therein.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 404; Dec. Dig. § 217.*] -</p> <p>4. Covenants (§ 93*) — BREACH—Quitclaim Deed — Constkuction—“Undee.”</p> <p>A quitclaim deed by a husband and others, in which the wife did not join, by the habendum clause declared that the grantee was to have and hold the premises to himself, his heirs and assigns forever, so that neither the grantors nor their heirs, nor any person or persons claiming under them, should at any time thereafter have or claim any right or title to the premises. Thereafter the wife obtained judgment for the recovery of title and possession of her homestead in the premises. Held, that the wife was not a person claiming “under” her husband, and that by the terms of the deed the grantors were not liable to the grantee by reason of the recovery had against him.</p> <p>..[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 101-103; Dec. Dig. § 93.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7157.]</p> <p>'5. Homestead (§ 21*)— Persons Entitled— Mabkied Woman — “Mabbiage” — “Wife-hood.”</p> <p>Under Const, art. 16, § 51, and Rev. St. 1895, art. 2396, defining a homestead, the homestead right of a married woman rests upon the fact that she has the status of a wife, and that as such she actually used and occupied the 200-acre homestead for the purpose of a home, at the time of its attempted alienation, and did not join in the execution of the conveyance or in any way assent thereto; the term “marriage” meaning the civil status of a man and woman lawfully united in the relation of husband and wife, and “wifehood” being defined as the state of being a wife.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 29, 30; Dec. Dig. § 21.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4390-4398; vol. 8, p. 7717.]</p>

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>An action by the Western National Wall Paper Company against J. M. Clayton and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Liberty County; L. B. Hightower, Judge.</p> <p>Action by Louise Hardin Cleveland against T. N. McCormick and others. From a judgment for the plaintiff, defendant named appeals. Affirmed.</p>

<p>Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.</p> <p>Action by Mrs. Henry Herring against the Western Union Telegraph Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>BkokeRS (§ 86*) — Compensation—Evidence —Sufficiency.</p> <p>In an action by a real estate broker for compensation claimed to be due for a sale of land, evidence held insufficient to show that the broker produced a purchaser who was ready, willing, and able to buy the land at the price at which he was authorized to sell.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.*]</p>

Application by Allie Kendall for appointment as guardian of the estate of William Lawrence. There was judgment adverse to the petitioner and she appeals. On petition by Allie Kendall for mandamus against J. S. Davis, clerk of the district court of Hays county, to compel the preparation and transmitting of a transcript.

<p>1. Justices of the Peace (§ 159*) — Appeal-Bond — Necessity.</p> <p>Defendant cannot appeal from a money judgment in the justice court without filing an appeal bond, or an affidavit of inability to give one.</p> <p>[Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 550-578; Dec. Dig. § 159.*]</p> <p>2. Appeal and Error (§ 493*) — Record— MATTERS TO BE SlIOWN — JURISDICTION OP Lower Court.</p> <p>To give the Court of Civil Appeals jurisdiction, the transcript must affirmatively show that the trial court had jurisdiction, so that where the record in the Court of Civil Appeals does not show the filing of an appeal bond, or affidavit in lieu thereof, on appeal to the county court from a justice’s money judgment, so as to give the county court jurisdiction, an appeal from the county court to the Court of Civil Appeals must be dismissed for want of jurisdiction.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2282-2284; Dec. Dig. § 493.*]</p>

<p>1. Brokers (§ 56*) — Commissions—When Earned.</p> <p>Where a broker, employed to procure a purchaser on specified terms, induced a third person to open negotiations with the owner to purchase, but the third person,- after negotiations with the owner, refused to purchase on the specified terms, and the negotiations then ceased; but were subsequently renewed without any effort on the part of the broker, and a sale was made on different terms, the owner, acting in good faith, was not liable to the broker for commissions, because he was not the efficient cause of the sale.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 85-89; Dec. Dig. § 56.*]</p> <p>2. Appeal and Error (§ 1002*) — Verdict— Conclusiveness.</p> <p>The court, on appeal, will accept as true the evidence which supports the verdict, where it conflicts with the opposing evidence.</p> <p>[Ed. Note. — -For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p>

<p>Appeal from Frio County Court; S. T. Do we, Judge.</p> <p>Action- by Fish Bros. Wagon Company against G. F. Adams & Co. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Taylor County; Thomas D. Blanton, Judge.</p> <p>Action by Clara F. Versyp against James Versyp. From the judgment, plaintiff appeals.</p>

<p>1. Pleading- (§ 34*) — Demueeer—Inferences.</p> <p>In testing the sufficiency of a petition on general demurrer, every reasonable intendment will be indulged in its favor, and this is expressly required by district and county court rule 17 (142 S. W. six).</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 66-75; Dec. Dig. § 34.*]</p> <p>2. Bkokees (§ 82*) — Action fob Commission —Petition.</p> <p>A petition which alleges that plaintiff became associated with defendant firm as a real estate broker and agent, with an agreement that he should receive all commissions earned by the firm upon property procured by him, that he listed with such firm property previously listed with him individually upon an agreement for a 2y<¡ per cent, commission, that he brought the owner thereof to the firm’s office, and that thereafter the defendant firm purchased the land for themselves individually, without the knowledge or consent of plaintiff, with an agreement that the vendor should pay no commission, and that plaintiff had never waived his right to a commission on such sale,' states a cause of action.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 101-103; Dee. Dig. § 82.*]</p> <p>3. Partnebship (§ 86*) — Individual Tbans-actions — Right to Share tn Profits.</p> <p>Where plaintiff formed a partnership for the sale of lands, with the agreement that he should receive one-half of the commissions to which the firm would be entitled upon the sale of the land by it, and the other members of the firm sold to themselves individually land procured by plaintiff, the transaction was a partnership transaction, in the profits of which plaintiff was entitled to participate.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 134; Dec. Dig. § 86.*]</p> <p>4. Partnership (§ 141*) — Repeesentation op Firm by Paetneb — Agency.</p> <p>Where land procured by one of the members of a firm was listed with the firm upon the agreement that he should receive a commission on its sale or exchange, and was aft-erwards, without his knowledge or consent, or his waiver of his right to a commission, bought by the other two members of the firm individually, their agreement, as part of the consideration and contract of sale, that the vendor should pay no commission, bound the third partner, under the rule that each member of a partnership in partnership transactions is an authorized agent of all the members.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 214-221; Dec. Dig. § 141.*]</p>

<p>Witnesses (§ 159*) — Transactions with Deceased.</p> <p>In an action by a broker for commissions for a sale of land, in which defendant’s executrix was substituted upon his death, the issues being as to whether plaintiff was employed, or whether decedent rendered himself liable on an implied contract, testimony by plaintiff as to the details of a trip made by himself and the deceased, in which a strong box belonging to deceased was opened, and an abstract taken out and, after being taken to the courthouse, returned to the plaintiff, related to a transaction with decedent, and was inadmissible under Rev. St. 1895, art. 2302.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 664, 666-669, 671-682; Dec. Dig. § 159.*]</p>

<p>Appeal from District Court, Cooke County; Clem B. Potter, Judge.</p> <p>Action by E. H. Riordan against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Sales (§ 234*) — Bona Fide Purchaser— Title Acquired.</p> <p>An owner of personalty, who is induced by fraud to part with the possession, may recover the possession of an innocent purchaser; but an owner who is induced by fraud to part with the title may not recover of an innocent purchaser.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 657-677, 679, 680; Dec. Dig. § 234.*]</p> <p>2. Trial (§ 105*) — Evidence—Issues.</p> <p>The testimony of a witness, in effect a legal conclusion, is sufficient to raise an issue of fact, when admitted without objection.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 260-266; Dec. Dig. § 105.*]</p> <p>3. Witnesses (§ 350*) — Impeachment — Cross-Examination.</p> <p>It is error to allow a question on cross-examination as to whether the witness was not under indictment for swindling.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §f 1140-1149; Dec. Dig. § 350.*]</p> <p>4. Appeal and Error (§ 1048*) — Harmless Error — Erroneous Admission of Evidence.</p> <p>Where the facts show that a witness was guilty of an attempt to swindle, but there.is nothing to show that he was under indictment, the error in allowing a question on cross-examination as to whether he was under indictment, followed by an affirmative answer, is prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. § 1048.*]</p>

<p>1. Vendor and Purchaser (§ 231*) — Bona Fide Purchaser — Records — Constructive Notice.</p> <p>Where a contract between an attorney and a claimant of land, entitling the attorney to a part of the land if successful in the suit, was recorded, it is constructive notice of the interests of the attorney.</p> <p>[Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dec. Dig. § 231.*]</p> <p>2. Vendor and Purchaser (§ 236*) — Bona Fide Purchaser — Evidence—Sueeicienct.</p> <p>A recital in a deed to land that it was conveyed in consideration of a certain sum paid is no proof that the vendee is a bona fide purchaser for value, even assuming that he did not have constructive notice of a recorded power of attorney.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 570; Dec. Dig. § 236.*)</p>

<p>Appeal from District Court, Ward. County; S. J. Isaacs, Judge.</p> <p>Action by W. B. Hughes against the Big Valley Irrigation Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Lamar County; T. D. Montrose, Judge.</p> <p>Action by P. M. Robinson against T. L. Randell. From a judgment for plaintiff, defendant appeals.</p>

S. Shipp, Judge. Action by the Gulf Refining Company against Pagach Bros. From a judgment for defendants, and for plaintiff on a cross-action, plaintiff appeals.

<p>Appeal from District Court, Lamar County; T. D. Montrose, Judge.</p> <p>Action by Pat Cotton and another against T. L. Randell. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Throckmorton County; Jno. B. Thomas, Judge.</p> <p>Trespass to try title by S. L. Cantwell against Sid Askew and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Dallam County; D. B. Hill, Judge.</p> <p>R. S. Hogue was convicted of aggravated assault, and he appeals.</p>

<p>Appeal from Coryell County Court; G. E. Johnson, Judge.</p> <p>J. B. Squyres was convicted of violating the local option law, and he appeals.</p>

<p>1. Bail (§ 65*) — Appeal—Recognizance— Sufficiency.</p> <p>A recognizance, which does not show that accused has been convicted of any offense, and what punishment, if any, has been assessed against him, is fatally defective.</p> <p>[Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.*]</p> <p>2. Criminal Law (§ 1092*) — Bill of Exceptions — Time to File — Review.</p> <p>A bill of exceptions, not filed within the time authorized by the court, cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2829, 2834-2861, 2919; Dec. Dig. § 1092.*]</p>

<p>Appeal from Dallas County Court at Law; W. P. Whitehurst, Judge.</p> <p>Leon Carl White was convicted of an offense, and he appeals.</p>

<p>Appeal from District Court, Fayette County; D. W. Moore, Judge.</p> <p>Election contest by I. E. Clark against George Willrich. and others. From a judgment for contestees, contestant appeals.</p>

<p>1. TRIAL (§ 250*) — Instructions — Applicability to Pleading and Evidence.</p> <p>In an action on implied contract for services in preparing proofs of death of an insured person, where the pleadings and evidence did not raise any issue of a general custom to perform such services without compensation, an instruction that plaintiff could not recover, if the jury found that it was not customary according to the ordinary course of dealing to pay for services of like character, is error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. § 250.*]</p> <p>2. Work and Labor (§ 4*) — Implied Promise to Pay — Value op Services.</p> <p>Where services were performed by plaintiff at defendants’ request, and, although nothing was said as to whether plaintiff would make a charge therefor, there was nothing to show that they were to be gratuitous, the parties being strangers to each other, the law implied a promise to pay the reasonable value thereof.</p> <p>[Ed. Note. — For other cases, see Work and Labor, Cent. Dig. §§ 3-7; Dec. Dig. § 4.*]</p> <p>3. Work and Labor (§ 28*) — Implied Promise to Pay — Evidence.</p> <p>In an action for the reasonable value of services, a judgment for defendant will not be sustained on the ground that there was a failure of proof a's to the value of the services, where the evidence shows that at the time they were performed plaintiff told defendant-what he considered the services worth.</p> <p>[Ed. Note. — For other cases, see Work and Labor, Cent. Dig. §§ 17, 55; Dec. Dig. § 28.*]</p> <p>4. Damages (§ 12*) — Extent not Shown— Right to Nominal Damages.</p> <p>In an action for the reasonable value of services, the fact that plaintiff did not prove the value of the services did not defeat a recovery, since he would be entitled at least to nominal damages.</p> <p>■ [Ed. Note. — For other cases, see Damages, Cent. Dig. § 31; Dec. Dig. § 12.*]</p>

<p>1. Justices of the Pea.ce (§ 129*) — Rights as to Cosurety— Contribution — Attacking Judgment.</p> <p>Where a surety on a note failed to interpose any defense to an action thereon before a justice, he may not, in an action by a cosurety,, who paid the judgment, for contribution, collaterally attack the judgment by pleading fraud and misrepresentation as an inducement to his-signature, and a forged indorsement.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 408-411; Dec. Dig. §• 129.*]</p> <p>2. Principal and Surety (§ 197*) — Rights-as to Cosurety — Contribution — Attacking Judgment.</p> <p>A judgment against two joint debtors prevents either, in a suit with the other, from, denying the existence and obligation of the debt, though he may prove that the entire burden should be borne by the other, so that, in. an action to compel contribution by a surety who paid the amount of a judgment against his. cosurety, a defense which sets up fraud in obtaining the defendant’s signature and a forged indorsement is insufficient, where it does not allege that the plaintiff was a party to the fraud or forgery, or acquiesced therein.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 632, 632% 5 Bee. Dig. § 197.*]</p> <p>3. Pjsincipal and Surety (§ 194*) — Eights as to Cosurety — Contribution — Attacking Judgment.</p> <p>Under Bev. St. 1895, art. 3813, which provides that, in a suit against two or more defendants on any contract, any one or more of the defendants may cause the question of sure-tyship to be tried and determined, and article 3815, which provides that, though a surety shall pay a judgment, or a part of it, the judgment shall remain in force for his use, and shall be considered as assigned to him, together with a right to execution thereon as in other cases, a surety who has paid a judgment is not precluded from thereafter seeking contribution against a cosurety of his proportionate part in an action of implied assumpsit.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 605-623; Dec. Dig. § 194.*]</p>

<p>Appeal from District Court, Cooke County; Clem B. Potter, Judge.</p> <p>Action by Mrs. Alma Gilley against Mrs. Minnie Troop. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Harrison County; W. C. Buford, Judge.</p> <p>Motions by E. R. White and others against P. M. Young, receiver, and others, for allowance of interest on movants’ demands. From a judgment overruling the motions, movants appeal.</p>

J. White, Judge. Motion by the Coleman National Bank to compel W. L. Dutch, as sheriff, and others, to pay over money collected under an order of sale. Prom a judgment for defendants, plaintiff appeals.

Error from Lee County Court; John H. Tate, Judge. Action by W. A. Miller against T. E. Burrow. On appeal from a justice court, a judgment was rendered for defendant on his cross-action, and plaintiff brings error.

<p>Appeal from District Court, Cooke County; Clem B. Potter, Judge.</p> <p>Action by G. S. Holder, guardian, against Walter L. Melugin and others. From judgment for defendants on demurrer, plaintiff appeals.</p>

<p>Appeal from Nolan County Court; Jno. J. Ford, Judge.</p> <p>Action by G. W. Guinn against the Kansas City, Mexico & Orient Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

. Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge. Action by George W. Pickle against Zada Leah Edwards and another, where S. P. Hardwicke was appointed guardian ad litem for the above-named defendant. Judgment for plaintiff, and defendant guardian appeals.

<p>1. Usury (§ 115*) —Evidence—Pabol Evidence.</p> <p>Where a mortgage or written contract providing for the loan of money on security is not upon its face usurious, parol evidence is admissible to show that it is a mere device adopted to conceal a- usurious transaction.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. § 326; Dec. Dig. § 115.*]</p> <p>2. Principal and Agent (§ 116*) — Evidence as to Agent’s Authority — Declarations oe Agent.</p> <p>Where the general agent and manager of a loan company makes a contract for the company, by which it receives a usurious rate of interest, and the company accepts the benefit of the contract, it is bound by the acts and statements of the general agent, notwithstanding some undisclosed limitation placed upon his authority of which the borrower had no notice.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 377, 377%; Dec. Dig. § 116.*]</p> <p>3. Evidence (§ 397*) — Parol Evidence — Contracts.</p> <p>Parol evidence as to matters reduced to a writing is admissible when not in conflict with the writing itself.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1756-1765; Dec. Dig. § 397.*]</p> <p>•1. Usury (§ 117*) — Cancellation op Deed op Trust — Weight op Evidence.</p> <p>Evidence in a suit to cancel a note and the deed of trust securing the debt on the ground that the interest rate on the debt was usurious held sufficient to sustain a verdict for the cancellation of the note and the deed of trust.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 378-390; Dec. Dig. § 117.*]</p>

A. Stevens, Judge. Trespass to try title by C. A. Belgarde and others against Marsh Carter and others. From a judgment on an instructed verdict for defendants, plaintiffs appeal.

Edward, Dwyer, Judge. Action by M. Goggan against Thos. Gog-gan & Bro. and others, in which the defendants named pleaded in intervention. From a judgment for plaintiff and against defendants on their plea of intervention, defendants appeal.

<p>Appeal from District Court, Harris County; Charles E1. Ashe, Judge.</p> <p>Action by the Ocean Accident & Guarantee Corporation, Limited, against Daniel Ripley and another. From a judgment for plaintiff, Daniel Ripley appeals.</p>

<p>Appeal from District Court, Trinity County; S. W. Dean, Judge.</p> <p>Action by the West Lumber Company against John W. Chessher and others. From a judgment in part for plaintiff, it appeals.</p>

<p>1. Appeal and Error (§ 724*) — Assignments oe Error — Sufficiency.</p> <p>■ An assignment of error is insufficient, where it does not point out with certainty the particular action of the trial court complained of.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2907-3001, 3022; Dec. Dig. § 724.*]</p> <p>2. Tbial (§ 350*) — 'Verdict—Special Findings.</p> <p>Where, in an action to recover land, the question whether the deceased grantor was of unsound mind was directly raised by the pleadings and evidence, its determination was properly submitted to the jury by special issue.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.*]</p> <p>3. Appeal and Error (§ 742*) — Assignments oe Error — Supporting Propositions — Suf-itciency.</p> <p>Where an assignment of error, in an action to recover land sold by a deceased, attacked the submission of a special issue as to the soundness or unsoundness of the deceased’s mind at the time he conveyed as inapplicable to the facts, it was not supported by propositions to the effect that, unless the proof showed that the wife of the deceased was incurably insane at the date of the execution of the deed, the deceased would have no right to convey the homestead, and that a husband may not deprive his wife of her rights in a homestead while she is under a legal incapacity.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>4. Appeal and Error (§ 742*) — Assignment oe Errors — Specification oe Errors — Singleness.</p> <p>An assignment of error, submitted as a proposition, which complains both that a specific finding is not supported by the evidence, and also that it was reached because a por-' tion of the court’s. charge was upon the weight of the evidence, will not be considered, because it complains of more than one action of the court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>5. Appeal and Error (§ 742*) — Assignment of Errors — Propositions Accompanying-Sufficiency.</p> <p>And such assignment is insufficient as a proposition for its multifariousness.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>6. Appeal and Error (§ 742*) — Assignment of Errors — Propositions Accompanying.</p> <p>An assignment of errors, submitted as a proposition, which complains that a special finding was not sustained by the evidence, is insufficient as a proposition, where it does not show in what respect the answer of the jury was not sustained.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>7. Trial '(§ 194*) — Instructions—Province of Court and Jury — Weight of Evidence.</p> <p>In an action to recover land claimed to have been a homestead, sold by a husband, and in the conveyance of which the wife did not join, a charge that a husband acting in good faith may select the homestead of the family or abandon one homestead and acquire another, the abandonment and new acquisition talcing place whether the new homestead is fully paid for or not, is not a charge on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p> <p>8. Appeal and Error (§§ 742, 740*) — Assignment of Errors — Singleness.</p> <p>An assignment of error, which submitted as a proposition the impropriety of the findings on five different special issues, embracing four distinct issues of the cause, is insufficient both as an assignment and as a proposition.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3000, 3028; Dec. Dig. §1 742, 740.*]</p> <p>9. Appeal and Error (§ 1068*) — Harmless Error.</p> <p>Where, in an action to recover land sold by a husband without his wife joining, the jury found that the land in controversy was not the homestead, a failure of the court to instruct that the husband alone could not alienate the homestead or any part of it during the life of his wife was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p> <p>10. Homestead (§ 56*) — Power to Transfer — Joinder of Wife.</p> <p>A husband acting in good faith may choose and select the homestead or abandon one selected and acquire a new one independently of the wishes of his wife.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 81, 82; Dec. Dig. § 56.*]</p> <p>11. Appeal and Error (§ 719*) — Assignment of Error — Necessity—Fundamental Error.</p> <p>A court on appeal will review fundamental error in a judgment apparent on the face of the record, though not assigned or presented in any way.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.*]</p> <p>12. Husband and Wife (§ 265*) — Community Property — Insanity of Wife — Conveyance by Husband — Validity.</p> <p>Rev. St. 1895, art. 2221, provides that where a wife becomes insane, leaving a surviving husband and child or children, the husband shall have the exclusive management, control, and disposition of the community property, and thei insane wife need not join in conveyances thereof, subject “to the provisions of this chapter.” Rev. St. 1895, e. 28, of which article 2221 is part, relates to the administration of community property, and its other articles provide that on the insanity of the wife the right of the husband to the management, control, and disposition of the community property is contingent upon the filing by him of written application for authority to act as a survivor, returning an inventory, etc. A husband, upon the insanity of his wife and her commitment to an insane asylum, mortgaged and conveyed their community property without filing the application, etc., required by statute. Held, that the conveyance was void as to the interest of the wife for her failure to join.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 917-924; Dec. Dig. § 265.*]</p>

<p>1. Railroads (§ 444*) — Injuries to Animals on Tracks — Measure of Damages.</p> <p>In a statutory action against a railroad company for the killing of animals on its tracks, the measure of damages is the market value of the stock injured or killed.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §,§ 1621-1626; Dec. Dig. § 444.*]</p> <p>2. Railroads (§ 447*) — Damages (§ 69*) — Operations — Injuries to Animals on Tracks —Instructions.</p> <p>In a statutory action against a railroad company for the killing of an animal on its tracks, interest cannot be awarded as compensation, and an instruction to award plaintiff such a sum, as if paid in cash at the time of the trial would compensate him for his loss, was erroneous because interest might have been awarded under it.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1660; Dec. Dig. § 447;* Damages, Cent.Dig. §§ 137-140; Dec.Dig. § 69.*]</p> <p>3. Railroads (§ 439*) — Injuries to Stock-Exceptions. ,</p> <p>In an action against a railroad company for the wrongful killing of an animal on its tracks, a special exception demanding to know what particular train killed the animal should be sustained.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§, 1551-1569; Dec. Dig. § 439.*]</p> <p>4. Evidence (§ 215*) — Admissions.</p> <p>In an action against a railroad company for the wrongful killing of a jack on its track, where the plaintiff testified that the animal was worth $1,200 and that its value was the same the preceding January, the original sworn rendition of the property in question for taxes, wherein the plaintiff listed the animal at $200, was admissible as an admission.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 754-759; Dec. Dig. § 215.*]</p> <p>5. Evidence (§ 318*) — Hearsay — Ex Parte Statements.</p> <p>In an action against a railroad company for the killing of an animal on its tracks, a statement, signed by the persons who sold the animal to plaintiff, that they considered him-worth more than $475, was inadmissible as hearsay.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. §, 318.*]</p> <p>6. Railroads (§ 442*) — Operation — Injury to Animals on Tracks — Evidence—Measure oe Damages.</p> <p>In an action against a railroad company for the killing of a jack on its track, testimony by a witness, who sold the animal to plaintiff, that he was cheap at the selling price to a man who needed him, was inadmissible, because not based on the proper measure of damages, which was the market value.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §5 1596-1607; Dec. Dig. § 442.*]</p>

Trespass to try title by T. J. Clark, for the use and benefit, etc., against the Chicago, Rock Island & Gulf Railway Company and another. From a judgment for plaintiff!, defendants appeal.

R. Spencer, Judge. Action by W. K. Dickinson and others, as partners, against J. H. Quinn and wife, J. M. Patton, Agnew & Agnew, and others. From a judgment for plaintiffs, the defendants named appeal.

<p>1. Appeal and Error (§ 713*) — Record— Matters to be Shown.</p> <p>Where depositions are not attached to, or even referred to as a part of, a motion to suppress them, they should not be copied at length in the transcript on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2379, 2463, 2645, 2956, 2957; Dec. Dig. § 713.*]</p> <p>2. Costs (§ 256*) — Appeal and Error (§ 655*) — Record — Improper Matter — Penalty.</p> <p>Where improper matter is copied in the transcript on appeal, the proper practice is to tax the costs incident to including such niat-ter against the party taking out the transcript, and not to strike the transcript itself from the files.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. § 792; Dec. Dig. § 256;* Appeal and Error, Cent. Dig. §§ 2823-2S25; Dec. Dig. § 655.*]</p> <p>3. Appeal and Error (§ 656*) — Record—Correction.</p> <p>Under Sajdes’ Ann. Civ. St. 1897, art. 998, authorizing the Court of Civil Appeals to ascertain, by affidavit or otherwise, such matters of fact as may be necessary to the proper exercise of its jurisdiction, where a motion to strike a transcript on appeal from the files, on the ground of a typographical error in the copy of the judgment, has attached to it a correct copy of the judgment, duly certified, the court will consider the record as amended to conform to the true copy, and not strike out the transcript.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2826-2828; Dec. Dig. § 656.*] '</p> <p>4. Appeal and Error (§ 759*) —Briefs — Numbering- Assignments.</p> <p>Under rule 29 for Courts of Civil Appeals (67 S. W. xv), providing that assignments of error in the brief shall be numbered from first to last in consecutive order, but need not be presented in the same order in which they appear in the original assignment of errors, the numbers of the assignments in the brief should run from 1 on, in consecutive order, without regard to the numbers as found in the transcript.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>5. Appeal and Error (§ 759*) — Assignments op Error — Statements and Propositions.</p> <p>Under rule 29 for Courts of Civil Appeals (67 S. W, xv), requiring assignments of error to be copied in the brief, and rule 31 (67 S. W. xvi), requiring a brief statement of such proceedings contained in the record as are necessary and sufficient to explain and support the proposition to be subjoined to each proposition under an assignment, where assignments in the brief are not copies of any assignments in the record, and the statements subjoined to propositions are not copied from the record, but merely represent the counsel’s version of the matters contained in the record, such as signments will be disregarded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>6. Appeal and Error (§ 759*) — Briefs—Assignments of Error.</p> <p>Where assignments of error in a brief present altogether different propositions of law from those presented by the corresponding assignments in the record, they will be disregarded.</p> <p>LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by G-. L. Crofford against A. C. Scaeif. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Falls County Court; W. E. Hunnicutt, Judge.</p> <p>Action by J. J. Whitaker against R. B. Willis and another. From a judgment granting insufficient relief, plaintiff appeals.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by Ben Kirby against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

Error from Bee County Court; T. M. Cox, Judge. Action between the American Warehouse Company and S. G. Hamblen. There was a judgment for the latter, and the former brings error.

T. Allen, Judge. Action by J. T. Dunn and others against King Collie & Company, begun in the justice’s court and appealed to the county court. From a judgment for plaintiffs, defendant appeals.

<p>Appeal from District Court, Clay County; P. A. Martin, Judge.</p> <p>Action by Sophia Grimminger against Leonard Kertz. From a judgment for plaintiff, defendant appeals.</p>

<p>1.Intoxicating Liquors (§ 15*) — Statutory Provisions — Constitutionality.</p> <p>Acts 31st Leg. 1st Ex. Sess. c. 17, which regulates the sale of intoxicating liquors and confers upon the Comptroller of Public Accounts power to revoke a retail liquor dealer’s license for a violation of the liquor law, is constitutional.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 17, 18; Dec. Dig. 15.*]</p> <p>2. Intoxicating Liquors (§ 108*) — Statutory Provisions — Revocation of License.</p> <p>Under Acts 31st Leg. 1st Ex. Sess. c. 17, § 9h, which provides that any person feeling himself aggrieved hy the action of the Comptroller of Public Accounts in revoking a license may bring suit in the district court of the county of his residence to reinstate such license, the right to relief from the acts of the Comptroller is limited by the act except where an act of the Comptroller is outside of his granted powers.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 116-118; Dec. Dig. § 108.*]</p> <p>3. Injunction (§ 105*j — Criminal Prosecutions — Violation of Liquor Law._</p> <p>Equity will not ordinarily entertain a bill to enjoin a criminal prosecution, so that where liquor dealers claimed that the Comptroller of Public Accounts and county judge were keeping them from carrying on their business under a valid license by threats of criminal prosecution, etc., an injunction will not lie to restrain the Comptroller and judge, as the right to do business under the license may be determined in the criminal proceeding, if brought.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dec. Dig. § 105.*]</p> <p>4. Injunction (§ 34*) — Revocation of License — Property Right.</p> <p>A liquor dealer has no property right in a liquor license which will entitle him to enjoin the Comptroller and county court from proceeding against him criminally for carrying on his business under a void license.</p> <p>[Ed. Note. — For other cases, see Injunction, Gent. Dig. §§ 74-81; Dec. Dig. § 34!*]</p> <p>5. Estoppel (§ 62*) — Against State — Revocation of License.</p> <p>Estoppel cannot be" invoked against the state or its officers in the enforcement of the criminal law, so that injunction will not issue to restrain a Comptroller and county court from questioning the validity of a liquor dealer’s license in criminal proceedings, on the ground that prior acts create an estoppel.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 151-153; Dec. Dig. § 62.*]</p>

<p>Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.</p> <p>Action by H. L. Goats against J. H. Bowers and others. From a judgment for plaintiff, defendant Bowers appeals.</p>

<p>Bills and Notes (§ 489*) — Pleading and PROOF — VARIANCE.</p> <p>The second paragraph of a petition to recover on notes described eight notes as maturing on or before eight successive days after date, commencing with the second day, while a subsequent paragraph designated five of the notes as maturing upon successive years after date, commencing with the fifth year, and alleged them to have been assumed by the plaintiff and to be a portion of the eight notes originally described; the other three having been paid. The petition notified the defendant to produce the deed in which he assumed and agreed to pay the five notes. Held, that there was no fatal variance between the petition and notes offered in evidence which, according to their terms, matured on the years after date corresponding with the days mentioned in the second paragraph of the petition; the misde-scription not being such as could have misled or have surprised the defendant.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1587-1642; Dec. Dig. § 489.*]</p>

B. Thomas, Judge. Action by A. E. Davis and others against W. A. Butts and others. Erom an order appointing a receiver of the property of the Estacado & Gulf Railroad Company, defendants appeal.

<p>Appeal from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by S. S. Ott against John Powell. From a judgment for plaintiff, defendant appeals.</p> <p>December 3, 1888, L. C. Powell and bis wife, S. E. Powell, signed and duly acknowledged an instrument in writing as follows: “The State of Texas, County of Bowie: Know all men by these presents that we, Luke C. Powell and Mrs. S. E. Powell, husband and wife, for and in consideration of the love and affection we bear to John Powell, an adopted son, and for services rendered to us by said John Powell, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey to the said John Powell, the following tract of land, to wit: [Here follows description by metes and bounds of 80 acres of land.] Together with all and singular the rights, members and appurtenances thereto belonging, To have and to hold to him, the said John Powell, the said land and premises for and during Ms natural life, and in the event that) the said John Powell shall die without an heir or heirs of his body, then the said land and premises shall descend to and vest in M. A. Powell and L. O. Powell, junior, the heirs of the vendors Luke C. Powell and Mrs. S. E. Powell, husband and wife. And it is expressly understood, designed and intended that this deed of conveyance shall not take effect until after both of our deaths, and we hereby reserve and retain the title to the said land and premises during, our natural lives and at our deaths this deed shall be in full force and effect. Witness our hands,” etc. At the time this instrument was so signed and acknowledged John Powell, the grantee named therein, was about 19 years of age, and lived with the makers thereof. The instrument was never delivered to him, but it was filed for record in the office of the county clerk of Bowie county, December 4, 1888, and was recorded December 17, 1888. Thereafterwards it was kept by L. C. Powell and his wife in a trunk where they kept other papers belonging to them. John Powell moved to the land in 1893, built a house on it, and cleared about1 20 acres of it. L. 0. Powell died in 1894. John Powell married in 1900, and with his wife lived on and used the land as a home until she died in 1902. He married again in 1903, but did not again live on the land until 1909, when he and his wife moved to it, and thereafterwards resided, on and used it as their homestead. The land was part of a tract of about 700 acres owned by L. O. Powell and his wife, S. E. Powell. By a deed dated February 16, 1905, the latter, joined by heirs of her deceased husband and by John Powell, conveyed the entire tract, including the 80 acres above referred to, to one J. O. Stribbling, who by a deed dated May 4, 1910, conveyed same to S. S. Ott. The wife of John Powell did not join him in the execution of the deed to Stribbling. She claimed that the 80-acre tract was her homestead. John Powell, it seems, was induced to join in the execution of the deed conveying the 80 acres as a part of the tract of 700 acres by representations made to him by Mrs. S. E. Powell that Stribbling would not purchase unless he could get the entire 700 acres, and by her assurance that, if he joined in the conveyance, a part of the purchase price to be paid by Stribbling would be paid over to him as a consideration for his conveyance of such interest as he had in the 700-acre tract, including the 80 acres. It seems Mrs. S. E. Powell failed, when the purchase price was paid by Stribbling, to pay over any part of it to John Powell. Claiming that by virtue of the instrument set out above he had a life estate in the 80 acres, and as the adopted heir of L. C. Powell, deceased, owned absolutely an undivided interest therein, and further claiming that at the time he joined in the deed to Stribbling the 80 acres was his homestead, and that because it was, and because his wife did not join in the execution of the deed, it did not operate to devest them of their homestead right, John Powell, in 1909, as stated above, moved with his wife to the land and there-afterwards occupied, used and claimed it as their home. The suit was the statutory one of trespass to try title. It was brought by appellee, Ott, the purchaser from Stribbling, against John Powell, to recover the 80 acres of land described in the instrument set out above. The trial wasi by the court without a jury. The judgment was in favor of ap-pellee.</p>

<p>Appeal from Coleman County Court; T. J. White, Judge.</p> <p>Action by F. E. Wester against the Home Benefit Association No. 3 of Coleman County, Tex., and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Hill County; W. C. Wear, Judge.</p> <p>Action by Furst-Edwards & Co. against the St. Louis Southwestern Railway Company, From a judgment for defendant, plaintiff appeals.</p>

S. Griggs, Judge. Action by the Farmers’ & Merchants’ State Bank of Ballinger, Tex., against the First National Bank of Walnut Springs, Tex., and W. T., Nichols. Judgment for defendant Nichols and for plaintiff against defendant First National Bank of Walnut (Springs, Tex., and it appeals.

<p>Appeal from District Court, Shermau Oounty; W. B. Chauncey, Special Judge.</p> <p>Action by O. F. Rudolph against L. M. Price and another. From a judgment for defendants,, plaintiff appeals.</p>

L. Shepherd, Judge. Suit by Eva Gaines Salser, joined by her husband, against C. A. Barron and others. Demurrers to petition sustained and suit dismissed, and plaintiffs appeal.

<p>Appeal from District Court, Comanche County; J. H. Arnold, Judge.</p> <p>Action by Mary M. Hawkins and others against the Lone Star Insurance Union. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Pleading (§ 228*) — Demurrer or Exception — Grounds—Disclosing Defense.</p> <p>An exception to allegations of a petition in an action for the death of a person who, when killed, was trespassing on defendant’s right of way, on the ground that it shows contributory negligence on its face, is properly overruled, where the allegations of the petition might show that he was a licensee.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.*]</p> <p>2. Evidence (§ 474*) — Opinions —Qualifications of Witnesses.</p> <p>A witness who, although he is not an engineer, knows nothing about the mechanism of an engine, and never worked on a railroad, has lived at a junction of two railroads for a great many years in sight of both tracks, has seen a great deal of switching, has been engaged in shipping and observed cars moving on the tracks, has noted the length of time required to stop them, and has himself stopped them, presumably by signaling, and who saw the train in question at the particular time involved and observed its speed, may testify that from his experience and observation the train could have been stopped within 20 feet.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*]</p> <p>3. Evidence (§ 150*) —Competency — Results of Experiments.</p> <p>In an action for the death of a person by being hit by a freight train, where it is claimed that the brakeman should have discovered deceased’s peril, a witness who got on a freight car similar to the one in which the brakeman was and in a similar position on a straight, level track, as the track was shown to be at the place of the accident, in order to determine how far in front of the car a person could be seen on the track, may testify to the result of his experiment, especially where his testimony is given on the second trial of the action and the brakeman has failed to make any such experiment.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 439; Dec. Dig. § 150.*]</p> <p>4. Death (§ 65*) — Actions fob Causing — Evidence — Bife Expectancy.</p> <p>In an action for negligence causing death, testimony as to the life expectancy of deceased was proper, although the plaintiffs were minor children who had no legal right to pecuniary aid from their father after their majority, since it was proper to show that he had a life expectancy at least during their minority, and if the defendant wished the evidence limited' to this point, he should have requested an instruction to that effect.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 84; Dee. Dig. § 65.*]</p> <p>5. Evidence (§ 471*) — Competency —Facts ob Conclusions.</p> <p>A question to a railroad conductor, whether it was dangerous to back a train in a place where people went without taking precautions to prevent injuring them, called for a matter of fact and not a conclusion of the witness.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>6. Railroads (§ 397*) — Actions fob Injuries — Precautions Against Injury.</p> <p>It is not error to exclude testimony that it is dangerous to back a train without taking precautions to guard against injury to persons who might be there, when the accident involved occurred at a place where the railroad company was under no legal obligation to guard against such danger.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1344r-1355; Dec. Dig. § 397.*]</p> <p>7. Witnesses (§ 270*) — Cross-Examination.</p> <p>In an action for the death of a person by being struck by a railroad train, while trespassing on the tracks at a place where the company was in the habit of switching its cars, and which was not used by the public for the purpose of walking thereon, and where people had no right to be and were not liable to be, a question asked a conductor on cross-examination whether it was a rule in switching, where people were walking and liable to be, to keep a brakeman at the rear end to prevent injuring them, should be excluded, since based on facts not shown by the evidence.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 926, 955-957; Dec. Dig. § 270.*]</p> <p>8. Appeal and Error (§' 499*) — Burden of Showing Error.</p> <p>An alleged error in excluding questions asked a witness will not be considered, in ihe absence of the ground of objection in the bill of exceptions, where they might properly have been excluded on the ground that they, were leading.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dee. Dig. § 499.*]</p> <p>9. Witnesses (§ 363*) — Impeachment — Showing Bias.</p> <p>It is always proper to show that an adverse witness is biased.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1177, 1178, 1181; Dee. Dig. § 363.*]</p> <p>10. Railroads (§ 401*) — Actions for Injuries — Instructions—Discovered Peril.</p> <p>In an action for the negligence of a railroad company causing the death of a trespasser, where the plaintiff has -alleged and attempted to prove negligence in the operation of the train, in not keeping a proper lookout, and in not discovering the presence of the deceased on the track, the refusal of special instructions to- find for the defendant unless it affirmatively appeared that deceased’s presence was actually discovered by defendant’s agents, and that they realized, or should have realized, that he would not remove himself from the track in time to avoid being struck, and that if they discovered such peril they did not exercise ordinary care tp avoid injuring him, was error, though the court in its main charge submitted no issue but that of discovered peril.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dee. Dig. § 401.*]</p> <p>11. Appeal and Error (§ 1026*) — Reversal —Eerobs Justified.</p> <p>A judgment will be reversed for errors which otherwise might not constitute reversible error, where the evidence is very nearly insufficient as a matter of law to sustain the verdict.</p> <p>(Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4020, 4030; Dec. Dig. § 1026.*]</p>

<p>1. Appeal and Error (§ 1010*) — Review-Findings op Fact.</p> <p>Findings of fact supported by evidence will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.*]</p> <p>2. Husband and Wife (§ 265*) — Property of Wife — Shares of Stock — Community Property.</p> <p>Shares of stock purchased by the separate means of a married .woman did not become community property.</p> <p>[Ed. Note. — For' other cases, see Husband and Wife, Cent. Dig. §§ 900-902; Dec. Dig. § 255.*]</p> <p>3. Judgment (§ 866*) — Revival—Dormant Judgments.</p> <p>A judgment may be' revived by a scire facias or other proper proceeding unless the right be barred by limitations.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1603-1607; Dec. Dig. § 866.*]</p> <p>4. Judgment (§ 866*) — Revival—Dormant Judgments.</p> <p>An action of debt or scire facias to revive a judgment may not be brought until it appears that the judgment is dormant so as to render the second judgment more efficacious than the first, and limitations will not commence to run until the judgment has become dormant.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1603-1607; Dec. Dig. § 866.*]</p> <p>5. Judgment (§ 866*) — Computation of Period — Accrual of Right — Action on Judgment.</p> <p>Under Rev. St. 1895, arts. 1664, 2326a, which provide that, where the first execution on a judgment has issued within 12 months, the judgment shall not become dormant unless 10 years shall have elapsed since the issuance of execution thereon, the cause of action on a judgment on which execution had been issued within the 12 months would not accrue until 10 years after the issuance of the last valid execution, and the four-year limitations will start to run at that time, under Rev. St. 1895, art. 3358, rather than under Rev. St. 1895, art. 3361, providing for revival of a judgment by scire facias or an action of debt within 10 years after its date and not thereafter.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1603-1607; Dec. Dig. § 866.*]</p> <p>6. Judgment (§i 853*) — “Dormant Judgment.”</p> <p>A “dormant judgment” is one that has not been satisfied or barred by lapse of time, but is temporarily inoperative, so far as the right to issue execution is concerned (citing 3 Words & Phrases, 2183).</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1565-1570; Dec. Dig. § 853.*]</p>

<p>1. Master and Servant (§§ 281, 278*) — Injuries to Servant — Neglisence or Master-Evidence.</p> <p>In an action for injuries to a telephone lineman, caused by the breaking of a defective pole, evidence held to support a finding that the company, and not plaintiff, was chargeable with a duty to select the poles, and that it was guilty of negligence in selecting the pole in question.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 987-996, 951-972, 977; Dec. Dig. §§ 281, 278.*]</p> <p>2. Master and Servant (§§ 217, 208*) — Injury to Servant — Assumption oe Risk.</p> <p>Where a telephone company was guilty of negligence in furnishing a defective pole, and its lineman neither knew of the defect before it broke with him, nor had any instruction to use a ladder in ascending the poles, instead of climbing them, he did not assume the risk of injury while climbing the pole in a careful manner.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600, 551; Dec. Dig. §§ 217, 208.*]</p> <p>3. Master and Servant (§ 281*) — Injury to Servant — Contributory Negligence.</p> <p>In ar! action for injuries to a telephone lineman, caused by the breaking of a defective pole, evidence held to support a finding, that the plaintiff was not guilty of negligence in failing to discover the defect before climbing the pole.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.*]</p> <p>4. Trial (§ 194*) — Instructions—Weight oe Evidence.</p> <p>In an action for injuries to a telephone lineman, caused by the breaking of a defective pole, an instruction that if plaintiff was warned to use a ladder in climbing poles, and he disregarded such warning, he was guilty of negligence, which proximately contributed to his injury, was not on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 439-441, 446-454, 456-466; Dee. Dig. § 194.*]</p> <p>5. Appeal and Error (§ 1033*) — Harmless Error.</p> <p>A telephone company, sued for injury to a lineman, cannot- complain that an instruction that, if the plaintiff disobeyed instructions and' climbed a pole, he was negligent was a charge on the weight of the evidence, as any error is-in its favor.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. Si-1033.*]</p> <p>6.Trial (§ 256*) — Instructions—Requests. —Necessity.</p> <p>In an action for injuries to a telephone lineman, an instruction that, if defendant warned plaintiff not to climb poles, but to use a ladder, and plaintiff disregarded such warning, and did climb a pole, he was guilty of contributory negligence was correct as far as it went; and if defendant desired a charge that plaintiff’s act in climbing the pole, in violation of orders, would bar a recovery it should have requested a more specific charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent.. Dig. §§ 628-641; Dec. Dig. § 256.*]</p>

Action by the Phillip Carey Company against the Thorndale Mercantile Company, S. P. Evens, and L. M. Lee, with counterclaim by the Thorndale Mercantile Company. Judgment for plaintiff, and defendant Thorn-dale Mercantile Company appeals.

<p>Appeal from District Court, Nolan County; Jas. L. Shepherd, Judge.</p> <p>Action by E. C. Meakin against the Kansas City, Mexico & Orient Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>Error from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by the Darnell Lumber 'Company against Otho S. Houston and others. From a judgment for plaintiff, Houston brings error.</p>

M. Milam, Judge. • . Action by the Byrd Irrigation Company against J. G. Smythe. Pending a proceeding to condemn land for irrigation purposes, petitioner’s motion to compel defendant to permit petitioner to inspect and survey defendant’s land was denied, and petitioner appeals.

<p>Appeal from District Court, Cass County; P. A. Turner, Judge.</p> <p>Action by T. Allen against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff. Defendant appeals.</p>

Error from Dallas County Court; W. F. Whitehurst, Judge. Action by W. P. Moore against the St. Louis, San Francisco & Texas Railway Company. There was a judgment granting insufficient relief, and plaintiff brings error.

<p>Error from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Action by Alvino Rockowitz against John Rockowitz. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.</p> <p>Suit by Henry James against the Midland Grocery & Dry Goods Company. Judgment for defendant, and >.plaintiff appeals.</p>

C. Buford, Judge. Action by A. N. Jopling against A. H. Hart and others. Judgment for plaintiff, and defendants appeal. A. H. Hart and Robert Bogue purchased of appellee all the merchantable timber, hickory excepted, then growing on his three tracts of land consisting of 200 acres. After making deduction of 6% acres for .the run of a creek through the land there were by measurement 193% acres covered by timber.

<p>Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.</p> <p>Action by Alice Abbott against the Gulf, West Texas & Pacific Railway Company «and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.</p> <p>Action by Henry Schubert against the International & Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

B. Daviss, Judge. Suit by the State, for the use of Limestone County, against H. D. Adams and others, on a liquor dealer’s bond. From a judgment for the State, defendants appeal.

<p>Appeal from Deaf Smith County Court; C. D. Wright, Judge.</p> <p>Action by the Western National Bank of Hereford against H. H. Hawkins. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Animals (§ 106*) — Strays — Sales — Re-coveky.</p> <p>In an action for the possession or for the value of mares taken up and sold by a city poundkeeper, or for the net proceeds of the sale, a demurrer to the petition was improperly sustained, since, even if the sale was legal in every respect, plaintiff was entitled to recover the proceeds in excess of the expenses chargeable.</p> <p>[Ed. Note. — Eor other cases, see Animals, Cent. Dig. §§ 430-434; Dec. Dig. § 106.*]</p> <p>2. Animals (§ 106*) — Strays — Sale — Recovery.</p> <p>Allegations of a petition in an action for the wrongful sale of mares by a city pound-keeper, showing that two mares belonging to plaintiff were advertised together and one expense account made out against both, and that the first one sold for enough to pay off the city’s entire claim, sufficiently showed an illegal sale of the second mare as against a general demurrer.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 430-434; Dec. Dig. § 106.*]</p> <p>3. Animals (§ 106*) — Strays — Sale — Recovery.</p> <p>The owner of animals illegally sold by a city poundkeeper may recover them, or their value, from the person holding under the illegal sale.</p> <p>[Ed. Note. — For other cases, see Animals', Cent. Dig. §§ 430-434; Dec. Dig. § 106.*]</p>

T. Lyttl'eton, Judge. Proceedings were brought involving property of the Texas Southern Railway Company, in which M. G. W. Newcomb, intervened for the allowance of compensation for services rendered to the president of the railway company. From a judgment allowing compensation as stated, the St. Louis Union Trust Company appeals.

<p>Appeal from District Court, Parker County; J. W. Patterson, Judge.</p> <p>Action by J. R. Lewis against E. B. Kelley and others. Prom a judgment dissolving an injunction granted to the plaintiff, plaintiff appeals.</p>

<p>Appeal from District Court, McLennan County;’ Marshall Surratt, Judge.</p> <p>Action by Mabel Anderson and others against Ben McGee and others. Prom a judgment for plaintiffs, defendant McGee appeals.</p>

<p>Appeal from Collin County Court; H. L. Davis, Judge. Action by the Browne Grain Company against the St. Louis, San Francisco & Texas Railway Company.</p>