Volume 147 — South Western Reporter

<p>1. Intoxicating Liquors (§ 223*) — Sales— Evidence).</p> <p>Where accused selling whisky received the money from prosecutor, and delivered the whisky to him, the fact that a third person furnished to prosecutor a half of the price before meeting accused did not make the sale a joint one to prosecutor and the third person.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 203-274; Dec. Dig, I 223.*]</p> <p>2. Criminal Law (§ 598*) — Continuance-Absence oe Witnesses — Diligence.</p> <p>Where accused, though informed against on December 15th, had no process issued for a witness until January 6th following, and he was on the following day informed by the sheriff that the witness had gone to another county and no other process was. issued_ for him, and there was nothing to show that, if process had been issued, his attendance could not have been procured on the trial on January 9th and 10th, an application for a continuance on the ground of the absence of the witness was properly denied for want of diligence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.*]</p> <p>3. Criminal Law (§ 596*) — Continuance-Absence of Witnesses.</p> <p>Where accused, applying for a continuance on the ground of the absence of the witness, has another witness present in court to prove the fact which he claimed he could prove by the absent witness, the denial of a continuance is not erroneous.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.*]</p> <p>4.Criminal Law (§ 596*) — Continuance-Absence of Witnesses.</p> <p>It is not error to deny a continuance on the ground of the absence of a witness to prove a fact established by several witnesses, and not disputed by the state.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.*]</p> <p>5.Criminal Law (§ 595*) — Continuance-Absence oe Witnesses — Issues.</p> <p>Where the state on a trial for the violation of the local option law negatived the idea that accused kept the liquor for sale in a gin, the denial of a continuance on- the ground of the absence of witnesses who would prove that accused did not keep liquor in the gin was not erroneous.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.*]</p> <p>6. Criminal Law (§§ 594, 913*) — Continuance — Absence of Witnesses — Grounds.</p> <p>Where accused applying for a continuance on the ground of the absence of a witness showed that the witness could not leave home because his wife was in a delicate condition, and the state, on the trial, after a denial of the continuance, proved that the wife was not sick and that the witness did not stay at home, and the witness by affidavit several days after the trial did not show that his wife was in a delicate condition; the denial of the continuance and refusal to grant a new trial on the ground of the absence of the witness was not an abuse of discretion.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1322, 1332; Dec. Dig. §§ 594, 913.*]</p> <p>7. Criminal Law (§ 695*) — Evidence—Admissibility.</p> <p>It is not error to receive in evidence accused’s motion for a continuance on the ground of the absence of witnesses who would testify to facts therein alleged as against the objection that the motion is irrelevant and immaterial to any issue in the case.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. § 695.*]</p> <p>8. Criminal Law (§ 728*) — Improper Argument op Counsel — Objections.</p> <p>It is not error to overrule objections to the argument of the county attorney, where no specific objections thereto are made.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. § 728.*]</p> <p>9. Criminal Law (§ 1159*) — Verdict—ConCLUSIVENESS.</p> <p>The jury are the exclusive judges of the facts and the credibility of the witnesses, and a verdict on conflicting evidence and supported by evidence, if believed, will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.*]</p> <p>On Rehearing.</p> <p>10. Criminal Law (§ 1133*) — 'Waiver op Objections — Time.</p> <p>An objection made for the first time in the motion for rehearing that an information for selling liquor in prohibition territory is defective for failing to allege the date of the election by which prohibition was 'put in force comes too late.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. § 1133.*]</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>John Smith was. convicted of assault to murder, and he appeals.</p>

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

<p>Bail (§ 64*) — Recognizance on Appeal.</p> <p>A recognizance executed by accused after the adjournment of the court, and not entered into in open court, as required by statute, is insufficient; and the appeal must be dismissed on motion of the state.</p> <p>[Ed. Note. — Por other cases, see Bail, Cent. Dig. § 278; Dec. Dig. § 64.*]</p>

<p>Appeal from District Court, Guadalupe County; M. Kennon, Judge.</p> <p>Henry Hubbard was convicted of rape, and appeals.</p>

<p>1. Criminal Law (§ 1160*) — Vekdict—Re-view.</p> <p>A conviction sustained by evidence and approved by the trial court will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3084;- Dec. Dig. § 1160.*]</p> <p>2. Criminal Law (§ 1144*) — Motion to Quash Special Yenire — Rulings — Review.</p> <p>Where the record showed that the trial court heard evidence on motions to quash the grand jury venire on specified grounds, and overruled them, and a purported statement of the evidence, not agreed to by the attorneys nor approved by the court, was filed after the adjournment of the term, the court on appeal could not review the ruling, but must assume that the trial court found in accordance with the evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2961, 3016-3037; Dec. Dig. § 3144.*]</p> <p>3. Criminal Law (§ 1144*) — Questions Reviewable — Bill of Exceptions.</p> <p>A bill of exceptions, which shows that accused announced that he was not ready to go to trial, because he had not been served for at least one full day with a properly certified copy of the indictment, and that the court ordered him to trial, to which he excepted, does not show as a fact that he had not been properly served with the indictment, and the court on appeal must assume that the trial court found, as a matter of fact, that accused had been properly served, in view of the fact that the indictment was returned and filed November 6th, and the case was not called for trial until November 14th following.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774^-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]</p> <p>4. Witnesses (§ 255*) —Evidence — Memo-randa — Use to Refresh Recollection.</p> <p>A witness may use, to refresh his recollection, an original memorandum or a copy thereof.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 874r-S90; Dec. Dig. § 255.*]</p> <p>5. Criminal Law (§ 1091*) — Rulings on Evidence — Bill of Exceptions.</p> <p>A bill of exceptions, which shows that, while the state was making out its case, it introduced witnesses to contradict the voluntary statement by accused on his examining trial, does not show error in the admission of such testimony, where it does not give the voluntary statement nor the testimony to contradict it.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803. 2815, 2816, 2818, 2819, 2823, 2824, 2828-2S33, 2843, 2931-2933, 2943; Dec. Dig. § 1091.*]</p> <p>6. Criminal Law (§ 722*) — Argument of Counsel.</p> <p>Where the state introduced in evidence the clothes worn by accused at the time of the killing of decedent, and they were bloody, and the state claimed that the blood was that of decedent, and accused refused to put on the clothes during the trial, though requested so to do by the state’s attorney, the argument of the state’s attorney, commenting on the refusal of accused to put on the clothes, was not improper.</p> <p>[Ed. Note. — For other cases', see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.*]</p> <p>7. Criminal Law (§ 11S6*)— Evidence — Instructions.</p> <p>Where the undisputed evidence showed that decedent was killed by blows on his head with a stone, as charged in the indictment, in which was another count, charging the killing while accused was unlawfully engaged in committing a robbery an instruction, reciting the charging part of the two counts, without limiting'the jury to either, was not prejudicial to accused, within Code Cr. Proc. 1911, art. 743.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219; Dec. Dig. § 1186.*]</p>

<p>Appeal and Error (§ 158*) — Right op Review — Judgment—Payment op Judgment by Intervener.</p> <p>Where, in an action to enforce a landlord’s lien, a judgment for plaintiff was satisfied by an intervener claiming ownership of certain personal property on which plaintiff sought to foreclose the lien, an appeal by the intervener would not lie.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 973-977; Dec. Dig. § 158.*]</p>

<p>Appeal from District Court, Clay County; P. A. Martin, Judge.</p> <p>Action by W. S. Perry against the Ft. Worth & Denver City Railway Company. There was a judgment for plaintiff, and defendant appeals.</p>

<p>Bankruptcy (§ 312*)— Claims — Accounting —Estoppel. ,,</p> <p>Pending a' suit by a partner for a settlement of the firm matters, the copartner was adjudged a bankrupt, and the partner restrained from prosecuting the suit. Thereafter the partner and copartner stipulated that the co-partner would not claim anything of his estate, except the homestead and exempt personalty, and that he would turn over to the partner all property to be administered by the bankruptcy court; and the partner agreed to account to the copartner’s creditors for the amount the copartner would receive from the firm property, and to account to the trustee in bankruptcy for the residue of the property after the payment of the debts of the firm, including any debt due to the partner. Subsequently the partner filed a claim in the bankruptcy court against the copartner’s estate, based on firm business, which was disallowed. Thereafter the partner filed in the bankruptcy court a report, which was approved by the court, which showed that the partner had collected <¡>1,072 out of firm assets, one-fourth of which belonged to the copartner, and which had been paid to the trustee in bankruptcy. Held, that the partner was estopped from asserting any claim against the copartner based on firm transactions.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 496-500; Dec. Dig. § 312.*]</p>

<p>Appeal from Victoria County Court; J. P. Pool, Judge.</p> <p>Action by Wood Bros, against the St. Louis, Brownsville & Mexico Bailway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal and Error (§ 773*) — Dismissal — Failube to File Briefs.</p> <p>Where appellee, after appellant’s failure to file briefs within the time required by Court of Civil Appeals rule 39 (142 S. W. xiii), had only 11 days in which to answer appellant’s brief, containing 14 assignments of error, several of which were predicated upon a statement of facts containing 77 typewritten pages, appellee was entitled to have the appeal dismissed, as it cannot be said as a matter of law that 11 days was sufficient time for appellee to brief bis case.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]</p>

W. Huntress, Judge. Action by W. H. Gibson against the Singer Sewing Machine Company. On appeal from a judgment of a justice for plaintiff, there was judgment for defendant, and plaintiff appeals.

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

<p>Appeal from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Action by I. D. Affleck against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Error from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by William Fetzer against E. Har-alson. There was a judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Zavalla County; R. H. Burney, Judge.</p> <p>Action by E. J. Buckingham against John S. Thompson. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Hardin County; L. B. Hightower, Judge.</p> <p>Action by B. F. Thomas against the Thompson & Ford Lumber Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Harris County Court; Clark C. Wren, Judge.</p> <p>Action by Robert B. Easley and another against J. H. B. House. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Bosque County ; O. L. Lockett, Judge.</p> <p>Action by Mrs. L. M. Perry against the Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

C. Funderburk, Judge. Proceedings by tbe City of Palestine to condemn tbe community homestead of Anna Lucas and her husband. From the award made partitioning the proceeds, Anna Lucas and others appeal.

<p>1. Justices of the Peace (§ 44*) — Jurisdiction — Amount in Conteovekst.</p> <p>Plaintiff sued before a justice to recover $153.66; $100 of the amount growing out of his suretyship on a note for defendant and the balance on another claim. The entire debt on which plaintiff was surety was $250, and-plaintiff claimed that his share of the debt amounted to $100. Held, that the amount plaintiff demanded, and not the whole amount of the note,.was the amount in controversy before the justice; and, since this amount could in no event exceed $200, which was the limit of the justice’s jurisdiction, the justice had jurisdiction of plaintiff’s entire claim, regardless of the fact that, on objection made, plaintiff filed a supplementary complaint, dismissing the $100 claim, after which the case proceeded to recover the balance only.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 157-172; Dec. Dig. § 44.*]</p> <p>2. Justices of the Peace (§ 174*) — Set-Off AND COUNTERCLAIM— STATUTES — EFFECT.</p> <p>Sayles’ Ann. Oiv. St. 1897, art. 358, provides that no set-off or counterclaim shall be set up in the county court on appeal which was not pleaded in the justice’s court. Held, that such provision was merely a rule of pleading or practice enabling plaintiff to prevent any new pleading of such matters; but that, if the parties saw fit to try matters, not so pleadable, to judgment, without objection, the judgment would be conclusive, provided the amount of the set-off or counterclaim was within the court’s jurisdiction.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§• 665-693; Dec. Dig. § 174.*]</p>

<p>Appeal from District Court, Dallas County ; E. B. Muse, Judge.</p> <p>Action by Will D. Patton against the Dallas Gas Company. From a judgment for plaintiff, defendant appeals.</p>

A. Turner, Judge. Action by A. M. Morgan against E. T. Hays, in which B. F. Collier and another intervened, and made L. H. and S. E. Morgan parties. From a judgment for plaintiff and one of the interveners, L. H. and S. E. Morgan appeal. Appellants were husband and wife.

W. Timmins, Judge. Action by Mrs. Jennie 1-Iipp against the Woodmen of the World. Judgment for plaintiff, and defendant appeals. This is a suit upon a policy of insurance.

<p>1. Pleading (§ 218*) — Demurrer — Hearing and Determination.</p> <p>A defendant is not estopped from urging a general demurrer to a petition by his failure to present and have it acted upon during the term at which it was filed.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 549-566; Dec. Dig. § 218.*]</p> <p>2. Judgment (§ 460*) — 'Vacating—Pleading —Certainty.</p> <p>A petition alleging the existence of a “judicial trust in restraint of law and justice” composed of influential persons, lawyers, officers, etc., that a judgment in a former action against plaintiff to establish an easement in his land was obtained by conspiracy between the parties, attorneys, and witnesses, and by false testimony, that subsequent acts in connection with the use of the easement and its dedication as a public street, and civil and criminal proceedings against plaintiff for interfering therewith were done and instituted collusively, fraudulently, and wrongfully, and asking the vacation of the judgment, the extinguishment of the easement, and an award of exemplary damages against the plaintiff in the former action, his attorneys, witnesses, and various other parties, held to be too general to state a cause of action against any of the defendants.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879-S91; Dec. Dig. § 460.*]</p> <p>3. Appeal and Error (§ 917*) — Disposition —Affirmance Notwithstanding Evidence.</p> <p>A judgment sustaining demurrers to a petition and dismissing the action will not be reversed, even though the demurrer should not have been sustained, where numerous exceptions to the petition were sustained, of which no complaint is made on appeal, since it will 'be presumed that the court ruled correctly with reference to these exceptions., that, with the matter to which it related stricken out, the petition was insufficient, and hence that the suit was properly dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3706-3709; Dec. Dig. § 917.*]</p> <p>4. Appeal and Error (§ 977*) — Review — Matters of Discretion.</p> <p>Where a party suffered no material injury from the action of the trial court in refusing to permit him to read his motion for a new trial, requiring him to state its substance, and limiting his time within which to present his motion, the judgment will not be reversed on this ground; these being matters largely within the discretion of the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig:. §§ 3706-3709; Dec. Dig. § 977.*]</p> <p>5. Appeal and Ebeoe (§ 901*) — Review — Burden op Showing Error.</p> <p>Where no sufficient reason is given why an assignment of error should be sustained, it will be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3670; Dec. Dig. §. 901.*]</p>

<p>1.Trial (§ 251*) — Action for Kent —In-, STRUCTIONS.</p> <p>In an action for rent, an instruction to find for the lessee if the lessor fraudulently represented prior to the making of the lease that he would establish a road to the premises, and if this representation was by mistake or fraud not inserted in the lease, was reversible error, the jury having returned a general verdict for defendant, where the only reference to such representations in the trial amendment to the answer was an allegation that the lessee had a right to abandon the premises for false representations as to the right of way and passageway thereto as set out in the amended answer, and where the amended answer did not allege the making of any such representations, but alleged that the lessor represented that a road then existing was a public road, and that after such road was fenced up he promised to provide a new road.</p> <p>[Ed. Note — For other eases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>2. Judgment (•§ 248*) — Conformity to Pleadings and Proof.</p> <p>A judgment must be supported by both allegations and proof, and the absence of either is fatal.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 434, 439 — 440; Dec. Dig. § 248.*]</p> <p>3. Appeal and Eeeoe (§ 1066*) — INSTRUC-</p> <p>TIONS — Conformity to Pleadings ■ and Proof. .</p> <p>The submission of an issue, not made by the pleadings or proof is reversible error, unless it clearly appears that the jury was not misled.</p> <p>[Ed. Note. — For other eases, see Appeal and Error. Gent.' Dili. « 4220; Dec. Dig. § 1066.*]</p> <p>4.Trial (§ 251*) — Instructions—Conformity to Pleadings.</p> <p>In an action for rent, where the lessee claimed a shortage in the amount of the land represented by the lessor, and set up a plea of reconveution to recover a portion of the rent already paid, it was error to instruct the jury to find absolutely for the lessee if such representations were falsely made and were Omitted from the lease by mistake or fraud.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>5. Appeal and Error (§ 1068*) — Instructions — Harmless Eríror.</p> <p>Where, in an action for rent, the jury were told to find absolutely for the lessee if he had been released from liability by the lessor or if the lessor made fraudulent representations as to the number of acres, and also to find for defendant on his special plea of, reconvention for the reasonable rebate of the rent already paid, if there was any such shortage, and a general verdict for the lessee was returned, the error, in permitting an absolute finding for defendant for the representations as to acreage, cannot be disregarded; it not being apparent that the verdict was not based on that ground rather than the release.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p> <p>6. Trial (§ 251*) — Instructions—Conformity, to Pleadings.</p> <p>Where the answer in an action for rent alleged that representations as to the acreage of the premises were omitted from the lease by “oversight, inadvertence, and mistake,” an instruction to find for the lessee if they were omitted by “fraud or mistake” was inaccurate and should have followed the language of the answer.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p>

<p>Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.</p> <p>Action by Mrs. Anna Jurieeli against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Quo Wabbanto (§ 45*) — Citations—Sufficiency.</p> <p>The fact that a citation in quo warranto did not state the nature of relator’s demand was not ground for quashing the citation, where the certified copy of the petition accompanying the citation sufficiently stated the nature of the demand; there being a substantial compliance with the statute.</p> <p>[Ed. Note. — For other eases, see Quo War-ranto, Cent. Dig. § 47; Dec. Dig. § 45.*]</p> <p>2. Quo Wabbanto (§ 38*) — Actions — Parties.</p> <p>Where defendant was the only one of eleven candidates for four offices who was claimed' to have been defeated by relator, three of the-other candidates being admittedly elected, defendant was the only one of the candidates-who was a proper party defendant to quo war-ranto proceedings by relator to obtain title to-one of the offices.</p> <p>[Ed. Note. — For other cases, see Quo War-ranto, Cent. Dig. § 44; Dec. Dig. § 38.*]</p> <p>3. Quo Wabbanto (§ 49*)— Sufficiency or Petition.</p> <p>A petition in quo warranto, which alleged that relator had been deprived of an office to-which he had been elected, and which stated the number of votes he received and the number defendant received, and alleged that relator had been fraudulently counted out by election officers, was sufficient on general demurrer.</p> <p>[Ed. Note. — For other cases, see Quo War-ranto, Cent. Dig. §§ 49-52, 59, 60; Dec. Dig. § 49.*)</p> <p>4. Appeal and Ebeoe (§ 742*) — Assignment of Eekor — Sufficiency.</p> <p>An assignment of error as to the sufficiency of a petition in quo warranto will not be considered, where neither the statement nor proposition thereunder specifically states the grounds of attack on the petition, as the court is not bound to refer to the record to obtain the statement.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. f 742.*]</p>

<p>1. Husband and Wife (§ 274*) — Community Property — Interest of Heir — Extinguishment.</p> <p>A conveyance, made by one after the death of his wife to an heir of the community property, of property which belonged to him separately, and made without reference to the community estate, did not extinguish the heir’s interest; the rule that a conveyance by the survivor of the community to an heir of property approximating in value the interest of the heir, and made and accepted in settlement of the heir’s interest, will extinguish the heir’s claim in the remaining property, having no application. •</p> <p>[Ed. Nofe. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. § 274.*]</p> <p>2. Husband and Wife (§ 274*) — Community Property — Action by Heirs — Defenses— Laches.</p> <p>Where in 1866 the surviving husband conveyed -land constituting community property, and it passed by various conveyances to defendants, an action by heirs of the deceased wife in 1908. based upon the title which descended to them under the statute, was not barred under the doctrine of stale demand.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. § 247.*]</p> <p>3. Husband and Wife (§ 267*) — Bona Fide Purchaser — Community Estate.</p> <p>Where one acquired title under the statute upon the death of her mother to an interest in the community property, purchasers of such interest from her father acquired no rights as innocent purchasers.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 929-952; Dec. Dig. § 267.*]</p> <p>4. Adverse Possession (§ 71*) — Color of Title — Community Estate.</p> <p>Nor did such purchasers have title or color of title so as to enable them to claim by the three-year statute of limitations.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§■ 415-429; Dec. Dig. § 71.*]</p> <p>5. Adverse Possession (§ 14*) — Title by Prescription — Occupancy.</p> <p>The five-year statute of limitations was ineffective to establish any title by prescription under a recorded deed while the land remained unoccupied.</p> <p>[Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. §§ 77-81; Dec. Dig. § 14.*]</p> <p>6. Adverse Possession (§ 71*) — Title—Sufficiency.</p> <p>Where the grantee under a recorded deed merely held title for the benefit - of a company which was the real owner, the company could prescribe by the five-year statute of limitation the same as if the deed stood in its own name.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 415-429; Dec. Dig. § 71.*]</p> <p>7. Adverse' Possession (§ 36*) — Exclusive . Possession.</p> <p>Where a company Inclosed with a fence and controlled and used a large body of land including the tract in controversy, the fact that within this inclosure there were tracts controlled and used by others did not prevent the five-year statute of limitations from running in favor of the company as to the tract in ■controversy</p> <p>[Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 139-143; Dec. Dig. § 36.*]</p> <p>8. Infants (§ 24*) — Minor.</p> <p>In order for a claim of adverse possession’ .to prevail against one who was a minor at the commencement of the possession, the adverse possession must continue for the requisite period after the minor becomes of age.</p> <p>[Ed. Note. — For other cases, see Infants, ■Cent. Dig. § 25; Dec. Dig. § 24.*]</p> <p>9. Trial (§ 194*) — Instructions—Evidence.</p> <p>In an action involving the title to land, it was error to instruct that the defendants had acquired title by five-year limitations as against certain plaintiffs, where the evidence as to the adverse possession of defendants after the plaintiffs became of age was not conclusive, though sufficient to have sustainéd a verdict for the defendants.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p> <p>10. Tenancy in Common (§ 22*) — Oil — Rights of Cotenants.</p> <p>One having an undivided interest in land 1 could extract oil therefrom without his coten-ants concurring or participating.</p> <p>' [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 63; Dec. Dig. § 22.*]</p> <p>11. Tenancy in Common (§ 32*) — Oil—Accounting Between Cotenants.</p> <p>Where a company which has found and marketed oil from land in which it has an undivided interest is required to account to a cotenant for his interest in the oil, measured by his interest in the land, such cotenant is ■chargeable with all reasonable expenses incurred in producing and marketing the oil, including the reasonable cost of a necessary pumping plant and pipe line.</p> <p>[Ed. Note. — For other cases, see Tenancy in ■Common, Cent. Dig. § 97; Dec. Dig. § 32.*]</p> <p>12. Appeal and Error (§ 1173*) — Decision —Parties.</p> <p>Where a judgment for all of the defendants, upon the ground that part of them had acquired title by adverse possession, was reversed as to such defendants, it was necessary .also to reverse the judgment as to those who claimed as lessees and occupants of parts of . the land and defended against the plaintiffs’ claim of title.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562 — 4572; Dec. Dig. § 1173.*]</p> <p>13. Tenancy in Common (§ 32*) — On>-Ao-counting Between Cotenants.</p> <p>No part of the expenses of nonproducing ■oil wells sunk by one having an undivided interest in land is chargeable against a nonparticipating cotenant on an accounting sought by . the cotenant for a part of the oil produced.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 97; Dee. Dig. § 32.*]</p> <p>On Motion for Rehearing.</p> <p>14. Tenancy in Common (§ 43*) — Parties Buying Oil — Liability to Cotenants.</p> <p>Purchasers of oil from one who, without the concurrence of his cotenants, has extracted it from land in which he has only an undivided interest, are liable to the cotenants if the transactions are a wasteful disposition of the oil, though purchasers of oil are not ordinarily liable to cotenants with whom they did not deal.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 130-132, 136, 137; Dec. Dig. § 43.*]</p> <p>15. Tenancy in Common (§ 55*) — Accounting Between Cotenants — Parties Buying Oii^Waste — Question of Fact.</p> <p>Where it appeared that a purchaser of oil had paid for the same at about half its value, the payment being made by furnishing a pumping station and pipe line, it was a question of fact whether or not the transaction was an act of waste so as to hold the purchaser liable to complainant, a cotenant, and to what extent.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 140-156; Dec. Dig. § 55.*]</p>

<p>Appeal from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Action by Nellie Jackson against Earl D. Scott and others. From a judgment for plaintiff, defendant named appeals.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by the Texas Machinery & Supply Company against the El Campo Ice, Light & Water Company, From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Eeeob (§ 736*) — Assignments OE EEEOB — PRESENTATION.</p> <p>On appeal from a judgment in favor of one of several defendants in an action on a note, assignments of error complaining of action in not sustaining plaintiff’s special exceptions to defendant’s plea of suretyship and to the admission of evidence in.support of such plea and to submission of such plea were properly grouped as presenting substantially the same question of law.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. § 736.*]</p> <p>2. Principal and Surety (§ 9*) — Pleading Suretyship.</p> <p>In an action on a note against B. and others brought by a transferee, it was error to refuse to sustain an exception to a plea of sure-tyship contained in a special answer which stated that at the time he executed the note B. was a surety for his codefendant I-I.; that it was agreed when the note was executed that I-I.’s husband would sign as principal; that at the maturity of the note B. informed the payee in writing that he was not the principal, but a surety, and instructed the payee, who was the owner and holder of the note at that time, to sue thereon; and that H. had property out of which the payee could make any valid debt against her, it not appearing that the payee was a party to the agreement that H.’s husband would sign the note as principal.</p> <p>[Ed. Note. — For other cases, see Principal nnd Surety, Cent. Dig. §§ 19-21; Dec. Dig. § 9.*]</p>

<p>Appeal and Eebor (§ 544*) — Review — Statement oe Facts — Bills op Exception.</p> <p>Where the record contained neither statement of facts nor bill of exceptions, and plaintiff’s petition showed that the notes sued on were past due when the suit was brought, objection that the judgment was rendered in an action prematurely brought was unsustainable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412, 2415, 2417-2420, 2422-2428, 2449, 2478, 2479; Dec. Dig. § 544.*]</p>

<p>Appeal from District Court, Bexar County ; Claude V. Birkhead, Judge.</p> <p>Action by D. E. B. Waggoner against S. Burg. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Midland County ; S. J. Isaacs, Judge.</p> <p>Trespass to try title by A. L. Conoway against J. A. Morrow and others, with cross-action by Morrow.</p>

<p>1. Appeal and Error (§ 770*) — Briefs — Necessity.</p> <p>In the absence of briefs, the Court of Civil Appeals can consider no errors except such as are fundamental in their nature.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.*]</p> <p>2. Appeal and Error (§ 773*) — Disposition of Cause — Affirmance.</p> <p>In the absence of briefs, and where no fundamental error is shown by the record, judgment will be affirmed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]</p>

<p>1. PRINCIPAL AND SURETY (§ 162*) — REMEDIES oe Creditors — Findings — Construction.</p> <p>In an action on a note, against a surety thereon, the court found that while the note was dated December 11, 1910, it was not delivered until March 3, 1911, and that the surety signed shortly after December 11, 1910, on condition that the principal would give some security in addition to the surety, but that plaintiff had no notice of such condition, and that the principal on March 3, 1911, before delivering the note to plaintiff, executed a chattel mortgage to secure it, which was delivered to plaintiff March 3, 1911, and recorded. Held, that the finding was that at the time the note was signed plaintiff had no notice of the agreement between the principal and surety for the additional security.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 442-445; Dee. Dig. § 162.*]</p> <p>2. Principal and Surety (§ 115*) — Discharge oe Surety — Permitting Removal oe Security.</p> <p>The holder of a note signed by a surety and also secured by a chattel mortgage executed by the principal, by permitting the principal to remove the mortgaged property from the ■ state after he knew of the suretyship contract, and of the execution of the mortgage, thereby deprived the surety of his right to pay the debt and be subrogated to the principal’s rights on the mortgage so as to discharge the surety.</p> <p>[Ed. Note. — -For other cases, see Principal and Surety, Cent. Dig. §§ 244-268; Dec. Dig. § 115.*]</p>

<p>Error to El Paso County Court; A. S. Eylar, Judge.</p> <p>Action by Leon Feingold against Samuel Lefkovitz. There was a judgment for defendant, and plaintiff brings error.</p>

P. Huff, Judge. Trespass to try title by J. E. Ledbetter and others against O. B. Carver, in which defendant filed a cross-action of trespass to try title, making Minnie H. Jones and her husband, Willis A. Jones, defendants, who by their answer attacked the conveyance of tbe land to Carver; and from a judgment in favor of Mrs. Jones and her husband defendant Carver appeals.

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by A. J. Knight against Howard J, Cooper and others. From a judgment for plaintiff, defendant Cooper appeals.</p>

<p>Divorce (§ 252*) — Decree — Community-Property.</p> <p>Where a divorce decree, charging plaintiff with the care and custody of minor children, awarded her 200 acres of land, one half in fee and the other half for life, and gave-the defendant a 53.1-acre tract of land, one-half in fee _ and the other half for life, and also gave him the entire personal property in. the community estate, worth about $9,000, it was not inequitable, though it charged him. with the total community debts, amounting to-about $1,900, and though, on the day before the trial, he had disposed of the 53.1-aere tract and part of the personal property for-about one-tenth of their value, in fraud of the plaintiff’s rights.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 713-715; Dec. Dig. § 252.*]</p>

<p>1. Carriers (§ 408*) — Carriage or Passengers — Loss or 'Baggage — Evidence—Admissibility.</p> <p>In an action against a transfer company and a carrier for loss of baggage, evidence that it had long been the custom of transfer men to leave the baggage of prospective customers in an inclosed place in a union depot was admissible to show delivery to the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.*]</p> <p>2. Carriers (§ 387*) — Carriage or Passengers — Baggage.</p> <p>It is the duty of a carrier of passengers to provide a place for the deposit and keeping of baggage of prospective and incoming passengers.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1505-1518; Dec. Dig. § 387.*]</p> <p>3. Carriers (§ 404*) — Carriage or Passengers — Baggage—Liability as Warehouseman.</p> <p>While a carrier of passengers is liable as a common carrier for the safe-keeping of a passenger’s baggage who had left it there for a reasonable time, it is not reasonable for a prospective passenger to leave baggage with the carrier for more than a day before the beginning of his journey, and the carrier is liable only as a warehouseman for such baggage.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1539-1543; Dec. Dig. § 404.*]</p> <p>4. Carriers (§ 393*) — Carriage or Passengers — Baggage.</p> <p>While it is a reasonable regulation that baggage shall not be checked until a ticket is procured, a carrier cannot limit its liability by refusing to take charge of baggage until the procurement of a ticket.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §| 1502-1504; Dec. Dig. § 393.*]</p> <p>5. Carriers (§ 408*) — Carriage or Passengers — Actions—Loss or Baggage — Evidence.</p> <p>In an action by a passenger for loss of baggage,' evidence 'held sufficient to charge the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 1557-1571; Dee. Dig. § 408.*]</p>

<p>Boundaries (§ 3*)— Surveys — Fiedd Notes —Report and Decree — Partition.</p> <p>The calls in the field notes of the survey- or, employed by commissioners of partition, for identification of corners by trees, being omitted in the commissioners’ report, and the only calls therein, and in the decree and deeds pursuant thereto, being those of the surveyor, for the northeast corner of a league as the starting point, and courses and distances therefrom, the parties thereto and to a subsequent partition suit, making no reference to the survey, are not, in the absence of agreement or estoppel, bound by a boundary which such identification calls, erroneously placing said northeast corner, would make.</p> <p>(Ed. Note. — For other cases, see Boundaries, Gent. Dig. §§ 3-41; Dec. Dig. § 3.*]</p>

<p>1. Husband and Wife (§§ 266, 274, 269*)— Agreement as to Separate Property— Validity.</p> <p>Where a husband and wife agree that certain horses and their increase shall be the wife’s separate property, and he brands them with her recorded brand, the agreement is binding upon him and his heirs and invalid only as to community creditors.</p> <p>[Ed. Note. — For other cases, see ■ Husband and Wife, Cent. Dig. §§ 925-928, 1026-1031, 953-967; Dec. Dig. §§ 266, 274, 269.*]</p> <p>2. Descent and Disteibution (§ 90*) — Fraudulent Conveyances (§ 174*) — Transactions Between Husband and Wife — Right to Recover Back.</p> <p>Where a husband gives his wife certain horses and brands them with her recorded brand for the purpose of defrauding creditors, neither he nor his heirs can take advantage -of his fraud and recover the title from- her.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 351-358, 368-381; Dec. Dig. § 90;* Fraudulent Conveyances, Cent. Dig. §§ 530, 531, 533-548; Dec. Dig. § 174.*]</p> <p>3. Husband and Wife (§ 257*) — Community Property — Action by Heirs —Instructions.</p> <p>Where, in an action by heirs of the deceased husband to partition and recover certain horses from the wife, alleged to have been community property, there was evidence that an agreement was made between the husband and wife that the increase of the original stock given by the husband to his wife should be her separate property, and that it was branded with her brand, it was improper to instruct that all increase of any separate property that she may have owned became community property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 904-908, 910; Dec. Dig. § 257.*]</p> <p>4. Husband and Wife (§ 273*) — Wife’s Separate Property — Increase of Live Stock.</p> <p>Although the increase of live stock owned by the wife and existing before the death of her husband is community property in the absence of an agreement otherwise between them, the increase of her live stock after his death is not community property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec Dig. § 273.*]</p>

<p>Appeal from District Court, Brewster County; W. C. Douglas, Judge.</p> <p>Action by Lawrence Haley against J. W. Walker. From a judgment for plaintiff granting equitable relief, defendant appeals.</p>

<p>1. Carriers (§ 227*) — Injuries to Freight —Negligence—Petition—Sufficiency.</p> <p>A petition, in an action against a carrier for injuries to an animal during shipment, which alleges negligence .generally, is good as against a general demurrer.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.*]</p> <p>2. Carriers (§ 229*) — Carriage of Live Stock — Measure of Damages.</p> <p>In the absence of market value of a race horse at point of destination, the measure of damages for injuries during transportation is the difference between the value of the horse in the condition in which it was delivered at the point of destination and the value which the horse would have had if it had been transported with ordinary care.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.*]</p> <p>3. Carriers (§ 158*) — Carriers of Live Stock — Limitation of Liability.</p> <p>A carrier, having an opportunity to see and know the nature and value of the freight to be carried, cannot by contract, in the absence of misrepresentation or concealment of value by the shipper, relieve itself from liability for full value for loss or damage through its negligence, and where a shipper of a race horse made no misrepresentation or concealment as to value, and the horse was not shipped at a reduced rate, the carrier could not relieve itself from liability for its negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-703%, 708-710, 718, 718%; Dec. Dig. § 158.*]</p> <p>4. Appeal and Error (§ 742*) — Questions Review able — Assignments of Error.</p> <p>Under Court of Civil Appeals Rule 301 (142 S. W. xiii), assignments of error submitted as propositions cannot be considered on appeal where they do not disclose the point.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. §■ 742.*]</p> <p>5. Evidence (§ 555*) — Injury to Live Stock During Transportation — Measure of Damages — Evidence.</p> <p>Where, in an action against a carrier for injuries to a race horse during transportation, the evidence showed that animals of the kind and class of the one injured had no market value at point of destination, a witness testifying to the value of the horse was properly permitted to base his estimate on the races the horse had won and class of horses it had raced with.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2376; Dec. Dig. § 555.*]</p> <p>6. Appeal and Error (§ 1004*) — Verdict— Conclusiveness.</p> <p>A verdict supported by testimony will not be disturbed on appeal on the ground that the amount awarded thereby is excessive.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3944r-3947; Dec. Dig. § 1004.*]</p>

<p>Appeal from District Court, Cass County; P. A. Turner, Judge.</p> <p>Action by W. C. Powell & Son against the Texas & Pacific Bailway Company as garnishee. From a judgment for plaintiffs, garnishee appeals.</p>

<p>Appeal from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by James Tune against the St. Louis Southwestern Railway Company of Texas. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action by Tom Hill and others against Patsey Nolan and others. From an order sustaining defendants’ demurrer, plaintiffs appeal.</p>

<p>Appeal from District Court, Houston County ; B. H. Gardner, Judge.</p> <p>Action by the Louisiana & Texas Lumber Company against J. M. Lovell and others. From a judgment in part for defendants, plaintiff appeals.</p>

Error from Potter County Court; W. M. Jeter, Judge. Action by Lorena Morris, by next friend, J. S. Morris, against C. E. Anderson, Lois Morris, and others. Judgment for Lois Morris against Lorena Morris, and she brings writ of error. Motion by defendant Lois Morris to affirm on certificate, or, in the alternative, to dismiss the appeal.

<p>1. Rape (§ 40*) — Evidence—Defense.</p> <p>In a trial for rape on a female under 15 years of age, evidence that she has had prior intercourse with others than the defendant presents no defense and is inadmissible on the main issue.</p> <p>[Ed. Note. — Eor other cases, see Rape, Cent. Dig. §§ 55-59; Dec. Dig. § 40.*]</p> <p>2. Witnesses (§ 351*) — Evidence—Impeachment.</p> <p>Where the prosecutrix was not asked if she had had intercourse with another, evidence to show intercourse with others was inadmissible to impeach her.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1150, 1151; Dec. Dig. § 351.*)</p> <p>3. Criminal Law (§§ 419, 420*) — Evidence-Hearsay.</p> <p>A statement made to a witness by a third party that if any one got into trouble about the prosecutrix it would be defendant was hearsay and inadmissible in a rape case in the absence of proof of conspiracy or collusion between such witness and the prosecutrix to prosecute the defendant.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.*]</p> <p>4. Rape (§ 40*) — Evidence—Admissibility.</p> <p>In a prosecution for rape on a female under the age of consent, evidence whether the act of intercourse testified to by the prosecutrix was the defendant’s first act of intercourse with her was admissible.</p> <p>[Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 55-59; Dec. Dig. §'40.*]</p> <p>5. Criminal Law (§ 1170*) — Appeal and Error-Harmless Error — Exclusion op Testimony.</p> <p>The improper exclusion of testimony was harmless to accused where such testimony was not material to the defense and would have strengthened the case of the state.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dea Dig. § 1170.*]</p> <p>6. Criminal Law (§ 1118*) — Appeal and Error — Record — Refusal oe Continuance.</p> <p>Where a continuance applied for on the ground of absent witnesses was refused, and the records showed that some of these witnesses were present at the trial and not called, but failed to show whether all of them were present, the reviewing court could not say that the refusal of the continuance was error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2926; Dec. Dig. § 1118.*]</p> <p>7.Criminal Law (§ 1111*) — Appeal and Error-Bill of Exceptions.</p> <p>An appellant who accepts a bill of exceptions as qualified by the trial judge is bound by the qualifications.</p> <p>[Ed. Note. — For' other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec.' Dig. g 1111.*]</p> <p>8.Criminal Law (§ 1144*) — Appeal and Error — Bill op Exceptions — Refusal of Continuance.</p> <p>Where the bill of exceptions to the refusal of a continuance stated that an absent witness would testify as to defendant’s whereabouts on a specific day, while the indictment fixed the date of the offense as on or about that day, and the statute authorized a conviction if the offense was committed on any date within one year prior to the filing of the indictment, the reviewing court could not say that it was error to refuse the continuance; it being presumed, since the bill of exceptions did not affirmatively show the materiality of the testimony of the witness, that the ruling of the trial court was correct.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]</p> <p>9. Witnesses (§ 244*) — Examination—Leading Questions.</p> <p>Where the prosecutrix was a very unwilling and reluctant witness and apparently but an ignorant child, the court properly permitted the state to ask leading questions.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 848; Dec. Dig. § 244.*]</p> <p>10. Rape (§ 44*) — Evidence—Pebsonal Relations.</p> <p>Evidence was admissible in a rape case as to other acts of intimacy not amounting to intercourse between the defendant and prosecu-trix.</p> <p>[Ed. Note. — For other cases, see Rape, Cent. Dig. § 63; Dec. Dig. § 44.*]</p>

<p>Bail (§ 65*) — Criminal Prosecutions — RE-COGNISANCE— SUEITCIENCY.</p> <p>A recognizance given in a prosecution for unlawfully carrying a pistol is defective, for not stating the punishment imposed, as required by statute.</p> <p>[Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.*]</p>

<p>Appeal from Leon County Court; W. D. Lacey, Judge.</p> <p>Action by the Milburn Wagon Company against J. E. Anderson and others. Judgment for plaintiff, and defendants appeal.</p>

H. Gardner, Judge. Action by the Louisiana & Texas Lumber Company against the Southern Pine Lumber Company, vouching in Womack Hutson and. another on their warranties. From a judgment granting insufficient relief, plaintiff appeals.

W. Wilson, Judge. Action to set aside a judgment by John S. Johnson against the Lyon-Taylor Company. Judgment for plaintiff annulling the former judgment, and defendant appeals.

<p>1. Abatement and Revival (§ 81*) — Plea in Abatement — Filing—Time.</p> <p>A plea in abatement, filed after an answer to the merits and at a subsequent term of court, should be overruled.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 175-177, 225, 499-504, 506; Dec. Dig. § 81.*]</p> <p>2. Abatement and Revival (§ 9*) — Another Action Pending — Identity oe Parties.</p> <p>A plea of abatement on account of pen-dency of another action should be overruled, where the parties in the two suits are not the same.</p> <p>[Ed. Note.' — For other cases, see Abatement and Revival, Cent. Dig. §§ 73-85; Dec. Dig. § 9.*]</p>

<p>1. Telegraphs and Telephones (§ 37*)— Contracts — Authority oe Agent.</p> <p>A telegraph company’s agent for receiving messages for transmission could bind the company by contract with the sender 'of a message, who had no notice of any limitation on the agent’s authority, to report to the sender whether the message was delivered; this being a reasonable contract pertaining to the sending and delivery of messages.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. § 37.*]</p> <p>2. Telegraphs and Telephones (§ 38*)— Implied Contracts — Acceptance oe Telegram.</p> <p>Independent of any special contract, the acceptance of a telegram for transmission obligates the telegraph company to transmit and promptly deliver it, or, in case prompt delivery is impossible, to notify the sender of the impending delay.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.*]</p> <p>3. Evidence (§ 244*) — Nondelivery oe Message.</p> <p>Where the agent of a telegraph company agreed to notify the sender of a message whether it was delivered, and later stated to the sender that the message had been delivered, the agreement and statement were made in the performance of his duties, and were admissible in evidence; the objection that the message was to be delivered by another agent not being material.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. 244.*]</p> <p>4. Telegraphs and Telephones (§ 74*)— Nondelivery of Message — Instruction— Measure of Damages.</p> <p>In an action for damages for exposure and sickness caused to plaintiff’s wife and child from the nondelivery of a telegram, the court should charge the proper rules for the measure of damages.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. § 74.*]</p> <p>5. Parent and Child (§ 7*) — Injuries to Child — Instructions—Damages Recoverable by Parent.</p> <p>Where the petition against a telegraph company alleged that no one met the. plaintiff’s wife and baby at a railroad station, as the result of the defendant’s failure to deliver a telegram, and that they suffered in health from exposure occasioned thereby, to plaintiff’s damage in a certain sum, an instruction that the plaintiff should be allowed such damages as he sustained from the nondelivery of the telegram, if any, and that such alleged damages were fully set out in the petition¡ to which the jury should look for information, was erroneous, since it permitted a recovery for damages to the baby’s health; the plaintiff being entitled to recover damages to the baby only for loss of services.</p> <p>[Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. § 7.*]</p>

A. Turner, Judge. Action by Seymour Rissner against W. E. Stewart and others. Action dismissed as to defendant Stewart, and judgment entered against the other defendants, and plaintiff appeals from the order dismissing the suit as to Stewart. R. C. and E. A. Willis executed to W. E, Stewart three promissory notes for $600 each, due one, two, and three years after date, and later executed a chattel mortgage upon certain gin property to secure the payment of the notes.

X. Munroe,' Judge. Action by L. R. Tomlinson and others against W. E. I-Iunnicutt, County Judge, and others. From a judgment denying the injunction prayed for, plaintiffs appeal.

<p>1. Trial (§ 334*) — 'Verdict—Construction— Principal and Surety.</p> <p>A verdict for a certain sum “and interest included at 5 per cent, per annum” is for such sum and interest thereon from maturity of the claim therefor, and does not mean that interest up to the trial is included in such sum.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 785; Dec. Dig. § 334.*]</p> <p>2. Appeal and Error (§ 1064*) — Harmless Error — Admission of Evidence.</p> <p>Erroneous admission of hearsay, similar evidence having been admitted without objection, and being probable that without it the verdict would not have been different, will be considered harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p> <p>3. Trial (§ 228*) — Instructions—Clerical Errors.</p> <p>An instruction is not open to the objection of being meaningless because of the use of the word “signing” therein; it being evidence from inspection that the word is a clerical error, and should be read “signed,” which gives it meaning.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 509-512, 526; Dec. Dig. § 22S.*]</p> <p>4. Trial (§ 295*) — Instructions —Considerations as a Whole.</p> <p>On the question whether the jury could have been misled by a paragraph of charge, the charge is to be considered as a whole.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p> <p>5. Insurance (§ 84*) — Insurance Agents— Right to Commissions.</p> <p>A policy of an insurance company, issued by the general office, and sent to a local office, where, according to the company’s rules, it was held till the company had finished its investigation of the applicant, after doing which, it, not being satisfied with the risk, declined it and recalled and canceled the policy, no premium ever being paid on it, was never in force, so as to entitle the agent to commissions.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 111-114; Dec. Dig. § 84.*]</p> <p>6. Appeal and Error (§ 1068*) — Harmless Error — Refusal of Instructions.</p> <p>Refusal of a peremptory instruction for defendant on certain of plaintiff’s claims was harmless; the verdict being only for the amount of the other claims.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228; Dec. Dig. § 1068.*]</p> <p>7. Evidence (§ 318*) — Hearsay—Letters.</p> <p>On the issue of whether plaintiff in selling defendant’s policies made false representations to the purchasers, their letters to defendant are hearsay.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. § 318.*]</p> <p>8. Appeal and Error (§ 1064*) — Harmless Error — Instructions.</p> <p>Information as to whether renewal premiums on policies had been paid, being peculiarly within the knowledge of the insurance company, and it being very easy for it to show that policies had not been renewed, its failure to do so, in an action by an agent for commissions on renewals, is ample evidence that they were renewed, and that it was not harmed by the instruction that, on proof by the agent that the policies were issued and put in force by the company, the burden was on it to show that the premiums were not paid by the policy holders.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p>

<p>1. Bills and Notes (§ 408*) — :Purchase of Draft — Protest fob Nonpayment.</p> <p>A bank buying a draft, drawn by a seller .of merchandise on the buyer for the price, and placing to the seller’s credit the amount thereof, and receiving the bill of lading properly assigned, may not hold the seller liable on the draft on the failure of the buyer to pay, unless it protests the draft for nonpayment, or brings suit therefor against the seller at the first term of court after nonpayment, or at the second term on showing good cause why suit was not brought at the first term, but it may not charge the seller’s account with the amount paid by it for the draft.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1113-1128; Dec. Dig. § 408.*]</p> <p>2. Banks and Banking (§ 126*) — Receiving Dbafts foe Collection — Rights and Liabilities.</p> <p>■ A bank taking a draft drawn by a seller of merchandise on the buyer for the price for collection, and giving the seller credit therefor, may, when payment of the draft is refused, charge the seller’s account with the amount and return the draft to him.</p> <p>[Ed. Note, — For other cases, see Banks and Banking, Cent. Dig. §§ 305, 309; Dec. Dig. § 126.*]</p> <p>3. Teial (§ 143*) —Issues — Conflicting Evidence — Dieection of Yeedict.</p> <p>Where the evidence is conflicting on an issue, it is not error to refuse a directed verdict.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dee. Dig. § 143.*]</p> <p>4. Evidence (§ 99*) — Appeal and Ekbob (§ 1050*) — Relevancy.</p> <p>Where the testimony was conflicting on the question of the liability of defendant, the admission of testimony of plaintiff that before suing defendant he had consulted lawyers and had been advised by them to sue defendant and not another, and that they believed that defendant was responsible to plaintiff, was error and was ground for reversal because liable to have influenced the jury in arriving at their verdict for plaintiff.</p> <p>[Ed: Note. — For other cases, see Evidence, Cent. Dig. §§ 123, 137-143; Dec. Dig. § 99;* Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*]</p>

T. Simmons, Judge. Action by the Southwestern Iron Company against J. D. Turner and another, in which the Texas Glass & Paint Company intervened and asked for relief similar to the relief demanded by plaintiff. From a judgment granting relief to plaintiff and inter-vener, defendant the Adams-Simpson Lumber Company and the intervener appeal, and plaintiff assigns cross-assignments.

T. Lyttleton, Judge. Action by J. H. Turner against the Hanover Fire Insurance Company. From a judgment for plaintiff, defendant appeals. A house belonging to appellee was destroyed by fire March 29, 1911. He recovered a judgment against appellant for $800, as the indemnity he was entitled to by the terms of a policy which he alleged appellant had issued to him March 27, 1911, insuring said house against fire for a period of one year from said March 27, 1911.

<p>Appeal from District Court, Young County; A. H: Carrigan, Judge.</p> <p>Action by Wiley & House against the Ginners’ Mutual Underwriters of San Angelo, Tex., and others. Prom a judgment for plaintiffs, defendants appeal.</p>

<p>1. Appeal and Error (§ 759*) — Briefs— Copying Assignments.</p> <p>Under rules providing that assignments of error shall be copied in the briefs, such assignments will not be considered on review, where they are not correctly copied therein.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig, § 759.*]</p> <p>2. Judgment (§ 829*) — Conclusiveness — Res Judicata.</p> <p>Though a judgment of a federal court fixing water rights was entered in a suit, in which all the parties to a cause in the state court concerning the same water rights were parties, it would not necessarily abate the cause, for, though the federal decree was res judicata, it would not deprive the state court of jurisdiction to enforce it.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 1510-1515; Dec. Dig. § 829.*]</p> <p>3. Judgment (§ 736*) — Conclusiveness— Res Judicata.</p> <p>Where, in a former suit for the settlement of water rights, the question whether the location, and original construction of the head-works of one irrigation system were such as to endanger the safety of the other system was not raised by the pleadings, the decree would not preclude the determination of the question in a subsequent suit.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1264, 1265; Dec. Dig. § 736.*]</p> <p>4. Appeal and Error (§ 1040*) — Review — Harmless Error — Pleading.</p> <p>Any error in sustaining an exception to a paragraph of an answer in an action to enjoin the use of certain water rights, to the effect that a former judgment in a federal court was res judicata, was harmless, where the judgment in the state court did not conflict with the federal decree.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089 — 4105; Dec. Dig. § 1040.*]</p> <p>6. Appeal and Error (§ 1149*) — Determination and Disposition — Reversal.</p> <p>Error in a decree which can be corrected by reforming it on appeal will not require a. reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4483 — 4496; Dec. Dig. § 1149.*]</p> <p>6. Appeal and Error (§ 759*) — Review-Assignment oe Error — Fundamental Error.</p> <p>Where the judgment in a proceeding to determine water rights was so indefinite as to be incapable of intelligent enforcement, the error was fundamental and may be corrected on appeal, though the assignments of error addressed thereto could not be considered because not correctly copied in the brief.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>7. Appeal and Error (§ 759*) — Questions Review able — Necessity oe Assignment oe Error — Reversal on Other Grounds.</p> <p>The court on appeal from a decree settling water rights may consider the indefiniteness of the judgment, even though the assignments of error addressed thereto could not be considered because incorrectly copied in the brief, where the cause would be reversed for other reasons.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>8. Waters and Water Courses (§ 143*)— Appropriation — Priorities — Right oe Second Appropriator.</p> <p>A second appropriator of water is entitled, as against a first appropriator, to any water not used or needed by the latter, and may not be deprived of such right by injunction.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 152; Dec. Dig. § 143.*]</p> <p>9. Waters and Water Courses (§ 85*)— Riparian Rights — Diversion — Restoration op Water Diverted.</p> <p>An upper riparian owner cannot be enjoined by a lower owner from diverting water until the former shall construct an intake, head-gate, canals and ditches, and a return ditch for surplus water, so that the diversion may be made without unnecessary waste, where by agreement with such lower owner the surplus water of the upper owner was turned into the lower owner’s canal, as the rule requiring the return is for the benefit of and may be waived by the lower owner.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 84 — 88; Dec. Dig. § 85.*]</p> <p>10. Judgment (§ 732*) — Res Judicata.</p> <p>And evidence of such an agreement was not inadmissible as varying a former decree fixing the water rights of the parties, pleaded as res judicata, where such decree did not purport to settle that phase of the controversy.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1260, 1261; Dec. Dig. § 732.*]</p> <p>11. Waters and Water Courses (§§ 140, 42*) — Riparian Rights.</p> <p>Riparian lands, without reference to location on the stream or to any statutory appropriation, have equal rights to a reasonable use of the water, but nonriparian lands acquire rights to water by statutory appropriation alone, and the first appropriator in time is first in right.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 33, 34; Dec. Dig. §§ 140, 42.*]</p> <p>12. Parties (§§ 18, 80*) — “Necessary Parties” — “Proper Parties.”</p> <p>“Necessary parties” to a suit are parties who are so vitally interested in the subject-matter that a valid decree could not be rendered without their presence, whether there was an objection to a failure to make them parties or not; but where they are only “proper parties,” the right to complain that they were not made parties may be waived by delay.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 18, 24, 26, 123-131, 170; Dec. Dig. §§ 18, 80.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4720, 4721; vol. 6, p. 5692; vol. 8, p. 7767.]</p> <p>13. Waters and Water Courses (§ 152*)— Appropriations — Actions to Determine Right — Parties.</p> <p>Consumers of water taken by statutory appropriation from a public stream, who obtained their rights by contract from the appropriating company, have no direct right in the water which makes them necessary parties to an action against the company for an infringement of the right of appropriation of another appropriator, and a right to have them made parties was waived by a failure to object.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 156, 157; Dec. Dig. § 152.*]</p> <p>14. Waters and Water Courses (§ 152*)— Infringement oe Appropriations — Actions — Parties.</p> <p>Customers of a company having a right to appropriate water which has been infringed may be properly made parties to an action against the infringer by allegation and proof that the' appropriator had refused to protect its appropriation to their injury.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent; Dig. §§ 156, 157; Dec. Dig. § 152.*]</p> <p>15. Waters and Water Courses (§ 152*)— Infringement of Appropriations — Actions — Parties,.</p> <p>A trustee for the bondholders of a company having a right to appropriate water was a proper but, not a necessary party to an action for an infringement of the right of appropriation, and a right to have him made a party was waived by a failure to object to his absence.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 156, 157; Dec. Dig. § 152.*]</p> <p>16. Waters and Water Courses (§ 152*)— Infringement of Water Rights — Action-Parties.</p> <p>Where, in an action between water appropriators, the relative rights to and the amount of water which each was appropriating were in issue, another water company, through whose ditches defendant claimed that the adverse party was diverting water, was a necessary party to the suit.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 156, 157; Dec. Dig. § 152.*] .</p> <p>17. Waters and Water. Courses (§ 152*)— Infringement of Water Rights —Evidence.</p> <p>In an action to enjoin an infringement of a right to appropriate water, in which the amount of water taken by each appropriator was in issue, measurements of the headworks and spillway of the company, claimed to be making a wrongful appropriation, were prop-, erly admitted in evidence, though taken long after the case went to trial.</p> <p>[Ed. Note. — For other cases, see Waters and AVater Courses, Cent Dig. §§ 156, 157; Dec. Dig. § 152.*]</p> <p>18. Witnesses (§ 260*) — Examination of Witnesses — Character of Answer.</p> <p>In an action to enjoin an alleged infringement of water rights, a witness, who answered a question, which was capable of being understood in different ways, without understanding the intent of his questioner, was properly permitted to explain the answer given.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 897, 898; Dec. Dig. § 260.*]</p> <p>19. Appeal and Error (§ 692*) — Bill of Exceptions — Sufficiency.</p> <p>A court on appeal will not consider assignments of error to the admission of testimony, where the bills of exceptions did not show what the answers would have been.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. § 692.*]</p>

<p>1. Injunction (§ 122*) — Verification of Petition.</p> <p>In a suit to enjoin an incorporated club from selling intoxicating liquors and keeping a place for the purpose of gaming, and for a forfeiture of its franchise, the petition, alleging the unlawful sale of intoxicating liquors and the keeping of a place for gambling, need not be verified by affidavit; the provisions • relating to quo warranto not requiring verification, and Rev. St. 1895, arts. 3016a, 3016e (Acts of 1905, c. 153, and 1907, c. 81), expressly waiving the requirement of verification in petitions for injunctions to restrain such acts.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. § 122.*]</p> <p>2. Injunction (§ 125*) —Pleading — Petition — Evidence—'Verification.</p> <p>A petition to enjoin a corporate club from illegally selling intoxicating liquor, when not required to be verified, is no evidence, even though verified.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 272-275; Dec. Dig. § 125.*]</p> <p>3. Evidence (§ 383*) — Pleading—Petition.</p> <p>A petition, verified merely on information and belief, is not admissible as evidence.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.*]</p> <p>On Motion for Rehearing.</p> <p>4. Clubs (§ 14*) — Forfeiture of Franchise —Default Judgment.</p> <p>Act 1907, c. 166, § 5, provides that no corporation shall employ or use its stock or other property for any purpose, other than to accomplish the legitimate objects of its creation, or that permitted by law, and that any corporation which violates those provisions shall, on proof thereof in any court, of competent jurisdiction, forfeit its permit, license, or charter. Sayles’ Rev. St. art. 1282, provides for judgment in all cases where the defendant has been duly served and has not answered. Held that, in a suit to forfeit the franchise of a corporate club because of its illegal sale of liquor, a default judgment could be taken; section 5 not withdrawing this class of cases from the operation of the general rule as to defaults, and merely requiring the facts to be judicially ascertained.</p> <p>[Ed. Note. — For other cases, see Clubs, Cent. Dig. § 9; Dec. Dig. § 14.*]</p>

<p>Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.</p> <p>Action by Amanda Randel and others against John Guitar, Jr., and another. From a' judgment for plaintiffs, defendant Continental Oil & Cotton Company appeals.</p>

<p>1. Trial (§ 390*) — Review—Findings of Fact — Time to File.</p> <p>Where the time for filing findings of fact had expired and the appeal was perfected, the trial court had no authority to file additional finding's of fact; and the same could not be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 913; Dec. Dig. § 390.*]</p> <p>2. Quo Warranto (§ 60*) — Pleading and Relief — Election Contest.</p> <p>Where, in quo warranto to oust defendant from the office of mayor of a city and place relator therein, the pleading did not allege the invalidity of the election, but claimed fraud in conducting it, allegations in the petition, attacking the validity of the election on the ground of the refusal of defendant and his officers of election to allow supervisors appointed by the city council to serve, were immaterial; and the court could not declare the election void, though there was fraud in the holding of it.</p> <p>[Ed. Note. — For other cases, see Quo War-ranto, Cent. Dig. § 71; Dec. Dig. § 60.*]</p> <p>3. Trial (§ 387*) — Trial by Couri^-Deter-MINATION OF ALL ISSUES.</p> <p>Where a cause is tried by the court, without a jury, a party has the right to have every issue considered, and where material issues are not considered the judgment must be reversed.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 903-907; Dec. Dig. § 387.*]</p> <p>4. Quo Warranto (§ 58*) — Determination of all Issues.</p> <p>Where, in quo warranto to oust defendant from the office of mayor of a city and place relator therein, the petition alleged fraud in the election, consisting of election officers falsely marking the ballots of illiterate voters contrary to their instruction's, and the evidence sustained the allegation, the court merely passing on the qualifications of voters and finding the number of votes cast, as they appeared in the ballot boxes, did not determine the material issues; and a judgment for defendant must be reversed.</p> <p>[Ed. Note. — For other cases, see Quo War-ranto, Cent. Dig. § 69; Dec. Dig. § 58.*]</p> <p>5. Quo Warranto (§ 54*) — Petition—Evidence.</p> <p>A petition in quo warranto to oust defendant from the office of mayor of a city and place relator therein, which alleges that in a voting precinct there were 205 and more votes cast for relator, that voters named cast such votes, that a specified number and more of said votes were by a judge of the election falsely marked, in violation of the instructions of the voters, who were illiterate, and who had given instructions to have their ballots cast for relator, while they were marked for defendant and counted for him, states a cause of action; and evidence of the names of the voters whose ballots had been fraudulently marked, so as to render ineffective their desires, is admissible.</p> <p>[Ed. Note. — For other cases, see Quo War-ranto, Cent. Dig. § 61; Dec. Dig. § 54.*]</p> <p>6. Elections (§ 84*) —Voters — Qualifications— Illiteracy.</p> <p>Illiteracy is not a cause for disqualification of voters; but there must be an honest compliance with the statute in marking their ballots, so as to give effect to their desires.</p> <p>[Ed. Note. — For other cases, see Elections, Dec. Dig. § 84.*]</p> <p>On Motion for Rehearing.</p> <p>7. Appeal and Error (§ 1010*) — Judgment —Issues.</p> <p>Where a judgment is wrong, and the evidence on vital points has been ignored by the trial court, the court on appeal must set aside the judgment.</p> <p>[Ed. Note. — For other cases, s.ee Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.*]</p>

<p>. Appeal from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Action by J. T. Brown against Ed Inman and R. W. Hamilton, in which Hamilton filed a cross-action against Inman. From a judgment for plaintiff and for Hamilton on his cross-action, Inman appeals.</p>

<p>Appeal from Nueces County Court; Walter F. Timón, Judge.</p> <p>Action by I. M. Taylor against the Howe Grain & Mercantile Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Kinney County; W. O. Douglas, Judge.</p> <p>Action by D. M. Kurtz against the Galveston, Houston & San Antonio Railway Company. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Frauds, Statute of (§ 70*) — Yerbal Agreement as to Boundary Line.</p> <p>While a verbal agreement for the settlement of an uncertain boundary line is binding between the parties, because no title is affected thereby, such an agreement was void, because it was a parol conveyance of land in violation of the statute of frauds, where the division line had been marked by a fence for more than 20 years and the fence, though not originally on the true boundary, had determined the legal boundary by limitations.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute óf, Cent. Dig. § 112; Dec. Dig. § 70.*]</p> <p>2. Adverse Possession (§ 106*) — -Title—Effect.</p> <p>A title by limitations is as good as one acquired by a conveyance through a regular chain of title.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 604 — 623; Dec. Dig. § 106.*]</p> <p>3. Adverse Possession (§ 100*) — Extent of Possession.</p> <p>The possession of a part of a tract of land under a deed defining the boundaries of the whole tract was not possession of another part within the peaceable adverse possession of another.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.*]</p> <p>4. Adverse Possession (§ 113*) — Evidence-Admission.</p> <p>Where adverse possession had ripened into title, no admission made thereafter by the party having such title as to the nature of her present possession could affect her title.</p> <p>[Ed. Note. — For other cases, see Adverse ■Possession, Cent. Dig. §§ 669-681; Dec. Dig. § 113.*]</p> <p>5. Adverse Possession (§ 36*) — Acquisition of Title — Enclosure.</p> <p>One who used, cultivated, and enjoyed land peaceably and adversely for 10 years acquired title thereto, regardless of the ownership or existence of any fence inclosing the land.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 139-143; Dec. Dig. § 36.*]</p> <p>6.Estoppel (§ 55*) — Invalid Parol Agreement-Purchaser.</p> <p>Where a purchaser did not rely upon an invalid agreement between his grantor and an adjoining owner as to the location of an undisputed boundary line, the adjoining owner was not estopped from claiming, as against the purchaser, that title which was hers independent of the agreement.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 136-141; Dec. Dig. § 55.*]</p>

<p>Appeal from District Court, Bexar County; Claude Y. Birkhead, Judge.</p> <p>Action by J. K. Lamm and others against J. P. Nelson and others. From a judgment for plaintiffs, defendants appeal.</p>

C. M. Smithdeal, Judge. Action by Reuben Jones against the Farmers’ Gin & Milling Company and others. From a judgment for plaintiff against defendants John M. Harrison and J. C. Culbertson-, the defendants named appeal.

<p>Appeal from District Court, Dallas County; Kenneth Eoree, -Judge.</p> <p>Action by G. W. Bird against W. S. Ramsey. From an interlocutory order appointing a receiver, defendant appeals.</p>

C. Gipson, Judge. .Action by P. A. Fite and others against the Early & Clement Grain Company and others. Judgment for plaintiffs, and the defendant named brings error.

<p>1. Insurance (1 805*) — Featernal Insurance — Actions—Waiver</p> <p>. A fraternal beneficiary association which denied liability on a certificate of membership on account of nonmembership of decedent at the time of Ms death waived any further proceedings by the beneficiary under the by-laws providing for an appeal from the decision of the executive committee to the great camp.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent Dig. §§ 1987, 1988; Dec. Dig. § 805.*]</p> <p>2. Insurance (§ 740*) — Fraternal Insur-an ce — Assessments—Payment.</p> <p>. Where the by-laws of a fraternal beneficiary association provided that a member who should become permanently disabled to perform any kind of business and who had paid all dues should be entitled to receive annually from the disability benefit fund 10 per cent, of the amount collected on the next life benefit assessment levied after such disability became due, a member who paid assessments in advance until the local tent of which he was a member was suspended, and who then became permanently _ disabled by reason of illness resulting in his death, was entitled to receive benefits on account of disability, and, where they more than equaled subsequent assessments, the certificate could not be forfeited for nonpayment of assessments.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1887; Dec. Dig. §■ 740.*]</p>

Error from Bexar County Court; P. H. Shook, Judge. Action between the American National Insurance Company and Refugia Rodriquez. There was judgment for the latter, and the former brings error.

<p>Appeal and Error (§ 79*) — Decisions Reviewable — Final Judgment.</p> <p>A judgment for plaintiff, in which no mention was made of one defendant, was not final and not appealable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 48iD493; Dec. Dig. § 79.*]</p>

E. Prescott, Judge. Action by C. D. Brown against the Austin Fire Insurance Company. • There was a judgment for plaintiff, and defendant brings error. Reversed and remanded. ■

<p>Appeal from District Court, Ward County ; S. J. Isaacs, Judge.</p> <p>Action by J. G. Maulding and another-against S. V. Biggs and others. From a judgment for J. G. Maulding, defendants appeal.</p>

M. Walthall, Judge. Action by D. E. Bloch against the J. Cal-isher Dry Goods Company and J. Calisher individually. From the judgment which was for plaintiff and denied defendant’s counterclaims, both defendants appeal.

<p>1. Public Lands (§ 175*)— Surveys — Conflicts.</p> <p>Where surveys are in conflict, the junior survey must yield to the senior survey to the extent of the conflict.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. 175.*]</p> <p>2. Evidence (§ 387*) — Paeol Evidence — Public Grants — Surveys — Calls in Grant.</p> <p>Where the field notes in a survey call for the corners and lines of surrounding surveys, and contain no inconsistent calls, it is not admissible to show by parol that a different survey was actually made, to control the calls in the grant.</p> <p>[Ed. Note. — For other cases', see Evidence, Cent. Dig. §§ 1698-1713; Dec. Dig. § 387.*]</p> <p>3. Evidence (§ 460*) — Parol Evidence — Surveys — Calls in Grant.</p> <p>Where a corner is found on the ground having bearings as called for in a patent, and such corner is shown to be a corner of the land as actually surveyed, an inconsistency between the call for the corner and the call for the bearings may be explained by parol; and the actual survey must control.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dee. Dig. § 460.*]</p> <p>4. Public Lands (§ 175*) — Grants — Conflicts.</p> <p>Evidence held, to justify a finding of a conflict in surveys of public lands, so that, to the extent of the conflict, the junior survey must yield.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.*]</p> <p>5.New Trial (§ 102*) — Grounds — Newly Discovered Evidence.</p> <p>It is not error to refuse a new trial on the ground^of newly discovered evidence which would not compel a different finding, especially where sufficient diligence to discover the testimony is not shown.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.*]</p>

<p>Appeal from Bexar County Court; Geo. W. Huntress, Judge.,</p> <p>Action by the Alamo Dive Stock Commission Company against Porfirio Garza and others. Judgment for plaintiff against Porfirio Garza alone, and he appeals.</p>

<p>Error to District Court, Hill County; C. H. Smitfideal, Judge.</p> <p>Action by W. B. Swift and another against T. A. Holder. There was a judgment for plaintiffs, and defendant brings error.</p>

<p>1. Evidence (§ . 29*) — Judicial Notice — Creation of Counties.</p> <p>The court judicially knows that Culberson county was created out of a part of the territory of El Paso county by Acts 32d Leg. c. 38.</p> <p>[Ed. Note.—Eor other cases, see Evidence, Cent. Dig. §§ 36, 37, 39, 43-46, 48; Dec. Dig. § 29.*]</p> <p>2. Officers (§ 30*)—Holding Other Office —Special Judges.</p> <p>The acting county attorney of a county is not disqualified from acting as special judge in the trial of a case, pursuant to an appointment by.the Governor.</p> <p>[Ed. Note.—Por other cases, see Officers, Cent. Dig. §§ 20, 37-43; Dec. Dig. § 30.*]</p> <p>3. Venue (§ 7*)—Privilege to be Sued in County of Besidence.</p> <p>Where an action is .brought against an individual on a written contract for the digging of a well on his land, which does not provide for any place of payment by him, he has the right, under Sayles’ Ann. Civ. St. 1897, art. 1194, subd. 5, providing that, where a person has contracted to perform an obligation in any particular county, suit may be brought either in such county, or where he has his domicile, to be sued in the county of his domicile.</p> <p>[Ed. Note.—Por other cases, see Venue, Cent. .Dig. §§ 13-16; Dec. Dig. § 7.*]</p>

<p>Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.</p> <p>Action by Jim Wyrick against the Witch-ita Falls & Wellington Railway Company. Judgment for plaintiff. Defendant appeals.</p>

<p>1. GARNISHMENT '(§ 108*) — PRIORITY OVER Assignment.</p> <p>In an action on a note wherein plaintiff garnished the proceeds of an insurance policy, a plea in abatement filed by defendant’s brother on account of another action brought by him against the insurance company in which he claimed as an assignee of the insurance was properly overruled where the suit on the note was brought and garnishment issued before the other suit was brought.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 220-226; Dec. Dig. § 108.*]</p> <p>2. Garnishment (§ 88*) — Affidavit.</p> <p>An affidavit for garnishment stating that affiant believed that the garnishee, a corporation, had as its local agents at a specified place within the state a firm composed of specified persons, etc., sufficiently stated the residence of the agents. ■</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 160-166; Dec. Dig. § 88.*]</p> <p>3. Witnesses (§ 240*) — Examination of Witnesses — Leading Questions.</p> <p>Exclusion of a proper question asked a witness in chief was not justified because a similar question which was leading had just 'been excluded.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240.*]</p> <p>4. Fraudulent Conveyances (§ 292*) — Evidence — Admissibility.</p> <p>Where in an action on a note plaintiff garnished the proceeds of an insurance policy which defendant’s brother claimed under an assignment, the vital issue was whether the assignment was fraudulent, it was error to refuse to permit the brother to state what caused him to have the assignment prepared.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 857-861; Dec. Dig. § 292.*]</p> <p>5. Fraudulent Conveyances (§ 271*) — Intent to Defraud — Burden of Proof.</p> <p>In an action on a note wherein plaintiff garnished the proceeds of an insurance policy which defendant’s brother claimed under an assignment, the burden was on plaintiff to show that the assignment was fraudulent.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 796-798, 821; Dec. Dig. § 271.*]</p>

<p>1. Evidence (§ 471*) — Opinion Evidence-Conclusions ok Fact — Conversations.</p> <p>In an action involving the existence of a partnership between plaintiff and defendant to buy cotton, the admission of a deposition in which the withers stated that he could not remember the exact words used in conversations between him and defendant, but that he was led by the conversation to believe that plaintiff and defendant were handling his cotton together, so that although he had already promised it to plaintiff he sold it to defendant, was not error; the witness’ statement of what he was led to believe not being a conclusion, but a statement of the substance of the conversation.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>2. Trial (§ 260*) —Instructions — Special Instructions Covered by Main Charge.</p> <p>Where the principal issue in a case was the making of an agreement between plaintiff and defendant, establishing a partnership for the purchase of cotton, an instruction that to constitute a partnership there must be a valid agreement to enter into a partnership, which must be executed, and that a mere understanding that a partnership would be formed at some future time would not constitute a partnership, sufficiently covered the issue, and a special instruction that while acts and conduct might make parties partners as to third persons, to constitute a partnership as to each other, there must be an intention that such relation should exist, and that unless plaintiff and defendant intended to share in the profits and losses in the purchase and sale of cotton, the jury should find for plaintiff only the amount conceded by defendant, was properly denied.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>3. Partnership (§ 262*) — Dissolution—Mutual Consent.</p> <p>Where the evidence showed the formation of a partnership for the handling of cotton during two seasons, the denial of an instruction that, if plaintiff by his acts or conduct indicated an intention to cease operating with defendant, a new agreement was necessary to the continuation of the partnership, was not error, where the evidence showed that, although plaintiff had stated to defendant’s bookkeeper that he would have nothing more to do with defendant, it also showed that they had thereafter purchased cotton together, and it did not show that the question of dissolution was ever discussed between them, since the partnership could not be dissolved except by mutual consent or in some mode provided by law.</p> <p>[Ed. Note. — For other cases, see Partnership. Cent. Dig. §§ 602, 605, 606; Dec. Dig. § 202.*]</p> <p>4. Appeal and Error (§ 1004*) — Review-Verdict — Prejudice.</p> <p>A verdict for the exact amount shown by plaintiff’s testimony cannot be vacated as rendered through prejudice and without regard to the evidence, although plaintiff’s testimony was contrary to the auditor’s report, which was not objected to, and hence when a remittitur has been entered it will be permitted to stand for the amount shown by the report.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*]</p> <p>5. Reference (§ 99*) — Report — Operation and Effect.</p> <p>The correctness of an auditor’s report, to which no objection or exception was filed, cannot be assailed on a trial by other evidence, and evidence contradicting the report, although admitted, cannot form the basis of a verdict or judgment.</p> <p>[Ed. Note. — For other cases, see Reference, Cent. Dig. §§ 148-156; Dec. Dig. § 99.*]</p>

<p>1. Trial (§ 253*) — Instructions— Issue of Agency.</p> <p>In a broker’s action for commission in which defendant answered by general denial, a charge that, if plaintiff was the procuring cause of a sale and found a purchaser who bought the land, he might recover was erroneous for omission to charge on the issue as to whether defendant listed his land with or authorized plaintiff to sell it.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>2. Trial (§ 234*) — Instructions—Burden of Proof.</p> <p>An instruction in a broker’s action for commission on the sale of land alleged to have been listed for sale by defendant, in which defendant answered by general denial that, if the jury found from the preponderance of the evidence that plaintiff was not the procuring cause of the sale, defendant was not liable, was erroneous in that it shifted plaintiff’s burden of proof and required the jury to find affirmatively that plaintiff’s allegations were not true before they could find for defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534-538, 566; Dec. Dig. § 234.*]</p>

<p>Appeal from District Court, Childress County; S. P. Huff, Judge.</p> <p>Mandamus proceeding by John L. Wortham against S. S. Sullivan. Judgment for defendant, and plaintiff appeals.</p> <p>Affirmed.</p>

<p>1. Public Lands (§ 172*)— Sales—Foefei-TUEE.</p> <p>A purchaser of state lands made the necessary payments and settled thereon. A defective affidavit of settlement was made when he executed a conveyance and instructed his agent not to deliver the deed until the affidavit was filed. A new affidavit was filed after the date of the deed, which recited that the payment of the price should be by notes bearing interest from the date of the deed. There was no proof as to when the notes were delivered. ■ Held, that the purchase was subject to forfeiture under Acts 29th Leg. c. 103, § 4, providing that any attempt of a purchaser to transfer his land prior to his actual settlement, and evidence of that fact duly filed, shall operate as a forfeiture.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dec. Dig. § 172.*]</p> <p>2. Public Lands (§ 178*) —Sales — Title Acquired.</p> <p>A sale of state lands was subject to forfeiture under Acts 29th Leg. c. 103, § 4, because of the purchaser’s attempt to convey the lands before the proper filing of the affidavit of his actual settlement thereon. The conveyance of the purchaser to his grantee disclosed that fact; and the grantee, if consulted, would have disclosed that he bought the land from the purchaser. The purchase was forfeited, and thereafter a third person purchased from the state. Held, that the grantee of the original purchaser, was not entitled to recover the lands from the subsequent purchaser.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dee. Dig. § 178.*]</p>

<p>Appeal from District Court, Hill County, F. Earle McKee, Special Judge.</p> <p>Action by Tarlton Morrow and another against Mrs. D. L. Thompson. From a judgment for plaintiffs, defendant appeals.</p> <p>Affirmed.</p>

<p>Appeal from District Court, Ward County; S. J. Isaacs, Judge.</p> <p>Action by W. H. Lee against S. V. Biggs and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. PARTNERSHIP (§ 52*) — EXISTENCE OP RELATION — EVIDENCE — Circumstantial Evidence.</p> <p>A partnership may be proved by circumstantial evidence.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 75, 79; Dec. Dig. § 52.*]</p> <p>2. Partnership (§ 52*) — Existence op Re- ' lation — Evidence—Supficiency.</p> <p>Evidence held to justify a finding of the existence of a partnership.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 75, 79; Dec. Dig. § 52.*]</p> <p>3. Partnership (§ 241*) — Existence—Presumptions.</p> <p>A partnership once proved to exist continues, so far as liability against the partners is concerned, until notice _ of dissolution is brought home to one seeking to charge the partners-.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 479%, 480, 651, 652, 654, 657, 659, 665; Dec. Dig. § 241.*]</p> <p>4. Appeal and Error (§ 1066*) — Trial (§ 256*) — Instructions—Requests—Harmless Error.</p> <p>Where, in an action on a note alleged to have been executed by a firm in December, 1908, a defendant denied that he was a partner and alleged that the note was given on the personal credit of a codefendant, and the circumstances proving the existence of a firm occurred prior and subsequent to the date of the note,. and all of the evidence showed a partnership at the time of the making of the note, the submission of the issue whether defendant was a partner at the time of the making of the note “or at any time prior thereto” was harmless; especially in the absence of any requested special charge on the subject.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066;* Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>5. Appeal and Error (§ 882*) — Estoppel to Allege Error.</p> <p>In an action against two defendants as partners on a note payable to the wife of plaintiff, a defendant denied that he was a partner and alleged that the money was loaned to a codefendant on his personal credit. Plaintiff stated on cross-examination by defendant that his wife was convinced that defendant and codefendant were partners; the statement being admitted to show whether the transaction was with codefendant individually or with the alleged firm, and the court charged that the jury cbuld not consider it on the issue whether defendant was a partner. Held, that defendant, having drawn out the statement by his own question, could not complain on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]</p> <p>6. Evidence (§ 249*) — Admissions by Partner — Admissibility.</p> <p>Where, in an action on a note brought against two defendants as partners, one defendant denied that he was a partner and alleged that the loan note was to his codefend-ant on his personal credit, evidence of a conversation with codefendant as to a partnership between him and defendant, had in the absence of defendant, was admissible on the issue whether the money borrowed by codefendant was his individual transaction or the transaction of the firm.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 965-975; Dec. Dig. § 249.*]</p> <p>7. Evidence (§ 207*) — Admissions—Existence op Partnership — Default Judgment.</p> <p>A default judgment against a firm in which a person was alleged to be a partner is admissible in evidence to show an implied admission by such person that he was a partner; he having been duly served with process.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 707-712; Dec. Dig. § 207.*]</p> <p>8. Bills and Notes (§ 534*) — Attorney’s Fees — Recovery.</p> <p>A stipulation in a note for attorney’s fees of a specified per cent, of the principal is in the nature of a contract of indemnity and fixes the amount of attorney’s fees, in the absence of plea and proof that the per cent, is unreasonable.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946-1947; Dec. Dig. § 534.*]</p>

L. Porter, Judge. Action to foreclose a tax lien by the State against B. M. McMahan and others. From a judgment for plaintiff, B. M. McMahan and wife appeal.

R. McGee, Judge. Action by A. S. Cameron Steam Pump Works against the Lubbock Light & Ice Company. Judgment for plaintiff for less than the relief demanded, and it appeals.

<p>1. Appeal and Error (§ 544*) — Necessity oe Bill of Exceptions.</p> <p>Error in sustaining a general demurrer to a petition can be reviewed on appeal without any bill of exceptions or assignment of error, where the judgment recites the ruling, the exception thereto, and the notice of appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2426, 2478, 2479; Dec. Dig. § 544.*]</p> <p>2. Trespass to Try Title (§ 32*)— Petition— Sufficiency.</p> <p>A demurrer to a petition in trespass to try title to land taken by the county for a highway in condemnation proceedings, claimed to be void, or, in the alternative, if such proceedings were held valid, for damages from the taking of such land, was improperly sustained, although it was not alleged that the claim for damages had been presented to the commissioners’ court for approval, since, although this would prevent the recovery of the damages, it did not affect plaintiff’s right to maintain trespass to try title.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dec. Dig. § 32.*]</p> <p>3. Trespass to Try Title (§ 32*) — Petition —Sufficiency.</p> <p>A petition in trespass to try title, describing the land as “all of survey No. two (2), known as the Harbinson section, G., C. & S. F. Ry. Co. by certificate No. 5,068; and also all of survey in the S. N. Jones, patented to J. T. Tittle, August 29th, 1893, and described by metes and bounds as follows: Beginning at- a stone, * * * containing 80 acres of land” — sufficiently describes the land to entitle plaintiff to try title to both tracts in their entirety.</p> <p>[Ed. Note. — For other eases, see Trespass to Try Title, Cent Dig. §§ 39-41; Dec. Dig. § 32.*]</p> <p>4. Eminent Domain (§ 243*) — Conclusiveness of Adjudication — Damages.</p> <p>Judgment in a valid condemnation proceeding is conclusive as to an owner’s right to damages in a collateral action.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 627-629; Dec. Dig. § 243.*]</p>

<p>1.’Master and Servant (§ 286*)—Injuries —Jury Question—Failure to Warn.</p> <p>An employé’s action for personal injuries while operating a machine for cutting leather washers, by the machine suddenly starting and catching his hand, held entitled to go to the jury on the question of negligence in failing to warn plaintiff of the danger.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046; Dec. Dig. § 286.*]</p> <p>2. Trial (§ 139*) —Instructions — Weight oe Evidence.</p> <p>In an employé’s action for personal injuries by a leather cutting machine suddenly starting and catching plaintiff’s hand, an instruction that, if plaintiff was inexperienced in operating such machinery, and defendant knew thereof and did not warn him, and he was thereby subjected to a danger of which he did not’ know, and which he would have avoided had he been so warned, and the danger was not open to observation, and plaintiff made a proper use of his faculties, he could recover was erroneous, where the evidence made it at most a jury question whether defendant was guilty of any negligence in failing to warn plaintiff of the danger from the sudden starting of the machine.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.*]</p> <p>3. Master and Servant (§§ 101, 102*) — Master’s Duty—Save Instrumentalities.</p> <p>A master’s duty is only to use ordinary care to furnish safe appliances for work, and he is not an insurer against defects which are not and cannot be known to him by due care in inspection.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178, 179, 180-184, 192; Dec. Dig. §§ 101, 102.*]</p> <p>4. Trial (§ 28*) — Conduct—View by Jury.</p> <p>It was not error not to require the jury to personally examine the machine on which an employs was injured, where there had been a fire on the premises since the accident and the machine was not shown to be in the same condition as at the time of the accident.</p> <p>[Ed. 'Note. — For other cases, see Trial, Cent. Dig. §§ 77-79; Dec. Dig. § 28.*]</p> <p>5. Appeal and Error (§ 742*)— Assignment op Error — Statement op Evidence — Necessity.</p> <p>An assignment of error, in an employe’s action for injuries in refusing to direct a verdict for defendant because the evidence failed to show negligence, will be overruled, if appellant’s statement under the assignment does not set out the evidence bearing on the question.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

G. Gross, Judge. Action by the Norris Implement Company against M. E. Tarwater and W. C. Newman. From a judgment for plaintiff against both defendants, and in favor of Tarwater against Newman, Newman appealed to the county court, where a similar judgment was render-' ed, from which defendant Newman appeals.

<p>Appeal from Cottle County Court; W. E. Prescott, Judge.</p> <p>Action by T. M. Drummond against Qua-nah, Acme & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

. Condemnation proceedings to secure right of way by the Wichita Falls & Wellington Railway Company of Texas against Jim Wy-rick. From the judgment determining the amount of the award, the company appeals.

<p>1. Principal and Surety (§ 66*) — Liability op Surety — Construction op Contract.</p> <p>The liability of an accommodation surety cannot be extended beyond the strict letter of the contract.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 108-110, 112; Dec. Dig. § 66.*]</p> <p>2. Principal and Surety (§ 155*) — Actions —Sufficiency of Petition.</p> <p>Defendant became surety on an agent’s contract with plaintiff crayon company by which the agent became district manager and bound himself to solicit orders for frames and enlargement of portraits, to deliver the portraits sold, and to sell frames and collect the money therefor, and to be responsible to the company for proper accounting by his sub-agents for such moneys as were collected or were advanced to them in carrying on the business: Held, that defendant was not liable as surety unless the unpaid indebtedness arose from the sale of frames or enlargement of portraits or from money advanced to the agent for the purpose of soliciting orders for frames and portraits, so that allegations of the petition, in an action to charge defendant as surety, that the agent collected and wrongfully appropriated certain moneys which were due and belonged to plaintiff, were not sufficient, not showing a liability for moneys collected and not accounted for by the agent in connection with the sale of frames, etc., as contemplated by the contract.</p> <p>[Ed. Note. — For other cases; see Principal and Surety, Gent. Dig. § 422; Dec. Dig. § 155.*]</p> <p>3. Principal and Surety (§ 79*) — Construct tion of Contract — Liability of Surety.</p> <p>Where a contract between a crayon company and an agent, appointing the agent as district manager, only required him to solicit orders for frames and the enlargement of portraits and collect money for the portraits and frames, making him responsible for an accounting for his subagents for money collected and money advanced to them in carrying on the business, the agent was not bound to account for money collected for the sale of wire for use on the portrait frames, so that the surety was not liable for the agent’s default in accounting for such money.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 125; Dec. Dig. § 79.*]</p> <p>4. Appeal and Error (§ 1010*) — Presumptions.</p> <p>In the absence of conclusions of law and fact, the- judgment will be affirmed, if supported by any phase of the evidence.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982; Dec. Dig. § 1010.*]</p>

<p>Appeal from District Court, Midland County; S. J. Isaacs, Judge.</p> <p>Action between H. M. Horton and Henry M. Halff. From a judgment for Halff, Horton appeals.</p>

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

R. McGee, Judge. Action by J. C. Woody and another against R. E. Penney and others. From a judgment of the county court on appeal from a judgment in justice court, defendants appeal.

T. Lyttleton, Judge. Action by Y. D. Harrison, trustee, and others against the St. Louis Union Trust Company and others. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from District Court, Fannin County ; Ben H. Denton, Judge.</p> <p>Action by D. N. Myrick and others against R. E. Medford and another. From a judgment for plaintiffs, the defendants appeal.</p>

Action between A. O. Martin and V. Irvin., From the judgment, Martin appeals. On motion by Martin for certiorari against the county clerk of Bell county.

<p>Judgment (§ 310*) — Reformation — Parties Not Served.</p> <p>Judgment against a partnership and the individual.partners is properly reformed, so as to exempt a partner who was not served, without affecting the judgment against the partnership and the partner served.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 601-603; Dec. Dig. § 310.*]</p>

<p>Appeal from District Court, Clay County; P. A. Martin, Judge.</p> <p>Action by R. J. Brown against W. H. Allen and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Error from Tom Green County Court; Oscar Prink, Judge.</p> <p>Action by C. P. Dillard against Albert Bailey. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Comanche County; J. H. Arnold, Judge.</p> <p>Action by the Comanche Mercantile Company against H. L. Stewart. Judgment for plaintiff, and defendant brings error.</p>

<p>Evidence (§ 175*) — Best and Secondary Evidence — Record oe Deed — Predicate.</p> <p>In the absence of a proper predicate, secondary evidence, in the form of the record of a deed, was inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence. Cent. Dig. §§ 561, 565, 568, 569; Dec. Dig. § 175.*]</p>

<p>Appeal from District Court, Mitchell County ; Jas. L. Shepherd, Judge.</p> <p>Action by J. T. Johnson against Mrs. Dean Johnson. From a judgment granting insufficient relief, plaintiff appeals.</p>

<p>Error from District Court, Nolan County; Jas. L. Shepherd, Judge.</p> <p>Action by L.- M. Kirkes against T. J. O’Donnell and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from District Court, Dallas County : J. C. Roberts, Judge.</p> <p>Action by the Tyler Building & Loan Association against Biard & Scales. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by C. L. Burris and wife against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1.Judgment (§ 92*) — Default Judgment.</p> <p>A judgment of the county court, which recites that at the regular term a cause was regularly called for trial, that plaintiff in person announced ready for trial, that defendant appeared in person and announced ready for trial, but that codefendant made default, that a jury was waived and all matters of facts and law submitted to the court, who, after hearing the pleadings and evidence, ordered a judgment for plaintiff against codefendant as principal and third persons as sureties, and against defendant and codefendant jointly and severally, and in favor of defendant against codefend-ant, is not a default judgment; and the mere nonappearance of codefendant did not bar plaintiff from proving his case and obtaining judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 151; Dec. Dig. § 92.*]</p> <p>2. Judgment (§ 145*) — Default Judgment-Vacation.</p> <p>A defendant who defaults at the trial may not complain of the judgment against him, where the attention of the court was not called to his plea, and where he did not move for a new trial and show a meritorious defense.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 271, 292-295; Dec. Dig. § 145.*]</p> <p>3. Assignments (§ 24*) — Claims Assignable.</p> <p>A claim for money due from a pledgee to an assignor for the value of property stolen from the assignor is assignable, and is sufficient to support an action by the assignee.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 42-46; Dec. Dig. § 24.*]</p> <p>4. Appeal and Eerob (§ 1091*) — Review— Pbesumptions.</p> <p>Where, in an action in justice’s court on an assigned claim, the pleadings were oral, the court, on appeal from a judgment of the county court rendered on appeal from the justice’s court, will presume that the claim and assignment were sufficiently pleaded, in the absence of anything in the record to the contrary.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4302-4311, 4331; Dec. Dig. § 1091;* Justices of the Peace, Cent. Dig. § 754.]</p> <p>5.Judgment ({j 253*) — Inteeest.</p> <p>A judgment for the amount of the claim sued on, together with interest on the claim properly allowed, is not excessive, because it includes interest.</p> <p>TEd. Note. — For other cases, see Judgment, Cent. Dig. §§ 443, 444; Dec. Dig. § 253.*]</p> <p>6.Appeal and Ereoe (§ 1170*) — Disposition of Cause — Reversai^Cleeical Ee-eoe.</p> <p>Where the principal judgment for $137.30, made up of a claim for $130 and interest for $7.30, undertook to show in its recitals that a judgment for $50 was a part of the principal judgment, and not an additional amount, and referred to the principal judgment as one for $130, the judgment was not on its face uncertain; but the statement in the recital as to the amount of the principal judgment was a clerical error, not requiring a reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4540-4545; Dee. Dig. § 1170.*]</p>

N. Browning, -Judge. Action by Albert Brown against the Missouri, Kansas & Texas Railway Company of Texas, the Ft. Worth & Denver City Railway Company, and another. Judgment for plaintiff, and the defendants named appeal.

Error from District Court, Harris County; Charles E. Ashe, Judge. Separate actions by George W. Fife and Ms wife against Morgan’s Louisiana & Texas Railroad & Steamship Company and others. There was judgment for plaintiff in each case against the named defendant, and it brings error.

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by Mary J. McGinnis, administra-trix of W. T. McGinnis, deceased, and others, against the Gulf, Colorado & Santa Fé Railroad Company. Judgment for plaintiffs. Defendant appeals.</p>

<p>1. Evidence (§ 450*) — Parol Evidence — Explaining Contract — Insurance Policy.</p> <p>The application attached to a life policy contained a provision that insured agreed that all the statements and answers contained therein were true, and that no statement made .to or by any agent, not contained in the application, shall he considered as made to, or brought to the notice of, the company, or as charging it with any liability, and further stated that the policy was to be a “G A D 20 Pay.” Held, that oral testimony as to representations by the soliciting agent that the policy applied for would mature at the end of 13 years, after which insured would be entitled to an annual dividend of 3V2 per cent, for life, was admissible to explain the policy; the quoted expression therein not being wholly unambiguous.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2084; Dec. Dig. § 450.*)</p> <p>2. Insurance (§ 141*) — Liee Insurance — Representations — Estoppel.</p> <p>Insured was not estopped from asserting that a life policy was procured by misrepresentations as to when it would mature, where he declined to accept the policy when it was tendered to him, and took possession of it solely to deliver it to the company’s adjuster, who had come to settle the claims.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 75, 253-262; Dec. Dig. § 141.*]</p>

<p>1. Evidence (§ 315*) — Hearsay.</p> <p>In an action for damages for the nondelivery of a telegram, alleged to have not been sent according to instructions given the telegraph agent, testimony that the sender had told witness that in sending the telegram “he had followed out the instructions I had given,” being hearsay, was inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1200; Dec. Dig: § 315.*]</p> <p>2. Appeal and Error (§ 1050*) — Review-Harmless Error — Hearsay Evidence.</p> <p>Where hearsay evidence, in an action for damages for failure to deliver a telegram to the proper address, tended to corroborate the testimony of plaintiff’s witness on the issue whether a proper address had been given to the telegraph agent, its admission was prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153 — 4160, 4166; Dec. Dig. § 1050.*]</p> <p>3. Trial (§ 118*) — Argument op Counsel-Reading Other Decisions.</p> <p>In an action for damages for nondelivery of a telegram, resulting in the plaintiff not being present at his father’s death and burial, it was error to permit the plaintiff’s counsel in his argument to read to the jury another case wherein a judgment for $2,500 was affirmed.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 290-293; Dec. Dig. § 118.*]</p> <p>4. Trial (§ .120*) — Argument oe Counsel.</p> <p>Counsel in their argument should not mate a statement of facts not warranted by the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. § 120.*]</p>

Calhoun, Judge. Action between the State and Amanda Lincoln and others. From the judgment, the State appeals. On motion to permit a statement of facts to be filed.

<p>1. Principal and Agent (§ 155*)— Contract by Agent — Enforcement.</p> <p>An unauthorized compromise agreement by an agent was not enforceable against the principal.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 574r-582; Dec. Dig. § 155.*]</p> <p>2. COMPROMISE AND SETTLEMENT (§ 6*) — "VALIDITY— Consideration.</p> <p>A compromise agreement without consideration is not enforceable.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.*]</p> <p>3. Compromise and Settlement (§ 6*) — Accord and Satisfaction (§ 8*) — Consideration — Part Payment.</p> <p>The payment of part of a past-due undisputed debt is not a sufficient consideration to support a promise to accept the same in full payment.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6;* Accord and Satisfaction, Cent. Dig. §§ 60-65; Dec. Dig. § 8.*]</p> <p>4. Appeal and Error (§ 719*) — Assignment of Error — Error Not Assigned.</p> <p>An objection that the compromise agreement relied on was without consideration, being fundamental and apparent of record, will be reviewed though not assigned.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982; Dec. Dig. | 719.*] •</p>

<p>Error from Eastland County Court; E. A. Hill, Judge.</p> <p>Action by C. U. Connellee against the' Smith Premier Sales Company. Judgment for plaintiff, and the Sales Company brings error.</p>

A. Stevens, Judge. Suit to recover land by G. W. Key, administrator, against E. Farris, and the Comfort State Bank intervenes. From, judgment for defendant and intervener, plaintiff appeals.

<p>Appeal from District Court, Delta County; R. L. Porter, Judge. .T. 1<\ Brackeen was convicted of incest, and appeals.</p>