Volume 150 — South Western Reporter

<p>1. Larceny (§ 55*) — EVIDENCE.</p> <p>In a prosecution for the theft of a horse, evidence held sufficient to sustain a conviction.</p> <p>[Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164-169; Dec. Dig. §, 55.*]</p> <p>2. Criminal Law (§§ 741, 742*)— Credibility and Weight of Testimony — Province of Jury.</p> <p>The jury are the judges of the credibility of witnesses and the weight to be given their testimony.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1716, 1717, 1727, 1728, 1138, 1719-1721; Dec. Dig. §§ 741, 742.*]</p> <p>3. Criminal Law (§ 1159*) — Appeal and Error — Review—Findings of Fact.</p> <p>A verdict on conflicting evidence is conclusive on appeal, where there is sufficient evidence to support the finding.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.*]</p> <p>4. Constitutional Law (§ 74*) — Separation of Departments of Government — Right to “Reprieve” or “Commute” Sentence — “Suspension of Sentence.”</p> <p>Acts 32d Leg. c. 44, is not unconstitutional in authorizing district courts to suspend sentences in certain cases as an invasion of the right to “reprieve” or grant “commutations of punishment” reserved to the Governor by Const. art. 4, §, 11, as a “reprieve” postpones the execution of a sentence to a day certain, whereas a “suspension” is for an indefinite time, and a “commutation” is the changing of the punishment assessed to a less punishment (citing 7 Words & Phrases, pp. 6115, 6116).</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 124; Dec. Dig. § 74.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 6835; vol. 2, pp. 1344, 1345; vol. 8, р. 7608.]</p> <p>5. Constitutional Law (§ 74*) — Separation of Departments of Government — Power to “Pardon” — Invasion of Governor’s Prerogative.</p> <p>Const. art. 4, § 11, provides that, in all criminal cases except treason and impeachment, the Governor shall have power after conviction to grant reprieves, commutations of punishment, and pardons, etc. Acts 32d Leg. с. 44, provides that the district court judges may in prosecutions for certain offenses at defendant’s request submit to the jury the issue as to whether or not the defendant has ever been charged with or convicted of crime, and, if the jury finds that he has not been, the judge may suspend the sentence on conviction. Such suspension is for an indefinite time with the power in the court to revoke on a violation of a requirement of good behavior, and compel the convict to undergo the penalty of the original sentence, or on good behavior for a time equal to double that of the sentence to bring the party into court and set aside and annul the former judgment. Held, that a pardon is an act of grace which exempts an individual on whom it is bestowed from the punishment the law inflicted for a crime which he has committed, and, although the word “pardon” is not used in the statute, as- that -is- the effect of the statute, it is void within the constitutional provision prohibiting the exercise of powers delegated to one of the departments of government by either of the other two departments.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 124; Dec. Dig. § 74.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5168-5172; vol. 8, p. 7745.]</p> <p>On Motion for Rehearing.</p> <p>6. Constitutional Law (§ 70*) — Separation of Departments of Government — Power of Courts to Deal with Constitution.</p> <p>'Hie courts may not inquire into the wisdom of the framers of the Constitution in delegating certain functions to the different departments of government, but may only determine whether or not such a delegation has been made.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.*]</p> <p>7. Criminal Law (§ 978*) — Suspension of Sentence — Conviction.”</p> <p>The word “conviction,” in Const. art. 4, § 11, which provides that in all criminal cases, except treason and impeachment, the Governor shall have power after “conviction” to grant reprieves, commutations of punishment, and pardons, etc., means simply the determination of guilt by the jury, and does not embrace the sentence, so that a person becomes subject to pardon whenever that issue is finally determined, and a court has no inherent authority by postponement of sentence to relieve a person legally convicted of crime of the punishment fixed by law, and Acts 32d Leg. c. 44, which confers on the district courts the power to relieve from the effect of conviction in certain crimes, is not constitutional as within that power.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§, 2484, 2485, 2490; Dec. Dig. § 978.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1584-1591.]</p> <p>8. Constitutional Law (§ 14*) — Construction of Constitution — Meaning of Words.</p> <p>The meaning of the words of a Constitution at the time they were placed therein cannot be altered or amended by any legislation at a subsequent time.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 11; Dec. Dig. § 14.*}</p> <p>9. Criminal Law (§ 978*) — Suspension of Right to' Appeal — Power of Legislature.</p> <p>Under Const. art. 5, § 5, which gives the right of appeal only under such regulations and restrictions as the Legislature may prescribe, Acts 32d Leg. c. 44, which authorizes district court to suspend sentences in certain criminal cases, and to relieve a convict from the effect of such sentence on good behavior for a given period, which discretionary power is final and unappealable, is not unconstitutional as a suspension of the right of appeal, as the Legislature has that power.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2484, 2485, 2487; Dec. Dig. § 978.*]</p> <p>10. Criminal Law (§ 978*) — Suspension of Sentence.</p> <p>Acts 32d Leg. c. 44, p. 67, which provides that the court may in its discretion grant a suspended sentence in certain criminal cases, and after a period of good behavior recall the convict into court and relieve him entirely from the effect of his conviction, is not valid as an exercise of the court’s power to grant a new trial, as it does not contemplate another trial of the defendant, but rather a discharge regardless of the fact that guilt has been established in a court of competent jurisdiction beyond question, and as it contemplates action by the court at a time after the end of the term at which the judgment was entered, since under Rev. St. 1895, arts. 2023, 2025, no court may grant a new trial or change its judgment at a subsequent term.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. 2484, 2485, 2487; Dec. Dig. § 978.*]</p> <p>11. Criminal, Law (§ 978*) — Suspension of Sentence.</p> <p>Acts 32d Leg. c. 44, p. 67, is invalid as in contravention of Const. art. 16, § 2, which commands the Legislature to enact laws to exclude from office, serving on juries, and the right of suffrage, those convicted of bribery, perjury, forgery, or other high crimes.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2484, 2485, 2487; Dec. Dig. § 978.*] .</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>Frank Landry was convicted of murder in the first degree, and he appeals.</p>

<p>Appeal from District Court, Grayson County ; B. L. Jones, Judge.</p> <p>Action by Mrs. Nolia Fesmire against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

C. Roberts, Judge. Action by the First State Bank of Dallas against the Diamond Palace Jewelry Company and John H. Gaston, in which Alice Clarke, executrix, the Commonwealth National Bank, the American Exchange National Bank, Walter Hogg, and D. H. Morrow were interpleaded, and in which Dr. D. P. Tipton and others intervened.

<p>Appeal from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by C. C. Burke against Nick Brau-miller and others. From a judgment for defendants, plaintiff appeals.</p>

O. Buford, Judge. Action by R. E. Trabue against the Continental State Bank of Beckville and others. From a judgment in part for each party as stated, plaintiff and the bank took separate appeals.

<p>1. Injunction (§ 12*) — Objections—Injunction Useless.</p> <p>A temporary injunction will not issue to restrain city officers from paying interest warrants after they have paid the same.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 12; Dec. Dig. § 12.*]</p> <p>2. Municipal Corporations (§ 901*) — Warrants — Interest.</p> <p>While under San Antonio City Charter, §§ 19, 51, and under the general powers conferred under article 100, the city could make any arrangements for protecting its credit which did not contravene sections 112, 115, providing that city warrants should not bear interest, the city could not enter into a valid contract to pay interest, until such time as there should be funds to meet them, on warrants to be purchased by a bank.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1886; D'ec. Dig. § 901.*]</p> <p>3. Municipal Corporations (§ 901*) — Warrants — Interest.</p> <p>Where the city’s charter expressly prohibited any payment of interest on warrants, the doctrine that one is liable for the reasonable value of service rendered could not be invoked to entitle a bank to interest on city warrants pursuant to an arrangement entered by it with the city to protect the city’s credit by advancing the money to pay warrants pending the city’s receipt of funds from tax collections.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1886; Dec. Dig. § 901.*]</p>

<p>1. Evidence (§ 116*) — Admissibility — EXPLANATORY MATTERS.</p> <p>Defendant, in an action for the price of goods sold, claimed that the seller, with his consent, had agreed that another dealer should take certain of the goods and assume responsibility for the purchase price thereof and release defendant from liability, and that, if the seller did not itself make such contract, it was made by its agent and afterwards ratified by it, and offered evidence of a conversation between the seller and its agent in support of such claim. Held that, upon the issues made, it was competent for the seller to introduce orders from such other dealer to it for goods embraced therein, and also to show that the conversation had reference to such sale.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. § 116.*]</p> <p>2. Trial (§ 62*) — Evidence—Rebuttal.</p> <p>In an action for the price of goods, where defendant claimed that he had agreed with the seller to transfer the goods to the C. Company, a copartnership, and offered testimony that it was still a copartnership, the certified copy of the charter of the company and the affidavits of its incorporators were admissible to show that it was not a partnership, but a corporation.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 148-150; Dec. Dig. § 62.*]</p> <p>3. Appeal and Error (§ 1050*) — Harmless Error — Admission of Evidence.</p> <p>In an action for the price of goods sold, where defendant alleged that he had agreed with the seller to transfer the goods shipped to him to a certain company, a copartnership, and offered evidence that it was still a copartnership, the admission of plaintiff’s evidence that such company was a corporation, and not a copartnership, if immaterial, was without substantial injury to the defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153 — 4160, 4166; Dec. Dig. § 1050.*]</p> <p>4. Trial (§, 62*) — Evidence—Rebuttal.</p> <p>Defendant in an action for the price of goods sold claimed that the seller had agreed to allow' a transfer of certain of the goods to another dealer and to release him from liability for the price, and put in evidence a conversation with the seller’s agent to that effect. Held, that a letter written by the seller to its agent in rebuttal of defendant’s evidence was admissible as tending to show all the communications between the parties in reference to the subject of such conversation.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 148-150; Dec. Dig. § 62.*]</p> <p>5. Principal and Agent (§ 166*) — Ratification— Knowledge of Facts.</p> <p>There can be no ratification of an agent’s contract without full knowledge of all the facts.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 627-633; Dec. Dig. § 166.*]</p> <p>6. Trial (§ 253*) — Instructions—Excluding Evidence.</p> <p>In an action for the price of goods sold, fried upon defendant’s theory that whatever the seller’s salesman did in arranging that another dealer should take over the goods and become responsible therefor was done as the seller’s agent, where there was no evidence that the seller with full knowledge of the salesman’s act had afterwards ratified it, an instruction that, in order to find for defendant, the salesman must have acted as the seller’s agent, was not erroneous as excluding the release of defendant by the seller’s ratification.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>7. Sales (§ 364*) — Instructions — Misleading Instructions.</p> <p>In an action for the price of goods sold, in which defendant claimed that the seller’s salesman, with his consent, had contracted with another dealer to take over certain of the goods and assume responsibility for the purchase price, and release defendant therefrom, a charge that if the salesman, acting as the seller’s agent, agreed with the other dealer and defendant to such arrangement, etc., then to find for defendant, was not misleading as requiring a finding that the agreement was made both with the defendant and the other dealer, where defendant did not plead or prove that the salesman ever made such agreement with him.</p> <p>[Ed. Note. — For other cases, see Sales, Gent. Dig. §§ 1065-1076; Dec. Dig. § 364.*]</p>

<p>Appeal from District Court, Hunt County; T. D. -Montrose, Judge.</p> <p>Action by N. C. Murray against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Tom Green County; J. W. Timmins, Judge.</p> <p>Action between S. W. Booker and J. D. Coulter, in which the first-named appeals. On motion to dismiss appeal.</p>

<p>Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.</p> <p>Actions by Riley Bros, and others against J. M. Reasonover and G. H. McHenry, by G. H. McHenry against J. M. Reasonover, and by J. M. Reasonover against G. H. Mc-Henry, all of which were consolidated on motion. From an adverse judgment as stated, Reasonover appeals.</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by Charles Monroe against C. S. Staten. Judgment for plaintiff, and defendant appeals.</p>

<p>Error to District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by S. H. Slaughter against the American Baptist Publication Society and others. Judgment was rendered dismissing the petition on demurrer, and plaintiff brings error.</p>

<p>1. Eminent Domain (§ 197*) — Voluntary Nonsuit — Right of Owner to Damages—Notice.</p> <p>Where a railway company instituted a proceeding to condemn land for its right of way, and took possession of the land and proceeded to construct its roadbed across it, and the owner, pending the company’s motion to dismiss, filed an answer specifically pleading damages because of the condemnation and appropriation and the court subsequently granted the motion of dismissal on the express condition that it was without prejudice to the owner’s claim for damages, the company was properly charged with notice of the answer and proceedings assessing damages thereunder, so that, if the court had jurisdiction, the company could not complain of the judgment awarding damages as rendered without notice.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §, 527; Dec. Dig. § 197.*]</p> <p>2. Eminent Domain (§ 197*) — Voluntary Dismissal — Right of Owner to Damages— Jurisdiction of Court.</p> <p>The court, on granting the motion of a railroad company, which has started to condemn land for its right of way, to dismiss the proceeding, retains jurisdiction to hear and determine the question of the damages sustained by the owner, occasioned by the company taking possession and proceeding to construct its railroad, irrespective of the amount of the damages.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 527; Dec. Dig. § 197.*]</p>

<p>1. Public Lands (§ 197*) — Title—Imperfect Title.</p> <p>An imperfect title to public land emanating from a former government, and never recognized by the existing government, forms no foundation for an action or defense.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 624, 638; Dec. Dig. § 197.*]</p> <p>2. Public Lands (§ 210*) — Mexican Grants —Verification—Requisites.</p> <p>A grant of land from a Mexican state executed in 1835 is complete without a certificate as to the genuineness of'the signatures to the grant.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§• 659-665, 704; Dec. Dig. § 210.*]</p> <p>3. Public Lands (§ 199*) — Mexican Grants —Validity.</p> <p>The act of the Mexican Congress of October 3, 1835, and accompanying regulations issued by the president ad interim, which provide that, until the attributes of the government and departmental boards in what relates to the treasury are declared by law, the governors shall make no sales of lands without the previous approval of the supreme government, do not deprive the governor of the previously existing power to sell public lands, but merely indicate under what circumstances the recognized power shall be exercised.</p> <p>[Ed. Note. — For other cases, .see Public Lands, Cent. Dig. §§ 625-633, 638; Dec. Dig. § 199.*]</p> <p>4.Public Lands (§ 203*) — Mexican Grants —Validity.</p> <p>The regulations accompanying the act of the Mexican Congress of October 3, 1835, providing that, until the attributes of the government and departmental boards in what relates to the treasury are declared by law, the governors shall make no sales of lands without the previous approval of the supreme government, did not become binding on the governors until received by them, and to sustain a grant made by, a governor .October 15, 1835, the court will presume that the regulations had not been received at the time of the grant.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 638-648; Dec. Dig. § 203.*]</p> <p>5.Principal and Agent (§ 151*) — Power of Agent — Restrictions.</p> <p>Where an agent is given authority to do certain acts, and thereafter the principal notifies him not to do such acts without previously submitting the matter to the principal and receiving his approval, an' act of the agent in conformity with the original power prior to the receiving of the notice limiting his power is binding on the principal.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 564-566; Dec. Dig. i 151.*]</p> <p>6.Evidence (§ 65*) — Presumptions—Knowledge op Law — Knowledge op Regulations.</p> <p>Though every one is presumed to know the law as soon as a law- is passed, there is no such presumption as to instructions given by heads of departments, or by the governor or president as to regulations formulated for carrying a law into effect.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 85; Dec. Dig. § 65.*]</p> <p>7. Evidence (§ 83*) — Presumptions — PerFORMANCE OF OFFICIAL DUTY.</p> <p>One alleging that an officer has violated his instructions must show a violation and must show that the instructions were received, and the court will require full proof that the officer has exceeded his powers before it will so determine.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. § 83.*]</p> <p>8. Public Lands (§ 199*) — Grants—'Validity — Presumptions.</p> <p>Where a purchaser of public land of a Mexican state acquired as early as September 15, 1835, such an equitable title to land as ought in good conscience to be recognized by the government of Mexico, though thereafter withdrawing her public lands from sale, the act of the Mexican Congress of October 3, 1835, and regulations accompanying the act, providing that governors shall make no sales without previous approval of the supreme government, did not prohibit a grant by the governor to such purchaser.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 625-633, 638; Dee. Dig. § 199.*]</p> <p>9. Public Lands (§ 199*) — Mexican Public Lands.</p> <p>Mexico, on attaining her independence from Spain, became the owner, by virtue of the right of eminent domain, of all the public land within her boundaries, and she could cede them to the states subsequently formed under the Mexican Constitution of 1824, and the Mexican Constitution made the states competent to receive title to the public lands within their boundaries, and, on title vesting in the states, they could dispose of them as they saw proper, not inimical to the public policy of the federal government as declared by statutes.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 625-633, 638; Dec. Dig. § 199.*]</p> <p>10. Boundaries (§ 3*) — Conflicting Calls.</p> <p>Where different calls in grants of public lands lead to conflicting results, preference must be given to the calls which most probably indicate the intention of the government, as expressed in the face of the grant, read in the light of the surrounding circumstances.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.*]</p> <p>11. Boundaries (§ 54*) — Field Notes — Intention of Grantor.</p> <p>Where there is an actual survey of public land granted, and the field notes of the survey are expressed in the grant, it is conclusively presumed that the government intended to conyey the land embraced in the survey, and the court in determining the land granted must follow the footsteps of the original surveyor.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 263, 268-277; Dec. Dig. § 54.*]</p> <p>12. Boundaries (§ 3*) — Field Notes — Intention of Grantor.</p> <p>Where two calls descriptive of a line or corner in a grant, of public land lead to different results, as where the call is to run from a given point a certain course and distance to another point, and such other point will not be reached by running the course and distance, it is presumed that one or the other of the calls was inserted by mistake, and the mistaken call must be disregarded, and the object of rules relative to the comparative dignity of calls is to ascertain which of contradictory calls are the mistaken ones.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.*]</p> <p>13. Boundaries (§ 10*) — Surveys—“Field Notes.’’</p> <p>The term “field notes” in its ordinary sense means the notes made by the surveyor in the field while making a survey, describing by course and distance, and by natural or artificial marks found or made by him, where he ran the lines and made the corners.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 90, 91; Dec. Dig. § 10.*]</p> <p>14. Boundaries (§ 25*) — Calls—Prior Surveys.</p> <p>The weight to be given to a call for a line or corner of a senior survey in determining the ‘ land included in a junior survey depends on whether the lines or corners of the senior survey were probably known to the surveyor at the time of the junior survey.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 137; Dec. Dig. § 25.*]</p> <p>15., Boundaries (§ 10*) — Calls—Monuments.</p> <p>The court will attach considerable importance to a call in a grant of a Mexican state for stone monuments in the field notes where the law of the state required corners to be erected of quarried rock and lime mortar.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 90, 91; Dec. Dig. § 10.*]</p> <p>16. Boundaries (§ 54*) — Presumptions — Acts of Surveyor General.</p> <p>In the absence of proof to the contrary, direct or circumstantial, the presumption is that the surveyor general of a Mexican state made a survey on the ground of a grant made by the state.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §| 263, 268-277; Dec. Dig. § 54.*]</p> <p>17. Boundaries (§ 54*) — Calls—Surveys.</p> <p>Where a grant made by a Mexican state was entirely surrounded by prior grants, the corners of which were required by law to be marked by permanent stone monuments, and the surveys of the prior grants had been recently made, and no bearing trees were given, though the subsequent field notes made by the state showed that at most of the corners there was timber for bearing trees and the distances to the streams shown on the map were not given, the circumstances showed that the survey of the junior grant was an office survey, and that it was the intention of the surveyor to extend the junior grant to boundaries of the surrounding grants where the calls in the junior grant were for corners of the senior grants.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 263, 268-277; Dec. Dig. § 54.*]</p> <p>On Motion for Rehearing.</p> <p>18. Boundaries (§ 10*) — Grants—Attached Map — Effect.</p> <p>Where a map attached to the grant of a Mexican state has letters on it which, without any explanation, are meaningless, but under the map in the original grant is an explanation of the same, made by the surveyor general, showing that the letters indicate the boundaries of surrounding surveys, the explanation indorsed on the map is a part thereof.</p> <p>[Ed. Note. — For other eases, see Boundaries, Cent. Dig. §§ 90, 91; Dec. Dig. § 10.*]</p> <p>19. Public Lands (§ 223*) — Grants—Estoppel.</p> <p>Where a claimant under a grant of a Mexican state and those under whom he claimed had nothing to do with the granting of a patent by Texas, or the making of a survey by virtue of which a patent was issued, but it appeared that they claimed the land included in the patent as a part of a grant of the Mexican state and lived thereon, the correctness of the Texas patent was not acquiesced in, and the claimant was not estopped from relying on the grant.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 705-719, 721-725; Dec. Dig. § 223.*]</p>

<p>Appeal from District Court, Anderson County; James I. Perkins, Judge.</p> <p>Action by Anderson County and others against the International & Great Northern Railway Company. From an order granting a temporary injunction, defendant appeals.</p>

<p>1. VENDOR AND PURCHASER (§ 348*) — UNAUTHORIZED Acts oe Agent — Liability.</p> <p>Persons who undertook, as the authorized agents of the owner, to contract for a sale of land, and received the purchaser’s payment,, would be liable to the purchaser for such sum if they, in fact, had no aúthority to sell, so that they were properly joined as parties defendant in a suit against the owner, so as to permit recovery against them, in the event their acts were shown to be unauthorized.</p> <p>[Ed. Note. — Eor other eases, see Vendor and Purchaser, Cent. Dig'. § 1022; Dec. Dig. § 348.*]</p> <p>2. Corporations (§ 672*) — Foreign Corporations — Power to Purchase Land — Necessity op Allegation.</p> <p>The petition in an action by a foreign corporation to enforce a contract for the purchase of lands need not allege that plaintiff had power, under its charter,. to purchase lands in Texas, or to contract therefor.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2645-2649; Dec. Dig. § 672.*]</p> <p>3. Corporations (§ 672*) — Foreign Corporations — Actions — Alleging Power to Purchase Land.</p> <p>Unless the petition in an action by a foreign corporation involving a land contract made for it affirmatively shows that the transaction involved the doing of business in the state, the petition is not demurrable for failure to allege that the corporation had complied with the Texas statutes requiring a permit from the Secretary of State to do business, in order to maintain a suit in the state; and the mere fact that the petition alleged that the contract was headed, “San Antonio, Texas, May 6, 1909,” and was signed by the corporation by its vice president, did not necessarily show that the contract was executed within the state, so as to require an allegation of compliance with the statutes for maintaining actions within the state.</p> <p>LEd. Note. — For other cases, see Corporations, Cent. Dig. § 2645-2649; Dec. Dig. § 672.*]</p> <p>4. Corporations (§ 675*) — Foreign Corporations — Compliance with Statutes.</p> <p>Business transactions by a foreign corporation, which has not complied with the Texas statutes, so as to entitle it to do business within the state, are not void, but only unenforceable in the courts of the state, so that the proper judgment in an action predicated on such transaction is one of dismissal, leaving the corporation to resort to the courts of other jurisdictions.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. § 2653; Dec. Dig. § 675.*]</p> <p>5. Corporations (§ 661*) — Right to Sue-Right op Assignee.</p> <p>One who obtained from a foreign corporation, which had not complied with the Texas statutes for doing business within the state, so as to authorize it to sue, an assignment pen-dente lite of the cause of action sued on occupied no better position than the corporation, and could not maintain the action.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2536, 2539, 2542-2544, 2546, 2563, 2567; Dec. Dig. § 661.*]</p>

<p>1. Trial (§ 295*) — Instructions—Construction.</p> <p>The court, to construe any part of the charge, must consider the entire' charge with a view of ascertaining whether, in its entirety, the law was correctly submitted, and whether the jury were likely to have been misled by any part thereof.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p> <p>2. Trial (§ 296*) — Breach of Contract — Action — Misleading Instructions.</p> <p>Where, in an action by a vendor for breach of contract, the purchaser alleged that he was induced to enter into the contract by the fraudulent representations of the vendor, and the court submitted the defense of fraud, and directed a verdict for the purchaser if the proof showed misrepresentations, a charge that, if .the purchaser refused to take the land and pay for it, the verdict should be for the vendor was not misleading as leading the jury to understand that the purchaser’s mere refusal to take and pay for the land authorized a recovery, without reference to the question of false representations.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec.Dig. § 296.*]</p> <p>3. Appeal and Error (§ 1066*) — Review— Harmless Error — Erroneous Instructions.</p> <p>Where, in an action by a vendor for the purchaser’s breach of contract, the only issue was whether false representations were made by the vendor, inducing the contract, the purchaser was not prejudiced by an instruction directing a verdict for him, if the vendor made the misrepresentations charged, and made them knowing them to be false, though as an abstract proposition, the purchaser could recover if misrepresentations were made by which he was deceived to his damage, though the vendor did not know that the representations were false.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]</p> <p>4. Pleading (§ 398*) — Breach op Contract —Issues, Proof, and Variance.</p> <p>Where, in an action by a vendor for breach of contract, the petition alleged that the contract was entered into by the vendor through “J. C. W.,” styled in the contract as “Jesse W.,” and alleged that a copy of the contract was attached as an exhibit, the fact that the contract introduced in evidence was signed by “Jesse W. by R. D. S., Agent,” did not show a material variance; the contract admitted, as to date and stipulations, being in exact accord with the contract described in the petition.</p> <p>[Eld. Note. — For other cases, see Pleading, Cent. Dig. § 1338; Dec. Dig. § 398.*]</p> <p>5. Appeal and Error (§ 274*) — Questions Reviewable — Bill of Exceptions — Qualification by Trial Court.</p> <p>Where the qualification by the trial court to a bill of exceptions complaining of the admission of evidence showed that the party complaining and one of his counsel insisted on the admission of the evidence, while another counsel objected to its introduction, the court, on appeal, could not say that the trial court erred, though, if proper objection had been urged thereto, the evidence should have been excluded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1631-1645; Dec. Dig. § 274.*]</p> <p>6. Appeal and Error (§ 1060*) — Review — Harmless Error — Argument of Counsel.</p> <p>Where testimony was not erroneously admitted, it was not reversible error for counsel of the successful party to discuss such evidence before the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. §, 1060.*]</p> <p>7. Appeal and Error (§ 742*) —Questions Reviewable — Assignments of Error — Propositions.</p> <p>Where assignments of error are not propositions within themselves, and neither of them has a proposition submitted thereunder, the court, on appeal, will not consider them, because not prepared in the manner prescribed by court rules 29, 30 (47 S. W. v).</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

<p>1.Appeal and Error (§ 70*) — Orders Appealable — Order Sustaining Plea oe Privilege,</p> <p>Under Acts 30th Leg. c. 133, providing that a court, on sustaining a plea of privilege to be sued in some county other than the county where the suit is filed, shall transfer the cause to the proper court of the county having jurisdiction, and providing for an appeal from a judgment sustaining a plea of privilege, a judgment sustaining such a plea of privilege is appealable.</p> <p>(Ed. Note. — For other cases, see Anneal and Error, Cent. Dig. §§ 367-385; Dec. Dig. § 70.*]</p> <p>2.Appeal and Error (§ 870*) — Appeal prom Final Judgment — Questions Reviewable.</p> <p>A plaintiff who did not appeal from an order sustaining defendant’s plea of privilege to be sued in another county, and transferring the cause to the proper court of such county, may not, on appeal from a final judgment on. the merits, question the action of the court in sustaining the plea of privilege.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3451, 3487-3512; Dec. Dig-. § 870.*]</p> <p>3. Appeal and Error (§ 564*) — Exceptions, Bill of (§ 39*) — Statutory Regulations.</p> <p>Acts 32d Leg. c. 119, prescribing the time and method of making up and filing statements of facts and bills of exceptions, in force June 11, 1911, applies to an appeal subsequently perfected, though the motion for new trial was overruled prior to the taking effect of the act.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555, 2558, 2559; Dec. Dig. § 564 ;* Exceptions, Bill of, Cent. Dig. §§ 54^56; Dec. Dig. § 39.*]</p> <p>4. Appeal and Error (§ 564*) — Statutory Regulations.</p> <p>An appellant who made no effort to procure and file a statement of facts after the expiration of the time fixed, and who offered no excuse for his failure to file the statement of facts within the time fixed, may not avail himself of Acts 32d Leg. c. 119, based on the negligence of the stenographer in failing to file the transcript of the evidence within the time fixed by order of court, since Sayles’ Ann. Civ. St. 1897, art. 1382, provides that, where an appellant shall have filed a statement of facts after the time prescribed by law, and shall show to the court that the failure to file the same within the time was not due to his fault, the court shall permit such statement to remain as a part of the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555, 2558, 2559; Dec. Dig. § 564.*]</p> <p>5.Appeal and Error (§ 914*) — Presumptions.</p> <p>In the absence of an affirmative showing to the contrary, the court, on appeal, will presume, in a case where there has been a trial on the merits and all the parties were present, that the party against whom a cause of action is asserted had either been served with citation, or had waived service.</p> <p>[Ed. Note. — For other cases, see Appeal and FJrror, Cent. Dig. §§ 3698-3698; Dec. Dig. § 914.*]</p> <p>6. Appearance (§ 20*) — Service—Waiver.</p> <p>Where defendant, by leave of court, filed a cross-action against plaintiff, who appeared and announced ready for trial on the issues joined, and gave notice of appeal from an adverse judgment, the appearance was a waiver of citation in the cross-action.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 91-102; Dec. Dig. § 20.*]</p> <p>7. Appeal and Error (§ 928*) — Questions Review able — Presumptions.</p> <p>In the absence of a statement of facts, the court, on appeal, cannot presume that the evidence raised any issue of fact on a point not submitted by the trial court to the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. § 928.*]</p>

<p>1. Exchange of Property (§ 3*)— Offer and Acceptance.</p> <p>A landowner, being about to commit suicide, executed a deed to certain real property to defendant, his stenographer, which conveyed the property to her for an alleged consideration of $500, and a conveyance by her to decedent of certain other lands. The deed was also subject to certain vendor’s lien notes on the property conveyed, which the deed provided defendant should assume. Blank deeds were also sent to defendant to execute as a conveyance, of the property to be conveyed to decedent. The deeds did not reach defendant until after decedent’s death, prior to which she had no knowledge of the transaction. Held, that the transaction was only a proposition for sale or exchange of land, and, as the creditor died before the proposition was acted upon and before defendant knew of it, the proposition was withdrawn as a matter of law on the death of the grantor.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§, 3, 5, 7; Dec. Dig. § 3.*]</p> <p>2. Gifts (§ 47*) — Acceptance—Presumption.</p> <p>Where a landowner executed a deed to his stenographer of land, subject to certain vendor’s lien notes which the grantee was to assume, in consideration of $500 and a conveyance to decedent of other lands; there was no such showing of benefit to the grantee as to raise the presumption of acceptance of the deed as a gift to the grantee.</p> <p>[Ed. Note. — For other cases, see Gifts, Cent. Dig. §§ 81-86; Dec. Dig. § 47.*]</p>

<p>Appeal from District Court, Hall County; L. S. Kinder, Judge.</p> <p>Action by C. B. Cox against the Pecos & Northern Texas Railway Company and othl ers. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Master and Servant (§ 289*) — Action for Injuries — Contributory Negligence-Question for Jury.</p> <p>A servant who knew how many men it would take to lift a pipe from a ditch on a vice principal’s order to throw it out jumped into a ditch 4 feet deep and 20 inches wide, stooped over, and took hold of a pipe, waiting for other men to get hold and for the order to lift, in which position he could not see how many men had hold, and was injured by lifting because not enough men had been put on the pipe to lift it. Held, that he was not as a matter of law guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*]</p> <p>2. Master and Servant (§ 222*) — Assumption of Risk — Dangerous Work — Lifting.</p> <p>A servant who undertakes by order of the master to lift with the assistance of others a weight beyond the capacity of himself and those engaged with him in the lifting assumes the risk of so doing, and cannot recover for any injury suffered by him in thus overtaxing his strength.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 648-651; Dec. Dig. §, 222.*]</p> <p>3. Master and Servant (§ 213*) — Assumption of Risk — Dangerous Work — Lifting.</p> <p>A servant who knew how many men it would take to lift a pipe from a ditch on the order of a vice principal jumped into a ditch 4 feet deep and 20 inches wide, and took hold of the pipe while waiting for other men to get hold and for the order to lift, in which position he could not see how many men had taken hold, and, when he found that the weight was too great because not enough men had hold of the pipe, was in such position that he could not let go without great danger to the feet of himself and the other men, and held on and was injured. Held, that as a matter of law he had not assumed the risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 559-564; Dec. Dig. § 213.*]</p> <p>4. Negligence (§ 65*) — “Contributory Negligence” — Care Required of Servant.</p> <p>Contributory negligence is a failure to act in a given case as a man of ordinary prudence would have acted in the same or other circumstances.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 83, 94; Dec. Dig. § 65.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617.]</p> <p>5. Trial (§ 252*) — Request for Instructions — Conformity to Evidence.</p> <p>A requested charge on an issue not raised by the evidence is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. §,252.*]</p> <p>6. Appeal and Error (§ 1050*) — Harmless Error — Admissibility of Evidence.</p> <p>In a servant’s action for injuries resulting from attempting to lift a pipe from a ditch, the admission of testimony that a man standing at the bottom of a ditch 4 feet deep and 20 inches wide could not lift as much as he could from the surface of the ground was harmless error, since it was so obvious that no testimony was required.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4153^1160, 4166; Dec. Dig. § 1050.*]</p> <p>7. Trial (§ 260*) — Instructions — Repetition.</p> <p>Requested charges substantially covered by those given are properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by L. Edmundson against the Coca-Cola Company. From a judgment for defendant, plaintiff appeals.</p>

R. Campbell, Special Judge. Action by G. W. Burkitt against W. E. Jones and others. From a judgment for plaintiff and certain of the defendants, defendant W. E. Jones and the executors of M. T. Jones, deceased, appeal.

<p>Appeal from District Court, Orange County; W. B. Powell, Judge.</p> <p>Action by S. H. Peveto against the Southern Gas & Gasoline Engine Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dallam County; D. B. Hill, Judge.</p> <p>Action by H. D. Rogers against the Chicago, Rock Island & Gulf Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Judgment (•§ 740*) — Res Judicata — Scope ow Issues.</p> <p>A part of a judgment, not supported by any pleading in the case, was void, so that it could not be set up as a defense to a subsequent action.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 1268; Dee. Dig. § 740.*]</p>

<p>1. Appeal and Error (§ 564*) — Statement or Pacts — Time fop. Piling.</p> <p>Under the trial court’s order giving the appellant “until” a certain day to file a state- [ rnent of facts, a statement filed on the day mentioned was in "time.</p> <p>fEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555, 2559; Dec. Dig. § 564.*]</p> <p>2. Words and Phrases — “Until”—Definition.</p> <p>While the word “until” is perhaps most frequently used in a restrictive sense, and excludes the day mentioned, it depends on the intent to which it is used which is to be inferred from the nature and circumstances of the case (citing 8 Words & Phrases, p. 7218).</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Action by P. H. Breaux, in his own right and as assignee, against the Galveston, Harrisburg & San Antonio Bailway Company and others. From a judgment for plaintiff against certain of the defendaxits, and in favor of other defendants, the defendant named appeals.</p>

<p>Error to Harris County Court; A. E. Am-erman, Judge.</p> <p>Action by S. Samuels & Co. against the Texas & New Orleans Railroad Company and another. Judgment for defendants, and plaintiffs bring error.</p>

Kittrell, Judge. Action by Mrs. Fannie F. Underwood against the Security Life & Annuity Company of America. Judgment for plaintiff on one policy and for defendant on another, and both parties appeal.

P. Huff, Judge. Suit by Pratt P. Bacon, as trustee in bankruptcy of S. E. Whitesides, against Mildred N. Whitesides and- her husband, to set aside an alleged fraudulent conveyance. Judgment for plaintiff, and Mildred N. White-sides appeals.

<p>1. ADVERSE POSSESSION (§ 90*) — 'WHAT CONSTITUTES — PAYMENT oe Taxes.</p> <p>Where persons purchased a stated number of acres in a given survey adjoining another, a payment of taxes on the number of acres stated is not sufficient as an element of adverse possession to land included in the adjoining survey, but regarded by such purchasers as a part of their tract, though at the time of such payment the parties intended that it should include taxes on the land in question.</p> <p>[Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 517-519; Dec. Dig. § 90.*]</p> <p>2. Appeal and Error (§ 1061*) — Harmless Error.</p> <p>AVhere, on the uncontradicted evidence in trespass to try title, the plaintiff was entitled to a verdict, the fact that the peremptory instruction was not based upon the right ground is harmless error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p> <p>3. Boundaries (§ 49*) — Location—Estoppel by .Continuous Maintenance.</p> <p>Where the owner of land in one survey recognized a certain line as the dividing line between his land and that located in another survey for over twenty years, and by his continuous acts of designation in building and maintaining a line fence all persons dealing with the land in the other survey have been led to believe that the line was as he located it, he is estopped to say that the line is located at another point, even though he made no agreement as to its location, or stated that the fence was the line.</p> <p>[Ed. Note — For other cases, see Boundaries, Cent. Dig. §§ 243-248; Dec. Dig. § 49.*]</p>

<p>1. Appeal and Error (§ 738*) — Assignments oe Error — Including Various Errors in One Assignment.</p> <p>An assignment of error to the exclusion of evidence consisting of different written instruments, as well as much oral testimony, the exclusion of which raises various questions of law, will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3033; Dec. Dig. § 738.*]</p> <p>2. Estoppel (§, 107*) — Issues, Proof, and Variance — Evidence—Admissibility Under Pleading.</p> <p>In trespass to try title, evidence to. prove an estoppel against a defendant is inadmissible, in the absence of a plea of estoppel or a plea in the nature of a plea of estoppel.</p> <p>[Ed. Note. — Eor other cases, see Estoppel, Cent. Dig. § 297; Dec. Dig. § 107.*]</p> <p>3. Appeal and Error (§ 742*) — Assignments of Error — Propositions—Necessity.</p> <p>The Court of Civil Appeals would be justified in declining to consider an assignment of error under which no proposition is submitted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>4. Appeal and Error (§ 1047*) — Review-Harmless Error.</p> <p>Where defendant objected to evidence at the time it was offered and the court withheld its ruling thereon, plaintiff was not prejudiced by the action of the court after judgment in directing defendant to prepare and file a written motion for the exclusion of such evidence and in sustaining such motion, since this gave plaintiff notice of the grounds upon which the judgment was based and an opportunity to make the record show that he was injured by such .exclusion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4132, 4133, 4146-4152; Dec. Dig. § 1047.*]</p> <p>5. Appeal and Error (§ 662*) — Operation and Effect of Bill.</p> <p>The Court of Civil Appeals and the appellant are bound by the bill of exceptions, prepared and filed by the trial court, in the absence of a showing such as the law provides.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §,§ 2850-2852; Dec. Dig. § 662.*]</p> <p>6. Appeal and Error (§ 728*) — Burden of Showing Error.</p> <p>An assignment of error to the exclusion of evidence, some of which was properly excluded, will be overruled where appellant fails to point out the particular portion of the evidence which should have been admitted.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3010-3012; Dec. Dig. § 728.*]</p> <p>7. Appeal and Error (§ 742*) — Assignments of Error — Propositions and Statements.</p> <p>A proposition in support of an assignment of error, under which no statement is submitted, is not in a condition to require consideration.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>8. Partition (§ 9*) — By Act of Parties— Operation and Effect.</p> <p>If, at the time of a partition among the heirs of the grantee of land covered by a land certificate which conflicted in part with an older survey, an heir knew that the portion set aside to him and accepted in full settlement of his interest was covered in whole or in part by such older survey, he was bound • thereby, even though, as a result of such conflict, he received no benefit from such portion, but if' the extent of the conflict was not known at the time of the partition, or when such heir consented to the floating of the portion of the certificate not in conflict, he was not bound by the partition except in so far as he actually received benefits thereunder.</p> <p>[Ed. Note. — For other cases, see Partition,. Cent. Dig. §§ 26-32; Dec. Dig. § 9.* ]</p>

<p>Appeal from District Court, Armstrong County; John W. Veale, Special Judge.</p> <p>Proceeding for injunction by the R. E. Edmonson Land & Cattle Company against Arch Wynn.</p>

B. Powell, Judge. Action by the First National Bank of Orange against R. Sokolski and others. From so much of a judgment as denied plaintiff’s right to enforce execution against defendants” alleged homestead, plaintiff appeals.

<p>Appeal from Cottle County Court; W. E. Prescott, Judge.</p> <p>Action by G. A. Lee against Mike C. Le Master, and others. Prom a judgment against defendant Le Master, he appeals.</p>

<p>Appeal and Error (§ 1126*) — Costs (§ 260*) —Appeal por Delay — Affirmance.</p> <p>Where the defeated party gave notice oi appeal on the date of the rendition of the judgment, but never filed an appeal bond, and a little over two months later filed his petition in error, together with a supersedeas bond, but did not procure the issuance of a citation until nearly three months thereafter, and the record contained no assignments of error or fundamental errors, and the transcript' was not accompanied by a statement of facts, the appeal was prosecuted for delay; and defendant, submitting the record on a suggestion of delay, under court rule 43 (142 S. W. xiv), was entitled to an affirmance of the judgment, with damages for the delay.</p> <p>TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3144, 4429-4431; Dec. Dig. § 1126;* Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dee. Dig. § 260.*]</p>

<p>Courts (§ 155*) — State Courts — Texas—Jurisdiction of Particular Courts.</p> <p>Judgment was rendered by the county court of Bexar, and petition for a writ of error was filed and perfected by bond prior to the creation of the county court for civil eases. The act creating such latter court provides that the new court shall have exclusive jurisdiction of all civil matters and causes, and transfers all civil cases to such new court, and directs that all civil writs and processes heretofore issued out of the county court shall be returnable to the new court. Held,, that citation issued out of the county court, after the creation of the county court for civil cases, to perfect the writ of error was properly returnable to the new court, which tribunal had jurisdiction to issue alias or pluries citations, if the first writ showed no service; and the certificate' of the transcript was properly prepared and certified by the clerk of such court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 378, 492y2; Dec. Dig. § 155.*]</p>

<p>Appeal from Swisher County Court; W. F. Hendricks, Judge.</p> <p>Action by the Amarillo Grain & Coal Company against W. H. Knight and another. From a judgment for defendants, plaintiffs appeal.</p>

N. Browning, Judge. Action by J. A. Elliott against J. Marion Williams, in which one Skeen and another intervene. From a judgment for interven-ers, plaintiff appeals.

<p>1. Couets (§ 489*) — State Courts — Jurisdiction.</p> <p>Where the failure of a railroad company to furnish cars requested for an interstate shipment of cattle caused the shipper injury, the right of action, while one which might be removed to the federal courts, falls within the ■jurisdiction of the state court.</p> <p>[Ed. Note — For other cases, see Courts, Cent. Dig. §§ 1324-1341, 1372-1375; Dee. Dig. § 489.*]</p> <p>2. Appeal and Bkeoe (§ 185*) — PbesentaTION OP GEOUNDS OF REVIEW IN COUBT Below — Necessity.</p> <p>In an action against a railroad company for injuries caused by its failure to provide cars as requested for an interstate shipment, the failure of the railroad company to question the authority of the lower court to try and proceed with the cause precludes it from raising that question on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1178, 1375; Dec. Dig. § 185.*]</p> <p>3. Limitation op Actions (§ 127*) — Amendments — New Cause op Action. ■</p> <p>The petition in an action against a railroad company for its failure to furnish cars, as requested, for a shipment of cattle, recited that on September 15th plaintiff made application for ears and facilities to ship the cattle from the station E. to D. en route to Kansas City, and notified the company that the cattle would be tendered on certain days. The action was based on a written notice informing the railroad company of the number of cars needed for the Kansas City shipment, and that the plaintiff would prefer Rock Island cars, but that Santa Fé would do. At the close of the evidence, a trial amendment, reciting that the application for cars in this ease was for shipment to the Kansas City market, and that the language of the notice was supplemented by phone and personal conversations, so as not to limit plaintiff’s application merely for a shipment to D„ was filed. Held that, as there was ample evidence that defendant understood a through shipment was desired, the amendment did not state a new cause of action which was barred by the two-year statute of limitations, more than two years having elapsed between the time of the trial and the date of the injury.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]</p> <p>4., Appeal and Eeeob (§ 742*) — Assignment op Eeeob — Pbopositions.</p> <p>Where the propositions under assignments of error purport to be under assignments of numbers different to those under which they appeared to be submitted in the brief, the assignments may be disregarded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. § 3000; Dec. Dig. § 742.*]</p> <p>5. Appeal and Eeeob (§ 742*) — Assignment op Eeeob — Pbopositions.</p> <p>In an action against a railroad company for injuries caused by its negligent failure to furnish cars for a cattle shipment as per requested, a proposition that the evidence failed to show that the failure of the defendant to furnish the cars requested was the result of negligence on its part cannot be considered where the assignment to which it is subjoined merely recited that the evidence was insufficient to sustain the verdict, in that it did not show defendant guilty of any negligence; the proposition not being supported by the assignment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>6. Tbial (§ 260*) — Instructions—Instructions Covered by Others.</p> <p>Where covered by the charge as given, the refusal of a requested charge is not improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>7. Carriers (§ 219*) — Carriage op Live Stock — Caes—Unjust Discrimination.</p> <p>Where plaintiff requested defendant railway company to furnish it with Rock Island cars for an interstate shipment of cattle and arranged with the Rock Island Company for it to furnish defendant with sufficient cars for the shipment, defendant cannot excuse its failure to furnish plaintiff with such ears on the ground that to have taken advantage of the Rock Island Company’s proffer would have worked an unjust discrimination against other shippers whose requests for Rock Island ears were before plaintiff’s; it being apparent that the Rock Island Company would furnish its cars only for plaintiff’s use, and not for ordinary use.</p> <p>[Ed. 'Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. § 219.*]</p>

<p>1. Mortgages (§ 342*) — Trust Deed — Sale-Appointment op Substitute Trustee — Attorney in Fact — Authority.</p> <p>Where the holder of a note secured by a •deed of trust executed a power of attorney to G., which'did not in terms authorize him to appoint a substitute trustee under authority of the deed of trust, but such attorney was in fact authorized by the holder to make such appointment, it was not necessary to the validity of the appointment, or a sale of the property by a substituted trustee appointed by him that the attorney’s authority should be in writing, and hence, the attorney having been in fact authorized, an instrument subsequently executed by the holder of the note acknowledging the attorney’s authority and ratifying his act in so doing was admissible as evidence of the fact to sustain the deed of the substituted trustee.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1041; Dec. Dig. § 342.*]</p> <p>On Motion for Rehearing.</p> <p>2. Principal and Agent (§ 54*) — Agent’s Authority — Delegation.</p> <p>When an agency has in it no element of personal trust and confidence, the rule that an agent cannot delegate his authority does not apply.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 87-90; Dec. Dig. § 54.*]</p> <p>3. Mortgages (§ 342*) — Deed op Trust-Substituted Trustee — Personal Trust.</p> <p>Where a trust deed authorized the holder of a note to appoint a substituted trustee to sell the property, there was no element of personal trust or confidence reposed in the trustee by the grantor of the deed, so as to preclude the creditor’s attorney in fact from exercising the power to appoint a new trustee.</p> <p>[E'd. Note. — For other cases, see Mortgages, Cent. Dig. § 1041; Dec. Dig. § 342.*]</p> <p>4. Mortgages (§ 333*) — Trust Deed — Foreclosure.</p> <p>The provisions of a trust deed authorizing a sale of the property of the grantor must be strictly complied with in all their details, though such details may seem unimportant and frivolous.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1013; Dec. Dig. § 333.*]</p> <p>5. Mortgages (§ 342*) — Trust Deed — Substituted Trustee — Appointment.</p> <p>Where the attorney in fact of the holder of a trust deed under oral authority appointed a substituted trustee to foreclose the deed, and thereafter the holder of the deed acknowledged in writing that the substituted trustee had been appointed by the holder of the deed through his attorney in fact, and that such holder ratified and confirmed the appointment as fully as if the substituted trustee had been personally appointed by him, etc., the appointment might be properly construed as having been made by the holder of the deed.</p> <p>[E'd. Note. — For other cases, see Mortgages, Cent. Dig. § 1041; Dec. Dig. § 342.*]</p>

<p>1. Master a)nd Servant (§ 293*) — Injuries— Instructions — Proximate Cause.</p> <p>In an employé’s action for personal injuries caused by the explosion of a solution tank, the court instructed, after defining “ordinary care,” that it was defendant’s duty to exercise such care in furnishing plaintiff with reasonably safe tanks, etc., and if plaintiff was directed to clean certain high-pressure coils, and, in the exercise of ordinary care he attempted to do so, and while so engaged a solution tank, used in connection with such work, exploded, and he was injured thereby, and said 'explosion was caused by defendant’s failure to exercise ordinary care in furnishing a reasonably sufficient solution tank, or because defendant failed to exercise ordinary care in seeing that the high-pressure coil, to which the tank was connected, was reasonably safe, and a man of ordinary •prudence would have acted as plaintiff did, the jury should find for plaintiff, and that if plaintiff failed to exercise ordinary care for his own safety, and such failure contributed to the injuries, the jury should find for defendant, even though it were guilty of negligence. 'Meld that, while not in the usual form, the instruction sufficiently required that defendant’s negligence should have approximately caused the injury, in order to authorize a recovery.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 1148-1161; Dec. Dig. § 293.*]</p> <p>2. Appeal and Error (§ 742*) — Briefs — Court Rules.</p> <p>Under Court 'of Civil Appeals rule 31 (142 S. W. xiii), providing that to each proposition under an assignment of error there shall be subjoined a brief statement of such proceedings contained in the record as will be necessary to explain and support the proposition with reference to the pages of the record, etc., a statement that “paragraph 4 of the general charge was as stated in the assignment (Tr. pp. 36, 37),” was insufficient as a statement.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*].</p> <p>3. Witnesses (§ 240*) — Impeachment—Leading Questions.</p> <p>In an action for personal injuries to an employé by the accumulation of gas in a high-pressure coil in a carbonic factory, witness was asked whether “engineer H., upon directing D. [plaintiff] to clean out the high-pressure coil told him that all the gas had been taken-out of the coil,” as plaintiff had testified, which question was excluded. Held that, even if the question had- been leading, the answer should not have been excluded on that ground, where its purpose was to directly impeach plaintiff as a witness.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845, 849-851; Dec. Dig. § 240.*]</p> <p>4. AppbaX and Error (§ 1056*) — Harmless Error — Exclusion of Evidence.</p> <p>Any error in excluding the question was not prejudicial to defendant, where both of the witnesses to whom the question was put testified that the engineer spoke to plaintiff about cleaning the coils, and said that the witness and another would help plaintiff, and that “that was all that was said.”</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187 — 4193; Dec. Dig. § 1056.*]</p>

B. Thomas, Judge. Action iby John Y. Bowen and others against F. J. Grayum and others. From a judgment in favor of defendants on the main case, plaintiffs appeal.

<p>Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.</p> <p>Action by C. L. Sullivan and another against Grant Doyle and others. From the judgment, Grant Doyle appeals.</p>

<p>Error to Leon County Court; W. D. Lacey, Judge.</p> <p>Action by the Churchill & Alden Company against Anderson, Evans & Evans. From a default judgment, defendants bring error.</p>

H. Arnold, Judge. Action between Ruth Meyers and others and R. J. Riley and others. From the judgment, Meyers and others appeal. Dismissed. On motion for rehearing.

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by R. L. Honeycutt against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.</p> <p>Action by John Lunsford against J. D. Kendrick. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Ochiltree County; E. P. Greever, Judge.</p> <p>Action by Mrs. M. J. Fowler against A. H. Tandy. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Party Walls (§ 8*) — Rights and Liabilities oe Adjoining Owners.</p> <p>A lot owner who, in erecting a building on his lot, makes use of the wall of an adjoining building, is not relieved from paying his share of the cost of such wall by the fact that the wall extends on his lot several inches, where the wall has stood where it now stands for more than 10 years, since the adjoining owner has acquired title by limitation,x and the existence and use of the wall, even if short of the period of limitation, authorizes a presumption that the wall was originally built as a party wall.</p> <p>[Ed. Note. — For other cases, see Party Walls, Cent. Dig. §§ 24-41; Dec. Dig. § 8.*]</p> <p>2. Party Walls (§ 8*) — Rights and Liabilities oe Adjoining Owners.</p> <p>A proprietor of land has no right to avail himself of the division wall built by an. adjacent proprietor before paying his proportionate share of the cost of its erection; for, until he pays such share, the wall is not one in common, but the exclusive property of the builder.</p> <p>[Ed. Note. — For other cases, see Party Walls, Cent. Dig. §§ 24-41; Dec. Dig. § 8.*]</p> <p>3. Party Walls (§ 8*) — Rights and Liabilities oe Adjoining Owners.</p> <p>While an adjoining owner does not become liable for a part of the cost of a party wall standing partly on his land, to the erection of which he has not agreed to contribute, by merely making incidental use thereof, where such a party closed windows in a wall and drilled holes therein for the support of rafters and joists and otherwise made the wall an integral part of his building, he became so liable.</p> <p>[Ed. Note. — For other cases, see Party Walls, Cent. Dig. §§ 2441; Dec. Dig. § 8.*]</p>

<p>1. Appeal and Error (§ 502*) — Questions Reviewable — Record—Motion for New Trial.</p> <p>Under Courts of Civil Appeals Rule 24 (142 S. W. xii), providing that each assignment of error must distinctly specify the grounds of error relied on in the motion for new trial, and that a ground of error not set forth in the motion for new trial shall be considered as waived, assignments of error complaining of the giving and refusal of instructions must be treated as waived where there is no motion for new trial in the record, and in the absence of fundamental error the judgment will be affirmed without any inquiry into the merits.</p> <p>. [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2306-2309; Dec. Dig. § 502.*]</p> <p>On Motion for Rehearing.</p> <p>2. Appeal and Error (§ 285*) — Fundamental Error — Overruling Demurrer.</p> <p>The error in overruling a general demurrer to the answer is not fundamental error and cannot be considered without motion for new trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1684-1690; Dec. Dig. § 285.*]</p> <p>3. Appeal and Error (§ 281*)— Questions Reviewable — Rules op Court — Motion for New Trial.</p> <p>Courts of Civil Appeals Rule 24 (142 S. W. xii), providing that each assignment of error must distinctly specify the grounds of error relied on and set forth in the motion for new trial, and that a ground of error not distinctly set forth in the motion shall be considered as waived, and District Court Rule 71a (145 S. W. vii), requiring a motion for new trial in all cases'as-a prerequisite to appeal, except in cases where the. statute ¿loes not require a motion for new trial, require a motion for new trial in every case except such cases as by statute do not require a motion.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Gent. Dig. '§§ 1650-1661, 3024, 3281; Dec. Dig. § 281.*]</p> <p>4. Brokers (§ 65*)—Evidence (§ 434*)—Em-ployment — Contracts Between ' Principal and Broker—Validity—Farol Evidence.</p> <p>An agent, employed to procure a purchaser of land at $40 per acre for a 10 per cent, commission, who, by fraud, induced the owner to sign a contract, with the name of the purchaser blank, to sell at $20 per acre, while the agent had a purchaser at $40 per acre, and who inserted in the blank the name of a third person who should hold title in trust for the agent, who executed a receipt of resale to another, could not maintain an action for the owner’s failure to perform the contract of sale, and the owner, if in ignorance of the facts at the time of the signing of the contract, could prove by parol the fraud of the agent and defeat a recovery.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65;* Evidence, Gent. Dig. §§ 2005-2020; Dec. Dig. § 434.*]</p>

<p>Error to District Court, Jones County; Jno. B. Thomas, Judge.</p> <p>Action by the Hawley Independent School District against Morgan Camp. Judgment for plaintiff. Defendant brings error.</p>

<p>1. TRIAL (§ 194*) — INSTRUCTIONS — WEIGHT of Evidence.</p> <p>An instruction that if plaintiffs’ cattle were delayed in transit for an unreasonable time by defendant carrier, that if the cars on which the stock was carried were not bedded or were improperly bedded and in bad repair, that if defendant failed to use ordinary care in handling the stock, and that if such acts, or any of them, if any, were caused by negligence and were the proximate cause of stock dying, plaintiffs could recover the reasonable market value of such cattle, etc., was not erroneous as being on the weight of the evidence.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent.' Dig. §§ 413, 436, 439-441, 446-454, 456r-466; Dec. Dig. § 194.*]</p> <p>2. Appeal and Ere or (§ 1052*) — Harmless Error — Admission of Evidence.</p> <p>In an action against a carrier for death of cattle caused by negligent transportation, any ' error in permitting a witness to testify .concerning the market value of the cattle on their arrival was harmless to defendant, where other witnesses testified on that point without objection, and verdict for plaintiff was for a less amount than that shown by the testimony objected to.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent Dig. §§ 4171-4177; Dec. Dig. § 1052.*] .</p> <p>3. Evidence (§ 537*) — Expert Testimony— ■ Diseases op Cattle.</p> <p>On an issue whether cattle died from injuries received in transportation or from the disease known as “blackleg,” experienced cattlemen who had frequently observed cattle so affected were properly permitted to testify that only young cattle were affected by that disease, though witnesses were not veterinary surgeons.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2345; Dec. Dig. § 537.*]</p> <p>4. Carriers (§ 230*) — Carriage of Live Stock — Injury to Shipment — Instructions.</p> <p>In an action against a carrier of live stock for injury to a shipment, an instruction that if defendant negligently failed to furnish a proper engine to move the cattle from a specified station, proximately causing the death of cattle, verdict should be for plaintiff, etc., was warranted by evidence that the shipment was moved by a defective engine, resulting in many sudden and violent stops which injuriously affected the cattle.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]</p>

<p>Mechanics’ Liens (§ 36*) — -Who May Obtain — Right oe Architect — “Labob.”</p> <p>An architect preparing plans and specifications for a building and superintending its construction furnishes “labor” for the erection of such building and is entitled to a mechanic’s lien under Sayles’ Ann. Civ. St. 1897, art. 3294, giving a lien to any person or firm, lumber dealer or corporation, artisan, laborer, mechanic or subcontractor, who may labor or .furnish material, etc., to erect any house or improvement, or repair any building or improvement, even if such architect is not an “artisan,” “laborer,” or “mechanic,” since, by the use of the expression “any person or firm, * * * who may labor,” an intention is evidenced to provide a lien for any and all persons, whether artisans, laborers, mechanics, or not, who may labor to erect a house or improvement.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 41,; Dec. Dig. § 36.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 3948-3951.]</p>

<p>Appeal and Error (§ 389*) — Appeal in Forma Pauperis — Statutory Provisions.</p> <p>Under Rev. St. 1895, art. 1401, providing that proof of appellant’s inability to pay costs on appeal, or give security therefor, shall be made either before the county judge of the county where he resides, or before the court trying the case, and the act creating a court in a county, to be called the county court of the county for civil causes, and conferring on such court jurisdiction in civil matters, and providing that the county judge of the county shall retain general jurisdiction of a probate court, etc., one appealing from a judgment of the district court of the county, who makes affidavit of inability to pay the costs on appeal, or give security therefor, before the judge of the county court of the county for civil cases, instead of the county judge, does not comply with the statute; and the court, on appeal, acquires no jurisdiction, and the appeal must be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2072-2076; Dec. Dig. § 389.*]</p>

<p>Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.</p> <p>Action by Mrs. C. A. Andrews against R. E. Butler and others. From a decree for plaintiff, defendants appeal.</p>

<p>Error from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Action by W. H. Smith against Frank Sim-mang and others. Judgment for plaintiff; defendant Simmang brings error.</p>

M. Wilson, Judge. Action by George Harris against J. O. Berhns. From a default judgment for plaintiff and the refusal of a motion to set aside the default, defendant appeals.

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Proceedings by E. C. Baker for the probate of the will of D. 'McDonald, deceased, in which Mrs. Mattie McDonald appeared as contestant. From a judgment denying probate, proponent appeals.</p>

S. Eylar, Judge. Action between A. K. Albers and J. B. Roberts and others. From the judgment, Albers appeals. On motion to strike out statement of facts.

C. Buford, Judge. Action by A. L. Haley and others against the Sabine Valley Timber & Lumber Company and others. From a judgment for defendants, plaintiffs appeal. By a deed dated September 1, 1851, James J. Cravens, then the owner of 739 acres of the Stephen English survey of one league and one labor in Shelby county, conveyed same by metes and bounds to Abel Boles.

<p>Appeal from McLennan County Court; Tom L. McCullough, Judge.</p> <p>Action between the Broderick & Bascom Rope Company and the Waco Brick Company. Judgment for the Waco Brick Company, and the Broderick & Bascom Rope Company appeals.</p>

<p>1. Crops (§ 1*) — Nature op Property — “Personae Property.’’</p> <p>‘ Ungathered crops, when matured, are “personal property.”</p> <p>[Ed. Note. — Eor other cases,, see Crops, Dec. Dig. § 1.*</p> <p>Eor other definitions, see Words and Phrases, vol. 6, pp. 5346-5358; vol. 8, p. 7753.]</p> <p>2. Execution (§ 24*) — Ungathered Crops.</p> <p>A mature and ungathered crop is not exempt from execution by reason of the nature of the property.</p> <p>[Ed. Note. — Eor other cases, see Execution, Cent. Dig. §§ 59, 60; Dec. Dig. § 24.*]</p> <p>3. Homestead (§ 83*) — Homestead Property —Leasehold Estate.</p> <p>A tenant may claim a homestead in premises occupied under a lease which gives him an estate in the premises.</p> <p>[Ed. Note. — For other eases, see Homestead, Cent. Dig. § 120; Dec. Dig. § 83.*]</p> <p>4. Frauds, Statute op (§ 44*)— Lea@e — Necessity op Writing.</p> <p>Strictly Speaking, a lease is a term for years; and if it exists for a longer period than one year it must, under the statute, be in writing.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 66, 92; Dec. Dig. § 44.*]</p> <p>5. Homestead (§ 118*) — Lease—Joinder -by Wipe — Necessities.</p> <p>A lease of the homestead for a term of years must be joined in by the wife of the lessor.</p> <p>[Ed. Note. — Eor other cases, see Homestead, Cent. Dig. §§ 192, 195, 203-209, 216, 217; Dec. Dig. § 118.*]</p> <p>6. Landlord and Tenant (§ 133*) — Leasehold — Remedies.</p> <p>The owner of a leasehold of land for a term of years has an interest in the land for his term, and a remedy for its recovery, if deprived of its possession, and not merely a right of action for breach of contract, as has a cropper.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 465-469; Dec. Dig. § 133.*]</p> <p>7. Homestead (§ 214*) — Crops—Evidence.</p> <p>The evidence in a suit to restrain a constable from seizing a cotton crop under an execution to satisfy a debt of plaintiff held to show that plaintiff was a mere cropper, and had no “estate” in the land under his contract, and hence could have no homestead in the land, so that ripe but ungathered crops thereon were not exempt from execution.</p> <p>[Ed. Note. — For other cases, see Homestead? Cent. Dig. §§ 397-399; Dec. Dig. § 214.*]</p>

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>Action by John W. Veale against J. E. Nunn. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Telegraphs and Telephones (§ 36*) — Connecting Lines oe Dieeebent Companies — Order oe City Concil.</p> <p>The part of an order of a city council requiring a telephone company to maintain a connection with another company for transfer of messages being authorized by Acts 30th Leg. c. 12, § 4, such part is valid, as regards right to recover the penalty prescribed by section 5-for noncompliance therewith, even though the-part of the order attempting to fix compensation on messages originating outside the city is-void.</p> <p>[Ed. Note. — For other cases, see Telegraphs- and Telephones, Cent. Dig. §§ 26, 31; Dec. Dig. § 36.*]</p> <p>2. Telegraphs and Telephones (§ 78*) —- Connecting Lines oe Dieeerent Companies — Order oe City Council — Penalty for Noncompliance.</p> <p>It is not necessary for recovery from a telephone company of the penalty prescribed by the Acts 30th Leg. c. 12, § 5, for noncompliance with an order of a city council for making connection with another company for transmission of messages from it that a message should have been offered for transmission.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 79-81; Dec. Dig. § 78.*]</p> <p>3. Telegraphs and Telephones (§ 78U — Connecting Lines oe Different Companies — Order oe City Council — Penalty for Noncompliance.</p> <p>It is no defense to an action for the penalty prescribed by Acts 30th Leg. c. 12, § 5, for noncompliance by a telephone company with the order of a city council that it make connection with the line of another company for transmission of messages that it has made unsuccessful efforts with the other company to arrange for a proper distribution of the compensation for handling messages; it being its duty to make the connection and leave the matter of distribution of compensation for future settlement.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 79-81; Dec. Dig. § 78.*]</p> <p>4. Trial (§ 250*) — InstRxjcxions—Pleading and Evidence.</p> <p>•Complaint may not be made of an instruction as to what the law requires, because too broad, where it is correct as to the circumstances pleaded and in evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. § 250.*]</p> <p>5. Trial (§ 260*) — Instructions — Repetition.</p> <p>A special charge need not be given where, as far as applicable, it is covered by the general charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>6. Trial [§ 251*) — Instructions—Immaterial Questions.</p> <p>Refusal of an instruction on an immaterial question is proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 5S7-595; Dec. Dig. § 251.*]</p>

<p>1. Criminal Law (§ 1099*) — Appeal and Error — Sufficiency of Record for Review-Statement of Pacts.</p> <p>A purported statement of facts, made out by the stenographer, but not signed or agreed to by any of the attorneys, nor approved in any way by the court, in a criminal prosecution, is insufficient for review.</p> <p>[Ed. Note." — Por other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]</p> <p>2. Criminal Law (§ 1097*) — Appeal and Error — Sufficiency of Record —Necessity for Statement of Pacts.</p> <p>Where, on an appeal from a conviction, there is not a sufficient statement of facts in the record, and the charge of the court presents the matter in the manner authorized, and in accordance ,with the indictment, no question attempted to be raised thereon can be considered, and an affirmance is warranted.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by the Traders’ State Bank against the Postal Telegraph & Cable Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by Forbes Bros. Teas & Spice Company against McDougle, Cameron & Webster. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Rains County; R. L. Porter, Judge.</p> <p>Action by the First State Bank of Emory against Charley Allen. Judgment for defendant, and plaintiff appealed.</p>

<p>Appeal from District Court, Hunt County; T. D. Montrose, Judge.</p> <p>Action by S. C. Burk against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

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

<p>1. Execution (§ 256*) — Sale — Vacation — Parties.</p> <p>In a suit to set aside an execution sale, failure to make plaintiff in execution a party to the suit is ground for special exception to the petition.</p> <p>[Ed. Note. — Por other cases, see Execution, Cent. Dig. §§ 723-733; Dec. Dig. § 256.*]</p> <p>2. Execution (§ 256*) — Wrongful Sale — Suit to Vacate — Parties.</p> <p>Where, in a suit to set aside an execution sale, plaintiff alleged that the sale was made after settlement with the plaintiff in execution, and that before the hour of sale plaintiff notified defendant, who purchased at the sale, that she had compromised and settled the judgment, and that the plaintiff in execution had promised her that the sale would be abandoned, such facts were insufficient to take the case out of the general rule that, in such an action, both the plaintiff in judgment and the purchaser at the sale are necessary parties.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 723-733; Dec. Dig. § 256.*]</p> <p>3. Execution (§ 256*) — Sale — Vacation — Tender of Price.</p> <p>Where, in a suit to set aside an execution sale, plaintiff alleged a settlement of the judgment before sale, and a promise by the plaintiff in execution to stop the sale, and notice thereof to the purchaser befóre the sale, such facts were sufficient to charge the purchaser with fraud, and relieve plaintiff from the obligation of tendering to the purchaser the amount bid as a condition to setting aside the sale.</p> <p>[Ed. Note. — For other 'cases, see Execution, Cent. Dig. §§ 723-733; Dec. Dig. § 256.*]</p> <p>4. Execution (§ 256*) — Sale — Vacation — Fraud — Costs.</p> <p>Where defendant purchased at an execution sale with notice that the judgment had been settled and that plaintiff in execution had promised to stop the sale, but the sale was made on the entire judgment, and not to recover costs only, the purchaser’s fraud vitiated the entire sale, and it was not material that the compromise of the judgment did not provide for payment of the court costs, or that no notice was given to the officer of the compromise.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 723-733; Dec. Dig. § 256.*]</p> <p>5. Execution (§ 256*) — Sale—Fraud—Vacation — Inadequacy of Price.</p> <p>Where defendant purchased at an execution sale with notice that the judgment had been compromised and that the execution plaintiff had promised to stop the sale, the purchaser’s fraud, in addition to the inadequacy of the price, was sufficient to vacate the sale within the rule that mere inadequacy of price is not of itself sufficient for that purpose.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 723-733; Dec. Dig. § 256.*]</p>

<p>1. Appeal and Error (§ 756*) — Briefs—Purpose op Rules.</p> <p>The rules for briefing causes in the Court of Civil Appeals are primarily intended to clearly present the issues involved to aid the court by excluding irrelevant matter from consideration.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. § 756.*]</p> <p>2. Appeal and Erbob (§ 742*) — Briefs — Statement.</p> <p>A statement supporting an assignment of error complaining of the admission of the evidence of H. on the ground that witness was not qualified to give expert testimony consisted of a bill of exceptions containing 20 pages of appellants’ brief, and stating objections to the testimony of numerous witnesses, as well as other matter on five other pages having no possible relevancy to tbe assignment, and does not show of what testimony of H. appellants are complaining. Held, that the statement violated Court of Civil Appeals rule 31 (142- S. W. 13), requiring assignments of error to be followed by a brief statement in substance of such proceedings contained in the record as are necessary to explain and support the proposition.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §. 3000; Dec. Dig. § 742.*]</p> <p>3. Appeal and Eebob (§ 759*) — Briefs — Copying Assignments op Error.</p> <p>The court rules contemplate that assignments of error shall be correctly copied in appellants’ brief, and, while the court will not decline to consider an assignment because of a typographical error in copying it into tbe brief, an assignment incorrectly, copied in any other case will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>4. Appeal and Erbob (§ 742*) — Assignments •of Erbob — Repebence to Bill op Exceptions.</p> <p>The bill of exceptions cannot be referred to to ascertain the reason supporting a proposition in appellants’ brief, since such reason should be stated in the proposition itself.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig! § 742.*]</p> <p>5. Appeal and Error (§ 742*) — Assignments op Eeror^-Multifarious Proposition.</p> <p>A multifarious proposition contained in appellants’ brief is bad.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>6. Explosives (§ 12*) — Actions poe Injuries —Admission of Evidence.</p> <p>In an action for damage to plaintiff’s house by blasting rock near it in the year of 1909 and thereafter, evidence was not admissible as to the effect of blasting in the year of 1906, and that witness felt no shocks therefrom, unless it was shown that the operations in that year were the same in force and character as in 1909.</p> <p>[Ed. Note. — For other cases, see Explosives, Cent. Dig. §§ 9, 10; Dec. Dig. § 12.*]</p> <p>7. Explosives (§ 12*) — Action por Injuries —Admission of Evidence.</p> <p>In an action for damage to plaintiff’s residence by rock blasting by defendant, a witness who testified that the brick used in plaintiff’s house was of different quality than those called for in specifications, and not as substantial, was asked “What would be the relative cost of the two classes of brick?” Held, that an answer showing a difference in the cost of the brick, as well as the fact that the brick used in construction were different from those called for in the specifications, was immaterial.</p> <p>[Ed. Note. — For other cases, see Explosives, Cent. Dig. §§ 9, 10; Dec. Dig. § 12.*]</p> <p>8. Appeal and Eeeoe (§ 742*) — Assignments op Ereoe — Proposition.</p> <p>If an assignment of error raises more than one distinct proposition, it cannot be treated as a proposition raising all the questions suggested therein, and those questions must each be submitted as a distinct proposition.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.*]</p> <p>9. Appeal and Error (§ 978*) — Misconduct op Jury — Discretion op Court.</p> <p>Whether alleged misconduct of the jury is such as to entitle the defeated party to a new trial is a matter resting largely within the discretion of the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3866-3870; Dec. Dig. § 978.*]</p>

<p>1. Death (§ 9*) — Liability of Corporations.</p> <p>Right of action against a private corporation for wrongful death exists only under Rev. St. 1895, art. 3017.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 11; Dec. Dig. § 9.*]</p> <p>2. Death (§ 33*) — Liability of CORPORATIONS — " ANOTHER.”</p> <p>The word “another,” as used in Rev. St. 1895, art. 3017, which gives a right of action for death caused by the wrongful act, etc., of another, means another person, and includes private corporations.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 49; Dec. Dig. § 33.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 406, 407.]</p> <p>3. MASTER AND SERVANT (§ 189*) — VICE PRINCIPALS — EXISTENCE of Relation.</p> <p>A foreman of a factory in full charge, thereof, in the absence of the manager, was a vice principal as concerns the liability of the common employer for injury to a factory hand resulting from an explosion negligently caused by such foreman.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. § 189.*]</p> <p>4. Master and Servant (§ 187*) — Vice Principals.</p> <p>The negligent act of a vice principal in a corporation’s service in rendering a place of work unsafe is the act of the corporation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 422-426; Dec. Dig. § 187.*]</p> <p>5. Appeal and Error (§ 1036*) — Defect of Parties — Right to Complain.</p> <p>On appeal by a widow and children from a judgment for their decedent’s negligent death, they cannot complain because decedent’s mother was not made a party, though defendant might have complained had judgment gone against' it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4069-4074; Dec. Dig. § 1036.*]</p>

<p>Appeal from District Court, Jefferson County; W. H. Pope, Judge.</p> <p>Action by W. D. Myers against the Houston Oil Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Goliad County; John M. Green, Judge.</p> <p>Action by J. W. Ray against the American Warehouse Company. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, Harris County; W. P. Hamblen, Judge. Action by W. C. Morse and others against A. B. Nibbs. There was a judgment for defendant, and plaintiffs bring error.

<p>Appeal from Galveston County Court; Geo. E. Mann, Judge.</p> <p>Action by T. W. Saunders against T. D. Thomas and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.</p> <p>Action by the Texas Builders’ Supply Company against the Beaumont Construction Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Franklin County; P. A. Turner, Judge.</p> <p>Will Davis was convicted of robbery by the use . of firearms, and he appeals.</p>

<p>Appeal from Erath County Court; J. B. Keith, Judge.</p> <p>Warren Follis was convicted of crime, and he appeals.</p>

<p>1. Homicide (§ 309'*) — Manslattghteb—Evi-dence— Instbuctions.</p> <p>Where the beginning, of the difficulty between accused and decedent resulting in decedent’s death was in doubt, and accused showed that decedent and his brother called him a vile name, provoking the difficulty, while decedent’s brother showed that decedent and accused were fighting, and that the brother struck accused, inflicting pain and causing bloodshed, and that accused thereupon killed decedent, the failure to submit the issue of manslaughter was erroneous; for, though the language was not adequate cause for manslaughter, it might be a provocation to a difficulty.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.*]</p> <p>2. Homicide (§, 307*) — Issues—Instbuctions.</p> <p>Where a state of facts exists favorable to accused, which will raise the issue of an inferior degree of homicide, not submitted, it is error to fail to so charge as to properly submit the inferior degree.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.*]</p>

Action by Pietrina Guisti and another against the Galveston Tribune. There was a judgment of the Court of Civil Appeals (134 S. W. 239), reversing a judgment for plaintiffs and rendering a judgment for defendant, and plaintiffs bring error.

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>R. L. Wells was convicted of embezzling an amount less than $50, and he appeals.</p>

<p>Criminal Law (§ 1159*) — Appeal—Review-Conflicting Evidence.</p> <p>A conviction of theft cannot be disturbed because of defendant’s testimony that he took the property with the owner’s consent, this being merely in conflict with evidence justifying the court’s finding.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dee. Dig. 1159.*]</p>

B. Hill, Judge. Action by W. W. Gatewood and others against Pulton Brown and others. Prom judgment for plaintiffs, the first-named defendant alone appeals.

L. Camp, Judge. Action by E. G. Hicks against J. E. Murphy and others. From an order plaintiff appealed, and moves to be allowed to file the statement of facts.

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by Jennie Merchant, as guardian, against William Rogan and others.</p>

<p>1. Railroads (§ 351*) — Collision with-Team-Duty as to Stopping Engine.</p> <p>A charge in an action for collision at a crossing of a locomotive with a team was erroneous in requiring that the engineer should have stopped the engine in the “shortest time possible” after discovery by the engineer of the peril of the plaintiff’s team; his duty on. discovery of the peril being to use every means in his power to avoid injury, “consistent with, the safety of the engine.”</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*) — Prejudicial ERror^-Instructions.</p> <p>For the charge to submit right of recovery on negligent acts not alleged in the petition is reversible error, unless it clearly appears it was not calculated in any manner to influence the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]</p> <p>3. Railroads (§ 350*) — Crossing Accident — Giving op Statutory Signals — Evidence.</p> <p>Evidence in an action for collision of an engine with a team at a crossing held to make a question for the jury whether the statutory signals Were given.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p> <p>4. Railroads (§ 350*) — Crossing Accident-Contributory Negligence — Failure to Look and Listen.</p> <p>Failure of one whose team is run into at a railroad crossing to look and listen is not contributory negligence per se.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p> <p>5. Trial (§ 251*) — Instructions — Applicability to Pleadings.</p> <p>The answer in an action for collision of an engine with a team pleading certain specific acts as constituting contributory negligence not having specifically alleged that plaintiff could have stopped his team in time to avoid the collision after seeing the engine, a charge precluding a recovery if he by the use of care and caution could have stopped it after the engine came in sight was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>6. Trial (§ 260*) — Instructions — Repetition.</p> <p>A requested charge need not be given where it is sufficiently covered by the general-charge.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>7. Trial (§ 191*) — Instructions — Invading Province op Jury.</p> <p>A charge assuming that failure to look or listen for a train at a railroad crossing was contributory negligence, when that is a question. for the jury, is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]</p> <p>8. Trial (§ 260*) — Instructions — Repetition.</p> <p>Defendant’s requested charge that if plaintiff was guilty of negligence, which concurring with defendant’s negligence, if any, caused or contributed to the injury, there could be no recovery, is sufficiently covered by the general charge, providing that plaintiff must not have been negligent, even though defendant was negligent.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>9. Railroads (§ 345*) — Crossing Accident-Action — Pleading and Proof.</p> <p>Evidence in an action for collision of an engine with a team at a crossing that defendant had río watchman there is admissible; the petition alleging no negligence in that respect.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1113-1116; Dec. Dig. § 345.*]</p> <p>10. Railroads (§ 351*1 — Crossing Accident — Contributory Negligence — Instructions — Burden of Proof.</p> <p>The burden of proof as to contributory negligence, in an action for collision of a train with a team, is shifted by the concluding clause of the charge that, if the jury further find plaintiff exercised ordinary care, they will find for plaintiff, otherwise for defendant.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.*]</p>

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Action by J. F. Browning and others against the City of Austin. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Railroads (§ 443*) — Injury to Stock — ■ Sufficiency of Evidence — Proximate Cause.</p> <p>Evidence in an action for the death of a mare on a railroad track held not to show that any negligence in running at an excessive speed or failure to give signals was the proximate cause of the mare being killed.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*]</p> <p>2. Railroads (§ 443*) — Injury to Stock— Sufficiency of Evidence — Negligence.</p> <p>Evidence in an action against a railroad company for killing a mare held not to show that the trainmen failed to keep a proper lookout or discover the mare in time to have avoided striking her by exercising reasonable care.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*]</p> <p>3. Railroads (§ 425*) — Injury to Stock-Proximate Cause.</p> <p>That the negligence of trainmen may be the proximate cause of killing a horse it must appear that it was on the track under such circumstances that the accident was the natural and probable consequence of the negligence and ought reasonably to have been foreseen.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1527-1533; Dec. Dig. § 425.*]</p> <p>4. Railroads (§ 441*) — Injury to Stock— Proximate Cause — Presumption.</p> <p>It cannot be presumed without evidence that negligence in running the train at excessive speed, and not giving warning signals, was the proximate cause of the death of a horse on the track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.*]</p>

<p>Error from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Suit by L. L. Brown and others against J. G. Gilmore. Judgment for complainants, and defendant brings error.</p>

Q. Adamson, Judge. Action by J. T. McCoy against J. L. Paf-ford and others. From a judgment for defendant named on his plea of privilege to be sued in another county and for the, unnamed defendants, plaintiff appeals.

Appeal and Error from District Court, El Paso County; A. M. Wahthall, Judge. Suit by Annie P. Krause and others against Thomas D. Pryor and others. There was judgment for plaintiff, and Thomas D. Pryor individually appealed, and as executor petitioned for writ of error. Plaintiff moves to dismiss and to affirm on certificate.

<p>1. Appeal and Error (§ 548*) — Presentation for RevIew — Statement of Facts— Findings of Fact.</p> <p>In the absence of a statement of facts,, the trial court’s findings of fact and the sufficiency of the evidence to sustain such findings could not be reviewed, where it did not appear that he committed any error in applying the law to his conclusion of fact.</p> <p>TEd. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*]</p> <p>2. Trial (§ 395*) —Findings—Conclusion. of Daw.</p> <p>On a finding of fact that a party assumed the payment of notes, it followed as a matter of law that he was bound on such assumption.</p> <p>[Ed. Note. — For other cases, see Trial, Cent.. Dig. §§ 927-934, 939; Dee. Dig. § 395.*]</p>

<p>Original petition by A. A. Cox for a writ of mandamus against J. T. Robison, Commissioner of the general land office.</p>

<p>1. Carriers (§ 77*) — Implied Obligation of Carrier.</p> <p>At common law the implied obligation of a common carrier was to transport freight by continuous passage from the point of delivery within a reasonable time, and the carrier was not bound to permit the stoppage in transport.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 272-279; Dec. Dig. § 77.*]</p> <p>2. Carriers (§ 32*) — Interstate Commerce —Statutory Regulations.</p> <p>The schedule of rates of a railroad company filed with the Interstate Commerce Commission including in one classification syrup and molasses did not provide for any stop-over privilege in the shipment of these commodities, although the schedules for other commodities provided for stop-over privileges. Interstate Commerce Act June 29, 1906, c. 3591, § 6, 34 Stat. 586 (U. S. Comp. St.' Supp. 1911, p. 1289), provides that no carrier shall engage in the transportation of property, unless the rates for which the same are transported have been filed and published in accordance with the act, etc., nor shall any carrier extend any privileges in the transportation of property except such as are specified in the tariff. Seld that, as the allowance of stop-over privileges was not a part of the carrier’s obligation, an agreement for the stop-over of a ear of syrup, though based on consideration, is invalid, because other' shippers could not require the same service.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. § 32.*]</p> <p>3. Contracts (§ 138*) — Illegality — Actions for Breach.</p> <p>No action to recover damages for the breach of an illegal contract may be maintained, for such action is in effect an attempt to enforce such illegal contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.*]</p>

<p>Appeal from San Augustine County Court; W. C. Ramsey, Judge.</p> <p>Walter Parker was convicted of selling intoxicating liquor in violation of the prohibitory law, and he appeals.</p>

<p>1. Carriers (§ 182*) — Domicile of Parties —Privileges of Defendants.</p> <p>Under Acts 29th Leg. c. 25, § 1, providing that where freight has been transported by two or more carriers an action for damages or loss may be brought against any one or all of the carriers in any county in which either of the carriers does business, a suit may be brought against any one or all .of the carriers in any county in which either is operating its road, without joining as a defendant a carrier whose line extends into the county where the suit is brought, or which has a local agent or its principal office in such county.</p> <p>[Ed. Note. — Por other cases, see Carriers, Dec. Dig. § 182.*]</p> <p>2. Carriers (§ 160*) — Carriage of Freight —Contract of Limitation — ’Validity.</p> <p>Under Rev. St. 1895, art. 3378, making it unlawful for any one to make any agreement shortening the period of limitation to a shorter period than two years, a stipulation in a contract for the carriage of freight that, unless suit is brought within two years of the accrual of the cause of action, it shall be barred is valid.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 231, 673; Dec. Dig. § 160.*]</p> <p>3. Carriers (§ 96*) —Transportation of Feeight — Time of Delivery — Reasonable Time.</p> <p>Where no time for delivery is fixed in a contract of carriage, the carrier must transport and deliver in a reasonable time.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 396-426; Dec. Dig. § 96.*]</p> <p>4.Carriers (§ 159*) — Carriage of Freight —Notice of Claim for Damages — Stipulations — Validity.</p> <p>Under Rev. St. 1895, art. 3379, providing that no stipulation in any contract requiring notice of any claim for damages, as a condition precedent to the right to sue, shall be valid, unless the stipulation is reasonable, and any stipulation fixing the time within which notice shall be given at a less period than 90 days shall be void, a stipulation in a contract of carriage that no suit shall be sustained, unless notice shall be given before the expiration of 90 days from the date of accrual of the claim, is invalid.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 668-672, 699-703y2, 711-714, 718, 718%; Dec. Dig. § 159.*]</p> <p>On Motion for Rehearing.</p> <p>5. Carriers (§ 99*) — Transportation of FREiGm^-TiME of Delivery — Reasonable Time.</p> <p>In determining what is a reasonable time for the transportation and delivery of freight, under a contract fixing no time for delivery, extraordinary conditions, notice of which was not given to the shipper at the time of shipment, cannot be taken to. enlarge the time of delivery beyond the time allowed under usual or ordinary conditions.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 415-426; Dec. Dig. § 99.*]</p> <p>6. Carriers (§ 159*) — Carriage of Freight —Time of Delivery — Accrual of Cause of Action.</p> <p>A contract for carriage of freight did not fix the time for delivery. The usual time for delivery was from 10 days to three weeks. Because of extraordinary conditions of congestion of traffic, the reasonable time for delivery was from 30 to 90 days. There was much correspondence relative to the nondelivery, and the agent at the point of destination was repeatedly advised of the nondelivery of the freight, and he advised the shipper that the freight would be traced and delivered as soon as found. Held, that a cause of action for nondelivery accrued on the expiration of the reasonable time as found by the court; and an action instituted more than two years thereafter was barred under the contract of shipment, stipulating that, unless suit was brought within two years' of the accrual of the cause of action, it should be barred.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 668-672, 699-703%, 711-714, 718, 718%; Dec. Dig. § 159.*]</p> <p>7.Trial (§ 398*) —Findings — Conclusion of Law.</p> <p>A finding that an action was instituted before the expiration of two years from the date of the breach of contract, as stipulated therein, is a conclusion of law, and will not control specific findings of fact as to the date of the breach.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 946, 947; Dec. Dig. § 398.*]</p>

<p>1. Judgment (§ 19*) — Conformity to Pleadings and Proof.</p> <p>A judgment unsupported by testimony is fundamentally erroneous.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. •§ 19.*]</p> <p>■2. Subrogation (§ 31*) — Transfer Without Indorsement — Payment by Agent.</p> <p>Where a creditor’s agent, having a note for collection, paid the amount thereof to the creditor without it having been paid by the ■debtor, he became the owner of the note.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 70-91; Dec. Dig. § 31.*]</p> <p>3. Pledges (§ 56*) — Enforcement — Liability of Pledgee.</p> <p>The payee of a note secured by the deposit, as collateral, of the note of a third person was not liable for any act or omission of its transferee, in connection with the collection of the collateral note, subsequent to the transfer.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 152-183; Dec. Dig. § 56.*]</p>

<p>1. Covenants (§¡ 130*) — Actions tor Breach —Damages.</p> <p>Exceptions to pleas of set-off and recon-vention, alleging a conveyance by plaintiff to defendant with warranty of tide, a breach thereof that, by reason of the breach defendant was not the holder and owner of the superior title and was deprived of the rents and profits to his damage in a specified sum, and that by reason thereof he was unable to sell the premises, and that they depreciated in value to his damage, were properly sustained because not alleging proper items for recovery for breach of warranty.</p> <p>[Ed. Note. — Eor other cases, see Covenants,' Cent. Dig. §§ 245-253, 257; Dec. Dig. § 130.*]</p> <p>2. Covenants (§ 130*) — Actions eor Breach —Damages. .</p> <p>The proper measure of damages for breach of warranty of title cannot exceed the value of the land, with interest from the time of sale.</p> <p>[Ed. Note. — Eor other cases, see Covenants, Cent. Dig. §§ 245-253, 275; Dec. Dig. § 130.*]</p> <p>3. Covenants (§ 132*) — Actions eor Breach —Damages.</p> <p>Attorney’s fees are not recoverable as an item of damages for breach of warranty of title in the absence of an express stipulation to pay them.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 260-262; Dec. Dig. § 132.*]</p> <p>4. Covenants (§, 100*) — Covenant oe Warranty — Breach.</p> <p>Where a vendor who warranted the title paid off an incumbrance on the premises and took a release thereof, his failure to record the release or deliver it to his vendee was not a breach of the warranty, since the payment of the incumbrance freed the title, whether the release was executed or not.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 139-155; Dec. Dig. § 100.*]</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge. F. Coleman was convicted of robbery, and he appeals.</p>

<p>Appeal from District Court, Archer county; P. A. Martin, Judge. Habeas corpus by John Lloyd to admit to bail. From a judgment remanding relator without bond, he appeals.</p>

<p>Appeal from Anderson County Court; O. C. Funderburk, Judge. Troupe Rice was convicted of petty theft, and appeals.</p>

<p>Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. Petition by Jack Kellett for a writ of habeas corpus. Prom a judgment remanding the relator to custody, he appeals.</p>

<p>Appeal from District Court, Cass County; P. A. Turner, Judge. Ambrose Williamson was convicted of selling intoxicating liquors in local option territory, and he appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Force, Judge. Suit by the Dallas Consolidated Electric Street Railway Company against the City of Dallas and others.</p>