Volume 149 — South Western Reporter

Application by E. J. Wilson for the release of E. J. Wilson, Jr., from an insane asylum under Rev. St. 1895, art. 140. From a judgment denying relief, the applicant appeals.

<p>Original application by J. E. Fleming for a writ of habeas corpus to fix the amount of his hail.</p>

<p>1. Railroads (§ 351*)— Injuries to Persons on Tracks — Discovered Peril.</p> <p>In an action for injuries at a railroad crossing, where a recovery was sought under the doctrine of discovered peril, an instruction that it was the duty of defendant’s servants, if they discovered the perilous position of plaintiff’s son and property, to exercise the greatest possible care to avoid injury, and that if they did discover the dangerous position in time to protect him from danger by reasonable care, and they failed to do so, and plaintiff’s minor son exercised ordinary care in attempting to cross the track, there should be a finding for plaintiff, was erroneous because making the recovery dependent on the care exercised by plaintiff’s son and not upon the failure of defendant’s servants to exercise due care after discovering his peril.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.*]</p> <p>2. Appeal and Error (§ 1066*) — Review — Harmless Error — Instruction.</p> <p>In an action against a railroad company for injury to plaintiff’s mules and wagon which were struck by a train, where the petition and evidence authorized the submission of the issue of discovered peril, an instruction making due care of the driver a condition precedent to recovery was prejudicial error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]</p> <p>3. Trial (§ 22S*) — Injuries to Animals on Tracks — Instruction.</p> <p>In an action against a railroad company for an injury to plaintiff’s mules and wagon which were struck by defendant’s train, an instruction, that the duty on the part of defendant’s servants to prevent the injury arose if such servants negligently failed to use all means to lessen the injury, being unintelligible, is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 509-512, 526; Dec. Dig. § 228.*]</p> <p>4. Railroads (§ 338*) — Injuries to Animals on Tracks — Discovered Peril.</p> <p>In an action for injuries at a crossing, where the recovery was sought on the ground of discovered peril, the company was not responsible, though its servants did not endeavor by all means to prevent the injury, if the peril was not discovered in time for the servants to have accomplished anything by those means.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1096-1099; Dec. Dig. § 338.*]</p>

<p>1. Replevin (§ 106*) — Verdict —Judgment.</p> <p>Plaintiff sued to recover two mules of the value of §100, a wagon of the value of $30, and a set of harness of the value of $5. The jury returned a verdict in favor of plaintiff “for the mules, wagon, and harness in controversy,” fixing their reasonable value at $235. Reid, that the court had no jurisdiction to render judgment on such verdict fixing the separate value of each article as in the complaint on the ground that the evidence showed such to be the separate value of the property, and that the jury must necessarily have found such separate value in reaching the verdict they did, since the judgment must conform to the verdict alone.</p> <p>[Ed. Note. — For other cases, see Replevin, Cent. Dig. §§ 416-423; Dec. Dig. § 106.*]</p> <p>2. Evidence (§ 271*) — Sele-Serving Declaration.</p> <p>Where, in replevin to recover certain property, plaintiff claimed that he had hired defendant C. to remove an old building, and loaned him the property sued for with which to perform the work, which C. denied, evidence that plaintiff prior to the time C. began to pull down and remove the building told witness that ho had bought the building from C., and that he was to do the moving, and asked witness’ opinion as to what the building was worth, was inadmissible as a self-serving declaration.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dee. Dig. § 271.*]</p> <p>3. Trial (§ 330*) — 'Verdict—Issues—Disposition.</p> <p>Where, in replevin to recover certain personal property, defendant C. filed a plea in reconvention for breach of a contract to construct a building, a verdict in plaintiff’s favor failing to dispose of the issue raised by tho re-convention plea was improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 777-7Siy2; Dec. Dig. § 330.*]</p>

<p>Error to District Court, Collin County; J. M. Pearson, Judge.</p> <p>Action for divorce by J. A. Forsythe against Mary E. Forsythe. Decree for complainant, and defendant brings error.</p>

Error from District Court, Dallas County; Kenneth Foree, Judge. Action by J. D. Irwin against George B. Kittrell and another. From a judgment for plaintiff against defendant named, the latter appeals.

E. Hunnicutt, Judge. Action by J. M. Lowey against J. E. Conner. From a judgment of a justice for plaintiff, defendant appealed to the circuit court, and from a dismissal there brings this appeal.

Action by R. N. Smith against C. A. Far-quhar, who impleaded Roy Jackson and M. G. Whittington, partners as the Ft. Worth Horse & Mule Company. From a judgment for plaintiff, the last-named defendants appeal.

Error from District Court, Bell County; John D. Robinson, Judge. Action by W. H. Hirsehfield and others against A. B. Ater and others. From a judgment for defendants, plaintiffs bring error.

<p>Partnership (§ 213*) — The Relation — Admission of Existence of Partnership.</p> <p>The failure of defendants, sued as partners, to deny such partnership under oath in their answer, is by force of statute equivalent to admission of such partnership, precluding evidence to the contrary.</p> <p>[Ed. 'Note. — For other cases, see Partnership, Cent. Dig. §§ 408, 409; Dec..Dig. § 213.*]</p>

<p>1. Assignments (§§ 4, 34, 94*) — Validity— Effect — Debt Having Potential Existence.</p> <p>While equity will recognize a verbal assignment of a debt having only potential existence, a municipality which advhnced money to-a contractor for work yet to be done is not liable to one having a verbal assignment of the-proceeds of such work, where the contracto!' took the advance and abandoned work altogether.</p> <p>[Ed. Note. — For other eases, see Assignments,. Cent. Dig. §§ 6, 67-71, 162-165; Dec. Dig. §§ 4, 34, 94.*]</p> <p>2. Assignments (§ 94*) — Violation of Con-tbacts — Rights of Assignee.</p> <p>One to whom a paving contractor made art assignment of the amount due on work yet to-be performed cannot complain that the city made advances on the contract contrary to its-provision; the contractor having abandoned-work altogether, for only a party to the contract could object to its violation.</p> <p>[Ed. Note. — For other cases, see Assignments. Cent. Dig. §§ 162-165; Dec. Dig. § 94.*]</p>

<p>1. Fraud (§ 54*) — Deceit—-Recommendation fob Credit.</p> <p>Where defendant V. represented his co-defendant W. to plaintiff as an upright man to whom credit could be safely extended, evidence that, soon after plaintiff sold goods to W. on credit, on the faith of such representations he discovered that he was an inebriate and had a reputation of being a bad paymaster, and that these facts were known to V. when he recommended him to plaintiff, was admissible to sustain plaintiff’s contention that W. was an irresponsible character at the time of the purchase.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent Big. §§ 50, 51; Dec. Dig. § 54.*]</p> <p>2. Fraud (§ 13*) — Deceit—Recommendation for Credit.</p> <p>In an action for deceit in recommending an irresponsible person for credit, an instruction that if the representations were made as alleged, were material in inducing plaintiff to sell the good? to W., were false, were made by defendant V. with the intention of inducing the sale, and plaintiff acted on the representations made, and so acting was damaged, he was entitled to recover, was not objectionable for failure to require that V. knew that the representations were false, or by the exercise of reasonable diligence could have known their falsity, since his liability did not depend on such knowledge if he made false representations without knowing whether they were true or not.</p> <p>[Ed. Note. — For other eases, see Fraud, Cent. Dig. §§ 3-5; Dec. Dig. § 13.*]</p>

M. Brumfield, Judge. Action by Armitt West against the Kansas City, Mexico & Orient Railway Company and another. From a judgment for plaintiff and against the defendant named, it appeals.

C. Roberts, Judge. Action by H. Y. Lively against the American Exchange National Bank of Dallas, which impleaded the Guaranty State Bank & Trust Company and another. There was a judgment for plaintiff against the first-named defendant and a judgment over in favor of such defendant against the im-pleaded defendants, and the latter appeal.

<p>Appeal from District Court, Dallas County ; Kenneth Foree, Judge.</p> <p>Action by Fannie B. Bingham against Reese Bingham. Judgment for plaintiff, and defendant appeals.</p>

<p>1.Quieting Title (§ 10*) — Title to Support Action — Adverse Possession.</p> <p>Where the petition, in an action to quiet title, asserted a good cause of action based upon title under the 10-year statute of limitations, a general demurrer to it was properly overruled.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. §§ 36-42; Dec. Dig. § 10.*]</p> <p>2. Adverse Possession (§ 33*) — Evidence-Deeds.</p> <p>On the issue of title by adverse possession, deeds of married women, which were ineffective because not acknowledged as required by law, were admissible in evidence to shed light upon the nature of the possession of the grantees.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 134, 135; Dec. Dig. § 33.*]</p> <p>3. Appeal and Error (§ 1050*) — Harmless Error — Admission oe Evidence.</p> <p>The admission in evidence of a bond for title in an action to recover land was harmless, where the result of the trial would not have been different had it been excluded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4157, 4166; Dec. Dig. § 1050.*]</p> <p>4. Adverse Possession (§ 85*) — Evidence— Admissibility — Deeds.</p> <p>Deeds, whereby the grantors undertook to convey to others at least one-half of the entire tract of land sought to be recovered, were admissible in evidence as tending to show that grantors intended their possession to be adverse to every one, including their cotenant.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 498-503, 656, 657, 660, 668; Dec. Dig. § 85.*]</p> <p>5. Tenancy in Common (§ 15*) — Evidence-Sufficiency.</p> <p>Evidence, in an action to recover land, held sufficient to show ouster of a cotenant and to establish an open, notorious, and adverse possession sufficient to establish title in plaintiffs under the 10-year statutory limitation.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Diec. Dig. § 15.*]</p> <p>6. Tenancy in Common (§ 15*) — Adverse Possession — Notoriety oe Possession.</p> <p>Possession and assertion of exclusive ownership may be so notorious and long continued as to constitute notice of adverse possession to a cotenant, though there is no actual notice thereof given the cotenant.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dee. Dig. § 15.*]</p> <p>On Motion for Rehearing.</p> <p>7. Adverse Possession (§ 47*) — Interruption oe Possession — Claim by Owner.</p> <p>The mere assertion by the owner of a claim to land adversely held, not made by suit against the adverse holder, will not prevent the statute of limitations from running.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 234, 235; Dec. Dig. § 47.*]</p> <p>8. Tenancy in Common (§ 15*) — Adverse Possession — Notice to Cotenant — Recorded Deed.</p> <p>A recorded deed to a portion of a tract of land, together with the grantors’ continued possession of the remainder of the tract, was notice to a cotenant of the grantors that they were asserting adverse claim to the entire tract, and made their possession open, notorious, and adverse as to the cotenant.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.*]</p>

<p>1. Executobs and Administrators (§ 3*)— Necessity eob Administration — Exempt Pbopebty.</p> <p>Where the only property of an intestate is exempt, no necessity for administration exists.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 3-14%; Dec. Dig. § 3.*]</p> <p>2. Death (§ 8*) — What Law Governs.</p> <p>Where a cause of action for the death of a servant of a railway company arose in the territory of New Mexico, the Federal Employers5 Liability Act (Act April 22, 190-8, c. 149, 35 Stat. 65 [U. S.- Comp. St. Supp. 1911, p. 1322]) governs wherever it is in conflict with the territorial laws.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 12, 36, 52, 121, 133; Dec. Dig. § 8.*]</p> <p>3. Death (§ 8*) — What Law Governs.</p> <p>Where a servant of a railway company was killed while engaged in interstate commerce, the Federal Employers’ Liability Act (Act April 22, 1908, e. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]) governs the cause of action for his injuries.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 12, 36, 52, 121, 133; Dec. Dig. § 8.*]</p> <p>4. Death (§ 35*) — 'Wrongpul Death — Jurisdiction.</p> <p>The right of action for the wrongful death of an employé, though given under the statute of a foreign state, is transitory and goes with the person having the right of action, and it may be enforced in the courts of the local forum unless contrary to their public policy.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 50; Dec. Dig. § 35.*]</p> <p>5. Death (§ 31*) — Wrongful Death — Persona!, Representatives — Who Aee.</p> <p>Under the Federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), and Acts 31st Leg. (1st Ex. Sess.) c. 10, both of which give a cause of action to the personal representative of an employs who is killed through the negligence of the master, the term “personal representative” means executor or administrator.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 35, 37-46, 48; Dec. Dig. § 31.*]</p> <p>6. Executors and Administrators (§ 20*)— Appointment — Necessity oe Proceedings.</p> <p>No administrator of an intestate can be appointed in the absence of administration proceedings.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 83-105; Dec. Dig. § 20.*]</p> <p>7. Executors and Administrators (§ 13*)— Appointment — Power op Probate Court.</p> <p>Under Const, art. 5, § 16, providing that the county court shall have general jurisdiction of the probate court to grant letters testamentary and of administration, and to transact all business appertaining to the deceased person, and Rev. St. 1895, art. 1840, conferring the same powers on that court, the county court, in the exercise of its probate jurisdiction, is a court of general jurisdiction and has power to grant letters of administration in all cases where the general object of the state’s system of probate law may require it.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 26; Dec. Dig. § 13.*]</p> <p>8. Executors and Administrators (§ 12*)— Appointment — Power op Probare Court.</p> <p>Where, through negligence of his employer, a railroad employs was killed in New Mexico leaving a wife and children resident in Texas, and the Federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), as well as Comp. Laws N. M. 1897, § 3214, and Acts 31st Leg. (1st Ex. Sess.) c. 10, give a right of action for wrongful death to the personal representative of such deceased person for the benefit of the surviving widow or husband and children of such employé, held, that a right of action which was controlled by the federal statute was transitory, and administration might be had in Texas, although the deceased left no property subject to administration save the cause of action.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 24; Dee. Dig. § 12.*]</p>

<p>1 Corporations (§ 71*) — Powers—Preferred Stock — Issuance—Creditors.</p> <p>There being no statute authorizing a corporation to issue preferred stock, the corporation could not issue such stock, so as to make the rights of the owners superior to the rights of creditors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 447; Dec. Dig. § 71.*]</p> <p>% Corporations (§ 156*) — Preferred Stockholders — Rights.</p> <p>In the absence of a statutory or contract provision, the holders of preferred stock in a corporation are in the same position as to the corporation itself and as to creditors as the holders of common stock, except that they are entitled to stipulated dividends before any dividends are paid to the holders of common stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 581-583, 593-603; D'ee. Dig. § 156.*]</p> <p>3. Corporations (§ 156*) — Preferred Stock —Rights of Holders.</p> <p>A Texas corporation issued preferred stock entitled to a preferred dividend of 8 per cent., and to share equally with the common stockholders in ali dividends after a similar dividend bad been earned and paid on the common stock. It also provided that, if the company should fail for two years to declare and pay dividends on the preferred stock of at least 8 per cent., the owners at their objection might mature the shares into an obligation of the corporation to pay on demand the par value thereof, together with interest at 8 per cent, from August 10, 1907, provided that the corporation should be then entitled to be credited with all dividends declared and paid on the stock. The preferred stock had no voting power, and the company was also given the option after the aggregate dividends paid thereon amounted to 100 per cent, to retire the shares at par. Held, that the holders of such stock were stock holders, and not creditors, and, on default of dividends, could not, by electing to mature the shares, be-’ come a creditor entitled to share in the assets of the corporation with or in advance of other creditors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 581-583, 593-603; Dec. Dig. § 156.*]</p>

<p>1. Cancellation op Instruments (§ 37*)— Petition — Sufficiency.</p> <p>In an action to rescind a lease on the ground that the premises were leased for use as a meat market and that the parties were mutually ignorant of the existence of a city ordinance forbidding meat markets in that part of the city, a petition, which shows that the lessee had no other occupation, and that the lessor would not permit him to sublease the premises, is not demurrable because it does not allege that the lessee was ready and willing to perform the contract.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-80: Dec. Dig. § 37.*]</p> <p>2. Landlord and Tenant (§ 28*) — Rescission — Grounds.</p> <p>That a lessor, who was the attorney for the lessee, knew that the leased premises were to be used as a meat market, and represented to the lessee that such occupation could be carried on there, when- in fact it was forbidden by city ordinance, is a ground for rescission, although the lessee agreed in the lease to use the premises for legitimate purposes only.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 82^84; Dec. Dig. § 28.*]</p> <p>3. Municipal Corporations (§ 122*) — Ordinances — Pleading.</p> <p>An allegation that a city ordinance was a valid ordinance legally passed and adopted was sufficient, without alleging the details of its adoption necessary to make it a valid ordinance.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 281-289; Dec. Dig. § 122.*]</p> <p>4. Landlord and Tenant (§ 29*) — Lease-Effect of Illegality — Denial of Relief.</p> <p>Where a lessor, who was the attorney for the lessee, knew the use to which the lessee intended to put the premises and told him that he would protect him if anybody bothered him, and the lessee relied on the lessor’s superior knowledge of the law, and did not know that such use of the premises would be illegal until he was arrested for violating a city ordinance, the violation of the ordinance is not available to the lessor as a defense to an action for 'rescission, since even if the contract is illegal, and both parties equally guilty, equity will grant a rescission, although it would not grant any relief in affirmance of the contract.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 85; Dec. Dig. § 29.*]</p> <p>5. Municipal Corporations (§ 720*) — Ordinances — Validity.</p> <p>Under a provision of a city charter authorizing the city council to erect and maintain market houses and regulate everything relating to butchers, an ordinance prohibiting the establishment of meat markets within six blocks of the city market house is valid.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1536-1541; Dec. Dig. § 720.*]</p> <p>6. Evidence (§ 413*)! — Parol Evidence to Vary Writing.</p> <p>Testimony that a lessor advised the lessee that the use to which he intended to put- the premises was a legitimate business, and that he would protect him from any one disturbing him, was not incompetent as varying the terms of the lease by which the lessee agreed not tc engage in any illegitimate business.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§'1855-1857, 1859, 1860; Dec. Dig. § 413.*]</p> <p>7. Municipal Corporations (§ 720*) — Ordinances — Construction.</p> <p>Where a city ordinance prohibits the establishment of a meat market within six blocks of the city market house, another ordinance authorizing the council to grant the right of establishing, in any designated locality of a city, stalls for the vending of meat, must be construed as embracing all of the city except that portion to which the first ordinance applies.</p> <p>[Ed. Note. — For other cases, see Municipa1 Corporations, Cent. Dig. §§ 1536-1541; Dec Dig. § 720.*]</p> <p>8. Licenses (§ 22*) — Proceedings to Pro cure.</p> <p>An application for a permit to establish a meat market addressed to a city council i« properly filed with the city clerk.</p> <p>[Ed. Note. — For other cases, see Licenses. Cent. Dig. §§ 57-59; Dec. Dig. § 22.*]</p> <p>9. Trial (§ 260*) — Instructions —Matter Covered by Other Instructions.</p> <p>Refusal to give an instruction requested by defendant is not error, where another instruction covering the same matter was given in the language requested by defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>10. Landlord and Tenant (§ 34*) — Lease-Rescission— Conditions Precedent.</p> <p>The rescission of a lease of premises for use as a meat market, on the ground that a city ordinance prohibited the establishment of meat markets at that place, is not defeated by the lessee’s failure to apply for a permit, where the evidence showed that permits for meat markets in that part of the city were never granted.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 97; Dec. Dig. § 34.*]</p> <p>11. Contracts (§ 93*) — Right to Cancella-tio n — Mistake.</p> <p>Where a party to a contract was unintentionally misled to his disadvantage by the other party, in whom he reposed confidence, equity will set aside the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 415-419; Dee. Dig. § 93.*]</p> <p>12. Contracts (§ 93*) — Rescission—Mistake. Although equity will not usually relieve</p> <p>against a contract for mistake of law, mistakes of persons as to their own private rights and liabilities may be regarded as mistakes of fact, and, when brought about by some one possessed of superior knowledge or in whom trust was reposed, equity will intervene.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 415-419; Dec. Dig. § 93.*]</p> <p>13. Contracts (§ 93*) — Validity—Mistake. Where one of the parties to a contract was</p> <p>an attorney on whose legal knowledge the other party relied, a relation of trust and confidence (was shown justifying relief against a mistake of law, although no close relation between the parties, matured by many transactions, was shown.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 415-419; Dec. Dig. § 93.*]</p>

<p>1. Carriers (§ 417*) — Sleeping Car Companies — Negligence — Loss of Passenger’s Effects.</p> <p>In an action for loss of a passenger’s effects stolen from a sleeping ear window, evidence held sufficient to sustain a verdict for plaintiff on the ground that defendant was negligent in permitting the berth window to be open between the window and the screen.</p> <p>[Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 1590-1600; Dec. Dig. § 417.*}</p> <p>2. Carriers (§ 417*) — Sleeping Car Companies — Passenger’s Effects — Larceny—Evidence.</p> <p>In an action against a sleeping car company for loss of a passenger’s effects stolen from a sleeping car window alleged to have been, negligently left open at a station, evidence that defendant’s servants had knowledge that stealing from the cars had been going on in that neighborhood was relevant to the issue of the degree of care required of such servants to protect the property of the passengers, though not alleged.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. § 417.*]</p> <p>S. Negligence (§ 119*) — Instructions.</p> <p>In an action for negligence it is not error to fail to expressly limit the negligence to that alleged in the petition.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 200-216; Dee. Dig. § 119.*]</p> <p>4. Carriers (§ 417*) — Sleeping Car Companies — Passenger’s Effects — Larceny — Contributory Negligence.</p> <p>In an action for larceny of the effects of a sleeping car passenger stolen from an open car ■window as the train was stopping at a station, evidence hold to entitle defendant to an instruction submitting the issue of plaintiff’s contributory negligence, based on his knowledge that the window of his berth was open with a space between the sash and the screen.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. § 417.*]</p> <p>5. Carriers (§ 417*) — Sleeping Oar. Companies — Passenger’s Effects — Loss—Negligence.</p> <p>Where plaintiff’s effects were stolen out of a sleeping car berth through an open window, an instruction that if a man stood on the rods outside the car and reached through the open window into the berth and snatched plaintiff’s effects, and defendant at the time had an employe on watch inside the car and under the circumstances that was reasonable care on defendant’s part, the verdict should be for defendant was properly refused.</p> <p>[E'd. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. § 417.*]</p> <p>6. Carriers (§ 417*) — Sleeping Car Companies — Thefts — Prevention — Reasonable Care.</p> <p>In an action for loss of a sleeping car passenger’s effects by larceny from the car window, a charge that defendant was not_ only hound to furnish plaintiff a 'berth for his accommodation, but to keep watch and take reasonable care that he suffered no loss, and if plaintiff’s loss was occasioned by want of such care, and his own negligence did not contribute to it, he was entitled to recover, was improper as imposing an absolute duty on the_ sleeping car company to maintain a watch against theft from the outside; whether such watch was essential to the exercise of ordinary care being for the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. § 417.*]</p>

<p>1. Sales (§ 384*) — Contracts—Breach by Buyer — Damages.</p> <p>A buyer of cattle to be taken by the seller from a ranch to a pasture to enable the buyer to select the cattle desired, who notifies the seller that he will not take the cattle, is not relieved from liability for damages sustained by the seller, except such damages as could have been prevented by the seller reasonably exerting himself to prevent damage, and the seller must exercise ordinary care to prevent injury after such notice, but his failure to do so will not deprive him of such damages as may have been suffered prior to such notice.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig..§ 384.*]</p> <p>2. Principal and Agent (§ 147*) — Existence of Relation.</p> <p>Where a third person had never represented a buyer as agent, and was only agent for a particular trade, the mere fact that the third person was with the buyer the first time he looked at cattle does not raise an inference of agency justifying the seller to treat the third person as agent for the buyer in making a contract of sale, and, where the third person refused to use the buyer’s name in making the contract, the seller was put on notice that the third person’s authority was special, so that the seller was required to ascertain, not only the fact of the third person’s agency, but also the extent of his authority.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 528-533; Dec. Dig. § 147.*]</p> <p>3. Principal and Agent (§ 148*) — Acts of Agent.</p> <p>A person dealing with an agent, and’ relying solely on his representations, is not entitled to notice of the limitations on the power of the agent, but, where an agent is apparently clothed with full authority, the principal is bound by the act of the agent done within the scope of such apparent authority in dealing with an innocent third person.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 534-552; Dec. Dig. § 148*.</p> <p>4. Evidence (§ 471*) — Opinion Evidence— Conclusion of Witness.</p> <p>Where the issue was whether a third person was the agent for defendant or for plaintiff, the testimony of the third person as to what party he acted for was objectionable, as calling for a conclusion on a mixed question of law and fact.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>5. Witnesses (§ 374*) — Impeachment—Admissibility.</p> <p>Where, in an action on a contract for the sale of cattle, the issue was whether a third person was the agent for plaintiff, the seller, or for defendant, the buyer, and the third person as a witness for plaintiff testified that he was authorized by defendant to make the contract, but was not authorized by plaintiff to do so, and defendant testified that the third person was not authorized to make the contract, declarations by the third person that he had plaintiff’s cattle for sale and would recover a commission for selling them, and that he had sold the cattle to defendant and would divide the commission with another, were admissible to affect the credibility of the third person as a witness, but not to establish agency.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.*]</p>

<p>Appeal from District Court, El Paso County ; A. M. Walthall, Judge.</p> <p>Action by Max Schütz and another against W. J. Harris and others. Judgment for defendants, and plaintiffs appeal. -</p>

<p>1. Judgment (§ 714*) — Conclusiveness.</p> <p>A judgment in an action for 150 acres which, so far as it affects a defendant, is only a judgment of dismissal, and which is a default judgment against a codefendant, and which does not' define the boundaries of the 150 acres, does not estop defendant from relying on limitations in a subsequent action for a tr^ct included within the 150 acres.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1240, 1242, 1243; Dec. Dig. § 714.*]</p> <p>2. Boundabies (§ 37*) —Evidence — Sufficiency.</p> <p>In an action to recover land, evidence held to support a finding that the land was within the boundaries of a designated league, and hence within boundaries described in deeds under which defendant claimed.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184r-194; Dee. Dig. § 37.*]</p> <p>3. Trespass to Try Title (§ 35*) — Issues.</p> <p>Where a plaintiff, suing to recover land, described the land and did not seek the recovery of any land west thereof, the fact that defendant inclosed and claimed land west of the described land was immaterial.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dee. Dig. § 35.*]</p> <p>4. Trial (§ 234*) — Instructions—Burden of Peo of.</p> <p>Where plaintiff, suing for land, alleged that there was an offset in a line, while the field notes called for a straight line, and the court charged that where the calls are for a straight line the party claiming an offset has the burden of proving it, and that if there was an offset plaintiff could recover, a charge, that the fact that the line was to be a straight line could not control in ease it was shown to the satisfaction of the jury by preponderance of the evidence that the line was not in fact a straight line when originally located on the land, was not objectionable as placing too great a burden on plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534-538, 566; Dec. Dig. § 234.*]</p> <p>5.Trespass to Try Title (§ 16*) — Title of Plaintiff — Evidence.</p> <p>Where, in an action for the recovery of land, defendant showed a good paper title to lahd included in the boundaries of a designated league, and the land in dispute was within such league, he was entitled to recover without reference to his plea of limitation.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 20, 23; Dee. Dig. § 16.*]</p> <p>6.Adverse Possession (§ 106*) — Possession Under Deed.</p> <p>A possession of land by a grantee ripens into title under the 10-year statute of limitation, where such possession continues for 10 years and the land is within the limits of a deed under which he claims.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 604-623; Dec. Dig. " 106.*]</p> <p>On Motion for Rehearing.</p> <p>7. Appeal and Error (§ 1064*) — Harmless Error — Erroneous Instructions.</p> <p>Where, in an action to recover land, the undisputed evidence showed that defendant acquired title under the 10-year statute of limitations, the error in an instruction on the subject of the 3-year statute of limitation, also pleaded, was not prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error,^Cent Dig. §§ 4219, 4221-4224; Dec.*</p>

Munroe, Judge. Action by I. J. Nathan and others against T. J. Freeman, receiver of the International & Great Northern Railroad Company. Judgment for plaintiffs, and defendant appeals.

<p>1. Master and Servant (§ 286*) — Injury to Servant — Negligence—Evidence.</p> <p>In an action for injuries to an employé in a railroad roundhouse by falling into a turntable pit, evidence held not to support a finding of negligence in failing to have the turntable lined up for the main track at the time of the accident.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]</p> <p>2. Trial (§ 191*) — Instructions—Assuming Facts.</p> <p>Where, in an action for injuries to a railroad roundhouse employé by falling into a turntable pit, the only issue of negligence was whether the railroad company maintained sufficient light on its premises to enable the em-ployé in the discharge of his duties to see the turntable and the pit when approaching them, a charge that, if the premises were sufficiently lighted to enable persons moving about them to see the turntable and pit when approaching them, the employé could not recover, was not objectionable as assuming that the employé was guilty of contributory negligence as a matter of law, or that he assumed the risk.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dee. Dig. § 191.*]</p> <p>3. Trial (§ 244*) — Instructions—Singling Out Facts.</p> <p>The charge was not objectionable as singling out one fact, and giving undue prominence thereto.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]</p> <p>4. Trial (§ 229*) — Conflicting Instructions.</p> <p>An instruction in an action for injuries to an employé in a railroad roundhouse who fell into a turntable pit that, if the railroad company had exercised ordinary care to have the premises sufficiently lighted at the time of the accident, there could be no recovery by reason of the premises being dark, and an instruction that, if the premises were sufficiently lighted to enable persons moving about to see the turntable and pit in approaching; the same, there could be no recovery, submitted distinct defenses, and correctly stated the law-</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229.*]</p> <p>5. TRIAL (§ 229*) — CONFLICTING INSTRUCTIONS.</p> <p>An instruction in an action for injuries to an employs in a railroad roundhouse who fell into a turntable pit that if the • railroad company supplied its employés torches and oil, and the employs failed to use a torch, and such failure was negligent, and the sole cause of his injuries, there could be no recovery, and an instruction that if the employs failed to make use of the torches, and such failure contributed to the injuries, he could not recover the entire damages sustained, but the jury must apportion the damages between him and the company in proportion to the negligence of each, were not misleading, as presenting the same defense, but correctly stated the law.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 613; Dec. Dig. 229.*]</p> <p>6. New Trial (§§ 107, 108, 102*) — Grounds-^Newly Discovered Evidence.</p> <p>A party seeking a new trial on the ground of newly discovered evidence must show that the failure to have the evidence at the trial was not due to his want of diligence, and that the newly discovered evidence is probably true, and will probably lead to a different result on another trial.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 226, 226, 227, 207, 210-214; Dec. Dig. §§ 107, 108, 102.*]</p> <p>7. Appeal and Error (§ 981*) — Discretion op Trial Court — New Trial — Newly Discovered Evidence.</p> <p>Granting of a new trial on the ground of newly discovered evidence is largely in the discretion of the trial court, and, in the absence of an abuse of discretion, its action will not he disturbed by an appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3876; Dec. Dig. § 981.*]</p>

<p>Railroads (§ 465*) — Fires—Destruction of Building — Contributory Negligence.</p> <p>Where a fire set out by a railroad burned the buildings of N. which adjoined the railroad right of way, and such fire was communicated from those buildings to the building of plaintiff, which was also consumed, the contributory negligence of N., if any, would constitute no bar to a recovery by plaintiff for the damage sustained by him on account of the railroad company’s negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1690-1693; Dec. Dig. § 465.*]</p>

M. Walthall, Judge. Action by Henry Welch and others against W. B. Ware and others. From an interlocutory order granting a temporary injunction, defendants appeal.

<p>Error from District Court, McLennan County; Marshall Surratt, Judge.</p> <p>Action by F. W. McMillen against the City of Mart. Judgment for plaintiff, and he brings error.</p>

<p>1. Bills and Notes (§ 377*) — Rouged Notes —Statutes.</p> <p>A forged note is void, even in the hands of an innocent purchaser, and is not governed by the statutes applicable to paper “negotiable or assignable by law.”</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 952;, Dec. Dig. § 377.*]</p> <p>2. Bills and Notes (§ .301*)— Forgeky — Notice — Necessity.</p> <p>A holder of a note on discovering that, it was forged must give his transferrer notice thereof within a reasonable time.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 706-721; Dec. Dig. § 301.*]</p> <p>3. Bills and Notes (§ 516*) — Forgery—Notice— Evidence — Sufficiency.</p> <p>Evidence held to sustain a finding that defendant received notice of forgery of a note, an interest in which he had transferred to plaintiff, within a reasonable time after plaintiff discovered the forgery.</p> <p>[Ed. Note. — For other cases, see • Bills and Notes, Cent. Dig. §§ 1800-1806; Dec. Dig. § 510.*]</p> <p>4. Bills and Notes (§ 301*) — Forgery—Action by Transferee — Return of Note-Necessity.</p> <p>A transferrer of an interest in a forged note was not released from liability to the transferee on discovery of the forgery because the transferee failed to return the note to him, where it had remained in the custody of one -of the payees.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 706-721; Dec. Dig. § 301.*]</p>

<p>1. Trial (§ 25*) — Right to Open and Close.</p> <p>Where, in an action on a note, defendant admitted in his answer that plaintiff could recover unless defeated in whole or in part by matters alleged in the answer, defendant was entitled to open and close.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 44r-75; Dec. Dig. § 25.*]</p> <p>2. Bills and Notes (§ 476*) — Failure op Consideration — Pleading.</p> <p>A plea in an action on a note executed by defendant and made payable to the order 0£ plaintiff and a third person, and owned by plaintiff, which alleges that the note was procured on a promise that it was not to be payable until plaintiff and the third person had delivered to defendant an itemized statement of funds collected and disbursed, constituting a fund subscribed by defendant and others to secure the location of a railroad and depot, and that, unless the itemized statement showed that it was necessary for defendant to pay the note to reimburse plaintiff and the third person for payments to secure the location of the railroad and depot, the note should not be collectible, and that plaintiff and the third person refused to furnish the itemized statement, relieving defendant from liability, sufficiently pleads a failure of consideration as against a general demurrer, though it is obnoxious to a special exception.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1519-1521, 1523, 1557; Dec. Dig. § 476.*]</p> <p>3. Bills and Notes (§ 478*) — Defenses— Conspiracy to Extort Money-*-Pleading.</p> <p>A plea in an action upon a note that it was given for an illegal consideration and in furtherance of an agreement and confederation between the payees and third persons to extort money from defendant and others on obligations similar to the note in issue is too general as against a special exception.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 1522; Dec. Dig. § 478,*]</p> <p>4. Bills and Notes (§ 501*) — Actions—Ev-iden oe — Admissibility .</p> <p>Where in an action on a note executed by defendant, and payable to the order of plaintiff and a third person, and owned by plaintiff, defendant pleaded a general denial and alleged that the note was without consideration, and was given on a promise that it was not collectible until plaintiff and the third person should deliver an itemized statement of funds collected and disbursed to secure the location of a railroad and depot, nor unless the itemized statement showed that it was necessary for defendant to pay the note to reimburse the payees for payments made to secure the location of the railroad and depot, and that no itemized statement had been furnished, the exclusion of evidence that certain citizens other than plaintiff and the third person were solvent and able to guarantee the bonus required by the railroad company was proper.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1698-1707; Dec. Dig. § 501.*]</p> <p>5. Evidence (§ 397*) — Parol Evidence — Varying Written Contract.</p> <p>An unambiguous written contract cannot be varied by parol evidence.</p> <p>[Ed. Note. — For other cases, see Evidence. Cent. Dig. §§ 1756-1765; Dec. Dig. § 397.*]</p> <p>6. Evidence (§ 444*) — Bills and Notes— Parol Evidence.</p> <p>A note in the usual form and payable on demand may not be varied by a parol agreement that it should not be payable except on the happening of a contingency not mentioned in the note.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944, 2049; Dec. Dig. § 444.*]</p> <p>7. Bills and Notes (§ 518*) — Failure of Consideration — Evidence.</p> <p>In an action on a note executed by defendant, and payable to the order of plaintiff and a third person, and owned by plaintiff, the-proof of defendant proved that there was an agreement between the representatives of a railroad company and the citizens of a town to secure the location of a town site and depot at that town, that the note was executed for the benefit of the company to raise a fund to pay for 300 acres desired by it for a town site, and that plaintiff and the third person acted in the capacity of trustees for the citizens who subscribed to the fund, and that they had already collected sufficient funds to pay for the 300 acres and complied with the demands of the company, showed a failure of consideration of the note.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1816-1820; Dec. Dig. § 518.*]</p> <p>8. Bills and Notes (§ 493*) — Failure of Consideration — Burden of Proof.</p> <p>A maker alleging failure of consideration of the note has the burden of alleging and proving facts showing failure of consideration.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1652-1662; Dec. Dig. § 493.*]</p> <p>9. Bills and Notes (§ 92*) — Consideration.</p> <p>A note executed to induce the' payee to ■ enter into a written contract, afterwards made, by which he obligated himself to perform speei-, fled things, is supported by a sufficient consideration for the entire amount of the note, and the payee may collect the entire amount, regardless of whether he made or lost money as a result of his contract.</p> <p>[Ed. Note.' — For other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-205, 208-212; Dec. Dig. § 92.*]</p> <p>10. Payment (§ 59*) — Plea oe Payment — Necessity.</p> <p>In an action on a note, evidence of payment is inadmissible, in the absence of a plea of payment.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 143]4 Í Dec. Dig. § 59.*]</p>

<p>1. Logs and Logging (§ 3*)— Sales of Tim-bee — Construction of Contract.</p> <p>An instrument conveying all the timber of specified size on a certain tract of land, and providing that the timber should be removed within, six years from the date of the instrument, did not create an interest in the land, and the timber was forfeited by failure to remove it within the time provided, though the habendum and warranty clauses covered the “premises.”</p> <p>[Ed. Note. — For otilen cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p> <p>2. Sales (§ 149*) — Bill of Sale — Haben-dum and Warranty Clauses — Effect.</p> <p>The estate conveyed by a bill of sale is not enlarged by an inconsistent or repugnant habendum or warranty clause.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 349; Dec. Dig. § 149.*]</p>

<p>1. Appeal and Error (§ 1071*) — Failure op Trial Judge to File Conclusions — Harmless Error..</p> <p>The failure of the trial judge to file conclusions of law and fact as required by statute is not reversible error, where the record shows affirmatively that the failure resulted in no harm to the party complaining.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig.' §§ 4234 — 1239; Dec. Dig. § 1071.*]</p> <p>2. Appeal and Error (§ 1071*) — Trial — Failure to File Conclusions — Effect,</p> <p>Where the evidence was conflicting on the issue raised by a plea setting up a valid defense, the failure of the trial court, rendering judgment for plaintiff, to file conclusions of fact and law, was prejudicial error, since it might have found that the evidence supported the plea, and concluded that the plea constituted no defense.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dee. Dig. § 1071.*]</p> <p>3. Bills and Notes (§ 534*) — Actions—Attorney’s Fees.</p> <p>Whore notes stipulating for attorney’s fees were, after nonpayment at maturity, placed in the hands of an attorney for collection, and judgment was rendered on the notes, the amount of attorney’s fees recoverable was the specified per cent, of the amount of principal and interest due at the date of the judgment.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. § 534.*]</p>

M. Rieger, Judge. Action by the Martin Company against Van Nicholson and others. Judgment for plaintiff against J. A. Killain and in favor of the other defendants, and plaintiff appeals.

<p>Taxation (§ 494*) — 'Valuation—Detekmination of Value — Res Judicata.</p> <p>Whether property assessed for taxation has been undervalued cannot be determined by the courts; the action of the assessor and the commissioners’ court being res judicata.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 884r-S8S; Dec. Dig. § 494.*]</p>

<p>1. Appeal and Error (§ 882*) — Invited Error.</p> <p>Any error in submitting an issue not supported by evidence is not ground for reversal, where appellant obtained a special charge submitting the same issue.</p> <p>LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8591-3610; Dec. Dig. § 882.*]</p> <p>2. Trial (§ 260*) — Instructions — Matter Covered.</p> <p>Instructions substantially covered by those given are properly refused.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>1. Insurance (§ 437*) — Employer’s Indemnity Policy — Liability.</p> <p>Where a factory employs 13 years old was injured while at work at 7:30 p. m., in violation of Acts 28th- Leg. c. 28, providing that no child between the ages of 12 and 14 should be permitted to work outside the hours of 6 a. m. and 6 p. m., his employer could not recover on an indemnity policy, providing that the company should not be liable for injuries to persons employed in violation of law as to age.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 437.*]</p> <p>2. Insurance (§ 397*) — Employee’s Indemnity Policy — Estoppel.</p> <p>Where the act of the adjuster for an employer’s indemnity company in attempting to settle an employe’s claim for injuries did not mislead the insured employer or deprive it of any right which it had in the matter, the indemnity company was not estopped by such act from denying liability under the policy.</p> <p>[Ed. Note. — For_ other cases, see Insurance, Cent. Dig. §§ 1078-1082; Dec. Dig. § 397.*]</p>

<p>Appeal from District Court, Marion County; P. A. Turner, Judge.</p> <p>Action by B. C. Quinn against the Glenn dumber Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Fraudulent Conveyances (§ 28*) — Transfers by Insolvent.</p> <p>Where, prior to the levy of a writ of attachment against an insolvent debtor, he transferred the property to another creditor in satisfaction of a debt, and it did not appear that the property was reasonably worth more than sufficient for its satisfaction, the transferee was entitled to hold the property as against the attachment creditor.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 47, 48; Dec. Dig. § 28.*]</p> <p>2. Mechanics’ Liens (§ 245*) — Enforcement —Fórm of Remedy.</p> <p>(r»u.cj.c ¿naLutin. ucvbi nuu uur was exui-tied to the possession of property attached by him in an action for a debt, he could not, after failing to establish defendant’s ownership of the property, in that action enforce a laborer’s lien against the property.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 427-430; Dec. Dig. § 245.*] •</p> <p>3. Logs and Logging (§ 27*)—Person Entitled—“Laborer.”</p> <p>Where plaintiff contracted to haul logs at a specified rate per thousand feet, he was not entitled to a laborer’s lien; the word “laborer,” in Sayles’ Ann. Civ. St. 1897, art. 3339a, giving such lien, meaning one who labors with his hands for wages, and not including one who contracts for the hauling of lumber with his wagon and team.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 67-71; Dec. Dig. § 27.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 3952-3968; vol. 8, p. 7700.]</p>

T. Lyttleton, Judge. Action by Tom Hill and others against Patsy Noland and others. From a judgment sustaining a general demurrer to the petition, plaintiffs appeal. The court sustained a general demurrer to the petition, and the appeal is to revise the ruling. According to the petition Mack Noland died intestate and without any children, but left surviving him his wife, Patsy Noland, the appellee, and the appellants, who are his brothers and sisters.

<p>Mechanics’ Liens (§ 256*) — Persons Entitled to Contest.</p> <p>Where, in an action for a debt, plaintiff also sought to establish a laborer’s lien against property attached by him, if a claimant to such property, by filing the statutory oath and bond, was remitted to the proceeding under the statute to determine issues arising on the attachment lien, he was not thereby precluded from intervening in the case and contesting the enforcement of the laborer’s lien.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 450; Dec. Dig. § 256.*]</p>

Appeal fiom District Court, Travis County; Geo. Calhoun, Judge. Action by the Central Bank & Trust Company of Houston against T. H. Davis, as receiver of the Union Trust Company. Judgment for defendant, and plaintiff appeals, and defendant files cross-assignments of error.

W. Moore, Judge. Action by Landa & Storey against T. J. Freeman, receiver of the International & Great Northern Railroad Company and others. From a judgment for plaintiff against defendant the St. Louis, Iron Mountain & Southern Bailway Company, and in favor of codefendants, the defendant named appeals.

C. Buford, Judge. Action by Austin Boren against the Texas ■& Gulf Railway Company. From a judgment for plaintiff, defendant appeals. Appellee was a passenger on appellant’s passenger train en route from Gary to Carthage, Tex. This train, running north, reached the south end of appellant’s switch at Murvaul about 8 o’clock p. m. When the train reached the switch, the tender, engine, and front trucks of the mail car became derailed.

<p>Appeal from District Court, Rockwall County; F. L. Hawkins, Judge.</p> <p>Action by Oscar Horton against Rockwall County and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Landlord and Tenant (§ 115*) — CONSTRUCTION of Lease — Term.</p> <p>Where an owner refused to lease for a year, but told the tenant he could have the house until she needed it for her own use, which would not be till the next spring or summer, the lease was merely from month to month.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 391-394; Dec. Dig. § 115.*]</p> <p>2. Trial (§ 253*) — Instructions Ignoring Issues.</p> <p>In an action for rent and to recover the premises, where the evidence showed a renting from month to month, a special charge authorizing a general verdict for the defendant and ignoring the rents sued for was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>3. Appeal and Error (§ 1068*) — Harmless Error — Instructions.</p> <p>In an action by a landlord to recover possession and for rent, where the evidence showed a rental agreement from month to month, an instruction that, if defendant rented the premises for one year, he was entitled to a verdict, otherwise to find for plaintiff, if erroneous, was harmless where the evidence was such that the court might have properly directed a verdict for plaintiffs, and where, according to defendant’s own account, the period of his occupancy had éxpired.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p> <p>On Motion for Rehearing.</p> <p>4. Landlord and Tenant (§ 285*) — Action to Recover Rent — Effect of Finding.</p> <p>In a landlord’s action to recover the possession and rent alleged to be due, where defendant answered by exceptions, general denial, and a plea of not guilty, putting both the-title and the right of possession in issue, but the proof showed that defendant was only a tenant whose possession depended upon a rental contract, a finding that his term had not expired, while protecting his right of possession, would not absolve him from his liability for-rent.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1193-1197, 1199-1204; Dec. Dig. § 285.*]</p> <p>5. Trial (§ 253*) — Landlord’s Action for Rent — Trial—Instructions.</p> <p>In a landlord’s action for possession and for rent, where the answer put the plaintiff’s., title in issue, defendant’s requested charge that, if he rented the premises for the term of one year not then expired, judgment should be for him, was properly refused, since it ignored the issue of title.</p> <p>[Ed. Note. — For other cases, see Trial, Cent-Dig. §§ 1031-1033; Dec. Dig. § 253.*]</p> <p>6. Landlord and Tenant (§ 285*)— Landlord’s Action for Rent — Effect of General Verdict for Defendant.</p> <p>Where the pleadings in trespass to try title by a landlord to recover the premises and rent put the plaintiff’s. title in issue, a general verdict for the defendant would result in a. judgment in his favor for both the title and possession of the premises.</p> <p>[Ed. Note. — For other cases, see Landlord' and Tenant, Cent. Dig. §§ 1193-1197, 1199-1204; Dec. Dig. § 285.*]</p>

<p>Appeal from Knox County Court; J. H. Milam, Judge.</p> <p>Action by W. R. Moore against the Kansas City, Mexico & Orient Railway Company of Texas and others. Judgment for plaintiff,, and defendants appeal.</p>

<p>Appeal from Denton County Court; T. G. Milliken, Special Judge.</p> <p>Action by George Q. McGown against Cordelia Curtsinger. Judgment for plaintiff, and-defendant appeals.</p>

Q. Adamson, Judge. Action by tbe Botan Grocery Company against Jim Tatum, tbe Bledsoe-Birge Company, and others. Judgment for plaintiff against Jim Tatum and judgment for Bled-soe-Birge Company on their cross-action and in favor of tbe other defendants, and plaintiff appeals.

<p>1. Homestead (§ 96*) — Liens Enforceable Against.</p> <p>The homestead claim is inferior to a ven•dor’s rights to the unpaid purchase money.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. § 96.*]</p> <p>2. Homestead (§ 110*)— Conveyance — Pow-eb of Husband.</p> <p>Where a homestead is subject to a ven■dor’s lien, the husband may, in good faith, re- ■ convey it in satisfaction of the incumbrance, and such reconveyance will be binding on his wife, though her separate property paid part of the purchase price.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 176; Dec. Dig. § 110.*]</p> <p>.'3. Ejectment (§ 45*) — Pabties — Neoessaet Pasties.</p> <p>In ejectment against a husband, who with his family occupied lands, it is not necessary to make the wife a party defendant, in order to ■expel her under a judgment of ouster against the husband.</p> <p>[Ed. Note. — For other cases, see Ejectment, Cent. Dig. §§ 132, 138, 139; Dec. Dig. § 45.*]</p>

<p>Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.</p> <p>Action by D. B. Buttrill against J. F. Yates and others. From the judgment, defendants appeal.</p>

H. Arnold, Judge. Action to foreclose a vendor’s lien by E. A. Hill and another against J. M. Adams and others, in which defendant Adams prayed affirmative relief. Judgment for plaintiffs against defendant Adams, and he appeals.

<p>Appeal from District Court, Taylor County; TIios. L. Blanton, Judge.</p> <p>Action by Lonnie Morris Kelley by next friend against the Texas & Pacific Railway Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by J. V. Crannell against the Ft. Worth & Rio Grande Railway Company. From a judgment for plaintiff, defendant appeals.</p>

W. Cook, Special Judge. Action by J, B. March against J. H. Brown and others. From a judgment for plaintiff in the county court on appeal from a justice’s court, defendants appeal.

<p>Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.</p> <p>Suit by Stanley Kulawik against W. H. Murchison and others. Decree for complainant, and defendants appeal.</p>

<p>1. Trial (§ 251*) — Instructions — Applicability to Pleading.</p> <p>A charge presenting an issue of contributory negligence that was not raised by the pleadings is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>2. Master and Servant (§ 296*) — Pleading (§ 34*) — Injuries to Servant — Actions — Answer — Construction.</p> <p>In a personal injury action by the servant of a railroad company, the answer alleged that plaintiff violated a rule of the company in going upon the tracks at night without carrying with him a lighted lantern to enable those operating switch engines to ascertain his presence. Another special plea alleged that plaintiff took no precaution to guard against being' injured by a passing train or engine. Held, that the special allegation as to the lighted lantern governed that issue of contributory negligence, so that, in the absence of evidence of the rule, a charge on plaintiff’s contributory negligence in failing to carry a lighted lantern was properly refused.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296;* Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. § 34.*]</p> <p>3. Trial (§ 251*) — Instructions—Applicability to Pleadings.</p> <p>In a personal injury action against a railroad company, where the negligence set up by plaintiff was that he was run down by a switch engine which was running silently without lights, and without signals, a charge that, if plaintiff stepped upon the track so suddenly and within such a short distance of the engine that it was impossible for the operators to have ascertained his presence, verdict should be for plaintiff was properly refused, because disregarding the issues of negligence on defendant’s part.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>4. Trial (§ 253*) — Injuries to Servant-Contributory Negligence.</p> <p>While, under the Employés’ Liability Act of 1909 (Acts 31st Leg. [1st Ex. Sess.] c. 10), a railroad company is not liable for an injury to its employs which resulted wholly from the act of the employs, yet an instruction that, if the employS’s negligence was the proximate cause of the injury, then verdict should be for defendant was properly overruled, because barring a recovery, despite concurrent negligence of the employer.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dee. Dig. § 253.*]</p> <p>5. Trial (§ 255*) — Instructions — General Charge.</p> <p>In a personal injury action by an employs against a railroad company, an instruction that verdict should be for defendant, unless it was guilty of negligence which proximately contributed to the injury, is sufficient, in the absence of a proper request for a charge that the railroad company was not liable if the injury was solely the result of the employS’s negligence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255,*]</p> <p>6. Master and Servant (§ 264*) — Injuries to Servant — Actions—Variance.</p> <p>In a personal injury action by an employé against a railroad company, proof that the engine which caused the injury was running north instead of south, as was alleged in the petition, is an immaterial variance.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*]</p> <p>7. Appeal and Error (§ 742*) — Review—Assignments op Error — Statements.</p> <p>Where the only statement supporting am assignment of error merely referred to the statements under numerous other assignments of error which included evidence which was-not pertinent, the assignment cannot be re-, viewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>8. Trial (§ 194*) — Instructions—Weight op Evidence.</p> <p>In a personal injury action against a railroad company, a charge that if plaintiff was not struck and injured by defendant’s engine, or, if struck and injured, if the accident was not caused by any negligence of defendant in failing to furnish proper light, keep a lookout, or give warning, judgment should be for defendant, when followed by another charge submitting those issues, is not -erroneous as on the weight of the evidence in telling the jury that the defendant had failed to furnish proper light.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p>

<p>1. Navigable Waters (§ 20*) — “Navigable Stream’ ’ — Obstruction—Rafting.</p> <p>Where a stream had been generally used for a long time as a means of rafting logs, it was a navigable stream, so as to make wrongful the construction of a railroad bridge which interfered with such rafting, though the upper portion of the stream could only be used for such purposes at flood time, usually twice a year, and for two or three years there had been a scarcity of water for rafting.</p> <p>[Ed. Note. — Por other cases, see Navigable Waters, Cent. Dig. §§ 73-99; Dee. Dig. § 20.*</p> <p>Por other definitions, see Words and Phrases, vol. 5, pp. 4675-4684; vol. 8, p. 7728.]</p> <p>2. Trial (§ 260*) — Instruction—“Navigable Stream” — Raeting.</p> <p>The court’s instruction, in an action for the obstruction of a stream so as to interfere with the rafting of logs, that a navigable stream is one capable of being used at all times or periodically during the year for times long enough to make it susceptible of beneficial use to the public as a means of transportation, sufficiently defined a “navigable stream” for the purpose of the case, and defendant’s requested instruction upon the same matter was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>3. Navigable Waters (§ 26*) — Navigable Stream — Obstruction—Evidence.</p> <p>In an action for obstructing a stream so as to interfere with the rafting of logs, evidence that rafting had not proved profitable to some parties engaged in the business was properly excluded; the beneficial value of the stream as a means of transportation not depending upon the success of the business ventures of those so using it.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 133-166; Dec. Dig. § 26.*]</p> <p>A Navigable Waters (§ 26*) — Obstruction —Loss oe Logs — Measure oe Damages.</p> <p>Where a railroad bridge so obstructed a stream as to cause logs which were being rafted to become so jammed that it was necessary to tear up the rafts, and where as a result of this and the delay occasioned the logs were scattered and eventually lost, and it was impossible to determine the exact place of the loss of each log, the measure of damages for the logs lost was their market value at their intended destination downstream, less what it would have cost their owner to have gotten them there, and not their market value at the place where they became lost.</p> <p>[Ed. Note.' — For other cases, see Navigable Waters, Cent. Dig. §§ 133-166; Dec. Dig. § 26.*]</p> <p>5. Damages (§ 1*) — Measure.</p> <p>Compensation for the loss sustained is the test of the soundness of any rule as to the measure of damages for loss or injury to property.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>6. Damages 105*) — Loss oe Property-Market Value.</p> <p>The market value of logs was the amount which buyers generally agreed to pay at the time and place in question, though all logs then being sold at that place were sold on 30, 60, and 90 days’ time and not for cash.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 266-271; Dee. Dig. § 105.*]</p> <p>7. Navigable Waters (§ 26*) — Navigable Stream — Obstruction — Instruction — Damages.</p> <p>In an action for the loss of logs caused by the obstruction of the navigable stream in which they were being rafted, an instruction that the jury, in-estimating damages, could consider the total value of all the logs that would have gotten to their intended destination but for the obstruction, was not open to the objection that it authorized the jury to consider the value of any logs lost by any other cause than from the obstruction.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 133-166; Dec. Dig. § 26.*]</p> <p>8. Najvigable Waters (§ 26*) — Navigable Stream — Obstruction — Damages — Interest.</p> <p>Where, by reason of the obstruction of a navigable stream by a railroad bridge, a. timber owner lost logs which he was rafting to market, he was entitled as a part of his damages to interest upon the value of the .logs lost from the date when they would have reached their intended destination but for the obstruction.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 133-166; Dec. Dig. § 26.*]</p> <p>On Motion for Rehearing.</p> <p>9. Navigable Waters (§ 26*) — Obstruction —Loss oe Logs — Instruction—Measure oe ■ Damages.</p> <p>In an action for the loss of logs caused by the obstruction of a navigable stream, '.an instruction that, in estimating plaintiffs damages, the jury should deduct “the amount received by him for logs which he afterwards sold or should have sold,” was erroneous, since it. stated an impossible measure of damages.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 133-166; Dec. Dig. § 26.*]</p> <p>10. Navigable Waters (§ 26*) — Obstruction — Loss oe Logs — Instruction — Measure oe Damages.</p> <p>Such instruction was also erroneous in that it authorized the deduction of the amount received for the logs instead of their market value.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§■ 133-166; Dec. Dig. § 26.*]</p> <p>11. Navigable Waters (§ 26*) — Obstruction — Loss oe Logs— Sueeiciency oe Evidence — Judgment.</p> <p>Where the evidence, in an action for the loss of two different quantities of logs being rafted to market, occasioned by the obstruction of a navigable stream, showed the total amount of the two losses, but failed to show the separate loss in either case with reasonable accuracy, it was insufficient to sustain a judgment for damages for the loss in only one of the cases.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 133-166; Dec. Dig. § 26.*]</p>

<p>1. Adverse Possession (§ 107*) — Acquisition of Title — Possession fob 10 Years.</p> <p>One who, without deed or recorded memorandum of title, has peaceable and adverse possession of land, claiming title, cultivating, using, or enjoying the same for 10' years, acquires thereby a title to 160 acres of the land so held and used, and may assert his title against the former owner, though his possession ceases after title by limitation.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 624; Dec. Dig. § 107.*]</p> <p>2. Adveese Possession (§§ 109, 13, 25, 96*)— Acquisition of Title by “Possession.”</p> <p>The “possession” in the 10-year statute of limitations means an actual residence on the land, or such cultivation, use, and enjoyment of the same, by such visible and notorious acts of ownership, as will give notice to the owner and others, and such possession may be by tenant and need not extend to the limits of the entire 160 acres; but possession of some definite part of the land is sufficient to confer title to 160 acres or less.</p> <p>[Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 629-635, 65, 67, 76, 11&-120, 533-536; Dec. Dig. §§ 109, 13, 25, 96*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5464-5470; vol. 8, pp. 7757, 7758.]</p> <p>3. Adveb.se Possession (§ 96*) — Acquisition of Title — Evidence.</p> <p>Where one and his ancestors asserted ownership to 150 acres, adjoining a survey on which they lived, and they cleared about 50 acres of the land and cultivated the same, and such acts of ownership continued for over 10 years, title to 150 acres was acquired by limi-ta lions.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 533-536; Dec. Dig. § 96.*]</p> <p>4. Trespass to Tey Title (§ 59*) — Improvements — Compensation — Good Faith of Claimant.</p> <p>Evidence in trespass to try title held not to show that defendant, defeated in the action, placed improvements on the land in good faith, and he was not entitled to recover for improvements.</p> <p>[Ed. Note. — For otfier cases, see Trespass to Try Title, Cent. Dig. § 90; Dec. Dig. § 59.*]</p> <p>5. Teespass to Try Title (§ 30*) — Survey-Necessity.</p> <p>Where in trespass to try title there was no dispute as to the boundaries of the land in controversy, and both parties, before the trial, had caused the land to be surveyed and the boundaries distinctly marked, the refusal to order a survey was proper, since an order of survey is by statute unnecessary where there is no dispute as to the lines of the land involved.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 37; Dec. Dig. § 30.*]</p> <p>6. Trespass to Try Title (§ 30*) — Survey-Necessity.</p> <p>Where defendant in trespass to try title pleads title in himself and the land is sufficiently described in the petition, it is not error to refuse an order of survey on motion of defendant.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 37; Dec. Dig. § 30.*]</p> <p>7.Appeal and Error (§ 742*) — Assignments of Error — Sufficiency.</p> <p>Where several assignments of error were grouped in the brief and submitted together as a single assignment, while the assignments presented separate and distinct propositions, and the bills of exception were referred to in support of the assignment copied in the brief, without either statement of the substance of the bills or the pages of the record where they might be found, the assignment could not be considered because not presented in accordance with the rules.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

<p>Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.</p> <p>Action by R. T. Hardesty against George W. Cavin. Judgment for defendant, and plaintiff appeals.</p>

Error from District Court, Harris County; Norman G. Kittrell, Judge. Action by Rosa Woods against the Houston Belt & Terminal Railway Company and another. There was a judgment for plaintiff, and defendants bring error.

<p>1. Municipal Corporations (§ 706*) — Stkeets — Automobile Accident — Discovered Peril.</p> <p>Where defendants saw plaintiff in the street in a situation of danger, and negligently failed to do what was necessary to avoid running their automobile against plaintiff, the court properly submitted the issue of discovered peril.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 706.*]</p> <p>2. Appeal and Error (§ 882*) — Right to Allege Error — Invited Error.</p> <p>Where, in an action for injuries in an automobile accident, defendant requested a charge submitting the issue of discovered peril, she could not object on appeal that the evidence did not warrant the submission of such issue.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 8591-3610; Dec. Dig. § 882.*]</p> <p>3. Trial (§ 253*) — Instructions—Ignoring Evidence.</p> <p>Whore, in an action for injuries in an automobile accident the evidence presented the issue of discovered peril, the court properly refused to charge that it was negligence on plaintiffs part not to have looked and listened before stepping from the sidewalk into the street for the approach of automobiles or other vehicles, and, if she. so acted and the collision was due to or contributed to by such failure, to find for defendant..</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>4. Trial (§ 252*) — Instructions—Applicability to Evidence.</p> <p>Where plaintiff was not struck by defendant’s automobile as she stepped from the sidewalk, but while she was crossing the street, an instruction that it was her duty to look and listen before stepping from the sidewalk into the street, but, if she failed to do so and the collision was due to such failure or was contributed to thereby, she could not recover was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>5. Municipal Corporations (§ 705*) — Use op Streets.</p> <p>A pedestrian is entitled to go on the street for the purpose of crossing, and while so doing has an equal right with those who use vehicles on the street; each being required to use the street with a reasonable regard for the safety and convenience of the other.</p> <p>[Ed. Note. — For other cases, see. Municipal Corporations, Cent. Dig. §§ 1515 — 1517; Dec. Dig. § 705.*]</p> <p>6. Municipal Corporations (§ 706*) — Use op Street — Crossings—Look and Listen.</p> <p>A person crossing a public street is not negligent as a matter of law in attempting to cross without looking or listening for the approach of automobiles.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 15Í8; Dec. Dig. § 706.*]</p> <p>7. Appeal and Error (§ 1060*) — Argument op Counsel — Prejudice.</p> <p>Where, in an action for injuries to a pedestrian by an automobile, the evidence amply supported the verdict, the amount of which was not complained of, a reference in the argument of plaintiff’s counsel to defendant’s failure to produce certain witnesses, whom it was claimed had witnessed the accident, not inflammatory, nor of a nature calculated to excite the passions of the jury, was not ground for reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*]</p> <p>8. Trial (§ 415*) — Argument op Counsel-Waiver op EIrror.</p> <p>Where plaintiff’s counsel in argument referred to defendant’s failure to produce certain alleged eyewitnesses, an objection to such argument was waived by defendant’s counsel, asking to be allowed to answer the question and make an explanation as to why they were not produced, which he did.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 971; Dec. Dig. § 415.*]</p> <p>9. Negligence (§ 63*) — “Accident.”</p> <p>In an action for injuries in an automobile accident, an instruction that defendant was not liable if her automobile struck plaintiff by accident, and defining accident to be such an unexpected catastrophe as occurred without any one being to blame for it, viz., without any one being guilty of negligence in doing or permitting to be done or omitting to do the particular thing that caused the casualty, correctly defined accident.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 80, 81; Dec. Dig. § 63.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 02-70; vol. 8, p. 7560.]</p>

Action by R. E. Higbee and others against the Wharton County Drainage District No. 1 and others. From an order granting a temporary injunction, defendants appeal.

<p>Appeal from District Court, Clay County; P. A. Martin, Judge.</p> <p>Action by Mrs. Clara T. Carey against J. L. Pluggins.</p>

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by John Lovejoy and others against the Washington Life Insurance Company and another. Judgment for plaintiff named,, and defendants appeal.</p>

<p>1. Courts (§ 183*) — County Court — Probate Jurisdiction.</p> <p>A county court sitting in probate is a court of general jurisdiction and entitled to all the rights of such a court, having the same judicial discretion in regard to matters coming before it that the district court has with reference to matters within its jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 412, 437, 439-447, 449-455; Dec. Dig. § 183.*]</p> <p>2. Courts (§ 185*) — County Courts — Right to Appeal.</p> <p>Rev. St. 1895, art. 2255, providing that any person who may consider himself aggrieved by any decision, order, decree, or judgment of the county court may appeal to the district court, applies to any judgment, decision, decree, or order which at the end of the term will be conclusive of the controverted right, unless set aside by appeal or other revisory proceeding.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 185.*]</p> <p>3. Wills (§ 358*) — Probate Courts — Decisions Review able — Interlocutory Order.</p> <p>An order admitting a will to probate, but continuing for further hearing objections to the appointment of relator as independent executrix, was not a final order from which an appeal could be taken.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 822; Dec. Dig. § 358.*]</p> <p>4. Mandamus (§ 141*) — District Court — Appellate Jurisdiction — ‘ ‘ Control.”</p> <p>Const, art. 5, § 8, provides that the district court shall-have appellate jurisdiction and control in probate matters over the county court, and Rev. St. 1895, arts. 1099, 1841, provide that it shall have appellate jurisdiction and “general control” of probate matters over the county court. Held, that the words “control” and “general control,” as so used, did not enlarge the district .court’s, jurisdiction, which was limited to appellate jurisdiction over courts sitting in probate, to be exercised only by appeal or certiorari, and hence the district court cannot issue mandamus requiring the county court to perform a duty not merely ministerial but involving judicial discretion.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 276-278; Dec. Dig. § 141.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1549-1552; vol. 8, p. 7617.]</p> <p>5. Mandamus (§ 4*) — Scope op Writ — Relief by Appeal.</p> <p>Mandamus will not lie to correct a judgment, however erroneous, from which an appeal may be taken.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 9-21, 24r-34; Dec. Dig. § 4.*]</p> <p>6. Mandamus (§ 178*) — Issuance to Lower Court — Scope.</p> <p>District courts have appellate jurisdiction only as to probate matters over county courts, and mandamus issued by a district to a county court in such proceedings should never go further than to command the county court to proceed to judgment, leaving the court free to use its own discretion regarding the kind of judgment to be entered, which when entered may be reviewed by appeal or certiorari.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 396-400, 410; Dec. Dig. § 178.*]</p> <p>7. Executors and Administrators (§ 15*)— Appointment — Independent Executrix — Eight to Appointment — Contest.</p> <p>Eev. St. 1895, art. 1911, provides that, ■when a will shall have been probated, the court shall grant letters testamentary to the executor or executors appointed thereby within 20 days, except in the case provided by article 1881. Article 1910 disqualifies. insane persons and minors, except a surviving husband or wife, and article 2026 provides for the removal of executors and administrators on notice, where it appears that they have misapplied, embezzled, or removed from the state any property, or were about to do so, or when they become of unsound mind or from any other cause are incapable of the duties of the trust. Held, that where creditors objected to the appointment of testator’s widow as independent executrix on the ground that she was not a proper person, in that trust funds had been embezzled by testator, out of which many of the creditors’ claims arose, and had been used to place property in the name of petitioner’s son, part of which had been transferred to her, and alleging that among the papers of the deceased could be found evidence showing such investment, by which a resulting trust could be established, and that petitioner was particeps criminis in the embezzlement, the county court was not bound to appoint her, but was entitled to hear evidence supporting such charges, and, if sustained, to refuse such appointment.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 32-85; Dec. Dig. § 15.*)</p> <p>8. Executors and Administrators (§ 14*)— Provisions oe Will — Suspension and Annulment-Execution — ‘ ‘Annul. ’ ’</p> <p>Rev. St. 1895, art. 1991, provides that when a will has been probated its provisions and directions shall be executed, unless annulled or suspended by order of the court probating the same in a proceeding instituted for that purpose by some person interested in the estate, and articles 1992, 1998, provide for notice before any provision of the will can be annulled. Held, that the refusal of the county court to appoint the person named as executor was not an annulment of the provision of the will, within article 1991, for which a special proceeding was required; such provision being limited to provisions and directions of the will, which are to be “executed” as distinct from the provisions appointing the person to execute them.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 29-31, 42; Dec. Dig. § 14.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 405, 406.)</p> <p>9. Executors and Administrators (§ 15*)— Disqualification — Statutes.</p> <p>Rev. St. 1895, art. 1910, disqualifying insane persons and minors, except a surviving husband or wife, to act as executor, does not prescribe the only grounds which may be considered by the county judge to disqualify.</p> <p>[Ed. Note. — For other cases, see Executors and Adminstrators, Cent. Dig. §§ 32-35; Dec. Dig. § 15.*]</p> <p>10. Executors and Administrators (§ 20*)— Appointment — Continuance.</p> <p>A county court, on sufficient grounds being shown, may continue the appointment of an executor for the term, but is not authorized to grant an indefinite postponement.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 83-105; Dec. Dig. § 20.*]</p> <p>11. Mandamus (§ 14*) — Issuance Against Judge — Demand and Refusal.</p> <p>Mandamus being an extraordinary writ with prerogative features, and not a writ of right, a strong case must be presented when such writ is applied for to coerce action by a judge, the presumption being that he has done his duty, relator being required to show a previous request to act, and a definite, unqualified refusal before the writ will issue.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 44-46; Dec. Dig. § 14.*]</p>

<p>1. Jurt (§ 67*) — Summoning — Method or Summoning.</p> <p>The method of summoning jurors prescribed by Rev. St. 1895, art. 3176, providing that notice may be orally delivered by the sheriff to the juror in person, or, in case he cannot 'be found, then a written memorandum signed by the sheriff officially may be left at the juror’s place of residence, should be obeyed, and the sheriff who attempts to summon jurors personally should not merely give them notice by mail.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 291-302, 306; Dec. Dig. § 67.*]</p> <p>2. Jury (§ 82*) —Summoning — Irregularities— Competency ox Jurors.</p> <p>While Rev. St. 1895, art. 3176, provides that notice may be delivered by the sheriff to the juror in person, and, in case he cannot be found, then a written memorandum signed by the sheriff may be left at the juror’s place of residence, jurors attending because of notice given in another manner are not subject to challenge, the statute not being mandatory but merely directory, and so where talesmen were given notice by mail, challenges to their competency were properly overruled where it did not appear that the challenging party was in any way prejudiced.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 282, 307-309, 331, 332, 348, 359, 367, 380; Dee. Dig. § 82.*]</p> <p>3. Pleading (§ 8*) — Facts or Conclusions . —Negligence.</p> <p>In an action by a servant whose eye was destroyed by the splintering of a defective pick, allegations in the petition that the master was negligent in furnishing the plaintiff with the pick which was old, worn, defective, blunt, battered, and insufficient, with a crooked handle which rendered striking uncertain, are not objectionable as conclusions of the pleader.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%; Dec. Dig. § 8.*]</p> <p>4. Master and Servant (§§ 286, 289, 288*)— Injuries to Servant — Actions — Directed Verdict.</p> <p>In an action by a servant for personal injuries, a verdict should be directed for the master where the uncontroverted evidence failed to establish the master’s negligence, or that it was the proximate cause of the injury, or shows that the servant was guilty of contributory negligence or assumed the risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050, 1089, 1090, 1092-1132, 1005, 1068-1088; Dec. Dig. §§ 286, 289, 288.*]</p> <p>5. Trial (§ 178*)— Instructions — Request-Admissions.</p> <p>A defendant who reguests a charge directing a verdict, and at the same time requests charges presenting issues arising from the evidence, thereby admits the existence of testimony that should be passed on by the jury.</p> <p>[Ed. Note. — Eor other cases, see Trial, Gent. Dig. §§ 401-403; Dee. Dig. § 178.*]</p> <p>6. Master and Servant (§ 217*)— Injuries to Servant — Duty oe Servant to Inspect.</p> <p>A servant is not bound to inspect a pick furnished him by the master to determine whether it is properly tempered.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Gent. Dig. §§ 574-600; Dec. Dig. § 217.*]</p> <p>7. Master and Servant (§ 107*) — Injuries to Servant — Saee Appliances.</p> <p>Where a railroad company furnished its servants with picks with which to remove old ties, and it was impossible for the servants to avoid striking the rails with the picks, it was the duty of the railroad company to furnish properly tempered picks which would not splinter when coming in contact with steel rails.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*]</p> <p>8. Master and Servant (§ 217*) — Injuries to Servant — Assumption oe Risk.</p> <p>A servant of a railroad company engaged in removing old ties did not assume the risk of injury resulting from splintering his pick in striding the steel rails, where he had never known of such an occurrence although he had oftentimes seen rails struck.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Gent. Dig. §§ 574r-600; Dec. Dig. § 217.*]</p> <p>9. Master and Servant (§ 270*) — Injuries to Servant — Actions—Evidence.</p> <p>In an action by a servant against a railroad company for injuries to his eye which was destroyed by the splintering of a pick with which he struck a steel rail, testimony by the servant as to the condition of the pick several days after the accident was admissible; the pick having remained in the custody of the railroad company.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*]</p> <p>10.Appeal and Error (§ 882*) — Person Entitled to Allege Error.</p> <p>A party cannot complain of evidence introduced by himself.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3591-3610; Dec. Dig. ' 882.*]</p> <p>11.Master a[nd Servant (§ 264*) — Injuries to Servant — Evidence—Admissibility.</p> <p>Where the petition in an action by a servant injured by the splintering of a steel pick alleged that the pick was old, defective, and insufficient, and the master alleged that the pick was in good condition, evidence that it was improperly tempered was admissible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*]</p> <p>12.Damages (§ 34*) — Personal Injuries— Amount op Damage.</p> <p>Under the rule that, when an injury is the result of the combined negligence of the defendant and that of a third person for whose act neither the plaintiff nor the defendant is responsible, the defendant is liable when the injury would not have happened but for his negligence, a master whose negligence caused an injury to one of plaintiff’s eyes is liable for injury to the other eye, caused by the unskillful treatment of the physician who attended to the injury.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. § 43; Dec. Dig. § 34.*]</p> <p>13. Damages (§ 185*) — Evidence—Personal Injuries.</p> <p>In an action by an injured servant, evidence •held to show that the servant, knowing that his delay in having his injured eye removed endangered the sight of the other eye, permitted the eye to remain until after the trial.</p> <p>[Ed. Note. — Eor other cases, see Damages, Gent. Dig. §§ 503-508; Dec. Dig. § 185.*]</p> <p>14. Appeal and Error (§ 1140*) — Determination — Remittitur.</p> <p>In an action by a servant for a personal injury which had destroyed the sight of one eye, the court charged that the jury might consider the probability of the loss of the other eye which might be affected in case the servant refused to have an operation on the blinded eye. Seld that, as the servant was not entitled to damages for the prospective loss of his injured eye, where he refused to have the injured eye removed because it might affect his chances of a verdict, a general verdict based on this instruction must be reversed and cannot be cured by remittitur.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. §• 1140.*]</p>

<p>1. Jury (§ 114*) — Challenge to Array — SUFFICIENCY.</p> <p>A motion to quash the jury panel must bo deemed a challenge to the array, though not expressly purporting to be such.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 541-550; Dec. Dig. § 114.*]</p> <p>2. Jury (§ 114*) — Challenge to Array — Irregularity in Impaneling Jurors.</p> <p>Under Rev. St. 1895, art. 3202, authorizing challenge to an array of jurors where the officer summoning them has acted corruptly, etc., and article 3203, which prohibits challenge to an array where the jurors have been selected by jury commissioners under title 62, it is not ground for such challenge that 10 names were taken from the jury wheel at a time, where the names were written down in the order in which they were taken out, nor that some of the jurors were not summoned in person, notice being mailed to them, where 35 regular jurors obeyed summons and the court excused for good cause down to 24, who were regularly impaneled, and where no challenges were made for cause.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 541-550; Dec. Dig. § 114.*]</p> <p>3. Judges (§ 48*) — Disqualification — Selection of Jurors.</p> <p>A district judge was not disqualified to pass upon a motion to quash the panel of jurors because it involved the legality of his own act in selecting a jury.</p> <p>[Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 220, 221; Dec. Dig. § 48.*]</p> <p>4. Railroads (§ 271*) — Actions—Evidence-Materiality.</p> <p>Where, during pendency of a personal injury suit against a railroad receiver, the company’s property was sold to a new corporation, subject to the receiver’s liabilities, and the new corporation was made a party defendant, its charter and deed from the receiver to the new corporation were properly admitted in evidence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 866; Dec. Dig. § 271.*]</p> <p>5. Receivers (§ 168*) — Suits Against — Discharge of Receiver — Effect.</p> <p>Where a personal injury suit was brought against a railroad receiver, he was not a necessary party after his discharge and a sale of the company’s property to a new corporation subject to the receiver’s liabilities, but a motion for verdict in his favor was properly overruled where it was not based on the fact that he had been discharged, since an allowance of the motion might have been construed as a finding on the merits, and since it was necessary to establish liability against the receiver as a prerequisite judgment against his code-fendant, the new corporation.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 321, 322; Dee. Dig. § 168.*]</p> <p>6. Railroads (§ 282*)» — Operation—Frightening Horses — Contributory Negligence —Evidence—Sufficiency.</p> <p>In an action against a railroad company for personal injury resulting from plaintiffs team taking fright while it was standing near defendant’s bag'gageroom, evidence held to show that the team was left untied and unguarded in a public place.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dfg. § 282.*]</p> <p>7. Evidence (§§ 10, 22*) — Judicial Notice.</p> <p>The Court of Civil Appeals can take judicial notice of the location of the line of a railroad, but it is doubtful if it can take notice of the limits of a city or of the location of a depot.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 9-14, 2C-28; Doe. Dig. §§ 10, 22.*]</p> <p>8. Railroads (§ 282*)— Operation — Frightening Teams — Proximate Cause — Evidence.</p> <p>In an action against a railroad company for personal injury resulting from plaintiff’s team taking fright at a noise suddenly created by defendant’s, baggagemaster in opening a metallic door, evidence held to warrant a finding that the baggagemaster’s negligence, and not plaintiff’s negligence in leaving his team untied, was the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig-. §§ 910-923; Dec. Dig. § 282.*]</p> <p>9. Railroads (§ 282*)— Operation — Frightening Horses — Contributory Negligence —Jury Question.</p> <p>In an action against a railroad company for injuries to plaintiff caused by his team taking fright at a noise suddenly created by defendant’s baggagemaster in raising a metallic door, whether plaintiff was guilty of contributory negligence held, under the evidence, a jury question.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig-. §§ 910-923; Dec. Dig. § 282.*],</p> <p>10. Trial (§ 260*) — Instructions—Refusal —Matter Covered.</p> <p>An instruction covered by one given is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>11. Railroads (§ 282*). — Operation—Frightening I-Iorses — Instructions.</p> <p>In an action against a railroad company for injury to plaintiff through his team taking fright when defendant’s baggagemaster suddenly created a noise by raising- a metallic door, an instruction to find for defendant if plaintiff knew the door made a noise when raised, and left his horses unguarded and unhitched with their heads opposite the door, was properly refused as taking from the jury the questions whether plaintiff’s acts were negligent and the proximate cause of the injury.</p> <p>[Ed. Note. — B'or other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.*]</p> <p>12. Trial (§ 253*) — Instructions.</p> <p>In an action against a railroad company for personal injury caused by plaintiff’s horses taking fright at a noise suddenly created by defendant’s baggagemaster in raising a metallic door, an instruction that if plaintiff left his te^m unguarded and unhitched at a public place that was negligence per se, and lie could not recover, was properly refused as ignoring the question whether such acts contributed to the injury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig-. §§ 613-623; Dee. Dig. § 253.*]</p> <p>13. Appeal and Error (§ 1149*) — Disposition-Reformation of Judgment.</p> <p>Error in awarding judgment against a receiver who had boon discharged can be corrected on appeal.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4483-4496; Dec. Dig. § 1149.*]</p> <p>14. Railroads (§ 2S2*), — Operation—Frightening Horses — Evidence—Admissibility.</p> <p>In an action against a railroad company for injury caused by plaintiff’s horses taking fright by a noise created by defendant’s bag-gagemnster in raising a metallic door, evidence that plaintiff asked the baggageman to wait •until ho could get to his wagon before raising' the door was properly admitted on an issue! whether his acts directly caused the injury, as against objection that the evidence was immaterial and irrelevant.</p> <p>[Ed. Note. — For other cases, see Railroads, ■Cent. Dig. §§ 910-923; Dec. Dig. § 282.*]</p> <p>15. Trial (§ 233*) — Submission op Issues— Reference to Pleadings.</p> <p>In a personal injury action, it was not reversible error to refer the jury to defendant’s pleadings to ascertain what acts of contributory negligence were charged where the answers were not involved or technical, and where, taking all the instructions together, there was a fair submission of the issues, especially in the absence of a request for more specific submission.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 527-530; Dec. Dig. § 233.*]</p> <p>10. Appeal and Error (§ 742*) — Assignments of Error — Insufficient Presentation.</p> <p>An assignment of error which is not in itself a proposition and under which no proposition is stated should not be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>’17. Damages (§ 132*) — Personal Injury— Excessiveness.</p> <p>Fifteen thousand dollars was not excessive ■recovery for personal injury to a teamster 47 years old whose left leg was so badly crushed that it had to be amputated just below the knee, where he had been strong and in good health, and had earned $60 per month.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 178, 372-385, 396; Dec. Dig. § 132.*]</p> <p>18. Appeal and Error (§ 1001*) — Review-Sufficiency of Evidence.</p> <p>A judgment for plaintiff in a personal injury action cannot be said not to be supported by evidence because there is no evidence of any impaired earning capacity.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022, 3028-3034; Dec. Dig. § 1001.*]</p> <p>19. Appeal and Error (§ 742*) — Review— Insufficient Brief.</p> <p>An assignment of error not briefed according to the rules of the appellate court should not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>20. Appeal and Error (§ 741*) — Assignments of Error — Sufficiency.</p> <p>An assignment of error to the refusal of a motion for a new trial based on several grounds is not properly reviewable where it is submitted as a proposition itself.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3037, 30.38; Dee. Dig. § 741.*]</p> <p>:21. Appeal and Error (§ 200*) — Objections to Jurors.</p> <p>Objection that a juror was not competent because he could not read and write the English language comes too late after verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec, Dig. § 200.*]</p> <p>22.New Trial (§ 44*) — Misconduct of Jury.</p> <p>In a personal injury action, it was not an abuse of discretion to refuse defendant a new trial asked on the ground of misconduct of a juror during the argument when counsel for plaintiff asked whose fault it was that plaintiff was injured in answering that it was defendant’s fault, where he supposed that the question was addressed to him, and it does not appear that his remark influenced the other jurors, or on the ground of misconduct of jurors in discussing whether plaintiff had a family, where the foreman promptly stopped the discussion, which did not disclose whether plaintiff had a large or small family, but merely that he had a grown son or son-in-law, or on the ground of misconduct in discussing the possibility of plaintiff losing his position, where that discussion was very brief and some of the jurors did not hear it, or because one or two of the jurors noticed newspaper articles referring to the trial, where it does not appear that any juror actually read the articles, and where all the jurors denied that they were influenced thereby or by any of the other irregularities.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85; Dec. Dig. § 44.*]</p> <p>On Motion for Rehearing.</p> <p>23. Appeal and Error (§ 1002*) — Review— Yerdict — Conclusiveness.</p> <p>A jury’s finding on conflicting evidence is conclusive on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 3935-3937; Dec.Dig. § 1002.*]</p> <p>24. Municipal Corporations (§ 120*) — Ordinance— EIffect.</p> <p>Where an ordinance introduced in evidence, in force at the date of its introduction, prohibited a certain act, it has no prima facie effect, unless it is shown to have been passed by the party offering it prior to the commission of the act.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent.Dig. §§ 274-280; Dec.Dig. § 120.*]</p>

<p>1. Master and Servant (§ 318*) — Injuries to Third Persons — Independent Contractor.</p> <p>Where a lighting company contracted for electric power from a traction company and agreed to place at its own expense in the traction company’s substation, together with the necessary connecting apparatus, a pipe framework to carry the wires to be placed by it, and the only restrictions made by the traction company as to this framework was that it should conform in size and color to the framework already in the building, and the traction company exercised no control whatever as to the means employed or the employés engaged in doing the work, the relation between the two companies as to putting in the pipe framework was merely that of proprietor and independent contractor, and not that of master and servant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 1257, 1258; Dec. Dig. § 318.*]</p> <p>2. Electricity (§ 14*) — Care Required — Liability op Proprietor.</p> <p>Where an employé of an independent contractor was killed by coming in contact with an electric wire after being warned that to touch it would kill him, and where the proprietor’s substation, in which the accident occurred, was constructed according to the most approved standard, though the wire was not insulated because its insulation, while possible, was impracticable, and where at the time of the accident the substation, wires, insulation, and plant were in the usual and regular condition and being operated in the usual, manner, all of which was known to the deceased, the proprietor was not chargeable with knowingly setting in operation causes dangerous to the deceased without exercising proper precaution to anticipate and prevent injury to him.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 7; Dec. Dig. § 14.*]</p> <p>3. Master and Servant (§ 318*) — Injury to Employe op Independent Contractor.</p> <p>Where a lighting company engaged a hardware company to do certain plumbing in close proximity to an electric wire and was present by its agent supervising and directing how the plumbing should be done, it could not absolve itself from liability for the death of an em-ployé of the hardware company by setting up that the hardware company was an independent contractor for injury to whose employés it was not responsible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. § 318.*]</p> <p>4.Master and Servant (§ 280*) — Assumption op Risk — Suppicienoy op Evidence.</p> <p>In an action for death of a plumber by coming in contact with an electric wire, evidence held to show that at the time he undertook the work he knew of the dangerous conditions complained of as the negligent cause of his death, and therefore assumed the risk arising from such conditions.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. § 2S0.*]</p>

<p>Appeal from District Court, Liberty County; L. B. Hightower, Judge.</p> <p>Action by George Cudlipp against the C. R. Cummings Export Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Johnson County; O. L. Dockett, Judge.</p> <p>Action by Mrs. Lertie McCoy and others against the Cleburne Electric & Gas Company. 'Defendant impleaded the Southwestern Telegraph & Telephone Company. From an adverse judgment, defendant appeals.</p>

<p>Appeal from District Court, McLennan County; Marshall Surratt, Judge.</p> <p>Action by R. F. Dumas against the Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Denton County Court; S. H. Hoskins, Judge.</p> <p>Action by P. D. Fralin against H. B. Wilkinson. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, Mitchell County; Jas. L. Shepherd, Judge. Action by H. E. Phillip and another against J. B. Cloyes and others. Judgment for plaintiffs, and defendant Jackson and others bring error.

<p>Appeal from Tarrant County Court; C. T. Prewett, Judge.</p> <p>Condemnation proceeding by Ft. Worth Improvement District No. 1 of Tarrant County against J. S. H. Weatherred and others. From the judgment, plaintiff appeals.</p>

<p>Error to Jefferson County Court; R. W. Wilson, Judge.</p> <p>Action by C. X. Johnson against the Port Arthur Townsite Company and others. Judgment for plaintiff, and defendant company appeals.</p>

<p>1. Statutes (§ 147*) — Provision — Legislative Powee.</p> <p>Const. 1876, art. 3, § 43, which provided for a revision of the statutes at the first session of the Legislature under the. Constitution, did not prevent the Legislature in revising the statutes in 1879 and inserting in the revision Act May 2, 1874 (Acts 14th Leg. c. 145) § 9, which made foreign life insurance companies liable to a penalty and an attorney’s fee on refusal to pay over proceeds within the time provided by the policy from making the provision applicable to all life insurance companies as is done in Rev. St. 1895, art. 3071.</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. § 216; Dec. Dig. § 147.*]</p> <p>2. Insueance (§ 634*) — Life Insurance — Collection of Premiums — Authority of Agent.</p> <p>Where, in a suit on a life policy, insurer claimed that the policy had lapsed for nonpayment of the second semiannual premium, plaintiff properly pleaded that insurer’s agent, to whom the premium was paid and who did_ not pay it over, was authorized to collect premiums generally, though his written contract of employment limited his authority to the collection of first premiums.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1596, 1598, 1603-1606, 1608; Dec. Dig. § 634.*]</p> <p>3. Depositions (§ 88*) — Cross-Interrogatories— Objections — Sufficiency.</p> <p>On an issue whether a life insurer’s agent was authorized to receive a second premium or merely, as claimed by insurer, to receive first premiums, testimony of insurer’s bookkeeper on cross-interrogatories that the agent had made collections on several policies and reported them was properly admitted against objection that the testimony did not show that the premiums collected by the agent were not first premiums.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 234r-236y2, 242-245; Dec. Dig. § 88.*]</p> <p>4. Appeal and Error (§ 1062*) — Harmless Error — Submission of Issues.</p> <p>In an action on a life policy, any error in submitting an issue as to authority of an agent to collect premiums other than the first was harmless where the premiums involved were the first year’s premiums.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*]</p> <p>5. Insurance (§ 602*) — Life Insurance — Delay in Paying Proceeds — Penalty — Demand — Necessity.</p> <p>The penalty prescribed by Rev. St. 1895, art. 3071, against life insurance companies for failure to pay the proceeds of a policy within the time specified by the policy after demand therefor, is not recoverable in the absence of demand before suit, though it appears that demand would be ineffectual.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.*]</p>

<p>1. Trial (§ 252*)—Instructions—Evidence to Support.</p> <p>Where, in an action for mental suffering resulting from failure to deliver a telegram, there was no showing that the person to whom the message was handed for delivery, who was not an employé of the telegraph company, had any authority to receive the message for delivery^ but he merely received it as an accommodation to the sender, instructions submitting the issue of his agency were improperly given.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>2. Telegraphs and Telephones (§ 38*)— Failuee to Deliver Message—Agency oe Person to Whom Delivered.</p> <p>Where a person not an employé of a telegraph company was present in its office as an employé of a railroad company who jointly occupied the office, his receipt of a message for delivery, with notice that damages would likely result in delay, would not charge the company with such notice where he merely hung the message on a hook, and did not communicate its importance to the company’s operator.</p> <p>[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.*]</p> <p>On Motion for Rehearing.</p> <p>3. Telegraphs and Telephones (§ 68*) — Failure to Deliver Message — Damages— Mental Anguish.</p> <p>No recovery may be had for negligence of a telegraph company in the delivery of a message telling of the death of a baby to the sister of its mother, where the only damage alleged or shown was the lack of comfort which such sister could have given the mother, and the mother was surrounded by her husband and other relatives and friends, as no additional mental anguish could have been caused by the absence of the sister.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dee. Dig. § 68.*]</p>

<p>1. Limitation or Actions (§ 5*) — Cokkeotion os’ Judgment — “Action.”</p> <p>Rev. St. 1895, art. 3358, provides that every action, other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years after the right to bring the same shall have accrued. Held, that the word “action” meant the prosecution of some demand in a court of justice, including all proceedings taken in such a court to fix a right given either by statute or substantive law, and therefore included a proceeding to correct a clerical error in a judgment previously rendered in the same court.</p> <p>[Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 13-15; Dec. Dig. § 5.*</p> <p>Eor other definitions, see Words and Phrases, vol. 1, pp. 128-140; vol. 8, p. 7563.]</p> <p>2. Judgment (§ 321*)— Cokbectton — Laches —“Stale Demand.”</p> <p>Where a demand was entered in favor of plaintiff, quieting title in certain land, but, by a mistake of the clerk, described the land as in fractional section No. 92, instead of fractional section No. 2, and .plaintiff, without excuse, failed to discover the mistake for more than four years, when he filed a petition for correction, his claim was a “stale demand,” and his right to relief was barred by laches.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 619, 620; Dec. Dig. § 321.*</p> <p>Eor other definitions, see Words and Phrases, vol. 7, p. 6622.]</p>

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by R. E. Brooks against William F. Bonner and others. From a judgment for defendants on their plea of privilege, plaintiff appeals.</p>

<p>1. Adveesb Possession (§ 115*) — Evidence-Question for Jury.</p> <p>Evidence in trespass to try title held to make issue of defendant’s adverse possession of the land described in. his answer for more than ten years before the commencement of the’ suit a question for the jury.</p> <p>[Ed. Note. — For other cases, see " Adverse Possession, Cent. Dig. §§ 314, 691-701; Dec. Dig. § 115.*] ■ ■</p> <p>2. Adverse Possession (§ 115*) — Question for Jury — Notice'To Former Owner.</p> <p>The inclosure and cultivation of a small field makes the question whether such possession and use of the land is sufficient to put the owner upon notice that the person in possession is claiming the tract of land upon which it is situated, or a larger portion than that actually inclosed, one for the jury.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 691-701; Dec. Dig. § 115.*]</p> <p>3. Adverse Possession (§ 57*)— Sufficiency of Evidence — Abandonment.</p> <p>Evidence in trespass to try title held sufficient to show that defendant’s father abandoned his occupancy and use of a survey before defendant’s adverse claim to any part thereof.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 277, 278, 655, 667, 687; Dec. Dig. § 57.*]</p> <p>4. Infants (§ 24*) — Emancipated Minor-Adverse Possession.</p> <p>The fact that a party took possession of and set up a claim to land for his own benefit while a minor, but with his father’s permission to acquire the land for himself, would hot prevent him from acquiring title to the land by limitation.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 25; Dec. Dig. § 24.*]</p> <p>5. Adverse Possession (§ 80*) — Sufficiency of Claim — Description of Property.</p> <p>A claim to land described as, 160 acres, within definite north, east, and west boundaries, leaving the location of the south boundary line only a matter of measurement and describing a tract of 160 acres, is a description sufficient to identify the land claimed.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dee. Dig. § 80.*]</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by Mrs. D. B. Gabb and others against Monroe Boston and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by W. C. McFrancis against the-Western Union Telegraph Company. From' a judgment for plaintiff, defendant appeals..</p>

Denton, Judge. Action by R. N. Compton, administrator, against J. M. Early and others. Erom the judgment, defendants J. M. Early and others appeal. This is the second time this case has been before us. On the first appeal, it was styled “Compton v. Hatch et al.” A statement, showing the nature of the controversy, may be found in 135 S. W. 1052.

<p>1. Trespass to Try Title (§ 8*) — Right to Sue.</p> <p>The rights acquired by an assignee under a headright certificate, by having the land located and surveyed and the field notes returned as required by law, are sufficient to support trespass to try title.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 11; Dec. Dig. § 8.*]</p> <p>2. Trespass to Try Title (§ 25*) — Defenses —Staleness of Demand.</p> <p>Staleness of demand is no defense to trespass to try title.</p> <p>[Ed. Note. — For other cases, see Trespass to Tpr Title, Cent. Dig. §§ 30, 31; Dec. Dig. § 25.*]</p> <p>3.Adverse Possession (§ 73*) — Color of Title.</p> <p>One claiming under a patent, not void for want of authority on the part of the officer to issue it, has a sufficient connection with the sovereignty of the soil to support an adverse claim of three years’ duration, when accompanied by the other statutory requirements.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 435-442; Dec. Dig. § 73.*]</p> <p>4. Husband and Wife (§ 69%*) — Disability of Coverture — Adverse Possession.</p> <p>Under Const. 1869, art. 12, § 14, which provided that rights of minors, married women, etc., in their separate property should not be lost by adverse possession of less than seven years after removal of their respective disabilities, plaintiff’s right in land is not affected by adverse possession of one who died before removal of plaintiff’s disability of coverture, during which disability the adverse possession was held.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 294, 300; Dec. Dig. § 69%.*]</p> <p>5. Limitation of Actions (§ 195*) — Disabilities — Burden of Proof.</p> <p>Where defendant shows adverse possession of land, covering a time sufficient to constitute' a statutory bar, the burden falls on plaintiff to show disability of coverture or minority defeating the defense of limitations. .</p> <p>[Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 711-716; Dec. Dig. § 195.*]</p> <p>On Motion for Rehearing.</p> <p>6.Adverse Possession (§ 73*) — Color of Title.</p> <p>A patent to S.’s heirs, vested sufficient title in them to sustain a plea of three years’ limitations, though he had previously assigned the certificate under which the patent was granted; no warranty of title appearing to have accompanied the assignment.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 435-442; Dec. Dig. § 73.*]</p>

W. Simpson, Judge. Action by W. G. Cain against Charles T. Bonner and another. From a judgment for defendants, plaintiff appeals. The-appellees are husband and wife, and. were at the time of the transactions herein, and the property involved is their homestead, and was prior to the inception of the transactions, and is the separate property of the wife.

<p>Appeal from District Court, Kinney County; W. C. Douglas, Judge.</p> <p>Action by Joseph Veltmann against R. V. Sauer. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Action by R. L. Cameron against the Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

T. Lyttleton, Judge. Action by the Eisenstadt Manufacturing Company against John Copeland and others. Judgment for plaintiff against part of the defendants, and plaintiff appeals. Dan Copeland died June 23, 1903, leaving an independent will, naming John Copeland, J. W. Everman, and W. C. Pierce as executors. The will was probated, and the three named executors qualified and filed an inventory.

<p>Appeal from District Court, Trinity County ; S. W. Dean, Judge.</p> <p>Trespass to try title by William Alfred Cook against the Southern Pine Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Hardeman County; S. P. Huff, Judge.</p> <p>Action by F. J. Blasehke against Mamie B. Hagelstein, executrix, and others. From a judgment for plaintiff, part of the defendants appeal.</p>

<p>Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.</p> <p>Action by Henry Von Lienen against G. W. O’Brien. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hardeman County; S. P. Huff, Judge.</p> <p>Action by Thomas Jones against Mary B. Davis and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Ochiltree County Court; R.. I. Hanna, Judge.</p> <p>Action by the White House Lumber Company against W. M. McMillen. On appeal from a judgment of the county court disallowing a counterclaim on appeal from a justice’s court allowing the same, defendant appeals.</p>

<p>Appeal and Error (§ 408*) — Citation —■ Service.</p> <p>A sheriff’s return on a writ of error, reciting that he executed the same by delivering to N., attorney for R., etc., Company, defendant in error, was fatally defective for failure to state that he delivered a true copy, and that it was delivered to the attorney “in person.”</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2133; Dec. Dig. § 408.*]</p>

<p>Appeal from District Court, Wilbarger County; S. P. Huff, Judge.</p> <p>Trespass to try title by W. T. Waggoner against T. C. Tate. Judgment for plaintiff, and defendant appeals.</p>

E. Prescott, Judge. Action by J. H. Biddy and another against D. A. Goodwin. From a judgment of the county court in plaintiffs’ favor on appeal from a judgment of the justice court, defendant appeals.

<p>1. Judges (§ 47*) — Disqualification—Acting as Counsel.</p> <p>In an action by persons residing in R., who had subscribed money to aid in the construction of a railroad, to cancel and rescind the contract between them and the promoter, and to secure the title and possession of the railroad, or. in the alternative, the foreclosure of a contract lien thereon, the fact that a judge, two or three years prior thereto, had been consulted by subscribers residing in M„ concerning their liability at that time on their subscriptions, did not disqualify him to appoint a receiver of the railroad, especially where the matters about which he was consulted were not involved in the action.</p> <p>[Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 214-219, 222, 223; Dec. Dig. § ¿7.*)</p> <p>2. Appeal and Error (§ 44S*) — Jurisdiction of Lower Court Pending Appeal.</p> <p>An ex parte order appointing a receiver was vacated by the Court of Civil Appeals for the Second District, and thereafter the trial court, after proper notice, reappointed the same receiver. Later the order of the Court of Civil Appeals was set aside, and the proceeding-transferred to the Seventh District, where, subsequently, the ex parte order was again vacated. Held, that the trial court had jurisdiction to make the second appointment, and might have made it even before the vacation of the original order by the Court of Civil Appeals for the Second District.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2208; Dec. Dig. § 448.*]</p> <p>3. Courts (§ 475*) — Concurrent Jurisdiction-Retention by Court First Acquiring.</p> <p>Where petitions for the appointment of a receiver of the same property of a railroad company were presented to two district judges, the one to whom it was first presented acquired jurisdiction over the subject-matter and the parties.</p> <p>]Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1229, 1247-1259, 2011; Dec. Dig. § 475.*]</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Action by tbe First National Bank of Canyon against W. L. Handley. Judgment for plaintiff, and defendant appeals.</p>

<p>Clerks oe Courts (§ 20*) — Commissions — “Judgment.”</p> <p>While a nisi judgment is in some senses a “judgment,” it is not a judgment within Code Cr. Proc. 1911, art. 1193 (Code Or. Proc. 1895, art. 1143), which allows district and county attorneys and clerks of courts a 5 per cent, commission on all fines, forfeitures, etc., collected for tbe state or county on judgments; and hence the incumbent in the office of clerk of a district court when final judgment was rendered under forfeiture of a bail bond, and not his predecessor, who was the incumbent when nisi judgment was obtained, is entitled to the commission.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. § 46; Dec. Dig. § 20.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3827-3842; vol. 8, pp. 7695, 7696.]</p>

<p>Appeal from District Court, Randall County; J. N. Browning, Judge.</p> <p>Action by the First National Bank of Canyon and others against Canyon Mercantile Company and others. From a judgment for plaintiffs, defendants J. O. and R. S. Pip-kin appeal.</p>

<p>Appeal from Hale County Court; Geo. L. Mayfield, Judge.</p> <p>Action by J. A. Fawver against E. C. Ful-lingim. From judgment for defendant, plaintiff appeals.</p>

B. 1-Iill, Judge. Action* by the Eureka Lumber Company against W. W. Smith and another, in which T. A. Hilburn and others intervened. From a judgment for interveners, defendant Smith appeals.

<p>1. Appeal and Erbor (§ 512*) — Record — Showing Jurisdiction.</p> <p>Where a ease is appealed from the county court, to which it was taken on appeal from, a justice of the peace, the Court of Civil Appeals, can acquire no jurisdiction, in the absence of a record showing that the county court had jurisdiction to dispose of the cause-on its merits.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 2326; Doc. Dig. § 512.* |</p> <p>2. Appeal and Error (§ 563*) — Statement op Facts — Interlineations—Changes and Additions.</p> <p>Where a statement of facts contains in-terlineations, changes, and additions, it should be clearly made to appear that they were made before execution. ,</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2500; Dec. Dig. § 563.*].</p> <p>On the Merits.</p> <p>3. Contracts (§ 28*) — Meeting oe Minds-— Evidence.</p> <p>Plaintiffs offered to drill a well on defendant’s ranch at a specified price per foot, provided defendant would board plaintiffs and feed their team during the progress of the work. Defendant offered to pay the price asked, but declined to board plaintiffs or feed their-team. No agreement having been reached, plaintiffs told defendant that they were going to drill a -well in the neighborhood in a few" days and would call him over the ’phone about the matter, and later did telephone him that they would be ready to begin drilling his well on a specified date, if he desired them to do so, to which he replied that they should come ahead. Before they actually came, however, a .meeting was had in which plaintiffs insisted that defendant had agreed to their proposition, which he denied, and refused to feed them or their team, whereupon they did not drill the well, but defendant procured another to do the work. Held, that such facts were insufficient to show a meeting of minds, so as to entitle plaintiffs to recover damages for breach of contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 133-140,1755, 1782-1784, 1785ys, 1S20,1821; Dec. Dig. § 28.*]</p> <p>On Rehearing.</p> <p>4. Appeal and Error. (§ 1177*) — Disposition op Cause — Reversal—Remand.</p> <p>Where, in an action for breach of an alleged contract to drill a well, the existence of the contract depended on an alleged telephone conversation, which, as contained in the statement of facts, was insufficient to show a meeting of minds, but it appeared from the abbreviations in the statement of facts that the ’phone conversation might not have been as reported, a judgment for plaintiffs would be reversed, and the cause remanded for a new trial.</p> <p>[Ed. Note. — Por other cases, see Appea-l and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. § 1177.*]</p>

<p>Appeal from Hale County Court; Geo. L. Mayfield, Judge.</p> <p>Action by R. A. Lemond against T. W. Smith and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Hardeman County Court; H. W. Martin, Judge;</p> <p>Action by H. Cole against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Evidence (§ 377*) — Documentary—Foundation.</p> <p>In an action against railroad companies' for damage to a shipment of cattle, an account sales was properly admitted upon the testimony of a witness that he saw the cattle weighed and a statement made out, which contained the correct weight, which was delivered by the weigher to the bookkeeper of the commission company, and that the account sales was made by such bookkeeper from the weight thus furnished.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1647; Dec. Dig. § 377.*)</p> <p>2. Evidence (§ 381*) — Documentary—Foundation.</p> <p>Where, in an action against railroads for damage to cattle in transit, a witness testified that he had the market reports, and knew the market price of the cattle in question, and also-státed what that price was, and that he received the market price for them when sold, the admission of two copies of the Ft. Smith Live Stock Reporter was based on a sufficient predicate.</p> <p>[Ed. Note. — For other cases, see Evidence. Dec. Dig. § 381.*]</p> <p>3. Appeal and Euros (§ 1051*) — Harmless-Eeros.</p> <p>Possible error in the admission of copies of a live stock reporter, without a sufficient predicate to show the value of cattle injured in transit was harmless, where the market price was sufficiently established by other testimony, received without objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>4. Appeal and Eeros (§ 730*) — Assignments of Error — Sufficiency of Assignment.</p> <p>An assignment of error complaining of the charge as a whole is too general.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dee. Dig. § 730.*]</p> <p>5. Trial (§ 255*) — Instructions—Necessity of Request.</p> <p>A court need not instruct upon the plaintiff’s burden of proving the material allegations in his petition, in the absence of a request.</p> <p>[Ed. Note. — For other cases, see Trial, Cent.. Dig. §§ 627-641; Dec. Dig. § 255.*]</p> <p>6. Trial (§ 255*) — Instructions—Necessity-of Request — Measure of Damages.</p> <p>In, an action for damage to cattle in transit, the court must charge on the measure of' damage, even though no special charge is requested.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.*]</p> <p>7. Trial (§ 255*) — Instructions—Necessity op Request.</p> <p>A court need not charge that the jury are the exclusive judges of the facts, in the absence of a request.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.*]</p> <p>S. Cakbiers (§ 228*) — Garríase op Live stqck — Damage—Burden op Proving NegLIGENCE.</p> <p>In an action for damages to cattle in transit, a carrier was not bound to prove by a preponderance of evidence that it did use ordinary diligence, that the cattle were not damaged, and that the damages were not caused by its negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]</p> <p>9. Appeal and Error (§ 731*) — Assignments op Error^-Supeioiency.</p> <p>An assignment that the verdict is contrary to the law and the evidence, is not supported by the evidence, and is excessive in amount, is too general.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.*]</p> <p>10. Appeal and Error (§ 740*) — Assignments op Error — Multifariousness.</p> <p>And such assignment is objectionable for multifariousness.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3028; Dec. Dig. § 740.*]</p>

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>Action between A. Davidson and J. H. Patton. From the judgment, Davidson appeals. On motion to strike out appellant’s assignments of error.</p>

<p>1. Appeal and Eeeob (§ 281*) — Review—Motion pob New Trial — Necessity.</p> <p>The only purpose of the amendments of January 24, 1912, to rules 24 and 25 (142 S. W. xii) for Courts of Civil Appeals is to require a motion for a new trial in all cases as a prerequisite to the consideration of assignments of error based thereon.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661; Dec. Dig. § 281.*]</p> <p>2. Appeal aínd Error (§ 722*) — Assignments op Error — Sufficiency.</p> <p>Under rules 24 and 25 for Courts of Civil Appeals, as amended January 24, 1912 (142 S. W. xii), so as to require a motion for a new trial in all cases as a prerequisite to a review of assignments of error, assignments of error are not required to be any more specific or definite than was required prior to the amendment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.*]</p> <p>3. Appeal and Eeeob (§ 302*) — Motion foe New Trial — Specifying Errors.</p> <p>Under rules 24 and 25 for Courts of Civil Appeals, as amended January 24, 1912 (142 S. W. xii), so as to require a motion for a new trial in all cases as a prerequisite to a review of assignments of error, the errors complained of need not be set out in the motion for a new trial any more fully or with any greater degree of certainty than was formerly, or is now, required in the assignments of error based thereon, and the grounds for new trial specified in the motion may be held sufficient even if more general than is permitted in assignments of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.*]</p> <p>4. Appeal and Eeeob (§ 722*) — Assignments of Error — Sufficiency.</p> <p>Assignments of error are not required to specify the appellant’s reasons for believing the rulings complained of erroneous.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.*]</p> <p>5. Appeal and Error (§ 3Ó2*)— Motion foe New Triajl — Specifying Errors.</p> <p>A ground, in a motion for a new trial, that the court erred in refusing to give special charge No. 1, requested by defendant, is sufficient.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.*]</p> <p>6.Appeal and Error (§ 730*) — Assignments of Error — Sufficiency.</p> <p>An assignment of error, that the court erred in refusing to give “special instruction No. 1, -requested by the defendant, as follows,” followed by a quotation of the instruction, is sufficient.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. § 730.*]</p>

<p>1. Bills and Notes (§ 306*) — Remedy oe Payee.</p> <p>Where the payee of a promissory note indorses it and afterwards pays and takes it up, he stands, with reference to the maker, as if he had never parted with it; and his remedy is upon the note, and not upon account for money paid to the use of the maker.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 727; Dec. Dig. § 306.*]</p> <p>2. Appeal and Error (§ 1011*) — Review-Findings.</p> <p>A finding of the trial judge on conflicting evidence cannot be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]</p> <p>3. Bills and Notes (§ 496*) — Evidence— Ownership — Presumption.</p> <p>The fact that a negotiable instrument in the hands of plaintiffs was produced at trial raises the presumption of plaintiffs’ ownership, though, if plaintiffs be the payees, and the paper be found to havif been indorsed, the presumption will be that the indorsement has not been completed by delivery, or that plaintiffs merely held the notes for collection.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1669-1674; Dec. Dig. § 496.*]</p> <p>4.Alteration oe Instruments (§ 8*) — What Constitutes — Erasure oe Indorsement.</p> <p>Where the payee of a negotiable instrument had indorsed it to a third person and, on the maker’s default, had taken up the note, the erasure of the indorsement was not such alteration as to deprive the payee of his remedy on the note.</p> <p>[Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 40-46; Dec. Dig. § 8.*]</p> <p>5. Bills and Notes (§ 443*) — Actions—Title to Sustain.</p> <p>Where, by erasure of indorsements and delivery, plaintiffs had the legal title to a note, they may maintain an action thereon, though another holds the equitable title.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1377-1423; Dec. Dig. § 443.*]</p> <p>6. Appeal and Error (§ 747*) — Assignments oe Error — Filing—Necessity.</p> <p>Where an assignment of error was not filed in the court below, the appellate tribunal need not consider it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3057; Dec. Dig. § 747.*]</p> <p>7.Judgment (§ 248*) — Pleading to Sustain.</p> <p>In an action on vendors’ lien notes, where the indorsers were joined as defendants, and the record shows that one indorser prayed for judgment over against the first indorser and set up the fact that he agreed to deposit in a bank a sum to be held in escrow, to be paid to the second indorser on Ms discharge of the note, and that the fund had been garnished, and the prayer of the petition was for all legal and equitable relief, the petition was sufficient to support a judgment adjudging the deposit in escrow to be subject to the payment of the notes.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 434; Dec. Dig. § 24S.*]</p>

Smith, Judge. Action by Davis Bros., composed of T. C. Davis and others, against Sam Green, in ■which R. L. McMullen filed a plea of intervention. From the judgment, the intervener appeals.

P. Huff, Judge. Action by W. P. Carey and A. C. Lombard, copartners, doing business as the Childress Lumber Company, against C. W. McFarling and others. There was a judgment for-plaintiffs, and the defendant named brings-error.

<p>Appeal from District Court, Potter County; J. N. Browning, Judge.</p> <p>Action by Louisa W. Miller against Mary P. Horn and others. From the judgment, plaintiff appeals.</p>

<p>1. Schools and School Districts (§ 103*)— Taxation — Assessment—Averments—Stat-utory Provisions.</p> <p>Laws 1905, c. 124, § 165, provides that the board of trustees of an independent school district shall choose an assessor and collector of taxes unless they prefer to have the taxes assessed and collected by the county assessor and collector, in which ease the property shall not be assessed at a greater valuation than that at which it is assessed for county and state purposes. An assessor appointed by the school board thereunder served two years, and, upon his declining to serve longer, the board provided for the assessment by the county assessor. Held, that the appointment of the county assessor had the effect of declaring vacant the office of the assessor regularly appointed so as to make the effect of the appointment the same as if it had been made in the first instance, and render invalid assessments not based on the same valuation as that for county and state purposes.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 240-245; Dec. Dig. § 103.*]</p> <p>2. Schools and School Districts (§ 103*)— Taxation — Assessment—Averments—Stat-utory Provisions.</p> <p>School Law (Laws 1905, c. 124) § 57, which authorizes the levying of a special tax for school purposes, with the proviso “that in all assessments of property for taxing purposes * * * the property shall be assessed at the valuation fixed for said property for state and county purposes,” was amended by Acts 31st Leg. e. 12, by striking out the proviso. Section 165 of the law provides that the property of school districts having their taxes assessed and collected by the county assessor and collector shall not be assessed at a greater value than that assessed for county and state purposes. Held, that the amendment of the act did not remove the right to have the valuation of property limited to that fixed for county and state purposes where the assessment was made by the bounty assessor.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 240-245; Dec. Dig. § 103.*]</p> <p>3. Statutes (§ 245*) — Revenue Laws — Construction.</p> <p>Statutes imposing public burdens in the form of taxes must be construed strongly against the government and liberally in favor of the person on whom it is sought to impose the burden, and, where there is any ambiguity or uncertainty, the doubt must be resolved in favor of the taxpayer.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 326; Dee. Dig. § 245.*]</p> <p>4. Schools and School Districts (§ 103*)— Taxation — Assessment—Statutory Pbovi-VISIONS.</p> <p>The right given under School Law (Laws 1905, c. 124) § 165,' to have property assessed for school purposes by a county assessor assessed at the same valuation as that for state and county purposes, is fixed by the act of assessment which is judicial and cannot thereafter be removed by the fact that the ministerial act of collection was by other than the county collector.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 240-245; Dee. Dig. § 103.*]</p>

<p>1. Judgment (§ 101*)—Default—Pleading to Sustain—Insurable Interest.</p> <p>Where a petition on a fire policy alleged that plaintiffs were the owners of the property insured at the time the policy was issued, such allegation, though not a direct averment that plaintiffs were the owners of the property at the time of the fire, was sufficient as against such objection to sustain a judgment by default.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 168-170; Dec. Dig. § 101.*]</p> <p>2. Appeal and Error (§ 742*)—Assign-ments of Error—Propositions.</p> <p>Where, in an action on a fire policy, error was assigned in the rendition of judgment for an amount in excess of the policy when plaintiffs’ pleadings and the evidence were insufficient to authorize a recovery for that sum, propositions thereunder, that a contract made by a person acting as agent of one of the contracting parties with himself as agent of the other party to the contract is binding on neither, and that an insurance agent of two companies is without authority to act for one in canceling a policy and for the other in writing a new policy in place of the one canceled, were not germane to the assignment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>3. Brokers (§ 32*) — Principal and Agent (§ 70*)— Dual Relation — Action fob Both Pasties.</p> <p>An agent or broker cannot act in a dual relation and bind either party, unless it be with the consent of both parties to the transaction.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 25; Dec. Dig. § 32;* Principal and Agent, Cent. Dig. § 146; Dec. Dig. § 70.*]</p> <p>4. Insurance (§ 629*) — Agents—Dieeerent Companies.</p> <p>An agent of a lumber company was also agent of defendant and another insurance company, and, as such, issued a policy on plaintiffs’ property in defendant company, payable to the lumber company as its interest might appear. Held, that where a petition in an action on the policy alleged that the agent represented defendant, and there was no allegation that he ever represented the insured or that his acts were unknown to the parties, the policy was not invalid because made by a person acting as agent of one of the contracting parties with himself as agent of the other.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. !§ 1575-1580, 158^-1586, 1590-1592, 1596, 1598, 1603-1606, 1608; Dec. Dig. § 629.*]</p> <p>5. Insurance (§ 627*) — Action Against Foreign Insurance Company — Service..</p> <p>Where, in an action against a foreign insurance company, the petition alleged the names and residences of its local agents, giving specific directions for the service of process upon them, and the process also gave the names and residences of the agents, it was not necessary for plaintiffs to prove that the person actually served was the agent of defendant; the sheriff’s return showing that the citation was served on the persons named as agents.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1573, 1574; Dee. Dig. § 627.*]</p>

<p>Covenants (§ 1*)— Constbuction — Indefiniteness — Enforcement.</p> <p>A deed from defendant to plaintiff provided that for further consideration defendant promised to furnish plaintiff water for his necessary household use and for his stock. Another deed also provided that for further consideration defendant promised to furnish plaintiff water that might be necessary for his stock and for personal use about the house and premises. Eeld, that the covenants were not such as would run with the' land for all time, and, being therefore indefinite both as to the length of time they would bind defendant to furnish water and also as to the number of stock for which water would be furnished, they were too indefinite to entitle plaintiff to recover for breach thereof.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. § 1; Dec. Dig. § 1.*]</p>

<p>1. Bankruptcy (§ 20*) — Firing Petition-Action Pending Against Bankrupt.</p> <p>The filing of a petition in bankruptcy against one, while action against him on a debt, in which he has given a replevy bond, is pending, does not deprive the court of power to proceed to judgment in such action for the debt and on the bond.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. § 20.*]</p> <p>2. Bankruptcy (§ 100*) — Adjudication—Expect on Bankrupt’s Surety.</p> <p>The surety on a replevy bond to release attached property is not released from liability by reason of the principal, after giving the bond, though within four months of the levy, being declared a bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 60, 131, 141-144; Dec. Dig. § 100.*]</p>

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>Action by the Levis-Zuloski Mercantile Company against W. E. Hulme and others. From a judgment for plaintiff and against defendant J. M. Clayton, said defendant appeals.</p>

<p>Appeal from District Court, Dallam County; D. B. Hill, Judge.</p> <p>Action by E. A. Easley and another against the Chicago, Bock Island & El Paso Railway Company. Judgment for plaintiffs. Defendant appeals. Affirmed.</p>

<p>Appeal from Wheeler County Court; J. B. Reynolds, Judge.</p> <p>Action by W. O'. Flynt against the Western Warehouse Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Potter County; J. N. Browning, Judge.</p> <p>Action by Mrs. Etta M. White against the Western Union Telegraph Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Elections (§ 293*) — Contests—Evidence —Qualifications of Voter.</p> <p>On an issue in an election contest as to the ■residence of an unmarried voter whose right to vote was,denied, it was not error to reject testimony as to whether the voter resided with a particular family during a specified time, as ■to where his home had been since his removal from another county, and as to whether he ever claimed any other home since he took up his headquarters in the county of the contest; the residence of a single man, under the statute, for purpose of voting, being the place where he usually sleeps, and the testimony offered not tending to throw light on that question.</p> <p>[Ed. Note. — For other cases, see Elections, ‘Cent. Dig. §§ 288-296; Dec. Dig. § 293.*]</p> <p>.2. Appeal and Erbok (§ 1056*) — Review — Harmless Error — Evidence-.</p> <p>An election contestant is not entitled to •complain on appeal of a ruling rejecting testimony offered to show the qualifications of a particular voter, where the trial court sustained his qualifications.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]</p> <p>■3. Elections (§ 293*) — Evidence (§ 471*) — Contests — Admissibility of Evidence — Conclusion of Witness.</p> <p>On an issue in an election contest as to whether a particular voter resided in the state ■on January 1st, so as to make him liable for poll tax, it was error to exclude his testimony that he and his wife did nothing toward establishing a home in the state until about the middle of January; such testimony being relevant, and not being objectionable as a conclu-sion of the witness.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig.-§§ 2S8-290; Dec. Dig. § 293;* Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>4. Elections (§ 293*) — Evidence (§ 471*) — Contests — Opinion Evidence — Relevancy.</p> <p>On an issue in an election contest as to ■the residence of an unmarried voter whose right to vote was denied, testimony as to where he had lived since a specified time, where his headquarters were during that time, and as to where he considered his home to be since that time, was properly excluded as calling for a •conclusion of mixed questions of law and fact, and as irrelevant to the issue as to the voting residence of a single man.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 288-296; Dec. Dig. § 293;* Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>5. Evidence (§§ 471, 472*) — Conclusion of Witness — Mixed Question of Law and Fact.</p> <p>On an issue in an election contest as to the residence of a voter whose right to vote was denied, testimony that a certain house was his home sihce a specified date was properly excluded as involving mixed questions of law and fact, and as being a conclusion of the witness.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185, 2186-2195; Dec. Dig. §§ 471, 472.*]</p> <p>6. Elections (§ 293*) — Contests—Evidence —A dmissibility.</p> <p>On an issue in an election contest as to the residence of a voter whose right to vote was denied, testimony that he did not go on a claim, which ho had filed on in another state, to live was properly excluded, since, he being a single man, his right to vote was fixed by statute at the place where he usually slept.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 288-296; Dee. Dig. § 293.*]</p> <p>7. Evidence (§ 144*) — Admissibility — Materiality— Certainty .</p> <p>On an issue in an election contest as to the residence of a voter whose right to vote was denied, testimony as to whether witness ever heard the voter or his wife say where they resided before they came to live with witness, and if they said they had resided in another state, and how long they had resided there, was properly excluded as being indefinite and vague.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 430-433; Dec. Dig. § 144.*]</p> <p>8. Elections (§ 293*) — Contests—Evidence —Admissibility .</p> <p>On an issue in a contest under an election held November 8, 1910, as to the residence of a voter whose right to vote was denied, testimony that the voter lived in a certain town from June 10th until November 8th was properly excluded.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 288-296; Dec. Dig. § 293.*]</p> <p>9. Evidence (§ 471*) — Conclusion of Witness.</p> <p>On an issue in an election contest as to the residence of a voter whose right to vote was denied, testimony that witness had lived at a specified place during a certain period, and was acquainted with the voter, but had not seen him at that place during that period, and that if the voter had been there witness would have seen him, was properly excluded as being a conclusion of the witness.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>10. Appeal and Error (§ 1056*) — Harmless Error — Exclusion of Testimony.</p> <p>Any error in excluding testimony as to the qualifications of a voter whose right to vote was denied by contestant was harmless to contestant, where it is found that the voter was disqualified and his vote illegal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]</p> <p>11. Evidence (§ 320*) — Hearsay Testimony —Election Contest.</p> <p>On an issue in an election contest as to the qualifications of a voter, testimony relating to the voter’s residence was properly excluded, where it appeared that it was based on hearsay.</p> <p>[Ed. Note, — For other cases, see Evidence, Cent. Dig. § 1201; Dec. Dig. § 320.*]</p> <p>12. Elections (§ 60*) — Alienage—Natural-ization-Time for Application.</p> <p>Naturalization Act (Act Cong. June 29, 1906, c. 3592, 34 Stat. 596 [U. S. Comp. St. Supp. 1911, p. 529]) § 4, subd. 2, which provides that petitions for naturalization shall be' made not more than seven years after declaration of intention, does not apply to aliens who declared their intention before the law was enacted; and hence a resident of Texas was not disqualified to vote on the ground of alien-age, where he declared his intention to become a citizen August 29, 1888, and his application for final adjudication was pending — he having paid his poll tax regularly, and having resided in the state, county, and precinct for the required time.</p> <p>LEd. Note. — For other cases, see Elections, Cent. Dig. § 56; Dec. Dig. § 60.*]</p> <p>IS. Elections (§ S3*) — Electobs — Qualifications — Ase.</p> <p>A citizen, who became of age June 29, 1909, was disqualified to vote at an election held November S, 1910, where he failed to appear before the tax collector before February 1, 1910, to make the affidavit and secure the certificate of exemption required by Terrell Election Law (Acts 29th Leg. Ex. Sess. c. 11) § 23, though he paid the poll tax after the year 1910, to which he was not subject, and which had not been assessed against him.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. 77-81; Dec. Dig. § S3.*]</p> <p>14. Elections (§ 295*) — Contests—Evidence —Sufficiency.</p> <p>On an issue in an election contest as to the qualification of a voter, evidence held to sustain a finding that he was a resident of the county in which he voted.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297-299; Dec. Dig. § 295.*]</p> <p>15. Elections (§ 295*) — Contests—Evidence —Sufficiency.</p> <p>On an issue in an election contest as to the qualification of an unmarried voter, evidence held to show that he usually slept in a county other than where he voted, precluding his right to vote.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>16. Elections (§ 83*) — Electobs—Qualifi-cations.</p> <p>A person, who became of age July 20, 1909, was disqualified to vote November 8, 1910, where he failed to make affidavit and secure a certificate of exemption from poll tax, as required by Terrell Election Law (Acts 29th Leg. Ex. Sess. c. 11) § 23.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 77-81; Dec. Dig. § 83.*]</p> <p>17. Elections (§ 295*) — Contests—Evidence —Qualification of Electos.</p> <p>In an election contest, evidence held to show that a voter did not reside in the county during the six months next preceding the election, invalidating his vote.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dee. Dig. § 295.*]</p> <p>18. Elections (§ 72*) — Electobs—Qualifi-cations — Residence.</p> <p>A married man, who had resided in the state, county, and voting precinct for the required period, was qualified to vote, though his family, from whom he was 'Separated, lived in another state; it appearing that he had been permanently separated from his wife for more than a year preceding the election.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 67, 68, 70; Dec. Dig. § 72.*]</p> <p>19. Elections (§ 295*) — Contests—Evidence —Residence of Elector.</p> <p>In an election contest, evidence held to show that a voter did not reside in the county, invalidating his vote.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>20. Elections (§ 295*) — Contests—Evidence —Residence of Elector.</p> <p>In an election contest, evidence held to sustain a finding that a voter resided in the county, and hence was qualified to vote.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>21. Elections (§ 295*) — Contests—Evidence —Residence of Elector.</p> <p>Evidence in an election contest held to-show that a voter was not a resident of the county, and that his vote was illegal.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>22. Elections (§ 83*) — Electors — Qualifications.</p> <p>A person, who became of age June 11, 1909, was disqualified to vote November S, 1910, where he did not make affidavit and secure the certificate of exemption from poll tax. required by Terrell Election Law (Acts 29th Leg. Ex. Sess. c. 11) § 23.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 77-81; Dec. Dig. § 83.*]</p> <p>23. Elections (§ 72*) — Electors — Qualifications — Payment of Poll Tax.</p> <p>Under Terrell Election Law (Acts 29th Leg. Ex. Sess. c. 11) § 22, which provides that a citizen, who removes to another county or to another precinct after he has received his poll tax receipt or certificate of exemption, may vote in the new precinct by presenting the receipt or certificate, and by making- oath that he resides in the precinct and has resided in the district or county for 6 months and in the state for 12 months, no particular length of residence is required in the new precinct, where the voter moves from one precinct to another in the same county.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 67, 68, 70; Dec. Dig. § 72.*]</p> <p>24. Elections (§ 295*) — Contests—Evidence —Residence of Elector.</p> <p>Evidence in an election contest held to show that a voter was no.t a resident of the county, and that his vote was illegal.</p> <p>[Ed. Note. — Ifor other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>25. Elections (§ 72*) — Electors—Qualifications — Residence.</p> <p>Under Terrell Election Law (Acts 29th Leg. Ex. Sess. c. 11) § 4, if an unmarried man has a room or habitation to which he usually returns, and where he usually sleeps at such times when he is not actively engaged in work elsewhere, his voting residence is in the precinct where such room or habitation is located.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 67, 68, 70; Dec. Dig. § 72.*]</p> <p>26. Elections (§ 295*) — Contests—Evidence —Residence of Voter.</p> <p>In an election contest, evidence held to sustain a finding that a voter had resided in the county for six months next preceding the election.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>27. Elections (§ 295*) — Contests—Evidence —Residence of Elector.</p> <p>Evidence in an election contest held to show that a voter was not a resident of the county, and that hence his vote was illegal.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>28. Appeal and Error (§ 882*) — Review— Right to Complain.</p> <p>An election contestant is not entitled to complain on appeal that a particular vote should have been counted, where he requested a finding that the vote was illegal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3010; Dec. Dig. § S82.*]</p> <p>29. Elections (§ 72*) — Electors — Qualifications — Residence.</p> <p>That an unmarried university student during a vacation went to a particular town and declared his intention of becoming a resident thereof, and went from the university to that place to vote, sufficiently shows that he resided therein, rendering his vote legal.</p> <p>[Ed. Note. — For other cases, see Elections, •Cent. Dig. §§ 67, 68, 70; Dec. Dig. § 72.*]</p> <p>30. Elections (§ 83*) — Electoks—Qualifi-cations — Payment oe Poll Tax.</p> <p>A resident was disqualified to vote at a general election November S, 1910, where he failed to pay the poll tax for 1909 in the county of his former residence; he not having left there until March, 1909, though he paid the poll tax in the county where he voted — it being a voluntary payment, not due.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 77-81; Dec. Dig. § 83.*]</p> <p>31. Elections (§ 83*) — Electoks—Qualifi-cations.</p> <p>A person was disqualified to vote at a general election November 8, 1010, where he resided in another county January 1, 1909, was subject to the payment of a poll tax to that county for that year, which he did not pay, and where he did not reside in the particular county, in good faith, for six months next preceding the election.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 77-81; Dec. Dig. § 83.*]</p> <p>32. Elections (§ 83*) — Electoks — Qualifications — Payment of Poll Tax.</p> <p>Persons were disqualified to vote at a general election November 8, 1910, where they owed poll taxes to another county and resided in such county on January 1, 1909, and did not pay the same before February 1, 1910.</p> <p>[Ed. Note. — For other cases, see Elections, Gent. Dig. §§ 77-81; Dec. Dig. § 83.*]</p> <p>33. Elections (§ 83*) — Electors—Qualifications — Payment of Poll Tax.</p> <p>A person was disqualified as an elector at a general election, where ho was delinquent in the payment of a state poll tax.</p> <p>[Ed. Note. — For other cases, see Elections, Gent. Dig. §§ 77-81; Dec. Dig. § 83.*]</p> <p>34. Elections (§ 295*) — Contests—Evidence —Payment of Poll Tax.</p> <p>Evidence, in a contest under a general election held November 8, 1910, held to sustain a finding of delinquency in the payment of a poll tax for the preceding year, invalidating a vote.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>35. Elections (§ 295*) — Contests—Evidence —Residence of Elector.</p> <p>Evidence in an election contest held to show that a voter was not a resident of the county, and that hence his vote was illegal.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>36. Elections (§ 83*) — Electors—Qualifications — Payment of Poll Tax.</p> <p>The unauthorized payment of another’s poll tax by a volunteer with the latter’s own money does not authorize the former to vote.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 77-81; Dec. Dig. § 83.*]</p> <p>37. Elections (§ 295*) — Contests—Evidence —Residence of Voter.</p> <p>In an election contest, evidence held to sustain a finding that a voter had not resided in the state for Í2 months next preceding the election, thus invalidating his vote.</p> <p>[Ed. Note. — For other cases, see Elections, ■Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>38. Elections (§ 295*) — Contests—Evidence —Residence of Voter.</p> <p>In an election contest, evidence held to sustain a finding that a voter had been a resident of the state for the required time.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>39. Elections (§ 295*) — Contests—Evidence —Residence of Voter.</p> <p>In an election contest, evidence held to sustain a finding that absence of certain voters from their residence established in the county was temporary, rendering their votes valid.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p> <p>40. Elections (§ 291*) — Contests—Qualification of Voter — Burden of Proof.</p> <p>In an election contest, the burden was on the party, who complained of a finding that a certain person was a legal voter, to show that the voter was legally subject to a municipal poll tax, and had failed to pay it.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 286; Dec. Dig. § 291.*]</p> <p>41. Elections (§ 83*) — Electors — Qualifications — Payment of Poll Tax.</p> <p>A person was disqualified as an elector at the general election held November 8, 1910, where he failed to pay a poll tax due from him in another county for the preceding year, though he paid the tax in the county where he voted; he not being subject thereto.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 77-81; Dec. Dig. § 83.*]</p> <p>42. Elections (§ 291*) — Contests—Burden of Proof — Qualification of Voter.</p> <p>In an election contest, the burden was on the party who complained that a person was not entitled to vote, though a militiaman, to show that the voter was not exempt from the payment of a city poll tax.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 286; Dec. Dig. § 291.*]</p> <p>43. Elections (§ 295*) — Returns—Validity.</p> <p>The returns from an election precinct should not be disregarded in an election contest on the ground of any fraudulent conspiracy to carry the election, where it does not appear that the conspiracy was executed, if any existed, or that any fraudulent acts influenced any illegal voting.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 297, 299; Dec. Dig. § 295.*]</p>

<p>1. Counties (§ 35*) — “County Seat.”</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 811, providing that no county seat situated within five miles of the geographical center of the county shall be removed, except By a two-thirds vote of the electors of the county voting thereon, article 819, providing that the county commissioners’ court of each county, as soon as practicable after the establishment of the county seat, or its removal from one place to another, shall provide a courthouse and jail and offices for the county officers at the county seat, and article 1140, providing that clerks of the county courts shall have their offices at the county seat, and, when they do not reside there, shall have a deputy residing there, the “county seat” does not consist merely of the courthouse, jail, and other public buildings, but consists of the town plot of the town designated as the county seat at the time it is so designated.</p> <p>[Ed. Note. — For other eases, see Counties, Cent. Dig. §§ 38-45; Dec. Dig. § 35.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1667; vol. 8, p. 7621.]</p> <p>2. Counties (§ 35*) — County Seat — Removal —“Within Five Miles.”</p> <p>A county seat is “within five miles” of the geographical center of the county, within Sayles’ Ann. Civ. St. 1897, art. 811, providing that, when the county seat is within five miles of the geographical center, it shall not be removed, except by a two-thirds vote of the electors of the county voting on the subject, where any part of the county seat would be included within a circumference described around such center with a five-mile radius, although the whole of the county seat is not within such circumference.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 38-45; Dec. Dig. § 35*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7497-7502.]</p>

<p>Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.</p> <p>Action by B. W. Landrum against E. M. Thomas. Judgment for defendant. Plaintiff appeals.</p> <p>This is a suit by B. W. Landrum against E. M. Thomas, in which the plaintiff sought to recover damages growing out of a shortage in the sale of a tract of land. The defendant’s answer included exceptions and a general and special denial. There was a jury trial, which resulted in a verdict and judgment for the defendant, and the plaintiff has prosecuted this appeal. Omitting formal parts, the ease was submitted to the jury under a charge which reads as follows:</p> <p>“G-entlemen of the Jury: In this case the plaintiff, B. W. Landrum, is suing the defendant, E. M. Thomas, for damages. The plaintiff alleges that on or about September 8, 1908, he entered into a contract, whereby the defendant agreed' to sell to him, and did sell to him, a certain tract of land, described in plaintiff’s petition, in consideration of certain property conveyed by plaintiff to defendant, and of certain money paid by plaintiff to defendant. Plaintiff alleges that ¿he defendant misrepresented the quantity of land contained in the tracts so sold to plaintiff, and brings this suit for damages on account of such alleged shortage. For a more particular statement of the allegations of plaintiff’s petition, you are referred to his said original petition, which is herewith delivered to you.</p> <p>“The defendant, Thomas, answers by denying the allegations in plaintiff’s petition, and specially denies that he was guilty of any fraud or misrepresentation, as alleged by plaintiff, and says that he made no representation of fact as to the quantity of said land. For a full statement of defendant’s allegations, you are referred to his original answer, which is herewith delivered to you. You are given the following as the law applicable to this case:</p> <p>“1. You are the exclusive judges of the facts proven, of the credibility of the witnesses, and the weight to be given to the testimony; but you are bound to receive the law from the court, which is herewith given you, and be governed thereby.-</p> <p>“2. The burden is upon the plaintiff to prove the material allegations in his petition necessary to entitle him to recover by a preponderance of the evidence.</p> <p>“3. It is shown by the uneontradicted evidence that on or about the 8th day of September, 1908, the defendant, E. M. Thomas, joined by his wife, sold to the plaintiff the tracts of land described in plaintiff’s petition, in consideration of certain property deeded by plaintiff to defendant, and for the further consideration of certain cash paid by plaintiff to defendant, and the assumption by plaintiff of certain notes due by defendant.</p> <p>“Now, if you believe from a preponderance of the evidence that, w,hile negotiations for the sale of said, land were pending, the defendant, E. M. Thomas, represented to the plaintiff, B. W. Landrum, as a representation of fact, that the said two tracts of land so conveyed, contained in the aggregate 753% acres of land, and if you believe that the plaintiff relied upon said representations (if any) and believed the same to be true, and was thereby induced to purchase said land, and if you further believe that said land contained materially less than 753% acres, then you will find for the plaintiff, and assess his damages at such proportionate part of the total consideration paid by Landrum to Thomas as the amount of the shortage in said land bears to the quantity of land as represented by said Thomas (if you find such representations were made).</p> <p>“Unless you find for the plaintiff under the foregoing instructions, then you will find for the defendant.”</p>

<p>1. Death (§ 9*) — Action—Parties—Employer’s Liability— State and Federal Statutes .</p> <p>The state statute, authorizing action for death of a railroad employé by those entitled to the benefit of the recovery, is superseded, in the case of an employé of a railroad engaged in interstate commerce, killed while in such employment, by Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1324), declaring such carrier liable to deceased's personal representative, for the benefit of specified persons.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 11; Dec. Dig. § 9.*]</p> <p>2. Parties (§ 76*) — Action by Wrong- Party-Waiver oe Objection — Answering to Merits.</p> <p>The right of action for death of an em-ployé of a railroad engaged in interstate commerce, killed while in such employment, being wholly dependent on Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, e. 143, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1324), declaring the railroad liable to deceased’s personal representative for the benefit of certain persons, the right to insist on the defense that the action cannot be maintained by the beneficiaries is not waived by first answering to the merits in the action brought by them.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 117-121; Dec. Dig. § 76.*]</p>

B. Buchanan, Judge. Action by the First State Bank & Trust Company of Snyder against J. A. Harlin and others to recover on a promissory note.

<p>Appeal from' District Court, Foard County; S. P. Huff, Judge.</p> <p>Action by Mrs. Effie Stanford and others against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Cottle County Court; W. E. Prescott, Judge.</p> <p>Action by J. H. Biddy and others against J. C. Lemons and wife. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Municipal Corporations (§ 669*) — Boundary Fence — Right to Construct.</p> <p>If a street lies between a railway right of way and plaintiff’s lot, the railway company cannot construct a fence on plaintiff’s boundary line, but otherwise if no street exists.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1445; Dec. Dig. § 669.*)</p> <p>2. Easements (§ 8*) — Prescriptive Rights.</p> <p>Permissive use of a road or way across uninclosed land does not ripen into a right, however long existing.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 23, 24, 33; Dec. Dig. § 8.*]</p> <p>3. Dedication (§ 44*) — Streets —Implied Dedication.</p> <p>The act of an owner of land in selling lots on each side of a strip of land lying in extension of a street, while evidence tending to show implied dedication of the strip as a street, is not conclusive on that point*</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 85-87; Dec. Dig. § 44.*)</p> <p>4. Dedication (§ 45*) — Streets—Jury Question.</p> <p>In an action to enjoin a railway company from constructing a fence on the line of plaintiff’s lot, whether a street existed between the company’s right of way and the lot by dedication held, under the evidence, a jury question.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §, 88; Dec. Dig. § 45.*]</p> <p>5. Easements (§ 18*) — Abutting Owners— Subdivision oe Dots.</p> <p>An owner of a lot 50 feet wide and 150 feet long, extending along a railway right of way, is not entitled to subdivide the lot into smaller lots facing upon the right of way, and enforce access directly upon the right of way.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 50-55; Dee. Dig. § 18.*]</p> <p>6. Easements (§ 11*) — Ancient Ligbtts— Applicability oe Doctrine.</p> <p>The doctrine of ancient lights does not obtain in Texas; and hence an owner of a lot adjoining a railway right of way cannot prevent the railway company from cutting off the view from the lot by erecting a fence along the boundary line.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. § 34; Dec. Dig. § 11.*]</p> <p>7. Railroads (§ 73*) — Right oe Way — En-. joyment.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 4483, which limits the building which may be constructed on a railway right of way, does not apply to lands owned by a railway company in fee, and hence, where such ownership exists, an owner of a lot adjoining a right of way cannot rely upon the statute to defeat the company’s right to construct a fence along the line of such lot.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 179-182; Dec. Dig. § 73.*]</p> <p>8. Railroads (§ 73*) — Fence —Action to Enjoin Construction — Evidence—Materiality.</p> <p>In an action to enjoin a railway company from constructing a fence along the line of a lot adjoining its right of way, evidence that the fence would affect the purpose and advantage of the lot is immaterial and irrelevant.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§, 179-182; Dec. Dig. § 73.*]</p> <p>9. Evidence (§ 472*) — Conclusions.</p> <p>In an action against a railway company to enjoin construction of a fence along the line of a lot abutting upon the company’s right of way, testimony that the fence would obstruct the view of plaintiff’s property was not inadmissible, as constituting a conclusion of the witness and an invasion of the jury’s province.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195; Dea Dig. § 472.*]</p> <p>10. Evidence (§ 113*) — Fence—Construction — Damage to Adjoining Property.</p> <p>In an action against a railway company to enjoin construction of a fence between its right of way and an adjoining lot, testimony as to the value of the lot on account of its proximity to the»eompany’s station, and as to what uses the lot could be subjected, was properly admitted on the question of market value.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dee. Dig. § 113.*]</p> <p>11. Damages (| 174*) — Fence — Construction— Damage to Adjoining Property — ' Evidence.</p> <p>In an action against a railroad company to enjoin construction of a fence between its right of way and plaintiff’s lot, plaintiff’s testimony should have been confined to the market value of his property if the fence were erected, and evidence that without a fence it would be worth from $10,000 to $12,000 was inadmissible.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 462 — 467; Dea Dig. § 174.*)</p> <p>12. Evidence (§ 474*) — Opinion Evidence-Qualifications of 'Witness.</p> <p>A witness who was familiar with the location of property, and had had some dealings in real estate in a city where it was located, and was acquainted with values, was qualified to testify to the value of the particular property.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*]</p> <p>13. Railroads (§ 73*) — Fence Along Right of Way — Action to Enjoin — Pleading.</p> <p>In an action to enjoin a railway company from constructing a fence between its right of way and plaintiff’s lot, an exception to an allegation in the petition that the fence was apt to injure plaintiff’s existing and contemplated lines of business was properly overruled.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 179-182; Dec. Dig. § 73.*]</p> <p>14. Pleading (§ 8*) — Conclusions.</p> <p>In an action to enjoin a railway company from constructing a fence between its right of way and plaintiff’s lot, an allegation that the right of way constituted & public highway to aud from which plaintiff had a right of ingress and egress, etc., was subject to exception for failing to plead such facts showing a right of ingress and egress.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28Y2; Dec. Dig. § 8.*]</p> <p>15. Municipal Corporations (§ 653*) — Dedication of Street — Evidence.</p> <p>In an action to enjoin a railway company from constructing a fence between its right of way and plaintiff’s lot, allegations that a street existed between the right of way and the lot, and had for many years been open as a public street, etc., was sufficient to sustain proof of a dedication or dedication by prescription of the land as a street.</p> <p>[Ed. Nota — For other eases, see Municipal'Corporations, Cent. Dig. § 1427; Dec. Dig. § 653. *T</p> <p>16. Appeal and Error (§ 843*) — Review-Sufficiency of Evidence.</p> <p>Sufficiency of the evidence to sustain a judgment appealed from will not be reviewed, •where a new trial is granted for errors at the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3342; Dec. Dig. § 843.*]</p>

<p>1. Justices of the Peace (§ 130*)—Judg-ment—Validity.</p> <p>Failure of a justice’s judgment, which was rendered by default upon citation by publication, to show that no attorney was appointed to represent defendant does not warrant a finding that no appointment was made.</p> <p>[Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 130:* Judgment, Cent. Dig. §§ 989, 1153.]</p> <p>2. Justices of the Peace (§ 129*)—Judg-ment—Validity—Collateeal Attack.</p> <p>Judgment rendered in justice’s court by default on citation by publication is not void and subject to collateral attack for nonap-pointment of an attorney to represent defendant.</p> <p>[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 408-411; Dec. Dig. § 129.*]</p> <p>3. Justices of the Peace (§ 48*)—Jurisdic-tion—Foeeclosube of Liens.</p> <p>A justice’s court has jurisdiction to foreclose an attachment lien on land, and to issue an order for the sale of the same.</p> <p>[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 177, 178; Dec. Dig. § 48.*]</p> <p>4. Justices of the Peace (§ 125*)—Judg-ment— Peoof.</p> <p>An original justice’s court judgment is admissible in evidence, though not registered or recorded, as required by Rev. St. 1895, art. 4649.</p> <p>[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 390-392, 395-399; Dec. Dig. § 125.*]</p> <p>5. Vendob and Puechasee (§ 224*)—Bona Fide Puechasees—Quitclaim: Deed.</p> <p>One claiming under a quitclaim deed cannot be deemed an innocent purchaser.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 469-473; Dec. Dig. § 224.*]</p> <p>6. Justices of the Peace (§ 138*) — Judgment — Record—Sufficiency.</p> <p>A record sufficiently shows issuance of a writ of attachment, in an action in justice’s court, where the judgment in that action shows foreclosure of an attachment lien, and directed issuance of an order _ of sale, and where it appears that the sheriff’s return on the writ was introduced in evidence.</p> <p>[Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 449-464; Dec. Dig. § 138.*]</p> <p>7. Judicial Sales (§ 61*) — Sheriff's Deed-Recitals — Instructions.</p> <p>A recital in a Sheriff’s deed, that the premises described therein, including 120 tracts, “were struck off to H. for the sum of $50, she being the highest and best bidder,” etc., does not exclude the possibility that the tracts were sold separately.</p> <p>[Ed. Note. — Eor other cases, see Judicial Sales, Gent. Dig. §§ 119-122; Dec. Dig. § 61.*]</p> <p>8. Evidence (§ 18*) — Judicial Notice — Adequacy of Consideration.</p> <p>The Court of Civil Appeals cannot judicially know, in the absence of proof, that $50 was such grossly inadequate consideration for 120 separate lots conveyed by sheriff’s deed as to warrant holding the deed void upon collateral attack.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 22; Dec. Dig. § 18.*]</p> <p>9. Judicial Sales (§ 47*) — Sheriff’s Deed-Validity — Collateral Attack.</p> <p>A sheriff’s deed will not be set aside on collateral attack, after delay of more than 10 years, for want of notice of the sale, especially in the absence of a showing that the irregularity was caused by the fraud or collusion of the purchaser, or that the property sold for a grossly inadequate price.</p> <p>LEd. Note. — For other eases, see Judicial Sales, Cent. Dig. § 89; Dec. Dig. § 47.*]</p> <p>On Rehearing.</p> <p>10. Seals (§ 6*) — Presumptions—Acknowledgment.</p> <p>A notary’s seal is presumed to have been attached to an acknowledgment of a deed.</p> <p>[Ed. Note. — For other cases, see Seals, Cent. Dig. § 9; Dec. Dig. § 6.*]</p> <p>11. Judicial Sales (§ 50*) — Sale — Bona Fide Purchasers — Burden of Proof.</p> <p>Plaintiff, in claiming land under foreclosure of an attachment lien, has the burden of showing that the attachment creditor, at the time his lien attached, did not know of an outstanding deed under which defendant claims, executed before, but not recorded until after, the lien attached.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 90-94, 96; Dec. Dig. § 50.*]</p>

<p>Appeal from District Court, Ector County; S. J. Isaacs, Judge.</p> <p>Action by J. W. Hope against the Texas & Pacific Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Telegraphs and Telephones (§ 55*)— Connecting Carrier in Transmission and Delivery oe Messages — Liability.</p> <p>Where the Postal Telegraph Company received a message to a point beyond its own lines and collected the price for delivery at the point of destination, and delivered the message at the end of its lines to the Western Union Telegraph Company for delivery at the point of destination, and it received the message with knowledge of the payment of the price in full and pursuant to custom whereby it accepted for delivery messages of the Postal Telegraph Company which it could not handle to destination, the Western Union Telegraph Company assumed the duty of delivering the message at its destination within a reasonable time, notwithstanding a stipulation in the contract between the sender and the Postal Telegraph Company that it was the agent of the sender, without liability to forward the message over the lines of any other company, when necessary to reach the point of destination.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 23; Dec. Dig. § 55.*]</p> <p>2. Telegraphs and Telephones (§ 65*)— Delay in Delivery of Messages — Issues, Proop, and Varia/nce.</p> <p>A petition, in an action against a telegraph company for failure to promptly deliver a message, which alleges that the sender delivered a message to defendant at a designated town for delivery to the sendee, is sustained by proof that the sender delivered the message to another telegraph company, which transmitted it to the designated town and there delivered it to defendant for delivery at the point of destination.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54r-60; Dec. Dig. § 65.*]</p> <p>3. Telegraphs and Telephones (§ 27*)— Delay in Delivery op Messages — Liability por Mental Anguish.</p> <p>Where a telegraph company occupied the status of a connecting carrier in Texas in the ¡reception, transmission, and delivery of a message received by another company in a sister state for transmission and delivery, and it failed to promptly transmit and deliver the message, the sendee could recover from the telegraph company, as a connecting carrier, for mental anguish, whether the contract was a contract of the sister state or not.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 80; Dec. Dig. § •27.*]</p>

<p>1. Justices oe the Peace (§ 128*} — Judgment — Equitable Relief — Proceedings— Allegations of Fraud.</p> <p>The petition alleged that plaintiff had been sued by defendant in justice’s court for §19 for damages to defendant’s automobile, that plaintiff herein had defended the suit, and that the justice knew that the law was with plaintiff upon all of the issues, but notwithstanding such facts, arbitrarily and capriciously, in defiance-of law, and without regard to plaintiff’s rights, rendered judgment against plaintiff for the sum of $19 and costs, and that, by reason of such arbitrary and capricious action of the justice, plaintiff was, in effect, denied its day in court and was denied a hearing of its defense, such as the law contemplates; that the result of enforcing the judgment, if not enjoined, would' be to take its property without due process-of law. Held, that the petition did not sufficiently allege fraud or other ground of equitable relief so as to authorize the enjoining of the enforcement of the justice’s judgment, though it was not appealable because of the-amount involved.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 402-407; Dec. Dig. §■ 128.*]</p> <p>2. Justices of the Peace (§ 128*) — Judgment — Equitable Relief —■ Grounds — Fraud.</p> <p>The district court has no power to enjoin, the enforcement of a justice’s judgment in a nonappealable case, unless it was obtained by fraud, accident, or mistake.</p> <p>[Ed. Note. — For other cases, see Justices of' the Peace, Cent. Dig. §§ 402-407; Dec. Dig. §' 128.*]</p>

<p>1. Railroads (§ 481*) — Fiees — Evidence-Origin of Fire.</p> <p>In an action against a railway company for setting fire to cotton bales on a compress platform, testimony that witnesses who lived ■near the track had previously seen engines pass 'by emitting sparks in large quantities, and that they often spoke of the danger resulting therefrom, was properly excluded, where the identity of the engine that set the fire was established beyond controversy.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]</p> <p>;2. Trial (§ 296*) —Instructions — Error Cured by Other Instruction.</p> <p>In an action against a railway company for ■setting a fire, any error in an instruction which relieved the company from liability if it used ordinary care to equip its engine with an approved spark arrester in failing to require the company to have kept the spark arrester in good repair was harmless, where another instruction covered the omission.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Di|.._§§ 705-718, 715, 716, 718; Dec. Dig. § 296.*</p> <p>3. Trial (§ 295*) —Instructions—Instruction ajs a Whole.</p> <p>An instruction should be considered as a whole, and not by single paragraphs.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p> <p>4. Damages (§ 64*) — Insurance—Effect.</p> <p>Payment by an insurance company for cotton negligently burned by a railroad company does not inure to the benefit of the railway company, there being no privity between it and insurer.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 113; Dec. Dig. § 64.*]</p> <p>5. Trial (§ 260*) — Instructions—Requests.</p> <p>In an action against a railway company for setting fire to bales of cotton on a compress platform, an instruction that, if defendant knew of the cotton’s exposed condition, it was bound to use a high degree of care to prevent the escape of sparks, sufficiently covered a requested charge on “discovered peril.”</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and Error (§ 1068*) — Harmless Error — Instructions.</p> <p>In an action against a railway company for setting fire to cotton, error in an instruction that plaintiffs could not recover and any cause of action was the property of the insurance company which had paid plaintiffs for the loss was harmless to plaintiffs, where it clearly appeared that' the verdict for defendant was based on insufficiency of evidence to show negligence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p>

<p>Appeal from Kaufman County Court; Thos. R. Bond, Judge.</p> <p>Action by Mack Pannill against the St. Louis & San Francisco Railway Company and others. From a judgment for plaintiff, St. Louis & San Francisco Railway Company and Paris & Great Northern Railway Company appeal.</p>

<p>Appeal from District Court, Collin County;. J. M. Pearson, Judge.</p> <p>Action by Albert Blalaek against the Texas Traction Company. Judgment for defends ant, and plaintiff appeals.</p>

W. Simpson, Judge. Action by W. W. Taylor against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Appellee was a passenger on the appellant’s passenger train, with Gilmer as his. destination. According to the testimony offered in his behalf, the Gilmer station was first called, and the train then came to a standstill for a second or two, and then suddenly was moved forward several feet to a final stop.

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by W. B. Hilgartner against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Conteacts (§ 312*) — Construction.</p> <p>Where a contract gave defendant the exclusive right to sell certain automobiles and supplies in a fixed locality, plaintiff did not violate the agreement by selling to a resident of that locality at its own place of business, which was outside of the boundaries fixed by the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1279% ; Dec. Dig. § 312.*]</p> <p>On Motion for Rehearing.</p> <p>2. Principal and Agent (§ 3*) — Construction or? Contract.</p> <p>A contract whereby plaintiff gave to defendant the exclusive .and sole right to sell certain automobiles and supplies in a designated locality for a fixed length of time is not a mere contract for an exclusive agency, but is an attempt to confer upon defendant the sole right to sell those articles in the territory mentioned, and prohibits plaintiff from making any sales in that territory within the time prescribed.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 3-9, 11, 12; Dec. Dig. § 3.*]</p> <p>3. Monopolies (§ 17*) — 'Trusts—Combinations— Statutes.</p> <p>An agreement whereby plaintiff was to give defendant the sole and exclusive right to sell certain automobiles and supplies in a fixed territory for a given length of time is not in violation of Rev. Civ. St. 1911, art. 7796, defining a trust as a combination of cap’tal, skill, or acts by two or more persons for specified purposes; there being no combination in this case.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7116-7119]</p> <p>4. Monopolies (§ 17*) — Trusts—Combina-tio ns — Statutes.</p> <p>Where neither party to a contract giving an exclusive selling agency in specified territory was a corporation, and there being no evidence of a combination or consolidation, the agreement was not in violation of Rev. Civ. St. 1911, art. 7797, defining a monopoly as a consolidation or combination of two or more corporations.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dee. Dig. § 17.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4570-4574.]</p> <p>5. Monopolies <§ 17*) — Trusts—Combinations — Statutes—“Conspiracies Against Trade.”</p> <p>Where neither party to the contract was engaged in buying or selling automobiles or any other article of merchandise, a contract whereby plaintiff gave defendant the exclusive right to sell certain machines and supplies in a designated locality for a given length of time is not in violation of Rev. Civ. St. 1911, art. 7798, defining as conspiracies against trade agreements or understandings whereby any two or more persons engaged in buying or selling any article of merchandise refuse to buy or sell from any other persons, or threaten to or boycott any other persons.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.*]</p> <p>For other definit:ons, see Words and Phrases, vol. 2, pp. 1454-1461; vol. 8, p. 7613.]</p>

<p>Error from District Court, Ector County; S. J. Isaacs, Judge.</p> <p>Action by the First National Bank of Midland against L. P. Powell. Judgment for defendant, and plaintiff brings error.</p>

<p>1. CORPORATIONS (§ 668*) — Process—Service.</p> <p>Jurisdiction over a foreign corporation doing business within the state, and having a local agent residing and representing it in the county where the suit was brought, was acquired by service of citation upon such agent.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2603, 2606-2627; Dec. Dig. §, 668.*]</p> <p>2. Appeal and Error (§ 1010*) — Findings op Fact — Jurisdiction.</p> <p>Where the trial court’s findings of fact in support of its jurisdiction over the person of a foreign corporation were supported by substantial evidence, they could not he disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982; Dec. Dig. § 1010.*]</p> <p>3. Depositions (§ 56*) — Notice—Service on Foreign Corporation.</p> <p>Service of notice to take depositions on the local agent of a foreign corporation, upon whom a summons to the corporation could be legally served, was a valid service on the corporation.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 90-117; Dec. Dig. § 56.*]</p> <p>4. Witnesses (§ 396*) — Redirect Examination-Explaining Testimony.</p> <p>Where, in an employe’s action for injuries, the plaintiff was cross-examined as to a misrepresentation of his .age at the time he secured employment, it was not error to permit him to explain on redirect examination, and to state the circumstances under which he made such misrepresentation.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1261-1264; Dec. Dig. § 396.*]</p> <p>5. Appeal and Error (§ 1053*) — Harmless Error — Evidence.</p> <p>Where, in an employé’s action for injuries, plaintiff was properly asked to explain, on redirect examination, why he misrepresented his age at the time he secured employment, and answered, “For the reason that when my father died he left my mother on my hands,” and at this point was interrupted by the court and told not to go into particulars, there was no reversible error in respect to the quoted words.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 4178-4184; Dec. Dig. § 1053.*]</p> <p>6. Appeal and Error (§ 731*) — Assignment op Error — Sufficiency.</p> <p>An assignment of error complaining that the “verdict of the jury is excessive in amount,” being too general and not in compliance with the rules of briefing, could not be considered, especially where the motion for a new trial wholly failed to specify wherein the verdict was excessive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.*]</p>

<p>Appeal from District Court, Grayson, County; B. L. Jones, Judge.</p> <p>Action by Nina M. Geer and others against the St. Louis, San Francisco & Texas Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

B. Simmons, Judge. Action by Miss Ulma Chambers against the Gulf, Colorado & Santa Fé Railway Company and others. There was a judgment for plaintiff against defendant named, and in favor of defendant the Texas & New Orleans Railroad Company, and defendant named appeals.

<p>Appeal from District Court, Hill County; C. M. Smithdeal, Judge.</p> <p>Action by Aline Pope, by next friend, against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Grayson County ; B. L. Jones, Judge.</p> <p>Action by Gus Sadler against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

M. Masterson, Judge. Petition for mandamus by W. J. Glover against Henry Albrecht, district clerk of Harris county, and others. Judgment was-entered sustaining a demurrer to the petition, and petitioner brings error. On motion to dismiss.

<p>Appeal from Dallam County Court; C. S. Harrington, Judge.</p> <p>Action by the Mexican Land & Colonization Company against W. B. Slaughter and others. Judgment for plaintiff, and defendants appeal. Affirmed.</p>

C. Gipson, Judge. Action by the Spur Hardware Company against L. N. Riter and others. From a judgment of a county court, affirming a judgment of a justice in favor of the plaintiff, defendants appeal.