Volume 153 — South Western Reporter

H. Arnold, Judge. Action by T. M. Rutherford against J. E. Miller, Leonie Miller, J. W. Cunningham, A. K. Steed, and Henry Martin, in which Hig-ginbotham Bros. & Co. intervened. Judgment for plaintiff and defendants Cunningham and Steed against J. E. Miller, Leonie Miller, and Henry Martin for foreclosure with a deficiency judgment, and Henry Martin brings error.

<p>1. Limitation off Actions (§ 167*)—Bab of Debt as Affecting Security—Retention of Vendob’s Lien.</p> <p>Where a vendor’s lien is expressly retained in the deed, or a contemporaneous mortgage is given, the legal title remains with the vendor, and he may recover the land, though the purchase-money notes are barred by limitation.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 651-653; Dec. Dig. § 167.*]</p> <p>2. Vendos and Purchases (§ 230*)—Bona Fide Ptjbchasee—Notice.</p> <p>A purchaser from a vendee must take notice of the terms of the deed from the vendor, which reserved an express lien for the price, though it is unrecorded, and he cannot repudiate the superior title of the vendor or any one claiming under him.</p> <p>[Ed. Note.—For other cases, see-Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. § 230.*]</p> <p>3. Vendos and Purchases (§§ 270, 275*)— Retention of Vendor’s Lien — Nonpayment of Pbice—Remedies.</p> <p>Where a vendor assigned the vendor’s lien notes and quitclaimed his interest in the land to the assignee, the latter became the owner of the superior title, and he could enforce his rights by action on the notes and a foreclosure of the lien, or he could disaffirm the contract and sue for the land.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 768, 772; Dec. Dig. §§ 270, 275.*]</p> <p>4. Trespass to Try Titee (§ 11*) — Common Source oe Title — Applicability of Doctrine.</p> <p>The doctrine of common source of title may be invoked where defendant, in trespass to try title, is in possession of the land sued for.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 14; Dec. Dig. § 11.*]</p> <p>On Motion for Rehearing.</p> <p>5. Trespass to Try Title (§ 38*) — Common Source of Title — Burden of Proof.</p> <p>A grantor for himself, and as attorney in fact for third persons, conveyed real estate to a grantee, reserving a vendor’s lien evidenced by notes. The grantor assigned the notes, none of which were ever paid, and quitclaimed his interest in the land to the assignee, who brought trespass to try title against a defendant, who claimed under a deed from the grantee. Held, that both parties claimed under a common source of title within Sayles’ Ann. Civ. St. 1897, art. 5266, providing that plaintiff need not deraign title beyond a common source; and defendant in possession, to defeat a recovery, must prove an outstanding title, and must prove that the grantor had no power of attorney to sell the interests of the third persons.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent Dig. § 53; Dec. Dig. § 38.*]</p> <p>6. Trespass to Try Title (§ 38*) — Presumptions— Regularity of Course of Business.</p> <p>In view of Sayles’ Ann. Civ. St. 1897, art. 5266, the law presumes that the common source of title, conveying the land for himself and as attorney in fact for third persons, had a power of attorney, in the absence of any proof to the contrary.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 3S.*]</p>

Kittrell, Judge. Action by D. B. Cherry against Hortie C. Coekburn and another, in which defendant Hortie C. Coekburn filed a cross-bill. From a judgment for plaintiff, defendants appeal.

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

<p>1. Appeal and Error (§ 80*) — “Pinal Judgment” — What Constitutes.</p> <p>Where a judgment against the husband upon vendor’s lien notes, and against both husband and wife for foreclosure of the lien, failed to dispose of the wife’s cross-action, wherein she pleaded specifically that one of the lots ■involved had, by contract of purchase, followed by valuable and permanent improvements, become their homestead prior to the execution of the notes (they being given without her consent), and also asked damages growing out of the wrongful execution of a writ of sequestration, it was not.a final judgment, though it recited the verdict which disposed of such cross-action; it being essential, in order for a judgment to be final, that it contain the court’s declaration of the legal consequences of the facts found by the verdict.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § SO.*</p> <p>Por other definitions, see Words and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7663.]</p> <p>On Motion for Certiorari.</p> <p>2. Appeal and Error (§ 807*) — Proceedings AFTER DlSMISSAJ>-RlGHT TO CERTIORARI TO Correct Judgment.</p> <p>Under the express terms of the rules for the Courts of Civil Appeals, rule 22 (67 S. W. xv), appellants, who perfected their appeal with full notice of defects rendering the judgment not final, could not, after dismissal of their appeal, have such dismissal set aside and secure a writ of certiorari to bring up a corrected judgment.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3177-3188; Dec. Dig. § 807.*]</p>

Action by the Texas Irrigation Company against Moore, Bryan & Perry, a partnership, in which J. W. Magill and another intervened. There was a judgment for defendants as against plaintiff on its claim and against them on their cross-action, and in favor of the interveners, and plaintiff appeals.

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by Henry S. Judson and others against C. R. & B. Bell. From the judgment, plaintiffs appeal.</p>

<p>1.Judgment (§ 249*) — Proceedings—Judgment^CONFORMITY TO PLEADING AND ISSUES.</p> <p>In trespass to try title, necessarily involving the construction of the deed under which plaintiffs claim, a judgment that, under the deed, one of the plaintiffs took absolute title in fee was not objectionable as a judgment reforming the deed.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 435; Dec. Dig. § 249.*]</p> <p>2. Deeds (§ 128*) — Estates Created — Rule in Shelley’s Case — “Heies by Dieeot Line of Descent.”</p> <p>A grantor conveyed land to his daughter and to her heirs by direct line of descent, the ownership and right of possession to be and remain in the grantee during life, and at her death to go to such heirs. Held, that the term “heirs by direct line of descent” meant such children or their direct descendants as the grantee should have living at the time of her death, so that the rule in Shelley’s Case did not apply, and the grantee took only a life estate.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 413-415, 419-421, 427; Dee. Dig. § 128.*]</p> <p>3. Feauds, Statute of (§ 58*) — Pabol Lease</p> <p>of Land — Wife’s Sepaeate Estate.</p> <p>A parol lease by a wife of her separate property for a period of five years is invalid as being within the statute of frauds (Rev. St. 1895, art. 624).</p> <p>[Ed. Note. — For other eases, see Frauds, Statute of, Cent. Dig. §§ 90-92; Dec. Dig. § 58.*]</p>

<p>Appeal from District Court, Dallam County; D. B. Hill, Judge.</p> <p>Action by T. It. Gray against J. E. McCanless, sheriff. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, Dallam County; D. B. Hill, Judge. Action by P. M. Pederson and another against R. P. Hutton and others. Judgment for plaintiffs, and defendants bring error.

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge. .</p> <p>Action by J. A. Raney against the Houston Lighting & Power Company, 1905, and another. From a judgment for the defendant company, plaintiff appeals.</p>

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by Sadie A. Young and others against D. G. Brasfield and others. From judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by Sadie A. Young against G. M. & J. W. Magill. From judgment for plaintiff, defendants appeal.</p>

<p>Costs (§ 260*) — ■Appeal for Delay — Allowance op Damages.</p> <p>The appellee was entitled to an allowance of 10 per cent, damages, where there was no merit in appellant’s defense, and it appeared that the appeal was taken merely for delay.</p> <p>[Ed. Note. — Eor other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. § 260.*]</p>

<p>1.Master and Servant (§ 278*) — Actions for Injuries — Sufficiency of Evidence.</p> <p>In an action for the death of a crossing flagman struck by a switch engine, evidence held to support jury’s findings that the engineer and fireman were negligent in failing to discover deceased’s dangerous position on the track in time to avoid injuring him, and that such negligence was the proximate cause of his death.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 952-972, 977; Dec. Dig. § 278.*]</p> <p>2. Master and Servant (§ 281*) — Actions for Injuries — Sufficiency of Evidence.</p> <p>In an action for the death of a crossing flagman struck by a switch engine, evidence held to support jury’s finding that he was not guilty of such negligence, contributing to his death, as would defeat a recovery.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. §• 281.*] ^</p> <p>3. Appeal and Error (§ 302*) — Reservation of Grounds in Review — Motion for New Trial — Sufficiency.</p> <p>Under rules 67 and 68 for district courts (142 S. W. xxii), requiring each ground of motions for a new trial to briefly refer to that part of the ruling or other proceedings complained of, so that the point of objection can be clearly identified and understood, and providing that grounds of objection coached in general terms shall not be considered, the excessiveness of the verdict cannot be reviewed on appeal, where the motion for a new trial merely specified as a ground therefor that it was exorbitant and excessive, without showing wherein it was excessive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744^-1752; Dec. Dig. § 302.*]</p> <p>4. Death (§ 88*) — Actions for Causing— Elements of Damage.</p> <p>The damages recoverable by minor children for the death of their father is not limited to the sum which he would probably have contributed to them, but may include damages for loss of his care and moral and mental training.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 116; Dec. Dig. § 88.*]</p> <p>5. Trial (§ 121*) — Argument of Counsel-Scope.</p> <p>Since parties have a right to be represented by counsel, the courts cannot control their argument if it presents to the jury conclusions, supported by facts, either direct or circumstantial, tending to support counsel’s theory.</p> <p>[Ed. Note. — For other cases, see Trial, Gent-Dig. §§ 294-298, 300; Dec. Dig. § 121.*]</p> <p>6. Master and1 Servant (§ 264*) — Action for Injuries — Evidence — Admissibility Under Pleadings.</p> <p>Where the petition, in an action for the death of a crossing flagman, alleged that his peril was discovered by those operating the engine by which he was struck in time to have avoided the injury by the exercise of ordinary care and the use of the means at hand, evidence that the engine could have been stopped by an angle cock on the rear of the engine was admissible, although there was no specific allegation of negligence in failing to so stop it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. §■ 264.*]</p> <p>7. Appeal and Error (§ 1050*) — Review-Harmless Error. ’</p> <p>The erroneous admission of evidence was harmless, where other testimony to the same effect was admitted without objection.</p> <p>[Ed. Note. — For other cases, see Appeal' and Error, Cent Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p> <p>8. Appeal and Error (§ 1052*) — Review-Harmless Error.</p> <p>In an action for the death of an employé struck by a train, the erroneous admission of evidence 'bearing only on the issue of discovered peril was harmless, where that issue was withdrawn from the jury, and the issue of negligence in failing to discover his peril alone submitted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.</p> <p>9. Appeal and Error (§ 1033*) — Review-Harmless Error.</p> <p>In an action for the death of an employé, the refusal of an instruction that if he was guilty of contributory negligence the damages should be reduced proportionately did not prejudice defendant, where the court charged to find for defendant if deceased was negligent, since the error was favorable to defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dee. Dig. § 1033.*]</p>

<p>1. Homicide (§ 250* )“Manslaughtek — Sufficiency of Evidence.</p> <p>Evidence held amply sufficient to sustain a conviction of manslaughter.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.*]</p> <p>2. Criminal Law (§ 1120*) —Appeal and Ekkoe — Bill of Exceptions — Sufficiency.</p> <p>Bills of exceptions complaining of the admission of evidence of tracks found at the scene of the homicide will not be reviewed, where they stated the objections merely as such, and were not approved as a statement of the facts on which the objection was based, and did not state sufficient, facts surrounding the matter to show error.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.*]</p> <p>3. Homicide (§ 338*) — Harmless Ekkoe — Admission of Evidence.</p> <p>Where the theory of the state was that defendant lay in wait and killed deceased for the purpose of robbery, the admission of evidence of tracks at the scene of the homicide, if error, was harmless, where defendant was acquitted of murder, both in the first and second degrees, and found guilty of manslaughter only.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.*]</p> <p>4. Witnesses (§ 263*) — Examination of Witnesses — Correction of Testimony.</p> <p>Where a. witness testified to the distances between the point where the homicide occurred' and certain houses, it was not error to permit him, at his own request, to again take the stand the next day and correct his former testimony by accurately stating such distances as determined by him from having stepped them off in the interval.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 900-903; Dec. Dig. § 263.*]</p> <p>5. Criminal Law (§ 811*) — Refusal of Instructions— Motive.</p> <p>A requested instruction that the fact that deceased had money on his person some time before, but not when searched after, his death was not evidence of defendant’s guilt, but, introduced solely to show motive, was properly refused as singling out particular evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dec. Dig. § 811.*]</p> <p>6. Criminal Law (§ 939*) — New Trial— Newly Discovered Evidence.</p> <p>A new trial was properly denied for newly discovered evidence where no diligence to discover it before the trial was shown.</p> <p>[Ed. Note. — Eor other cases, see Criminal • Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.*]</p>

<p>Appeal from Rains County Court; O. H. Rodes, Judge.</p> <p>R. P. Butler appeals from a conviction.</p>

<p>1. Trial (§ 382*) — Conflicting Evidence-Question for Court.</p> <p>The court trying a case without a jury must weigh the conflicting evidence, and accept that which appears worthy of credit.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 898; Dec. Dig. § 382.*]</p> <p>2. Trusts (§ 101*) — Constructive Trusts— • Creation. . .</p> <p>Where plaintiff gave money to defendant to erect a building on plaintiff’s land, but defendant to perpetrate a- fraud, and, in violation, of his fiduciary relation, used the money in erecting a building on his own land, a constructive trust resulted in favor of plaintiff in defendant’s land.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 152; Dec. Dig. § 101.*]</p> <p>3. Trusts (§ 349*) — Breach of Trust — Equitable Relief.</p> <p>Where one, by breach of a trust and in violation of his fiduciary relations, obtains an advantage, equity may prevent him from retaining the benefit, and may reach all those actually concerned in the wrong, and directly and knowingly participating in the fruits thereof.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 514; Dec. Dig. § 349.*]</p> <p>4. Trusts (§ 356*) — Constructive Trusts— Parties Chargeable with Trust'.</p> <p>Where plaintiff advanced money to defendant to erect a building on plaintiff’s land, and, defendant fraudulently used the money in erecting a building on land in his possession under an ‘executory contract of purchase, and thereafter surrendered his right to complete the purchase, and the land was conveyed to a third person with knowledge of the fraud by the vendor of defendant, who also had knowledge of the fraud, the third person took the property with the constructive trust imposed thereon, in favor of plaintiff.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 529-538; Dec. Dig. § 356.*]</p> <p>5. Fixtures (§ 31*) — ^Annexation to Realty —House. . .</p> <p>Fixtures, such as a house, become part of the realty on which it is situated, and as-such cannot be severed.</p> <p>[Ed. Note. — For other cases, see Fixtures, Cent. Dig. § 62; Dec. Dig. § 31.*]</p> <p>6. Trusts (§ 340*) — Constructive Trusts— Liability.</p> <p>Where equity fastened a constructive trust on a house forming a part of the realty on which it was situated, equity could decree a lien on the land, and direct a sale thereof to protect the interest of the beneficiary.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent.. Dig. § 501; Dec. Dig. § 340.*]</p> <p>On Motion for Rehearing.</p> <p>7. Trusts (§ 371*) — Constructive Trusts— Suit to Establish — Cross-Bill — Necest sity.</p> <p>Where a person is made a party defendant in a suit to establish a resulting trust in land to adjust his equities, if any, he must by answer in the nature of a cross-hill set up the superiority of his equities, if any, and allege facts giving him equitable rights such as the right of subrogation, and ask for adjustment of the equitable claims of the respective parties, or the court may only establish plaintiff’s claim.</p> <p>[Ed. Note. — For other cases, see Trusts, Gent. Dig. §§ 588-599; Dec. Dig. § 371.*]</p>

<p>Appeal from District Court, Washington County; Ed R. Sinks, Judge.</p> <p>Action by the City of Brenham against Hollé & Seelhorst. Judgment for defendants, and plaintiff appeals.</p>

W. Veale, Special Judge. Action toy the First National Bank of Canyon against M. G. Abernathy and another. From a judgment for plaintiff for insufficient damages, it appeals.

<p>Appeal from District Court, Fayette County ; Frank S. Roberts, Judge.</p> <p>Action by Mrs. Ella Hansen against the Supreme Ruling of the Fraternal Mystic Circle. From judgment for plaintiff, defendant, appeals.</p>

<p>1. Trial (§ 143*) — Direction ox Verdict— Conflicting Evidence.</p> <p>Where, in trespass to try title, the evidence was conflicting as to whether defendant was entitled to one-half of the land, it was error to direct a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]</p> <p>2. Adverse Possession (§ 61*) — Title by Limitations — Notice—Sufficiency.</p> <p>Where a father and son. agreed to buy land jointly, and the son paid one-half of the first payment, and the father fraudulently procured the vendor’s agent to erase his son’s name from the deed, and had it so recorded without his son’s knowledge, the father’s possession under such recorded deed could not ripen into title by limitations, where the son had no notice that his father was claiming possession adversely to him; the recording of the deed not giving him notice.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 315-322; Dee. Dig. § 61.*]</p> <p>3. Trespass to Try Title (§ 22*) — Recovery by Defendant — Conditions Precedent-Tender in Pleading.</p> <p>Where, in trespass to try title', defendant answered, claiming one-half the land as joint purchaser with plaintiff, and that plaintiff by fraud procured a deed in his individual name, and prayed for general and equitable relief, and the plaintiff replied that he had executed a trust deed on the land to secure the unpaid price, and defendant replied, admitting the outstanding loan, defendant was not required to offer by pleading to pay any part of the unpaid purchase money which was not yet due.</p> <p>[Ed. Note — For other cases, see Trespass to Try Title, Dec. Dig. § 22.*]</p>

<p>Appeal from District Court, Armstrong County; A. S. Rollins, Special Judge.</p> <p>Action by R. M. Taylor against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading (§ 241*) — Pleading Amendments.</p> <p>Under district court rules 13 and 14 (142 S. W. xviii), providing that an amendment shall be a substitute for the amended pleading, and, unless the substituted instrument be set aside on exceptions, the original pleading shall not be regarded, unless some error of the court in deciding upon the necessity of the amendment be complained of and exception be taken, or unless it be necessary to look to the superseded pleading upon a question of limitation, it is improper to refer in a first amended petition to the original petition-for the purpose of making it a part of the amended petition.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 642; Dec. Dig. § 241.*]</p> <p>2. Vendor and Purchaser (§ 286*) — Vendor’s Lien — Foreclosure—Injunction.</p> <p>Plaintiff purchased land from one who had given a vendor’s lien thereon, and a judgment was obtained on the lien notes against plaintiff’s vendor, and the land ,was advertised for sale, whereupon plaintiff’s vendor and the holders of the notes executed an agreement extending the time of payment of the notes, which agreement provided that it was intended to stop further action on the judgment until the maturity of the extended notes, at which time the judgment debtor agreed to pay them. Held, that plaintiff could not enjoin the execution of the judgment of foreclosure and require the judgment creditors to sue on the extended notes, and obtain another judgment of foreclosure, as such procedure would merely prolong the ultimate sale of plaintiff’s property for payment of the debt, and plaintiff would not suffer any additional injury by a sale under the existing judgment.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Oent.Dig. §§ 808, 809; Dec.Dig. § 286.</p> <p>3. Execution (§ 172*) — Remedies of Debtor —Injunction.</p> <p>Equity will not intervene at the instance of a judgment debtor to stay execution, unless he tenders payment of the amount admitted to bo due.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. § 172.*]</p> <p>4. Accord and Satisfaction (§ 14*) — Facts Constituting.</p> <p>Plaintiff purchased land from one who had given a vendor’s lien thereon, and a judgment was obtained on the notes against plaintiff’s vendor, and the land was advertised for sale, whereupon plaintiff’s vendor and the holders of the notes executed an agreement extending time of payment of the note, which provided that it was intended to stop further action on the judgment until the maturity of the extended notes, and that the judgment debtor agreed to pay them at the expiration of the extended time. Held, that the holders of the notes were not estopped from levying execution under the judgment, upon nonpayment of the extended notes, on the theory that the agreement constituted an accord and satisfaction of the judgment.</p> <p>[Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 111-115; Dec. Dig. § 14.*]</p> <p>5. Injunction (§ 118*) — Allegations — Direct Allegations.</p> <p>An application for an injunction must allege the facts with directness, certainty, and particularity.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dee. Dig. § 118.*]</p> <p>6. Vendor and Purchaser (§ 286*) — Vendor’s Lien — Foreclosure—Estoppel.</p> <p>The fact that the holders of vendor’s lien notes accepted part payment on the notes from the debtor and his grantee after their maturity, as they had been extended, would not estop them from enforcing a judgment of foreclosure previously obtained, since the debtor and his grantee, in making such payment, were merely doing what they were bound to do.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 808, 809; Dec. Dig. § 286.*]</p>

<p>Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.</p> <p>Action by Mrs. Sam Woodburn against the Texas Town Dot & Improvement Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Pecos County; W. C. Douglas, Judge.</p> <p>Suit by J. F. McWilliams and others against the Commissioners’ Court of Pecos County and J. M. Odom and others, as individual members thereof, to enjoin the building of a new courthouse and jail. From an order dissolving a restraining order, the plaintiffs appeal.</p>

<p>1. Vendor and Purchaser (§ 33*) — Rescission — Fraud—Representations on Information.</p> <p>A vendor, who makes a representation on information received from others, is not guilty of fraud, though the representation is false, if he informs the purchaser that he does not make the same as of his own knowledge, and if he does pot know that the information is false or that his informant is unreliable.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 38, 40-43, 66; Dec. Dig. § 33.*]</p> <p>On Motion for Rehearing.</p> <p>2. Vendor and Purchaser (§ 44*) — Action to Rescind — Fraud.</p> <p>Evidence, in an action for rescission of an exchange of lands, held not sufficient to support a finding that defendant had intentionally practiced a fraud upon plaintiff.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76; Dec. Dig. § 44.*]</p> <p>3. Vendor and Purchaser (§ 36*) — Right to Rescind — Fraud.</p> <p>■ Although defendant was not guilty of intentional wrong, plaintiff may rescind if he was induced to .convey land in reliance on false representations as to the character of the land conveyed to him by the vendor.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 40, 52, 53; Dec. Dig. § 36.*]</p> <p>4. Vendor and Purchaser (§ 36*) — Rescission— Fraud — Misrepresentation or Matters op Opinion.</p> <p>Although defendant’s statements, made on information by reliable parties, that the land he was conveying to plaintiff was good, smooth land, was fenced, and had a well, windmill, and tank upon it, were false in fact, they were, when made in connection with statements based on information, mere expressions of defendant’s opinion not affording a ground for rescission.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 40, 52, 53; Dec. Dig. § 36.*]</p> <p>5. Exchange op Property ■(§ 5*) — Condition op Contract — Independent Stipulation.</p> <p>Where a vendor knew nothing about land personally, and the purchaser, knowing that if he relied only upon the vendor’s opinion as to its character he would not be entitled to rescind the contract, took the vendor’s guaranty that if the land was not as represented he would make it come up to such representations, meaning thereby that if the land was not as represented he would pay a sum representing the difference between the value as represented -and its actual value, the contract between the parties was that there should be no rescission if the land, was not as represented, but that the purchaser would be indemnified under the guaranty.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 6, 8-10; Dec. Dig. § 5.*]</p> <p>6. Liens (§ 15*) — Incumbrances—Liability op Subsequent Purchaser.</p> <p>A purchaser of land who has assumed payment of incumbrances thereof cannot, without the consent of'the owner of such incumbrances, be relieved of liability therefor.</p> <p>[Ed. Note. — For other cases, see Liens, Cent. Dig. § 20; Dec. Dig. § 15.*]</p> <p>7. Exchange of Property (§ 5*) — Rescission of Purchaser — Condition Precedent —Placing Parties in Same Position.</p> <p>Where plaintiff conveyed land to defendant, who assumed the payment of liens on the land, a rescission at the instance of plaintiff should be denied, since, as such liability of defendant would continue unless the incumbranc-ers released him from liability, the parties could not be placed in statu quo.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 6, St-10; Dec. Dig. § 5.*]</p>

<p>1.Trial (§ 194*) — Instructions on the Weight of the Evidence.</p> <p>An instruction that evidence as to certain matters could only be considered to throw light on whether there was a controversy between the plaintiff and defendant, the differences between them, if any, and as tending to explain, if it does, “the reason for the final difficulty between them on the 9th day of July,” was a charge on the weight of the evidence, and was calculated to cause an improper judgment within rule 62a (149 S. W. x), providing that reversal be had for no other reason, where the evidence was conflicting whether there was any difficulty between them on that date.</p> <p>[Ed. Note. — Eor other eases, see Trial, Cent. Dig. §§ 413, 436, 439-441; Dec. Dig. § 194.*]</p> <p>2. Appeal and Error (§ 1064*) — Instructions— Harmless Error — Limitation of Evidence.</p> <p>Where the main issue was whether plaintiff voluntarily abandoned a farm or was evicted, an instruction that evidence as to an attempted arrangement of matters through third persons could only be considered to throw light on whether there was a controversy, and to show whether plaintiff voluntarily abandoned the premises, and for no other purpose, was an inappropriate limitation of the evidence and the last clause was confusing, but was not reversible error; the rule being that, where collateral facts are so connected with the main facts that they should not be excluded, they may be introduced to prove motive, system, guilty knowledge, or intent, if such elements enter into the main controversy, and ordinarily should be so limited.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p> <p>3. Trial (§ 252*) — Instructions —Crops —</p> <p>Abandonment.</p> <p>In an action by a cropper against the landowner for part of the crop, the cropper having left the premises before the harvest, where the cropper’s theory, if believed, showed threats sufficient to inspire a reasonable fear of personal injury, an instruction that the jury “could” conclude that such threats and acts were made to deprive the cropper of the premises was proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>4. Appeal and Error (§ 1050*) — Invited • Error — Evidence.</p> <p>In an action by a cropper, who had left the premises before harvest, claiming eviction by threats, for his share of the crops, testimony of the cropper’s wife that a daughter of the landowner threatened to shoot the cropper was inadmissible where no connection was shown with the landowner, but testimony of the landowner previously introduced that he knew nothing about the “racket” and had nothing to do with it rendered it not reversible.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p>

<p>1. CORPORATIONS (§ 510*) — ACTIONS—INJUNCTION — Parties.</p> <p>' In an action to enjoin the overflowing of land by means of a dam, where it is not shown that the officers and employés of the corporation owning the dam were doing or threatening to do anything independent of the corporation, they are not necessary parties.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1930; Dee. Dig. § 510.*]</p> <p>2. Estoppel (§ 70*) — Acquiescence—Injunction.</p> <p>A party cannot have equitable relief by injunction, where he has acquiesced in the act. Sought-to be enjoined by recognizing the act as existing, with full knowledge or notice, or means of knowledge, of his rights, or by acting'in a manner inconsistent with its repudiation, or by permitting the other party to deal with the subject-matter under the belief that it has been recognized without objection.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 183-187; Dec. Dig. § 70.*]</p> <p>3. Eminent Domain (§§ 79, 80, 280*) — Compensation — Payment Before Taking-Waiver.</p> <p>Where a landowner, knowing that a dam was being erected by a corporation entitled to exercise power of eminent domain, which would submerge his land, made no objection, but, on the contrary, assisted in building it and negotiated for the sale of the land, he waived prepayment of compensation before appropriation of the land under the power of eminent domain, and could not, after the corporation had taken possession of his land by overflowing it, enjoin the maintenance of the dam, but was only entitled to recover compensation for the land.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 205-214, 776; Dec. Dig. §§ 79, 80, 280.*]</p> <p>4. Eminent Domain (§ 172*) — Proceeding to Take Property — Jurisdiction.</p> <p>A United States District Court has no authority to condemn land in this state for a foreign corporation acquiring its right to exercise the power of eminent domain under the laws of this state.</p> <p>[Ed, Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 470 — 472;1 Dec. Dig. § 172.*]</p> <p>5. Eminent Domain (§ 167*) — Statutory Provision — Necessity oe Strict Compliance.</p> <p>Grants of the power of eminent domain are strictly construed, and the methods set forth in the statute granting the power must be strictly followed.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent Dig. §§ 451-456; Dec. Dig. § 167.*]</p> <p>6. Eminent Domain (§ 280*) — Compensation —Payment Before Taking — Waiver by Husband.</p> <p>A married woman could not enjoin the maintenance of a dam by a corporation entitled to exercise the power of eminent domain, which would submerge the land of her husband, in which she had a homestead right, where the husband had waived prepayment of compensation before appropriation of the land, but was only entitled to recover compensation for her homestead.</p> <p>[Ed. Note. — For other cases, see Eminent Do-, main, Cent. Dig. § 776; Dec. Dig. § 280.*] .</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by Bertha Merkel against the City of Houston. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Harris County ; Charles E. Ashe, Judge.</p> <p>Action by John P. Williams against the City of Houston. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Highways (§ 38*) — Opening — Notice — Waiver.</p> <p>A property owner’s presence while the jury of view were surveying the highway estopped him from afterwards denying that he had waived notice of the survey so as to make the statutory notice of that proceeding unnecessary.</p> <p>[E'd. Note.—For other cases, see Highways, Cent. Dig. §§ 93-97; Dec. Dig. § 38.*]</p> <p>2. Eminent Domain (§ 180*)—Highway—< Opening—Assessment of Damages—Statutory Notice.</p> <p>Under Rev. St. 1895, art. 4691 (Rev. Civ. St. 1911, art. 6880), providing that lands shall not be taken for a highway until the owner has received five days’ notice when the jury of view will “lay out such road, or when they will assess damages incidental to the opening of the same,” notice of the assessment of damages is jurisdictional, and a mere recital of such notice in the report of the jury, or knowledge by the owner that the jury has laid out the road over his property, is not sufficient to confer jurisdiction.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 4S9; Dec. Dig. § 189.*]</p> <p>3. Eminent Domain (§ 1*) — Natube of Power.</p> <p>The power of eminent domain is the right of the sovereign to take private property for public uses.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2362-2366; vol. 8, p. 7649.]</p> <p>4. Eminent Domain (§ 8*) — Delegation of Power — Construction of Statutes.</p> <p>The delegated power of eminent domain can only -be expressly conferred by statute, and such statutes are construed strictly in favor of the owners of the condemned property.</p> <p>[Ed. Note. — For other cases, see Eminent D'o-main, Cent. Dig. §§ 25, 30, 34, 43, 44i; Dec. Dig. § 8.*] ' "</p> <p>5. Eminent Domain (§ 184*) — Assessment of Damages — Notice—Waiver.</p> <p>The five days’ notice of the time when the jury of view will assess damages incidental to the opening of a road, required by Rev. St. 1895, art. 4691 (Rev. Civ. St. 1911, art. 6880), may be waived, but affirmative proof of such waiver must be made 'by the party relying thereon.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 498; Dec. Dig. § 184.*}</p> <p>6. Eminent Domain (§ 183*) — Highway—Establishment — Notice of Assessment.</p> <p>The mere recital of service of notice of when damages incident to the opening of a highway will be assessed in the report of the jury of view is not sufficient to show prima facie service of such notice on the landowner.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 497; Dec. Dig. § 183.*].</p> <p>7. Eminent Domain (§ 183*) — Highway — Opening — Proceedings — Burden of Proof — Notice.</p> <p>In a landowner’s suit to enjoin a county from opening a road over his land, the burden is on defendant to show affirmatively that notice of the time for assessing damages was given to the landowner as required by Rev. St. 1895, art. 4691 (Rev. Civ. St. 1911, art. 6880).</p> <p>[Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. § 497; Dee. Dig. § 183.*]</p> <p>8. Eminent Domain (§ 296*) — Highway — Opening — Proceedings — Admission of Evidence.</p> <p>In a property owner’s suit to enjoin a county from opening a second-class road through plaintiff’s land, deeds from third persons, to which plaintiff was not a party or privy, were irrelevant.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 804r-S06; Dec. Dig. § 296.*]</p> <p>9. Eminent Domain (§ 183*) — Highway — Opening — Notice—Evidence. ,</p> <p>Proof of the placing of a letter iñ a post office addressed to the landowner, unaccompanied by proof showing its receipt, would not be evidence of the notice required by Rev. St. 1895, art. 4691 (Rev. Civ. St. 1911, art. 6880), entitling a landowner to five days’ notice of when the jury of view will assess damages incidental to the opening of a road; no presumption of delivery being , made.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 497; Dec. .Dig. § 183.*]</p>

<p>Error to District Court, Hunt County; R. L. Porter, Judge.</p> <p>Action by Earnest Smith against the St. Louis Southwestern Railway Company of Texas. From judgment for plaintiff, defendant brings error.</p>

P. Huff, Judge. Action by the Kingman-Texas Implement Company against the Herring National Bank, as garnishee, and others. From a judgment against plaintiff as to the money sought to be garnisheed, it appeals.

<p>Error to District Court, Tarrant County. Actions by J. L. Walker against the Hartford Eire Insurance Company and the Equitable Fire & Marine Insurance Company. Judgments for plaintiff, and defendants bring error.</p> <p>Defendant in error was a grain dealer and operated a grain warehouse and elevator in the city of Et. Worth. In the operation of the business he carried stock consisting of oats, wheat, corn, bran, chops, sacks, and twine. On October 3, 1908, a fire occurring in the warehouse destroyed some and injured some of the stock. On the 5th of August, 1908, there was issued to defendant in error an insurance policy for $3,500 by the Equitable Eire & Marine Insurance Company, insuring him against loss or damage by fire to “stock of grain and sacks owned or held by assured.” On the 3d of August, 1908, there was issued to defendant in error a policy of insurance for $3,000 by the Hartford Fire Insurance Company, insuring him against loss or damage by fire to “grain in sacks owned or held by assured.” Plaintiff sued each company for the loss and damage occasioned to him, and obtained judgment against each separately. As the pleadings are the same in each case, and the questions made are the same on each appeal, counsel treat the two cases as one appeal, and they are here considered together. Besides the usual allegations in the character of suit here, it was averred by defendant in error that in his business he usually and commonly carried in his warehouse wheat, corn, oats, bran, chops, sacks, and twine, and that said stock was such stock as was usually carried by persons engaged in a similar business, and that it was customary among insurance companies doing business in Et. Worth, including the defendants, in issuing policies of insurance covering such a stock of merchandise, to describe such stock by the general terms used in the policies. The plaintiffs in error answer by general denial, special exceptions, and averring a breach of warranty (1) as to inventory, and (2) as to keeping a proper set of books, and specially pleading that the policy should be held void under its terms for fraud upon the ground that after the fire plaintiff made and caused to be made false and fictitious books, bills, records, and inventories in order to show a compliance with the terms of the insurance policies when there was no such compliance, and in order to collect from each defendant a sum of money which would not otherwise be owing. The verdict of the jury involves a finding on all issues of fact arising in the evidence according to the insistence of the defendant in error, and their findings are supported by the evidence, and are here adopted as the findings of fact of this court.</p>

<p>1. Master and Servant (§ 277*) — Action for Injuries — Sufficiency of Evidence — Existence of Relation.</p> <p>In, an action for the death of plaintiff’s son, evidence 'held insufficient to show a contract between the son and defendant’s agent, by which the latter undertook to teach the son telegraphy, and he in return agreed to assist the agent in and around the depot and pump station, so as to create the relation of master and servant between defendant and deceased.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 953; Dee. Dig. § 277.*]</p> <p>2. Master and Servant (§ 277*) — Action ' for Injuries — Sufficiency of Evidence— Relation of Master and Servant.</p> <p>Evidence, in an action for the death of plaintiff’s son, 'held- not to. show that the relation of master and servant in any of its forms existed between the defendant and plaintiff’s son, but to show that, at the time of the accident, he undertook to start a, pump of his own accord, without notifying defendant’s agent of his purpose.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 953; Dec. Dig. § 277.*]</p> <p>3. Master and Servant (§ 88*) — Master’s Liability — Relation of Parties.</p> <p>One engaging at the request, or with the permission of, a railroad servant, in a transaction of interest to himself, as well as to the railroad, while a volunteer and not a servant of the railroad, has a right to be protected against the negligence of its servants and to recover of the road, if he is injured thereby.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.*]</p> <p>4. Master and Servant (§§ 101, 102*) — Master’s Liability — Safe Place for Work.</p> <p>The master’s duty to furnish his servant a safe plane for work, while not a part of the stipulation usually embraced in contracts of employment, is implied in. all such agreeinents, and is treated in law as incidental to the relation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135. 171, 174, 178, 179, 180-184, 192; Dec. Dig. §§ 101, 102.*]</p> <p>5. Master and Servant (§ 205*) — Assumption of Risk — Servant’s Knowledge of Defects — Places of Work.</p> <p>A servant, while in the performance of his duties under the terms of his contract, may as-, sume that the master has provided a safe place for work, except when he knows, or in the exercise of ordinary care should know, to the contrary. . '</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. § 205.*]</p> <p>6. Master and Servant (§ 88*) — Master’s Duty — Relation of Parties — Safe Place to Work.</p> <p>A master’s duty to provide his servants a safe place to work arises out of the contract made by him with them for 'the performance of some service, and hence is due only to. those persons who sustain toward him such contractual relations.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.*]</p> <p>7. Master and Servant (§ 265*) — Action for Injuries — Burden of Proof —Relation of Master and Servant.</p> <p>One who seeks to recover for a master’s failure to provide a safe place for work has the burden of proving that the relation of master and servant existed at the time of the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]</p> <p>8. Master and Servant (§ 88*) — Assumption of Risk — Volunteer.</p> <p>A person who volunteers to assist a servant of another, without being employed by such servant, assumes all the ordinary risks of the situation, so that he takes things as he finds them, and, in case of injury, cannot recover from the master of the servant he has assisted, unless the injury is such as would create a liability as to a trespasser or bare licensee.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent..Dig. §§ 144-151; Dec. Dig. § 88.*]</p> <p>9. Master and Servant (§ 224*) — Assumption of Risk — Servant Performing Work in Different Department.</p> <p>When a servant, employed in one line of work, voluntarily undertakes to perform services for his master in a different department, he assumes all the risks that attend a bare licensee, notwithstanding • that what he is doing may result in benefit to his master.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 654; Dee. Dig. § 224.*]</p> <p>10. Master and Servant (§ 88*) —Fellow Servants — Existence of Relation of Master and Servant — Invitation of Servant.</p> <p>While a servant may in some cases confer upon a stranger the privilege or license of entering upon the premises of his employer, yet, without authority to do so, he cannot clothe the stranger with that protection which can only arise from a contract of employment.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.*]</p>

<p>Appeal from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Acton by James V. Upson against W. Robbie. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trial (§ 260*) — Requests—Instructions •Otherwise Given.</p> <p>A requested instruction that if defendant was driving his automobile with reasonable care, and tried to avoid the accident, verdict should be for defendant, was properly refused, where covered fully by other charges given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>2. Trial (§ 329*) — Verdict—Definiteness and Responsiveness.</p> <p>A verdict that “we find that plaintiff is entitled to $50 and his wife to $1,150” is not indefinite, and is responsive to the issues in the complaint, wherein plaintiff claimed damages for his own personal injuries, and for injuries to his wife and his buggy, and in the charge, where they were told to assess the damages for injuries to plaintiff and the buggy, and for loss of wife’s services, etc., in one item, and the damages for injury to the person of his wife in another.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 774r-776, 782; Dec. Dig. § 329.*]</p>

<p>1. Railroads (§ 348*) — Crossing Accidents —Actions—Sueeicienct of Evidence.</p> <p>In an action for injuries sustained in a crossing accident, evidence helé to support a finding of the jury that those in charge of the train were negligent, and that plaintiff was not guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*]</p> <p>2. Trial (§ 260*) — Instructions Covered bv ■ Other Instructions.</p> <p>The refusal of a special charge was not error, where another special charge covering the same point and correctly stating the law was given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>1. Coubts (§ 12*) — Jurisdiction—Suits Between Nonresidents.</p> <p>The district court of .6. county had jurisdiction of a suit by a nonresident against, a foreign railroad corporation for personal injuries, where a domestic corporation owning the part of the line in the county was a mere sub-corporation, and ¡the foreign corporation completely controlled such line.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 32-36, 40, 41, 43, 45; Dec. Dig. § 12.*]</p> <p>2. Railroads (§ 33*) — Process—Service.</p> <p>Service on the conductor and ticket agent in the employ of a railroad company which was a mere subcorporation controlled by the defendant company was sufficient service on the defendant.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 70, 71; Dec. Dig. § 33.*]</p>

<p>Appeal from Harris County Court; Clark C. Wren, Judge.</p> <p>Action by Juan Garza against Almon Cotton. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Injunction (§ 172*) — Dissolution or Tehporabv Restraining Order.</p> <p>Where a judgment debtor sued to restrain the judgment creditor from enforcing the judgment, and joined the constable to prevent a sale, and the judgment creditor and the constable filed sworn answers denying in detail all tbe material averments of the petition, the state of the pleadings authorized the court to dissolve (the temporary restraining order upon motion.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 374r-384; Dec. Dig. § 172.*]</p> <p>2. Injunction (§ 129*) — Temporary Injunction-Staying Execution.</p> <p>Upon a petition to enjoin defendant from selling plaintiff’s property on execution, in which a temporary injunction has been granted, the court, on dissolving the injunction, should not dismiss the suit, although plaintiff does not affirmatively demand a trial upon the merits.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 279-287; Dec. Dig. § 129.*]</p> <p>3. Appeal and Error (§ 71*) — Judgments Appealable — Final Judgments.</p> <p>An order dismissing a temporary order restraining execution made merely on the pleadings, and without evidence as to the merits, is not a final, appealable judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 386-401; Dec. Dig. § 71.*]</p>

<p>Appeal from District Court, Shelby County; W. C. Buford, Judge.</p> <p>Action by Mrs. C. A. K. Lacy and others against the Houston, East & West Texas Bailway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal and Error (§ 784*) — Record—Sufficiency — Aepirmance.</p> <p>Where only one assignment of error is briefed, and that is based upon a bill of exceptions not filed in time, and no assignments of error are found in the transcript, as required by Rev. St. 1895, art. 1415, the judgment will be affirmed, in the absence of fundamental error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 784.*]</p>

<p>Highways {§ 164*) — Obstruction—Evidence —Sufficiency.</p> <p>A conviction of obstructing a public road cannot be sustained, where it appears that tbe obstruction was placed, not in a public road, as created by the commissioners’ court, but on a passageway adjoining tbe road, owned by ae-cused and not shown to have been dedicated to public use.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 447-455; Dec. Dig. § 164.*]</p>

<p>Appeal from District Court, Briscoe County; R. C. Joiner, Special Judge.</p> <p>Action by Bettie Witherspoon against Miner Crawford. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from San Patricio County Court; Hon. P. A. Hunter, Judge.</p> <p>Action by D. Odem against P. D. Ward. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Lipscomb County; B. M. Baker, Special Judge.</p> <p>Action by J. E. Shinn against the Southern Kansas Railway Company of Texas and others.. Judgment for plaintiff, and defendants appeal.</p>

D. Camp, Judge. Action by J. H. Dieber against B. F. Nicholson and others. From a judgment for plaintiff for a specified sum and for defend»ants for a specified sum, defendants appeal.

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by George W. Ledbetter against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

Action by H. J. Landrum and another against W. L. Terrell and others. From a judgment for defendant Watson against plaintiffs and codefendant W. L. Terrell, and in favor of plaintiffs against Terrell, the latter appeals.

<p>1. Trial (§ 139*)— Direction of Verdict— When Authorized.</p> <p>The court may only direct a verdict for defendant where there is no testimony to support the claim of plaintiff.</p> <p>TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333 338-341, 365 ; Dcc.Dig. § 139.*]</p> <p>2. Appeal and Error (§ 729*) — Assignments op Error — Peremptory Instructions — Review.</p> <p>An assignment of error complaining of the refusal of special charges requested by plaintiff, and of the giving, in lieu thereof, a peremptory charge for defendant, does not require the court, on appeal to review the peremptory charge in the absence of a pointing out of testimony id. the record supporting plaintiff’s claim.</p> <p>[Ed. Note. — For other cases, see Appeal and. Error, Cent. Dig. §§ 2998, 3013; Dee. Dig. § 729.*]</p> <p>3. Appeal and Error (§ 719*) — Questions Review able — Assignments op Error — Record.</p> <p>Under Rev. Civ. St. 1911, art. 1612, requiring plaintiff to file assignments of error distinctly specifying the grounds on which he relies, or the errors are waived, and Court of Civil-Appeals rules 23 and 25 (142 S. W. xii), providing that, if the record does not contain an assignment of error as required, the court will not consider any error but one of law apparent on the record, and that a distinct specification of error must point out the part of the proceedings complained of in a particular manner, the giving of a peremptory charge for defendant will not be reviewed where there is no ássign- ■ ment of error which points out the testimony in the record in support of plaintiff’s claim.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.*]</p> <p>4. Sequestration (§ 18*) — Claims of Third Persons — Bonds—Requisites.</p> <p>A bond by a claimant in a contest under the statutory remedy for trial of right of property to determine the ownership thereof, conditioned on the claimant returning the property to plaintiff or his successors in case he fails-to establish his claim, does not comply with the statute providing that the bond shall be conditioned on claimant returning the property to the officer making the levy or his successor in office, on his failure to establish his claim.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dec. Dig. § 18.*]</p> <p>5. Appeal and Error (§ 1043*) — Harmless-Error — Erroneous Rulings Not Affecting Result.</p> <p>Where the court, in a contest under the statutory remedy of the trial of the right of property to determine the ownership thereof, properly directed a verdict for claimant, the failure to quash his bond for not complying with the statute was immaterial.</p> <p>[Ed. Note. — For other cases, see Appeal and. Error, Cent. Dig. §§ 4115-4121; D'ec. Dig. §• 1043.*]</p>

<p>Appeal from District Court, Smith County; R. W. Simpson, Judge.</p> <p>Action by the Gray & Dudley Hardware Company against James R. Adams. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by Mrs. Lillie Beezley, as admin-istratrix, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error (§ 301*) — Review—Motion por New Trial.</p> <p>Where no complaint was made as to the findings of the court in the motion for a new trial, they cannot be considered on appeal, under Rule 24 (142 S. W. xii), providing that assignments of error must distinctly specify the ground of error relied on and be distinctly set forth in the motion for new trial in the cause, and that otherwise the ground of error shall be considered waived unless so fundamental as to warrant consideration without an assignment of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.*]</p> <p>On Motion for Rehearing.</p> <p>2. Venue (§ 21*) — Action por Custody op Child — Privilege—Fraud.</p> <p>Where plaintiff is, through false representations and deceit, persuaded to take his child into another county, and his possession and right to control it were not interfered with until he got in such county, the venue of a suit to recover the child was not properly laid in the county where the fraud was practiced, and a plea of privilege by the defendants to he sued in the county where they resided should have been sustained; the fraud not being the gist of the action, and the cause of action being the unlawful deprivation of the custody of the child.</p> <p>[Ed. Note. — For otbef cases, see Venue, Cent. Dig. § 34; Dec. Dig. § 21.*]</p>

B. Muse, Judge. Action by Miss E. H. Smith against W. P. MeGlothlin, in which defendant vouched in J. W. Thompson and others. From a judgment against plaintiff and for the original defendant against Thompson, plaintiff and Thompson appeal.

<p>Appeal from District Court, Camp County; R. W. Simpson, Judge.</p> <p>Action, by A. P. Sutton against the St. Louis Southwestern Railway Company of Texas. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Bbokers (§ 71*) — Compensation—Action.</p> <p>Where the owner of land entered into a contract with a broker to pay him a stipulated per cent, for finding a purchaser at a fixed price, and, pending the negotiations with a prospective purchaser, sold the land to him at a lesser price, thus preventing the broker from carrying out his contract, the broker cannot recover a compensation greater than that fixed in the contract, notwithstanding the breach, this being so regardless of what is a reasonable compensation.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. § 71.*]</p> <p>2. Courts (§ 122*) — State Courts — Jurisdiction — Petition.</p> <p>While the allegations of the petition determine the amount in controversy, they must be allegations of fact, and not mere conclusions of the pleader, consequently, where a petition on its face showed that for breach of the owner’s contract, a broker was entitled only to recover commissions to the extent of $500, the sum fixed by the percentage provided for in the contract, an allegation that a greater amount was a reasonable compensation cannot confer jurisdiction on the district court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. § 122.*)</p>

<p>1. CareieRS (§ 227*) — Delay — Pleading — Negligence.</p> <p>In an action against a carrier for damages for delay in delivering cattle, an exception to an allegation by defendant that the delay was caused by a wreck, it not being alleged that the wreck was not caused by the negligence of defendant, was properly sustained.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.*]</p> <p>2. Carriers (§ 228*) — Delay—Evidence.</p> <p>In an action against a carrier for delay in a shipment of cattle, evidence held, to warrant a finding of an unreasonable delay, which compelled plaintiff to hold the cattle over to the next day.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]</p>

E. Greer, Special Judge. Action by T. C. Baldwin and others against J. S. McKaughan, L. D. Stapp, and W. M. Stapp. Tried on' agreed statement of facts, and judgment rendered for plaintiffs, and McKaughan and L. D. Stapp appeal.

<p>Payment {§ 38*) — Application—Direction by Debtor.</p> <p>A debtor may, at the time of making a payment, direct its application, though the payment be in property or the proceeds to be derived from the sale of property.</p> <p>■ [Ed. Note. — For ot)ier cases, see Payment, Cent. Dig. §'§ 99-183; Dec. Dig. § 38.*]</p>

<p>1. Estoppel (§ 48*) — By Deed — Extent.</p> <p>A grantor is not estopped by his deed from claiming a title by limitation.</p> <p>[Ed.. Note. — For other cases, see Estoppel, Cent. Dig. §§ 116-118; Dec. Dig. § 48.*]</p> <p>2. Adverse Possession (§ 62*) — Possession by Surviving Wife.</p> <p>Where land, constituting the separate property of a husband, was occupied by himself and wife as his homestead, her possession thereof after his death, either in person or by a tenant renting it temporarily, was not adverse to a grantee of a child of the parties.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 324 — 327, 329-332; Dec. Dig. § 62.*]</p> <p>3. Homestead (§ 70*) — Property Constituting — Separate Tracts.</p> <p>A rural homestead may consist of separate and disconnected tracts of land, provided they do not exceed 200 acres.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 100-103; Dec. Dig. § 70.*]</p> <p>4. Homestead (§ 70*) — Property Subject to —Rural and Urban Homestead.</p> <p>One cannot have both a rural and urban . homestead at the same time.</p> <p>[Ed. Note. — For' other cases, see Ilomestead, Cent. Dig. §§ 100-103; Dec. Dig. § 70.*]</p> <p>5. Adverse Possession (§ 63*) — Possession by Heir.</p> <p>Where real estate, constituting the separate- property of a husband, was occupied by himself and his wife as his homestead until his death, and after his death a child conveyed the same and thereafter entered into possession thereof, claiming in his own right as against his grantee, his title could ripen into title by adverse possession, though if he took possession under another child, who claimed only an undivided interest, his possession would not- be adverse.</p> <p>[Ed. Note. — For other cases, see Adverse. Possession, Cent. Dig. §§ 333-357; Dec. Dig. § 63.*]</p> <p>6. Tenancy in Common (§ 15*) — Adverse Possession — Acts Constituting.</p> <p>A tenant in common, who is in possession, cannot acquire title as against the cotenant, unless the latter had notice of the adverse claim; but to prove notice it is not always .necessary to show that the cotenant had actual knowledge of the adverse claim.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. Dig. § 15.*]</p>

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>Action by the American Loan & Mortgage Company against Mrs. F. F. Bangle, community administratrix of J. A. Bangle, deceased. From a judgment for defendant, plaintiff appeals.</p>

W. Simpson, Judge. Action by George S. Barrow against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff and defendant appeals. The appellee was head brakeman on appellant’s freight train. He and the rest of the train crew had left Tyler on the day preceding the injury, and had made a trip over the appellant’s line to Waco, and this same crew was returning with the train to Tyler, the place where the injury happened.

<p>1. Pleading (§ 416*) — Rulings on Pleadings — Waiver—Agreed Facts.</p> <p>Error in overruling demurrers to the petition are waived by the parties submitting the cause on: an agreed statement of facts.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1397-1400; Dee. Dig. § 416.*]</p> <p>2. Insurance (§593*) — Life Policy — Transfer to Creditor — Creditor’s Rights.</p> <p>Transfer of a life insurance policy by a debtor to his creditor having no other insurable interest in his life, without reference to the form of such transfer, operates as a mortgage to secure the debt, interest, and premiums paid by the creditor to continue the insurance, with interest, such being the extent of the interest which the creditor can acquire in the policy, but to that extent the transfer is valid.</p> <p>[Ed. Note. — For other cases, see Insurance; Cent. Dig. j§ 1452, 1476-1478, 1481, 1482, 1485; Dec. Dig. § 593.*]</p> <p>3. Limitation op Actions (§ 46*) — Life Policy— Assignment — Security por Debt — Limitations.</p> <p>Where a debtor assigned a life policy to his creditor, who had no other insurable interest in' his life, and, being unable to pay the debt, transferred the policy to the creditor in full payment, the creditor became subrogated to an interest in the policy equal to the indebtedness, interest, etc., which was payable only when the policy became a claim by the death of the insured; and hence limitations did not begin to run against the creditor^ claim until that date. • ' '</p> <p>■ [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 240-253; Dec. Dig. § 46.*]</p> <p>4. Limitation-of. Actions (§ 167*) — Defense of Limitation — Right to Plead.</p> <p>Under the rule that a debtor who has pledged property to secure a debt cannot recover its possession, though limitations had run against the debt, until he tenders the amount unpaid, the beneficiary of a life insurance policy, transferred by the insured to his creditor in payment of the debt, could not plead limitations against the debt as a defense to the creditor’s right to recover an amount equal to the debt and interest, etc., on the insured’s death, without first tendering the debt, interest, etc.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 651-653; Dec. Dig. § 167.*]</p>

<p>Appeal from District Court, Harris County ; Wm. Masterson, Judge.</p> <p>Action by Davis & Blackwell against the Magnolia Warehouse & Storage. Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Harris County ; We. Masterson, Judge.</p> <p>Action by Henry Pasche against Solan & Billings. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Insurance (§ 539*) — Casualty Insurance —Validity on Policy — Provision yob Notice.</p> <p>Under Rev. St. 1895, art. 3379, as amended by Acts 1907, c. 129, § 1, providing that a stipulation in a contract requiring notice to be given of any claim of damages which fixes the time within which it shall be given at less than 90 days shall be void, a provision of a casualty policy requiring notice of the injury to be given within 10 days would be void; Rev. Civ. St. 1911, art. 4733, providing that the general laws relating to corporations shall apply to accident insurance companies so far as pertinent and not conflicting with that act.</p> <p>[Ed. Note. — For other cases, see Insurance* Cent. Dig. §§ 1328-1336; Dec. Dig. § 539.*]</p> <p>2. Insurance (§ 538*) — Accident Insurance. —Notice oe Injury.</p> <p>Under Rev. St. 1895, art. 3379, as amended by Acts 1907, c. 129, § 1, providing that a notice of claim for damages required by contract may be given to the nearest or other convenient local agent of the company requiring the same, notice of injury given to the local agent of a casualty company was sufficient.</p> <p>[Ed. Note. — For other cases, see Insurance* Cent. Dig. § 1327; Dec. Dig. § 538.*]</p> <p>3. Appeal and Error (§ 548*) — Bill oe Exceptions — Admission oe Evidence.</p> <p>An objection to the admission of evidence not supported by a bill of exceptions cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*]</p> <p>4. Insurance (§ 665*) — Accident Insurance-—SUEEICIENCY OE EVIDENCE.</p> <p>Evidence, in an action on a casualty insurance policy, held to sustain a finding that decedent died solely as a result of injury received and not from other causes.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. §• 665.*]</p> <p>5. Trial (§ 139*) — Jury Question.</p> <p>The court may withdraw a question of fact from the jury only when reasonable men fairly exercising their judgment would arrive at the same conclusion.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. & 139.*]</p> <p>6. Appeal and Error (§§ 994, 995*) — Findings— Conclusiveness.</p> <p>The jury in the trial court are the sole judges of the credibility of witnesses and the weight of the evidence.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ -3901-3906, 3007; Dec. Dig. §§ 994, 995.*]</p> <p>7. Insurance (§ 456*) — Accident Insurance —“Visible Mark upon the Body.”</p> <p>The “visible mark upon the body” required by a casualty insurance company need not be a bruise, contusion, laceration, or broken limb, but may be any visible evidence of internal injury or any physical effect observable from an outward indication which reveals an injured condition of the internal organs.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1170; Dec. Dig. § 456.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7329, 7330.]</p>

<p>1. Vendor and Purchaser (§ 18*) — Option Contracts — Enforcement.</p> <p>An option contract for the purchase of. several tracts of land, which calls for a payment before a designated date, and which provides that if the purchaser takes and pays for all the land before such date the vendor shall refund or deduct a specified sum per acre, and in case good title cannot be conveyed the $5,000 already paid shall be refunded to the purchaser, becomes a binding contract for all the land, where the purchaser, before that date, takes a substantial part of the land.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 23; Dec. Dig. § 18.*]</p> <p>2. VENDOR AND PURCHASER (§ 53*)- — 'CONTRACTS — Executed Contracts — Title.</p> <p>Where a contract for the sale of real estate became enforceable by the purchaser taking a substantial part of the land, and the conditions to be complied with by the vendor were either complied with or waived, the contract became executed, and vested the title in the purchaser.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 84; Dec. Dig. § 53.*]</p> <p>3. Vendor and Purchaser (§ 334*) — Recovery by Purchaser of Deposit — Grounds.</p> <p>A purchaser in an executed contract, who advanced a part of the price, and who refused to complete the purchase according to the contract, could not recover the money paid without showing that the vendor refused to perform.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. § 334.*]</p> <p>4. Vendor and Purchaser (§ 334*) — Recovery by Purchaser of Deposit — Grounds.</p> <p>Where a vendor in an executory contract of sale of land stood ready to perform, and did nothing to justify a rescission by the purchaser, the purchaser, to recover the deposit made by him, must show that no injury resulted to the vendor by a refusal to perform, and that it would be inequitable for the vendor to retain the deposit.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. § 334.*]</p>

B. Hill, Judge. Action by the First State Bank & Trust Company of Hereford against the Southwestern Engineering & Construction Company, in which an attachment was issued against land claimed by F. M. Barden, another defendant. Judgment for defendants, and plaintiff appeals.

<p>Appeal from District Court, Brazoria County; Wells Thompson, Judge.</p> <p>Action by Mary E. Golden against Robert Walker and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Freestone -County; H. B. Daviss, Judge.</p> <p>Action by W. J. Filba and others against P. D. C. Ball. Judgment for plaintiffs, and defendant appeals.</p>

<p>1.Chattel Mortgages (§ 173*) — Action for. Title and Possession.</p> <p>Where a chattel mortgagee of a mule, with power on default to take possession, the mort- • gage having been registered, brought suit against a purchaser of such mule from, the mortgagor for “title and possession,” he should be allowed to recover possession for the purpose of sale, although he could not recover title.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 307, 309, 316-326; Dec. Dig. § 173.*)</p> <p>2. Sequestration (§ 17*) — Affidavit—'Value of Property.</p> <p>Where the affidavit does not state the-value of the property, a writ of sequestration, should be quashed; it being a statutory prerequisite, under Sayles’ Ann. Civ. St. 1897, art. 4865, subd. 3, providing that the property bé-described and the value of each article be given.</p> <p>[Ed. Note. — For other eases, see Sequestra-, tion, Cent. Dig. §§ 35-37; Dec. Dig. § 17.*]</p> <p>3. Justices of the Peace (§ 174*) — Appeal-Trial de Novo — Motion to Quash.</p> <p>On appeal to the county court, the trial being de novo, a motion to quash a writ of sequestration could be there presented for the first time.</p> <p>[Ed. Note. — For other cases, see Justices of the- Peace, Cent. Dig. §§ 665-693; Dee. Dig. § 174.*]</p>

<p>Appeal from District Court, Hill County; C. M. Smithdeal, Judge.</p> <p>Action by E. L. Jackson against the Rotan Grocery Company. Judgment for plaintiff, and defendant appeals.</p>

P. Huff, Judge. Action by Whittington & Sweeney against the Kansas City, Mexico & Orient Railway Company of Texas and others. From a judgment for plaintiffs against two of the defendants, the latter appeal.

T. Lyttleton, Judge. Action by G. P. Stedman, administrator of the estate of Black Noland, deceased, against the General Accident, Fire & Life Assurance Corporation, Limited, with interpleader by Solomon Fisher. Judgment for Fisher, and defendant appeals.

<p>1. Appeal and Error (§ 927*) — Directed V erdict — Evidence.</p> <p>For the purposes of an appeal from a judgment on a directed verdict for defendant, the plaintiff's evidence must be taken as true.</p> <p>TEd. Note. — For other cases,, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*]</p> <p>2. Railroads (§ 274*) — “Trespasser” — Intention to Defraud.</p> <p>A person standing on a railroad platform waiting for a chance to steal a ride on a train, being there for the purpose of defrauding the railroad company, in violation of Pen. Code 1911, art. 1531, was a “trespasser."</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 868-872; Dec. Dig. § 274.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7094.]</p> <p>3. Railroads (§ 281*) — Injury to Trespasser at Station.</p> <p>That plaintiff was a trespasser at a station at which he was waiting to steal a ride on a freight train did not justify a train guard on a passenger train in shooting at him.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 902-909; Dec. Dig. § 281.*]</p> <p>4. Railroads (§ 281*) — Acts of Employés— Injury to Trespasser — Liability of Railroad Company.</p> <p>Where a train guard, not authorized to interfere with trespassers, wantonly and willfully, and without any reference to his master’s business, shoots a mere trespasser, who. is not attempting to interfere with the train or anything on it, or to then do anything unlawful, the railroad company employing the guard is not liable.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 902-900; Dec. Dig. § 281.*]</p> <p>5. Master and Servant (§ 300*) — Injury to Third Person by Servant — Liability of Master.</p> <p>While the doctrine that the master is liable for damages to third parties from the wrongful acts of his servants within the course of their employment and scope of their authority, express or implied, should be rigidly construed and upheld, it should not be so construed as to destroy the rights of the master.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 1209; Dec. Dig.. § 300.*] 0. Master and Servant (§ 304*) — Negligence of Servant — Liability of Master.</p> <p>The master is responsible to third persons for the negligent acts or omissions of his servants in the course of their employment, though unauthorized or absolutely forbidden by him, and without regard to their motives.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1226-1228; Dec. Dig. § 304.*]</p> <p>7. Railroads (§ 281*) — Acts of Bmployés— Scope of Employment.</p> <p>That the person who shot plaintiff while a trespasser at a station was on duty as a train guard at the time did not render the railroad company liable for the unlawful use of the pistol, which was in his possession by virtue of his employment.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 902-909 ; Dec. Dig. § 281.*]</p>

<p>1. CORPORATIONS (§ 314*) — 'OFFICERS—Fraudulent Acts — Bints and Notes — Trust Deed.</p> <p>The execution of the company’s note and trust deed by the president of a private corporation as security for his own debt in which the corporation had no interest was fraudulent.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1393-1398, 1400; Dec. Dig. § 314.*]</p> <p>2. Pledges (§ 58*) — Action bt Pledgee-Burden of Proof.</p> <p>Where, in an action on a note assigned as collateral, the maker pleaded and proved a good defense as against the payees, the pledgee could not recover in the absence of proof of nonpayment of the debt for which it was pledged, of the amount due upon it, and of what other security, if any, was held by the pledgee.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 186-194; Dec. Dig. § 58.*]</p> <p>3. Corporations (§ 414*) — Authorization of Officers — Execution of Note.</p> <p>An authorization to borrow money and execute secured notes therefor did not authorize the president of a corporation to execute a note and deed of trust in settlement of an existing debt, and a note and deed so executed in the name of the corporation were void.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1640-1646; Dec. Dig. § 414.*]</p> <p>4. Corporations (§ 405*) — Authority of Officers.</p> <p>While, as a general rule, the president of a private corporation may not, in the absence of special authority from the directors, control its funds or management, the board of directors may expressly so authorize him, or his authority to control may arise from his having assumed and exercised that power, or from the corporation having accepted the benefits of his exercise of such power.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1603; Dec. Dig. § 405.*]</p> <p>5. Receivers (§ 78*) — Sale of Property-Custody of Law.</p> <p>In an action against a receiver of a private corporation to recover on a note and foreclose a deed of trust, a judgment directing that an order of sale issue to the sheriff or constable of the county where the property was situated was improper; the appointment of a receiver operating to place the corporation’s property in the custody of the law, so that it could be sold only by the receiver under orders of the court.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 145-147; Dee. Dig. § 78.*]</p>

<p>Appeal from District Court, Roberts County ; F. P. Greever, Judge.</p> <p>Action by Emma Ellis and others against the Eastern Railway Company of New Mexico and others. Judgment for plaintiffs, and defendants appeal.</p>

W. Simpson, Judge. Action by Earl T. Downs against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. ■Appellee was in appellant’s service as a brakeman on one of its freight trains. In the train was a car loaded with hay consigned to Morrill, a station north of Lufkin. The car belonged to another railroad company, and had been received by appellant at Texarkana from another carrier.

<p>Appeal from Ft. Bend County Court; Hon. G. C. Baker, Jr., Judge.</p> <p>Action by R. G. Pleasants against A. D. O’Bannon and others. From a judgment for plaintiff, defendants appeal.</p>

A. Martin, Judge. B. A. Lester was convicted of following the occupation of selling liquor in local option territory, and he appeals.

<p>Appeal from District Court, Brewster County; A. M. Walthall, Judge.</p> <p>P. E. La Fell was convicted of horse theft, and he appeals.</p>

Contempt proceedings by Herman Kruegel against H. H. Williams and others to punish defendant for refusal to issue an execution on a money judgment in favor of complainant against Murphy & Bolanz. From a judgment dismissing the proceedings, complainant appeals.

<p>Appeal from District Court, Hill County; C. M. Smithdeal, Judge.</p> <p>Action by Sowell Bros, against Orenbaum Bros. From a judgment for plaintiffs, 'defendants appeal.</p>

<p>Appeal from District Court, Uvalde County; R. H. Burney, Judge.</p> <p>Action by H. H. Brockman and wife against J. S, Peoples. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal 'from Caldwell County Court; Geo. W. Kyser, Judge.</p> <p>Action by C. T. Scbawe and another against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Brazoria County; Wells Thorupson, Judge.</p> <p>Action by H. D. Tolar and others against the South Texas Development Company and iR'ert L. Turner and J. O. Ross. From a judgment for plaintiff named and another and against defendant Development Company, plaintiffs and the defendant named appeal.</p>

<p>Error from District Court, Grimes County; S. W. Dean, Judge.</p> <p>Action by Mary Baty and others against, B. H. McGinty. Judgment for defendant, and plaintiffs bring error.</p>

<p>Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.</p> <p>Action by C. Y. Suris against Mrs. Mattie Bass and others. Judgment for plaintiff, and defendants appeal.</p>

Action by Robert Davies, as surviving partner, against the Texas Central Railroad Company and others. From a judgment against it, the defendant named appeals.

<p>Wills (§ 332*) — Execution—'“Undue Influence” — Instructions.</p> <p>'•’Where, in a will contest, the court charged on undue influence, but did not define “undue influence” sufficient to invalidate the will, it was error to refuse to charge that persuasion, entreaty, cajolery, importunity, argument, intercession, and solicitation do not constitute undue influence unless they are such as to subvert and overthrow the testator’s will and cause him to do a thing which he did not desire to do.</p> <p>[Ed. Note — For other cases, see Wills, Cent. Dig. § 785; Dee. Dig. § 332.*</p> <p>For other definitions, see Words and Phrases, vol. S, pp. 7166-7172.]</p>

<p>Appeal from District Court, Guadalupe County; M. Kennon, Judge.</p> <p>Action by N. Poth and another against' Guadalupe County. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>Action by the Ajax-Grieb Rubber Company against Byars & Thompson. Judgment in favor of defendants on a counterclaim, and plaintiff appeals.</p>

<p>1. Quieting Title (§ 10*) — Right oe Plaintiff — Record Title.</p> <p>As a rule, injunction will be granted to prevent a cloud being cast upon a title to realty, when the evidence upon" which plaintiff’s right depends is not of record, or shown by the instruments upon which it depends.</p> <p>[Ed. Note. — Por other cases, see Quieting Title, Cent. Dig. §§ 36-42; Dec. Dig. § 10.*]</p> <p>2. Injunction (§ 118*) — Allegations of Petition.</p> <p>The allegations of a petition for injunction must both aver all facts upon which the right to the injunction depends and negative all facts which would defeat relief; the rule that the allegations will be taken more strongly against the pleader being especially emphasized, in that respect, in an action for an injunction.</p> <p>[Ed. Note. — Por other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*]</p> <p>3. Mortgages (§ 154*) — Mortgagee as Bona Pide Purchaser — Notice.</p> <p>Where the recorded deed under which the grantor in a trust deed held conveyed both the legal and equitable title, in the absence of circumstances sufficient to give the beneficiary notice that another claimed an interest in the land, she could rely upon the trust deed as conveying both the legal and equitable title.</p> <p>[Ed. Note. — Por other cases, see Mortgages, Cent. Dig. §§ 344-353; Dec. Dig. § 154.*]</p>

<p>Appeal from Falls County Court; W. K. Hunnicutt, Judge.</p> <p>Action by W. T. Palmer against the Rein-ihardt Grain Company and another. From a .judgment for plaintiff, defendant named appeals.</p>

<p>Appeal from Brown County Court; A. M. Brumfield, Judge.</p> <p>Action by J. J. Prentice and others against the Security Insurance Company and others. From a judgment for defendant named against plaintiffs and against the insurance company in favor of an unnamed defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by John B. Messer against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and Error (§ 757*) — Briefs—Instructions — Review.</p> <p>An assignment of error as to a paragraph of the charge not copied in the brief will, not be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092;. Dec. Dig. § 757.*]</p> <p>2. Trial (§ 203*) — Instructions—Issues.</p> <p>Where plaintiff, by supplemental petition, pleaded estoppel, and the testimony of two witnesses tended to support such issue, but the general charge failed to submit the issue, it waserror to refuse a request to charge thereon.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479 ; Dec. Dig. § 203.*]</p> <p>3.Trespass to Try Title (§ 33*) — Pleading Special Plea — Dispenses.</p> <p>Where defendant in trespass to try title pleaded his title specially, claiming the land under a parol contract of sale, followed by possession and improvements, without any other special defense, he thereby waived all other defenses.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 42-49; Dec. Dig. § 33.*]</p> <p>4. Appeal and Error (§ 1078*) — Assignments op Error — Duty to Beiep.</p> <p>A fundamental error will be reviewed on appeal, notwithstanding appellant’s failure to brief it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*]</p> <p>5. Mortgages (§ 529*) — Foreclosure Sale-Inadequacy op Price.</p> <p>Mere inadequacy of price is not sufficient ground to set aside a sale on foreclosure of a deed of trust, unless supplemented by proof of bad faith, mistake, or undue advantage taken of the ignorance or ■weakness of those whose property rights are affected by the sale.</p> <p>[Ed. Note. — For other cases,' see Mortgages, Cent Dig. §§ 1537-1548; Dec. Dig. § 529.*]</p> <p>■6. Trespass to Try Title (§ 38*) — Nature op Title — Mortgage Foreclosure Sale-Burden op Proop.</p> <p>Where' plaintiff in trespass to try title proved title through a sale under a power'contained in a deed of trust, and the proceedings were apparently regular, the burden was on defendant to show that the sale was invalid..</p> <p>[Ed. Note. — For other cases, see .Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.*]</p>

<p>1. Trusts (§ 371*) — Constructive Trusts— Enforcement — Petition.</p> <p>■ Where petition by one of the heirs of S. alleged that defendant was appointed administrator of the estate and as such sold certain land belonging to the estate to D., who later conveyed the land to defendant, and that the transfer was a fraudulent scheme to deprive complainant of her interest therein, and that the title was held by D. for defendant’s benefit, the petition stated facts sufficient to charge defendant as a constructive trustee of complainant’s interest.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 588-599; Dec. Dig. § 371.*] .</p> <p>2. Limitation of Actions ■(§ 19*) — Constructive Trust — Limitations Applicable.</p> <p>Where suit was brought to recover land by virtue of an equitable title based on a constructive trust impressed thereon by alleged fraudulent acts of the defendant, only those statutes of limitation affecting actions for the recovery of realty were applicable.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 73-85; Dec. Dig. | 19.*]</p> <p>3. Trusts (§ 361*) — Constructive Trust-Sale of Land ■ by Administrator — Vacation of Deeds.</p> <p>' D. having recovered judgment against defendant as administrator for a balance of purchase money due on certain land owned by the estate, the court ordered the land sold to pay the indebtedness and the ’ costs of administration. The land was sold by defendant as administrator to D., and subsequently he conveyed the land to defendant individually. Held, in a suit by one of the heirs to recover her interest in the land on the ground that such conveyances were fraudulent and made to enable the administrator' to get the property in his own right, that it was not necessary to- set aside the order of sale and the administrator’s deed, in order to impress a trust on the land against defendant.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent.Dig. §§ 556-559; Dec. Dig. § 361.*]</p> <p>4. Trusts (§ 365*) — Laches.</p> <p>The doctrine that equity will not enforce a stale demand for which suit has been brought with reasonable diligence is not applicable, where there has been continued recognition and acknowledgment of complainant’s right by the defendant, coupled with repeated promises to adjust the same on which complainant relied.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 568-573; Dec. Dig. § 365.*]</p>

<p>Appeal from District Court, Frio County, J. F. Mullally, Judge.</p> <p>Action by Henry Tomlin against Martin Wilkins. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Williamson County; C. A. Wilcox, Judge.</p> <p>Action by Mrs. E. C. Dickson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Brown County Court; A. M. Brumfield,, Judge.</p> <p>Action by Cora Cathey and others against the State Mutual Fire Insurance Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Removal of Causes (§ 3*) — Diversity of Citizenship — Employer’s Liability Act.-</p> <p>Under the express provisions of the Federal Employer’s Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), as amended by Act April 5, 1910, c. 143, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1324), an action for injuries to a servant of a nonresident railroad corporation, engaged in interstate commerce pursuant to such act, is not removable to the federal courts for diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Removal'of Causes, Cent. Dig. §§ 4, 5; Dec. . Dig. §'3.*]</p> <p>2. Railroads (§ 33*) — Foreign Company-Process — Service on Local Agent.</p> <p>Where defendant, a foreign railroad corporation, was represented in G. county by a resident local agent, service of process, in an action for injuries to a train porter, on such agent, was sufficient to' confer jurisdiction over the corporation.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 70, 71; Dec. Dig. § 33.*]</p> <p>3. Master and Servant (§§ 150, 158*) — Injuries to Servant — Railroads—Train Conductor — Duty to Warn of Dangerous Premises.</p> <p>Where a train stopped at night on a trestle over a ditch, and the conductor, knowing that the trestle was floored on one side only, ordered plaintiff, a train porter, to carry the engineer’s oil can to him as the train stopped, knowing that plaintiff did not know of the dangerous condition of the place, it was the conductor’s duty to warn plaintiff of the danger and to alight on the safe side of the train, and his failure to do so, resulting in the porter’s injury, was negligence, and was the proximate cause of his injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. §§ 297, 299-302, 304, 305-307; Dec. Dig. §§ 150, 158.*]</p> <p>4. Master and Servant (§ 288*) — Injuries to Servant — Railroads — Dangerous Premises — Assumed Risk.</p> <p>Where plaintiff, a railroad porter, was ordered by his conductor to deliver an oil can to "the engineer while the train stopped at night on a trestle, which was floored on one side only, testified that he did not know that the train had stopped on a trestle, or that the trestle was planked only on one side, and, thinking that he saw the ground, alighted on the opposite side, falling into the ditch, and was injured, he did not assume the risk, as a matter of law.'</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1005, 1068-1088; Dec. Dig. § 288.*]</p> <p>5. Master and Servant (§ 154*) — Injuries to Servant — Duty to Warn — Railroad Operatives.</p> <p>Where a railroad conductor, having stopped a train at night on a trestle, ordered his train porter to carry an oil can to the engineer, knowing that the trestle was only planked on one side, the conductor was not authorized to presume that the porter knew of the location and construction of the trestle, and was not for that reason relieved from the duty to warn him of the danger.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 308, 309; Dec. Dig. § 154.*]</p> <p>6. Trial (§ 256*) — Request to Charge-Duty to Request Instructions.</p> <p>' Where a train porter was injured by falling from a trestle at night, as he was ordered to go forward to the engineer, an instruction stating the facts, which the jury were required to find in order to render verdict for plaintiff,, was not affirmatively erroneous, because it omitted to require that the conductor should have known that plaintiff was ignorant of the location before they could find that he was negligent in not warning plaintiff; such omission being unavailable, in the absence of a Request presenting the same.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256;*]</p> <p>7. Master and Servant (§ 296*) — Injuries to Servant-Instructions.</p> <p>Where, in an action for injuries to a servant, the court charged that if plaintiff knew of the,depression into which he fell, and that the trestle on which plaintiff’s train stopped, when plaintiff alighted at night, had a footway on the east side thereof, but not on the west' side, or must necessarily have known, by the exercise of ordinary care in the discharge of his duties as a train porter, and by undertaking to alight on the west side, he was negligent, such contributory negligence Should be considered under Federal Employer’s Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. .65 [U. S. Comp. St. Supp. 1911, p. 1322]), in determining the amount plaintiff was entitled to recover, the charge was not objectionable as limiting plaintiff’s knowledge of the location and construction of the trestle to actual knowledge.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]</p> <p>8. Master and Servant (§ 227*) — Injuries to Servant — Railroads — Operation — Asr sumed Risk — Contributory Negligence.</p> <p>Where a porter was ordered by his conductor to go forward to the engineer at night when the train stopped for water, the porter was entitled to assume that the train would not be stopped, at the point where he was required to alight, over a trestle or bridge, and the train having been so stopped, and he having alighted and fallen into a ditch, the question of the manner or way in which he alighted was one of contributory negligence and not of assumed risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 668, 669, 672; Dee. Dig. § 227.*]</p> <p>9. Master and Servant (§ 295*) — Injuries to Servant — Railroads—Employer’s Liability Act — Assumed Risk.</p> <p>Where, in an- action for injuries to a train porter, under the Federal Employer’s Liability Act, for injuries while alighting at night from the train on a trestle and falling into a ditch below, the court charged that plaintiff, in entering defendant’s employment as a porter on its passenger trains, assumed all risks ordinarily incident to the business, but he did not assume any risk arising out of defendant’s negligence, and that, if the jury did not believe that the accident was caused by defendant’s negligence in failing to warn, plaintiff could not recover, such instructions amounted to a charge that, if the injury was caused by a risk ordinarily incident to the business, .plaintiff could not recover.</p> <p>[Ed. Note. — For other 'cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.*]</p>

<p>Appeal from Jack County Court.</p> <p>Action by T. F. Warden against Van Chapman. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Criminal Haw (§ 1090*)—Review—Suki-ciency or Record.</p> <p>On appeal from a conviction, objection that the verdict is contrary to the law and the evidence is not reviewable, where the evidence is not presented by statement of facts or bill of exceptions.</p> <p>(Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p>

Goodwin, Judge. Quo warranto by the State, on relation of W. C. Johnson and others, against C. A. Dudley and others.. From a judgment in favor of defendants, relators appeal.

Calhoun, Judge. Action by E. M. Luckie and others against the Southwestern Telegraph & Telephone Company and the City of Austin, in which the City of Austin sought judgment against the telephone company for the amount of any judgment rendered against the city. Judgment for plaintiff against the Southwestern Telegraph & Telephone Company, and it appeals.

<p>Appeal from District Court, Orange County; W. B. Powell, Judge.</p> <p>Action by Tresimore Granger against K. Kishi. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Falls County; Richard I. Munroe, Judge.</p> <p>Action by J. N. Gerretts against T. J. Freeman, Receiver of the International & Great Northern Railroad. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Action (§ 32*) — Abolition off Distinctions.</p> <p>The rules of equity pleading existing in jurisdictions having a separate equity procedure are not recognized in Texas.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 257-261, 316; Dec. Dig. § 32.*]</p> <p>2. Pleading •(§ 67*) — Allegations off Petition — MatteR in Avoidance.</p> <p>In an action to recover the residue after a sale of land by a trustee to pay plaintiff’s debt, pursuant to an agreement by which the lands which were held in trust for the creditor and debtor were to be sold and the residue equally divided upon. payment of the debt, allegations of the petition that defendants fraudulently represented that the whole proceeds of the sale were barely sufficient tq pay the debt, and, believing such representations, plaintiff,. at defendants’ request, released his interest in the land, were unnecessary, being more properly set up by way of confession and avoidance in a supplemental petition.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 139; Dec. Dig. § 67.*]</p> <p>3. Pleading (§ 376*) — Admissions—Necessity Off Pkooe.</p> <p>Admissions contained in the pleadings need not be proven, so that' where the petition alleged the release by plaintiff of an obligation relied on by plaintiff, defendant could rely upon such release without proving it.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dec. Dig. § 376.*]</p> <p>4. Pleading (§ 376*) — Admissions.</p> <p>Where the petition alleged that a release executed by plaintiff was obtained by defendant’s fraud, defendant could rely on the admission of the execution of the release without also accepting the allegations as to fraud; the allegation as to. the execution of the release being an admission against interest while the allegation of fraud in procuring it was self-serving.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dee. Dig. § 376.*]</p>

J. White, Judge. Action by the Commercial Bank of Chico-tah, Okl., against the First State Bank & Trust Company of Santa Anna, in which defendant made L. L. Shields a party defendant, and asked for judgment over against him for the amount of any judgment against it. Judgment for plaintiff for an insufficient amount, and it appeals.

B. Powell, Judge. Suit by the Houston Oil Company of Texas to enjoin B. Boykin and others from cutting timber. Judgment for defendants, and. plaintiff appeals.

<p>1. Appeal and Eeeoe (§ 722*) — Assignments-of EbRok — Sufficiency— Statutes.</p> <p>Statutes and rules regarding the form and sufficiency of assignments of error should be liberally construed, and not so as to cut off the approach of parties seeking relief in good faith for errors prejudicial to them in the trial-court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. §• 722.*]</p> <p>2. Master and Servant (§ 288*) — Personal Injuries — Assumption of Risk — Evidence.</p> <p>In an action for personal injuries caused by a slab flying back from a lath machine, the question whether the plaintiff assumed the risk of injury from certain defects in the machine held, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Master and-Servant, Cent. Dig. §§ 1005, 1069-1088; Dec-Dig. § 288.*]</p>

<p>1. Evidence (§ 497*) — Opinion Evidence-Competency of Witnesses.</p> <p>The extent of the damage to land from water standing thereon until the land had baked, caked, and soured was not a matter of general knowledge, and was provable only by witnesses who had had experience with lands' subjected to the same or similar conditions.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2285-2288; Dec. Dig. § 497.*]</p> <p>2. Trial (§ 252*) — Instructions—Evidence.</p> <p>In an action • for causing water to ■ overflow plaintiff’s land, in which the impaired value of the soil was alleged as one of the items of damages, where there was no evidence as to the value of the land immediately before and after the injury, such item should not have been submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p>

<p>Appeal from Nacogdoches County Court; F. P. Marshall, Judge.</p> <p>Action by the First State Bank of Garrison and others against Wesley Peacock and another. Judgment for plaintiffs-, and defendant Peacock appeals.</p>

<p>Error from Sabine County Court; T. R. Smith, Judge.</p> <p>Action by the George F. Dittman Boot & Shoe Company against G. E. Pratt. Judgment for defendant, and plaintiff brings error.</p>

<p>1.Trial (§ 26*) — Postponement — Absent Witness.</p> <p>On calling a case set for trial for Saturday December 23d, defendant moved for a postponement until its president, who was its only witness, arrived, and the trial was postponed until December 26th, the court stating that counsel must be there promptly. Defendant’s president reached town Monday night, the 25th, and talked with its counsel over the telephone, and agreed to meet him the next morning at the trial, but when the case was called counsel said that the witness was in town and was called three times, but failed to answer, and the ease proceeded to trial without such witness, who was unwell with la grippe at his hotel about 75 yards from the courthouse, and his evidence was material. Held, that there was no abuse of discretion in denying a postponement.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 42; Dec. Dig. § 26.*]</p> <p>2. Continuance (§ 22*) — Discretion of Trial Judge.</p> <p>The trial judge has a large discretion in granting continuances to procure absent witnesses, etc.</p> <p>[Ed. Note. — For other eases, see Continuance, ■Cent. Dig. §§ 58-67; Dec. Dig. § 22.*]</p> <p>3. Appeal and Error •(§ 732*) — Assignments of Error — General Assignments.</p> <p>An assignment of error “in overruling the motion for a new trial” is too general to require consideration.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*]</p> <p>4. Master and Servant- (§ 80*) — Value of Services — Evidence.</p> <p>In an action for the value of services in looking after a sawmill, evidence held to sustain an award of $600.</p> <p>TEd. Note. — For other cases, see.Master and Servant, Cent. Dig. §§ 107-127; Dec. Dig. § *</p>

<p>1. INfawxs (§ 83*) — Actions—Guakdian Ad Litem — Compensation.</p> <p>Where infant defendants filed a cross-action for relief of the same character sought by plaintiff and recovered $5,000 more than plaintiff, evidence as to the amount paid plaintiff’s attorneys for their services was admissible on. a motion to fix the allowance of the infants’ guardian ad litem.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 232-235; Dec. Dig. § 83.*]</p> <p>2. Infants (§ 83*) — Actions—Guaiídian Ad Litem — Compensation.</p> <p>After a decree in a cause, a hearing was had for the purpose of fixing the compensation of infant defendants’ guardian ad litem, and testimony taken. Upon objection that the compensation could be better fixed after the termination of the litigation, the court deferred the fixing and allowance of compensation until after an appeal. Held, that the court, in fixing the compensation of the guardian ad litem, could properly consider the evidence taken on the prior hearing, and might have fixed the compensation without any hearing; the services having been rendered under and subject to its orders.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 232-235; Dec. Dig. § 83.*]</p> <p>3. INFANTS (§ 83*) — Actions—Guardian Ad Litem — Compensation.</p> <p>In determining the amount of an allowance to be made to an attorney acting as guardian ad litem for infant defendants, the difficulties and importance of the case, the amount of work and labor performed, the amount involved, the benefits to the infants from the results of the litigation, and the character of the compensation, whether contingent or fixed, should be considered.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 232-235; Dec. Dig. § 83.*]</p> <p>4. Appeal and Ebroe (§ 984*) — Infants <§ 83*) — Actions—Guardian Ad Litem — Compensation.</p> <p>Since the services of a guardian ad litem are rendered under the orders and supervision of the trial court, which is therefore thoroughly familiar with their nature, extent, and value, and with all matters properly to be considered in fixing the fee, and is in a better position to fix the compensation than an appellate court, the fixing of the compensation is left to the sound discretion of the trial court, and is not reviewable by an appellate court unless an abuse of discretion clearly appears.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent.. Dig. §§ 3881-3888; Dec. Dig. § 9S4*; Infants, Cent. Dig. §§ 232-235; Dec. Dig. § 83.*]</p>

<p>Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.</p> <p>Action by C. C. Lowrey against P. A. Fitzhugh and another. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Loas and Logging (§ 3*) — Sale or Tim-bee — CONSTRUCTION OF CONTRACT — INTERESTS Conveyed.</p> <p>A deed of all the merchantable pine timber upon certain land, for the purpose of removing it, covenanted that the buyer should have all the time it demanded in which to remove it, and that the timber and the land were free from incumbrances, and generally warranted the title and possession. Held, that the sale was of the timber as personal property, and that, in the absence of a time specified for removal, the purchaser had a reasonable time therefor; the clause giving all the time demanded for its removal being properly construed as all the time needed, and the clause of general warranty not being inconsistent with its sale to be removed within a reasonable time.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p> <p>2. Logs and Logging (§ 3*) — Sale oe Standing Timber — Failure to Remove in Time — Forfeiture.</p> <p>A purchaser’s failure to remove standing-timber within a fixed time, or within a reasonable time, if none is fixed, works a forfeiture of his right to the timber not removed.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. §' 3.*]</p>

<p>Appeal and Ekrob (§ SO*) — Eight op Appeal — Final Judgment — Cross-Action.</p> <p>A judgment in an action on a vendor’s lien note, which failed to dispose of a cross-action filed by one defendant, which sought judgment against plaintiff’s claim of title and for the purchase money paid, was not a final judgment from which an appeal would lie.</p> <p>[Ed. Note. — Eo.r other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 450, 456, 457, 494-509; Dec. Dig. § 80.*]</p>

<p>Appeal from District Court, Grayson County; J. M. Pearson, Judge. Columbus Garrett was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, Bexar County; Edward Dwyer, Judge. Cipriano Hernandez was convicted of crime, and he appeals.</p>

<p>Appeal from Harris _ County Court; Clark C. Wren, Judge. Suit by L. S. Green against T. F. Loftus. Judgment for plaintiff, and defendant appeals.</p>

W. Veale, Special Judge. Action between T. H. Rowan and others and Eva L. Brookshire and others. .Judgment for-Brookshire and others, and Rowan and others-, appeal.

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

<p>Appeal from Criminal District Court, Dallas County; Barry Miller, Judge. George Hunnicutt was convicted of crime, and he appeals.</p>