Volume 156 — South Western Reporter

Suit 'by the Daughters of the Republic against A. B. Conley and others. Judgment for plaintiff in the Court of Civil Appeals (151 S. W. 877), and. defendants bring error.

<p>Error to Court of Civil Appeals of Second ' Supreme Judicial District.</p> <p>“Not to be officially reported.”</p> <p>Action by G. G. Houston against G. Q. Avery. Judgment for defendant, and plaintiff brings error.</p>

<p>Criminal Daw (§ 1090*) — Statement of Facts — Bills of Exception — Necessity.</p> <p>On appeal in a criminal case, where the record contains neither a statement of facts nor bills of exception, the sufficiency of the evidence to warrant a conviction cannot be reviewed ; the testimony not being before the court.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p>

<p>Appeal from District Court, Angelina County; L. D. Guinn, Special Judge.</p> <p>Sam Hooper was convicted of unlawfully selling intoxicating liquors, and he appeals.</p>

<p>Criminal Law (§ 1090*) — Appeal—Necessity op Bill op Exceptions.</p> <p>Where the record contains no statement of facts or bills of exceptions, no question raised in the motion for a new trial is reviewable.</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>

<p>Appeal from District Court, Angelina County; L. D. Guinn, Special Judge.</p> <p>H. C. Jaynes was convicted of violating the local option law, and he appeals.</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Action by C. C. Tucker against J. W. Judson and T. H. Little, doing business as Judson & Little, and the Binyon Transfer & Storage Company. Judgment for the Storage Company and for plaintiff against Judson & Little, and they appeal.</p>

<p>Appeal from Tarrant County Court; Chas. T. Prewett, Judge.</p> <p>Action by Miss Ñola Millican against W. B. Ferrell and another. From a judgment for plaintiff, defendant named appeals.</p>

B. Powell, Judge. Trespass to try title by R. C. Conn against John H. Kirby, the Kirby Lumber Company, and J. R. Chapman, in which defendants Kirby and the Kirby Lumber Company im-pleaded A. V. Wright. Judgment for plaintiff against all defendants as to title and for damages, and judgment for defendants, Kirby, and Kirby Lumber Company against Wright, and. John H. Kirby, Kirby Lumber Company, and J. R. Chapman appeal. Affirmed as to title and as to defendant Wright.

F. Mullally, Judge. Action by T. M. Mills and another against Robert McComb and others, in which John W. Tobin and others were impleaded. From a judgment for a part of plaintiffs and defendants, Tobin and others appeal.

<p>CARRIERS (§ 16*) — Use of Premises — Lunch ■V endors — Injunction.</p> <p>A railroad company is entitled to perpetually enjoin lunch vendors from going upon its depot platform, or upon its right of way at or adjacent to its passenger station, as well as from going upon its passenger coaches, in order to sell articles of food to the passengers or others.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 28-30; Dec. Dig. § 16.*]</p>

<p>Appeal from District Court, Liberty County; L. B. Hightower, Judge.</p> <p>Trespass to try title by Sinclair Talia-ferro and others against O. M. Rice and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Jasper County; W. B. Powell, Judge.</p> <p>’ Trespass to try title by W. D. Cleveland & Sons against George W. Smith and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from McLennan County Court; Sam E. Stratton, Special Judge.</p> <p>Action by Hall Etter against McLennan County. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Trinity County Court; C. J. Hinson, Judge.</p> <p>Action by S. H. Yarbrough and wife against the Beaumont & Great Northern Bailroad Company. Judgment for plaintiffs, and defendant appeals.</p>

N. Browning, Judge. Trespass to try title by Alice Johnson against the Chicago, Rock Island & Gulf Railway Company, with alternative demand by defendant for a condemnation of a right of way. Judgment for plaintiff for damages to land from defendant’s taking of a right of way, and defendant appeals.

B. Powell, Judge. Trespass to try title by M. F. Nellius, by bis next friend, against the Thompson Bros. Lumber Company and others. From a judgment awarding plaintiff only a lien, he appeals.

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by John Vogel and wife against the Houston Belt & Terminal Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Master and Servant (§ 107*) — Transitory Condition — Peace or Work.</p> <p>The piling up of excelsior from the cutter around the machine for baling, up, during the absence of the servant, who fed the baling machine, on an errand for the master, rendering the work of feeding the machine dangerous, was not a mere transitory condition, not to have been anticipated by the master in providing a safe place to work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*]</p> <p>2. Master and Servant (§ 281*) — Personal Injuries — Contributory Negligence.</p> <p>In an action for personal injuries by a servant, who in feeding a machine for baling excelsior, while standing on excelsior piled around the machine, fell and had his hand crushed in the press, evidence held to warrant a finding that the servant was not guilty of contributory negligence.</p> <p>[Ed. Note. — ‘For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.*]</p> <p>3. Master and Servant (§ 280*) — Assumption oe Risk — Evidence.</p> <p>In an action for personal injuries by a servant, who in feeding a machine for baling excelsior, while standing on excelsior piled around the machine, fell and had his hand crushed in the press, evidence held to warrant a finding that the servant did not assume the the risk.</p> <p>[Ed. -Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. § 280.*]</p> <p>4. Appeal and Error (§ 1002*) — Review-Finding oe Jury — Conflicting Evidence. Where the evidence is conflicting, the finding of the jury is not reviewable on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.*]</p> <p>5. Master and Servant (§ 153*) — Duty to Warn — Negligence.</p> <p>It is the duty of a master to warn a boy of all dangers not obvious, or not brought home to his knowledge by the exercise of ordinary care in the performance of his duties; a failure to do so being negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 314^-317; Dec. Dig. § 153.*]</p>

<p>1. Process (§ 6*) — Amendments—New Cause ox Action.</p> <p>The dropping of one plaintiff from a suit, or the adding of another plaintiff, or the elimination of a defendant improperly joined, by filing an amendment to the petition, does not constitute a new cause of action or an abandonment of the original action, and additional service of process is not necessary.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. § 5; Dec. Dig. § 6.*]</p> <p>2. Assignments (§ 121*) — Injury to Freight —Right oe Action.</p> <p>Part owners of a car load of freight, damaged during transit, may assign their claim to one of their number, who may sue for and recover the entire damages in his own name as assignee.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 200-205; Dee. Dig. § 121.*]</p> <p>3. Abatement and Revival (§ 41*) — Assignment oe Cause oe Action.</p> <p>An assignment of a cause of action pending the action is proper and does not necessitate a change of parties.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 212-220; Dec. Dig. § 41.*]</p> <p>4. Pleading (§ 240*) — Amendments—Notice.</p> <p>Under Rev. St. 1895, art 1188, giving the right to file amended pleadings in vacation, a party is not entitled to notice of the filing in vacation of an amendment, not setting up a new cause of action or injecting new issues, but which merely omits some of the plaintiffs and defendants.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 636-641; Dec. Dig. § 240.*] -</p> <p>5. Courts (§ 489*) — State Courts — Jurisdiction.</p> <p>The state courts have jurisdiction of an action against a carrier for the conversion of an interstate shipment, though the shipper has filed a complaint with the Interstate Commerce Commission and the carrier has appeared and answered.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1324-1330, 1333-1341, 1372-1374; Dec. Dig. § 489.*]</p> <p>6. Abatement and Revival (§ 12*) — Pend-ency oe Other Suit.</p> <p>A plea of another suit pending, based on the pendency of a suit in a federal court, is not sustainable.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 87-91, 94, 95, 98; Dec. Dig. § 12.*]</p> <p>7. Evidence (§ 474*) — Opinion Evidence — Competency oe Witnesses.</p> <p>A witness, who stated on direct examination that he knew the market value of property, and not cross-examined as to his knowledge thereof, was properly permitted to testify to market value.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2-196-2219; Dec. Dig. § 474.*]</p> <p>8. Carriers (§ 94*) — Conversion of Freight —Measure oe Damages.</p> <p>The measure of damages for the conversion by a carrier of household and kitchen furniture is not market value, but actual value, and, to prove value of household and kitchen furniture, it is not necessary to first establish the fact that there was a market value.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.*]</p> <p>9. Evidence (§ 474*) — Opinion Evidence — Competency oe .Witnesses.</p> <p>f.- A witness who positively testifies that he knows the value of household and kitchen furniture is competent to testify to actual value.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*]</p> <p>10. Carriers (§ 26*) — Freight Rate — Inter-, state Rate.</p> <p>Where no specific rate from point of origin to destination of a through shipment is provided, and no specific manner of constructing the combination rate for it is prescribed, the lowest combination of rates applicable over the route is the lawful rate for the shipment.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67-82; Dee. Dig. § 26.*]</p> <p>11. Carriers (§ 26*) — Freight Rate — Interstate Rate.</p> <p>Where a commodity rate is named in a tariff between specified points, the commodity rate is the lawful rate and the only one that can be used with relation to such traffic between the designated points, -though a class rate or some combination may make a lower rate.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67-82; Dec. Dig. § 26.*]</p> <p>12. Carriers (§ 91*) — Conversion oe Freight-Liability.</p> <p>Where a terminal carrier of an interstate shipment, through a mistake as to the rate, refused to deliver the goods until a higher -rate than it was entitled to charge had been paid, the refusal amounted to a conversion, especially where the shipper, on the correct rate being ascertained, promptly tendered it, and the measure of damages was the value of the goods at the time of such refusal and not at the subsequent time of tender by the shipper.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 338-355; Dec. Dig. § 91.*]</p> <p>13. Trial (§ 256*) — Instructions—Requests —Necessity.</p> <p>A carrier, in an action for the conversion of freight, may not complain of any error in an instruction fixing the date of the conversion, in the absence of a requested charge correctly fixing the date.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dee. Dig. § 256.*]</p> <p>14. Carriers (§ 94*) — Conversion of Feeight —' Actions — Evidence — Admissibility.</p> <p>In an action against a carrier for conversion of freight, based on refusal to deliver without payment of excessive charges, evidence that the carrier claimed a specified sum to be the true rate per hundred pounds on the shipment was admissible .to show what rate had been demanded.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.*]</p> <p>15. Appeal and Eebob (§ 204*) — Questions Review able — Questions Not Raised in Trial Court.</p> <p>An objection to evidence not made in the trial court cannot be raised oh appeal.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. § 204.*]</p> <p>16. Evidence (§ 377*) — Private Writings— Admissibility.</p> <p>Where, in an action for the conversion of a car load of freight, a witness identified and verified a list of the goods, the list was properly considered by the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1647; Dec. Dig. § 377.*]</p> <p>17. Evidence (§ 341*) — Documentary Evidence-Findings op Interstate Commerce Commission.</p> <p>A certified copy of the findings, opinion, and judgment of the Interstate Commerce Commission is, by Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 14, 24 Stat. 384 [U. S. Comp. St. Supp. 1911, p. 1297]), admissible in evidence in an action involving the question of the true rate for.an interstate shipment.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1289-1292;.Dec. Dig. § 341.*]</p> <p>18. Evidence (§ 502*) — Opinion Evidence-Examination — Cross-Examination.</p> <p>Where a witness testified on direct examination as to the value of property alleged to have been converted, the sustaining of objections to questions on cross-examination, asked to test the accuracy and truthfulness of the witness and to show his credibility, was reversible error, under the rule that where a witness has, on his examination in chief, given his opinion as to value, he may be cross-examined in lull as to his reasons for such opinion.</p> <p>[Ed. Note. — For other cases, see Evidence,Cent. Dig. §§ 2306, 2307; Dec. Dig. § 502.*]</p> <p>19. Witnesses (§ 268*) — Cross-Examination —Right to Cross-Examine.</p> <p>The right to cross-examine a witness is a substantial one, and it is error to so restrict it as to prevent the cross-examining party from going fully into all matters connected with the examination in chief.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.*]</p> <p>20. Commerce (§ 88*) — Interstate Commerce Commission — Decision—Conclusiveness.</p> <p>A decision of the Interstate Commerce Commission fixing the rate for an interstate shipment is res judicata as between the shipper and the carrier appearing before the commission, and is conclusive in an action against the carrier for conversion, based on its refusal to deliver without the payment of excessive charges.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. § 88.*]</p>

<p>Appeal from Jefferson County Court; R. W. Wilson, Judge.</p> <p>Action by Alexander Broussard against the Sells-Floto Shows. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Jasper County; W. B. Powell, Judge.</p> <p>Action by R. C. Conn against the R. W. Wier Lumber Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Anderson County; B. H. Gardner, Judge.</p> <p>Action by J. A. Fain and another against T. A. Nelms and another. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Anderson County.</p> <p>Action by R. E. Morrow against T. J. Freeman, as receiver of the International & Great Northern Railroad. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Insane Persons (§ 61*) — Vendor and Purchaser (§ 239*) — Validity oe Conveyances — Bona Fid® Purchasers.</p> <p>A conveyance by an insane person is not void, but merely voidable, and the fact that the grantee did not know of the insanity of his grantor does not validate the deed, nor does the fact that the conveyance was obtained without fraud and for an adequate consideration prevent an avoidance thereof, nor the fact that the property has passed into the hands of an innocent purchaser.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 93-99; Dec. Dig. § 61;* Vendor and Purchaser, Cent. Dig. §§ 583-606; Dee. Dig. § 239.*]</p> <p>2. Insane Persons (§ 29*) — Inquisition-Restoration to Sanity — Conclusiveness.</p> <p>A judgment reciting a person’s restoration to sanity is conclusive only of his status at the time the judgment was rendered.</p> <p>[Ed. Nóte. — For other- cases, see Insane Persons, Cent. Dig. §§ 42, 140, 150; Dec. Dig. § 29.*]</p> <p>3. Evidence (§ 67*) — Presumptions — Continuance of Sanity.</p> <p>Sanity once shown to exist will be' presumed to continue, unless the contrary is established.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. § 67.*]</p> <p>4. Deeds (§ 196*) — Action to Cancel Conveyance-Burden of Proof.</p> <p>In an action to cancel a conveyance made by a power of attorney on the ground that the grantor was not of sound mind, where the defendants introduce a judgment restoring plaintiff to sanity previous to a certain conveyance, the burden is upon the plaintiff to show that he thereafter became insane, and was insane at the time he executed the power of attorney.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 587-593, 649,; Dec. Dig. § 196.*]</p> <p>5. Evidence (§ 332*) — Documentary Evir .denge — Judicial Records.</p> <p>A document purporting to be a judgment of the- county court certified by the clerk thereof as a true and correct copy of the order entered on the lunacy docket in a certain cause styled state of Texas against plaintiff, whereby he was adjudged insane and ordered to be conveyed to an asylum, was admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1237-1246; Dec. Dig. § 332.*]</p> <p>6. INSanb Persons (§ 26*) — Inquisition— Order — Presumptions.</p> <p>Where the county court has general jurisdiction in insanity inquisitions, it will be presumed upon introduction of an order adjudging plaintiff insane that facts existed which authorized its rendition and entry, so that it was not necessary that it recite the facts conferring jurisdiction on the court.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 35, 36; Dee. Dig. § 26.*]</p> <p>7. Evidence (§ 116*) — Showing Entire Conversation or Transaction.</p> <p>Where defendants in an action to cancel a conveyance on the ground of plaintiff’s insanity at the time of its execution attacked the credibility of .witnesses, a husband and wife who had both signed the conveyance executed by plaintiff’s attorney, and drew out the husband’s statement that' the attorney threatened to have the wife sign it or call plaintiff up and have him sent back to the asylum, the wife’s statement that the grantee and the attorney both acknowledge "that plaintiff was going crazy was substantially to the same effect as that of the husband, and was admissible as another part of what was done and said at the time.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. § 116.*]</p> <p>S. Trial (§ 252*) — Instructions — Conformity to Evidence.</p> <p>In an action to cancel a conveyance on the ground of the grantor’s insanity at the time of its execution by his attorney, where the evidence failed to Show that any part of the consideration received for the land ever went for necessaries for the lunatic, a requested instruction that if plaintiff had received any part of the consideration, and expended it for necessaries, he could not recover unless he tendered back such amount, was properly refused, as not being Within the issues raised by the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>9. Cancellation of Instruments (§ 59*)— Relief — Restoration of Proceeds.</p> <p>In an action to cancel a conveyance on the ground of the grantor’s insanity at the time of its execution, the court may grant the relief sought by requiring the payment of such part of the consideration, if any, as was expended for necessaries for the grantor.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 119-125; Dec. Dig. § 59.*]</p>

<p>1. Appeal and Error (§ 743*) — Assignments op Error — Reference to Record .</p> <p>Assignments of error which make no reference to the pages of the record may not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]</p> <p>2. Appeal and Error (§ 1040*) — Harmless Error — Pleading—Exceptions.</p> <p>On an appeal from a justice’s court in an action for damages sustained in connection with a shipment of cattle, the overruling of an exception to the petition because it did not separately show the amount claimed because of a decline in the market, loss in weight, and depreciation in value was not reversible error, where it was not shown that because of such action defendant failed to procure testimony which it might otherwise have procured, or was deprived of any substantial right.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>3. Justices op the Peace (§ 174*) — Appeal-Pleading.</p> <p>Technical rules of pleading do not apply to causes originating in and appealed from the justice’s court.</p> <p>i[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]</p> <p>4. Evidence (§ 445*) — Parol Evidence — Carriage op Live Stock.</p> <p>In an action against a carrier for damages sustained in connection with a shipment of cattle, the admission of evidence as to a conversation between the shipper and defendant’s yardman relative to unloading the cattle for feeding and watering was not error, on the ground that it varied the written contract of shipment, which provided that the shipper should assume all risks and expenses in feeding and watering the cattle, especially where defendant attempted to show that the cattle were properly fed and watered, since defendant could waive that provision of the contract, and, if it did so and was guilty of negligence in connection with the feeding and watering, it would be liable.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.*]</p> <p>5. Carriers (§ 154*) — Limitation op Liability-Consideration.</p> <p>Provisions in a contract of shipment limiting the carrier’s liability, and requiring notice of injury as a condition precedent to any action, which the contract recited were in consideration of the reduced rate charged for the shipment, would be disregarded, where the evidence failed to show that the rate was less then the regular tariff rate.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 641-645, 667; Dec. Dig. § 154.*]</p> <p>6. Carriers (§ 132*) — Injuries to Freight-Actions — Burden op Proof.</p> <p>The Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]) to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]) re-established the common-law rule that, when freight is delivered to a carrier in good condition and reaches its destination in bad condition, the presumption of negligence arises, throwing the burden on the carrier of exonerating itself .from, liability.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. § 132.*]</p> <p>7. Carriers (§ 218*) — Carriage op Live Stock — Limitation op Liability.</p> <p>Under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]) to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]), a carrier of live stock, subject to the exceptions which would relieve a carrier from liability at common law, is an insurer of the animals, and therefore a provision of a contract of shipment that the shipper assumed all risk and expense of feeding and watering and otherwise caring for the live stock while in cars, yards, pens, or elsewhere, and should load and unload them at his own expense, was void.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.*]</p> <p>8. Trial (§ 252*) — Instructions — Applicability to Evidence — Carriage op Live Stock.</p> <p>In an action against a carrier for damages caused by delay to a shipment of cattle, the refusal of an instruction that, if the cattle were unloaded at C. in obedience to the federal law forbidding the keeping of live stock on cars longer than 28 hours without unloading them for at least five hours, the necessary and proper time for unloading and re-loading should not be considered, was not error where the evidence did not show that they .were unloaded in order to comply with the federal law, but did show that they were kept at C. more than 15 hours, and that the shipment was about 60 hours in transit, although the usual time for making the trip was from 48 to 50 hours, which included the necessary time for compliance with the federal law.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>9. Appeal and Error (§ 1170*) — Review-Harmless Error.</p> <p>A judgment will not be reversed for technical errors where substantial justice h'as been done.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]</p>

<p>Appeal from Oldham County Court; T. B. Jones, Judge.</p> <p>Action by A. F. Linger against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>Action betwéen the American Type Founder Company and the First National Bank of Teague. From a judgment for the latter, the former appeals.</p>

Garnishment proceedings by the Findlater Hardware Company, a judgment creditor of Hugh Jackson, against George Allen, in which J. T. Thomson intervenes. From a judgment for plaintiff in garnishment, J. T. Thomson and another appeal.

<p>Appeal from District Court, Tom Green County; J. W. Timmins, Judge.</p> <p>Action by J. T. Thomson against George Allen. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and Servant (§§ 87, 228*) — Liability for Injuries — Statutory Provisions — Contributory Negligence.</p> <p>Employer’s Liability Act 1909 (Rev. Civ. St. 1911, art. 6648) § 1, providing that every corporation, receiver, or other person operating a railroad shall be liable in damages to any person suffering injury while “employed by such carrier operating such railroad,” applies to all employés of railroad companies, and not to those only who are actually engaged. in the operation of railway trains or cars, since the words “operating any railroad” apply to the word “carrier” and hot to the word “employed,” and hence in an action for injuries to an employé of a railroad company sustained while working on a railroad bridge the court properly charged as' provided in section 2 (Rev. Civ. St. 1911, art. 6649) that contributory negligence would merely reduce and not defeat a recovery.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 138, 670, 671; Dec. Dig. §§ 87, 228.*]</p> <p>2. Master and Servant (§ 87*) — Constitutional Law (§ 245*) — Liability eor Injuries — Statutory Provisions.</p> <p>Employer’s Liability Act 1909 (Rev. Civ. St. 1911, art. 6648) § 1, providing that every corporation, receiver, or other person operating a railroad shall be liable in damages to any person injured while “employed by such carrier operating such railroad,” construed to apply to all employés of railroad companies whether engaged in the operation of trains or cars or not, does not deny railroad companies the equal protection of the laws in violation of Const. U. S. Amend. 14.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 138; Dec. Dig. § 87;* Constitutional Law. Cent. Dig. § 702; Dee. Dig. § 245.*]</p> <p>3. Commerce (§ 8*) — Railroads—Statutory Provisions.</p> <p>Employer’s Liability Act 1909 (Rev. Civ. St. 1911, art. 6648 et seq.), making corporations, receivers, or other persons operating railroads liable to employés for injuries received through the negligence of the employer or its officers, agents, or servants, is not an invalid interference with interstate commerce, that being a subject relative to which the states may act until Congress has acted, but is inoperative in so far as it affects interstate commerce while the federal statute remains in force.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.*]</p> <p>4. Appeal and Error (§ 1003*) — Review-Questions oe Fact.</p> <p>The Court of Civil Appeals cannot set aside a verdict which is against the great preponderance of the testimony unless the preponderance is such as to indicate prejudice, passion, or other improper motive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. $ 1003.*]</p> <p>5. Release (§ 58*) — Evidence — Questions eor Jury.</p> <p>In an action for personal injuries, where the evidence tended to show that defendant’s chief surgeon in charge of a hospital to which it customarily sent its injured employés told plaintiff, at a time that defendant’s claim agent was trying to effect a settlement, that his injuries consisted only of a common sprain and that he would be as well as ever and able to work in three weeks or a month, that this statement was not true, plaintiff’s injuries being serious and permanent, but that it was believed by plaintiff and induced him to make the settlement, and that defendant’s claim agent used such statement to procure a release of plaintiff’s claim, although he knew from information furnished him by another physician that plaintiff’s injuries were more serious than stated by the chief surgeon, it was a question for the jury whether plaintiff was bound by the release, even though the chief surgeon believed his statement was true, since if the claim agent used it to effect a settlement with knowledge that it was not true he was guilty of fraud. .</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 109-114; Dec. Dig. § 58.*]</p>

<p>Appeal from District Court, Taylor County; T. L. Blanton', Judge.</p> <p>Action by F. H. Barfield and others against S. E. Emery and another. From a judgment for plaintiffs, defendants, appeal.</p>

F. Mullally, Judge. Application by Francisco Martinez to probate tbe will of Clara de Jesus Pena y Vidaurri, contested by A. M. Bruni and Juan Vidaurri. From a judgment dismissing contest by Juan Vidaurri, and denying probate, tbe proponent appeals.

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>On motion for rehearing and for additional findings.</p>

<p>Error to District Court, El Paso County; James R. Harper, Judge.</p> <p>Action by C. B. Bell against J. P. Casey and the State National Bank of El Paso, in which Davis & Goggin, intervened. There was a judgment for the bank against the in-terveners, and they bring error.</p>

Harper, Judge. Action by George Mendoza against J. H. Hughes, J. W. Buie, and L. Muehlisen, co-partners doing business under the firm name of the Hughes-Buie Company. From a judgment for plaintiff, defendants appeal.

<p>Appeal from McCulloch County Court; Harvey Walker, Judge.</p> <p>Action by C. D. Allen and others against R. D. Kitchen and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Milam County; J. C. Scott, Judge.</p> <p>Action by John L. Carter against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Suit by W. N. Carl against Lennie Moor Wolcott. From a judgment for defendant, plaintiff appeals.</p>

Sinks, Judge. Action by Jack Atkinson against C. M. Fisher, and another, in which defendants filed cross-bills praying for judgment oyer against C. S. Fisher. There was a judgment for plaintiff, and for defendant W. H. Holland against C. S. Fisher, and the latter brings error.

<p>1. PaRtnebship (§ 241*) — Retirement—Dia-bility of Retiring Partner — Notice.</p> <p>A partner who retires from the firm by selling his interest tlieréin to another is not liable on a firm note subsequently executed to a payee having notice of the retirement before accepting the note.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 4791/2, 480, 651, 652, 654, 657, 659, 665; Dec. Dig. § 241.*]</p> <p>2. Partnership (§ 242*) — Retirement — Notice— Evidence — Question for Jury.</p> <p>Where, on the issue whether the payee of a note given by a firm had, before accepting the note, notice of a partner’s retirement by transferring his interest to another, the purchaser of such latter interest testified that a representative of the payee was informed of the transfer and shown the bill of sale before the giving of the note, the question of notice was properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 500-508, 663; Dec. Dig. § 242.*]</p> <p>3. Trial ■(§ 295*) — Instructions—Construction as a Whole.</p> <p>Any error in a charge, that any information" that would put a prudent man on inquiry is notice of a dissolution of a firm, is cured by the statement in the same paragraph of the charge that notice brought home to the agent of a party as to a particular transaction is notice to the party, and that if the person authorized to act for a creditor of a firm had notice of the fact that a partner had sold his interest in the firm the notice was notice to the creditor.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. U 703-717; Dec. Dig. § 295.*]</p> <p>4. 'Corporations (§ 428*) — Notice to Agent.</p> <p>Notice to an agent of a corporation, which is a creditor of a firm, that a partner has retired, is notice to the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1748-1761; Dec. Dig. § 428.*]</p> <p>5. Pleading {§ 292*) — Verification — Accounts — Affidavit.</p> <p>A defendant sued on an itemized account due from a firm, in which he had been a partner, who files a sworn plea denying that he was a partner when the items specified in the account were sold, need not file a controverting affidavit of the verified account made, by Sayles’ Ann. Civ. St. 1897, art. 2323, prima facie evidence.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 880; Dec. Dig. § 292.*]</p> <p>6. Payment <§ 41*) — Application.</p> <p>Where neither the creditor nor the debtor applies a partial payment to any particular debt or to any part of a single debt, the payment must be applied as the justice of the ease demands.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 48; Dec. Dig. § 41.*]</p> <p>7. Partnership (§ 241*) — Retirement—Liability of Retiring Partner — Notice.</p> <p>A partner, _ who retires from the firm, is liable to a creditor for the part of an account charged until notice of the retirement.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 479%, 480. 651, 652, 654, 657, 659, 665; Dee. Dig. § 241.*]</p> <p>8. Partnership (§§ 238, 239*) — Retirement-Liability of New Partner — Assumption of Indebtedness.</p> <p>A new partner of an existing firm is, not liable for debts previously incurred, in the' absence of agreement to that effect, express or implied; and a partner transferring his interest in the firm to a third person may, as a part of the consideration, require the third person to assume the outstanding indebtedness of the firm.</p> <p>[Ed. Note. — For other eases, see Partnership, Cent. Dig. §§ 487, 488, 491, 492, 495-499; Dee. Dig. §§ 238, 239.*]</p> <p>9. Partnership (§ 242*) — Retirement—Liability of Retiring Partner — Burden of Proof — Application of Payments.</p> <p>Where a retiring partner sought to escape liability for firm debts accruing prior to notice of the retirement, he had the burden of showing that the purchaser of his interest in the firm assumed the firm debts; and, where he failed to do so, payments made by the new firm could not be applied to the debts incurred prior to the retirement and notice thereof.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 500-508, 663; Dee. Dig. § 242.*]</p> <p>10. Appeal' and Error (§ 1002*) — Assignments of Error — Review.</p> <p>An assignment of error complaining of apparent contradictions and discrepancies in the testimony will not be considered; that being exclusively for the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and 1002 *]Cent' Dig' §§ 3935-3937; Dec. Dig. §</p> <p>11.Partnership (§ 242*) — Actions—Pleadings.</p> <p>A creditor of a firm, who declares on a note in which the indebtedness, evidenced by an account prior to his receiving notice of a partner’s retirement, was merged, may not recover for the indebtedness incurred prior to the notice, in the absence of an alternative pleading on the account covering that time.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 500-508, 663; Dec. Dig. § 242.*]</p>

<p>Appeal from Harris County Court; Clarke C. Wren, Judge.</p> <p>Action by H. L. Bosworth against the International Travelers’ Association. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant (§§ 206, 265*) — Injuries to Servant — Burden of Proof.</p> <p>In a personal injury action by a servant engaged to run machinery, the servant has the burden of proving negligence of his employer, having assumed the risk ordinarily incident to the operation of such machines.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 550, 877-908, 955; Dec. Dig. §§ 206, 265.*]</p> <p>2. Master and Servant (§ 105*) — Injury to Servant — U sage.</p> <p>In personal injury action by a servant, where the only inference to be reasonably drawn from the evidence was that the master conformed to the usage of prudent men in well-regulat-éd concerns in the same business, he could be declared as a matter of law to have been in the exercise of due care.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 185-191; Dec. Dig. § 105.*]</p> <p>3. Master and Servant (§ 105*) — Injuries to Servant — Negligence of Master.</p> <p>A master engaged in the operation of an electric light plant is not guilty of negligence in failing to fence an exciter, a machine used for the generation of electricity, which is entirely closed except for a few openings to enable the oil to be removed and the brushes adjusted, where it appeared that no other light companies using the same machines guarded them-.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 185-191; Dec. Dig. § 105.*]</p> <p>4. Master and Servant (§ 197*) — Injuries to Servant — Fellow Servant.</p> <p>A fireman engaged to assist plaintiff who had charge of the engines in an electric power house is plaintiff’s fellow servant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 489, 490; Dec. Dig. § 197.*]</p> <p>5. Master and Servant (§ 177*) — Injuries to -Servant — Fellow Servant.</p> <p>A servant injured through the negligence of his fellow servant cannot recover.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. § 177.*] '</p> <p>6. Master and Servant (§ 221*) — Injuries to Servant — Assumption of Risk.</p> <p>Where some eight months before the accident plaintiff requested his superior to guard the machine which caused the injury, and the superior promised to do it, but failed, and plaintiff again requested him, the last time being six or eight weeks before the accident, plaintiff assumed the risk of injury as a matter of law, it appearing that the master at that time promised he would fix it as soon as possible, for, if it was dangerous, plaintiff was not justified in using it for that length of time without guards.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-648; Dec. Dig. § 221.*]</p> <p>7. Master and Servant (§§ 286, 288*) — Questions for Jury.</p> <p>In a personal injury action by a servant, where there is any doubt as to the sufficiency of the evidence of the master’s negligence or of the servant’s assumption of risk, it should be submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050, 1068-1088; Dec. Dig. §§ 286, 288.*]</p>

<p>Appeal from District Court, Bexar County.</p> <p>Action by Mamie B. Hagelstein against the National Life Association. Judgment for plaintiff, and. defendant appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by O. S. Anderson against the St. Louis, Brownsville & Mexico Bailway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Pleading (§ 205*) — General Demurrer— Gípiob</p> <p>It is the office of a general demurrer to test the legal sufficiency of the cause of action or defense pleaded, and not the form of the pleading, and when tested by a general demurrer every reasonable intendment will be indulged in favor of the pleading; mere formal defects being reached only by special exceptions distinctly pointing them out, so that the pleader may be notified as to the amendments required.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. § 205.*]</p> <p>2. Vendor and Purchaser <§ 35*) — Misrepresentations — Defect of Title.</p> <p>Where purchasers of a tract containing 125 acres of land relied on the seller’s representations as to title in executing purchase-money notes secured by vendor’s lien, and there was a superior, outstanding title to more than half of the land, the deficiency was so great as to entitle the buyers to relief, whether the land was sold in bulk or by the acre.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 45-51; Dec. Dig. § 35.*]</p> <p>3. Vendor and Purchaser (§ 314*) — Action for Price — Purchase-Money Notes — Defenses — Failure of Title.</p> <p>In an action on notes given for the pui> chase price of 125 acres' of land, an allegation in the answer that plaintiff represented to defendants that he owned and was conveying 125 acres of land, that they relied on his representations, but had discovered that the boundary line of the land pretended to be conveyed conflicted with other older surveys, and that in truth plaintiff only conveyed a merchantable title to about 60 acres of the land, stated the defense, and was not subject to demurrer.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 920-927; Dec. Dig. § 314.*]</p> <p>4. Pleading (§ 194*) — Defenses — Partial Consideration — Partial Failure — Verification.</p> <p>An objection that an answer in the nature of a plea of partial failure of consideration was not verified by affidavit must be taken advantage of by special exception, and not by general demurrer.</p> <p>[Ed. Note. — For other cases, see Pleading, put Dig. §§ 444, 445, 446, 449-452; Dec. Dig.</p> <p>5. Vendor and Purchaser (§ 314*) — Action on Purchase-Money Notes — Defenses — Failure of Title — False Representations — Pleading.</p> <p>Where, in an action on notes given for the price of land, defendants pleaded misrepresentations and failure of title as to more than half of the land, their failure to properly implead the parties claiming adverse title would not defeat their right to show fraud in the representations as to the quantity of the land; nor would such right be defeated by their prayer for a survey, to which they might not have been entitled.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 920-927; Dec. Dig. § 314.*]</p>

Seeligson, Judge. Action by R. Lupton against Lippman Levy and others, in which Johanna Levy and another were impleaded upon the death of the named defendant. Prom a judgment for plaintiff, the impleaded defendants appeal.

<p>Appeal from Hays County Court; J. B. Wilson, Judge.</p> <p>Action by W. J. Rogers, Jr., against tlie Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Runnels County Court; R. S. Griggs, Judge.</p> <p>Action by Robert J. Gresham against John Barbian and another, in which defendant named reconvened. From a judgment for plaintiff and against defendant on his plea in reconvention, defendant named appeals.</p>

<p>Appeal from Runnels County Court; R. S. Griggs, Judge.</p> <p>Action by the First National Bank of Paint Rock against B. R. Mason. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Milam County; J. C. Scott, Judge.</p> <p>Action by J. K. Huffman against Thomas J. Freeman, as receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error (§ 1068*) — Harmless ERROR — ERRONEOUS INSTRUCTIONS.</p> <p>Where the judgment rendered in an action for damages is fully sustained by evidence, the error in submitting an improper element of damages is not prejudicial.</p> <p>[Ed. Note. — F'or other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p> <p>2. Execution (§ 472*) — Wrongful Execution— Liability.</p> <p>An owner of property wrongfully levied on under execution, who refrains from using the property under the instructions of the officer making the levy, and who is thereby for a time deprived of its earning capacity, may recover the reasonable value of its use during and up to the time he was informed of the release of the levy.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 1403, 1404; Dec. Dig. § 4(72.*]</p> <p>3. Execution (§ 472*) — Wrongful Execution— Liability.</p> <p>Where an officer wrongfully levied on two horses of defendant, and for five "Or six days defendant was not permitted to use the horses, and the reasonable value of their use was about $3 per day apiece,'a judgment for $8 damages was authorized.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 1403, 1404; Dee. Dig. § 472.*]</p>

<p>1.Evidence (§ 332*) — Records—Supersedeas Bond.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 2318, provides that when any pleading shall be founded on any instrument in writing, charged to have been executed by the other party, such instrument shall be received in evidence without proof of its execution, unless its execution be denied under oath. Held, that in the absence of an affidavit denying the execution of a su-persedeas bond filed in another county, in an. action for breach thereof, the original bond was admissible in evidence, and plaintiff was not required to prove it by a certified copy under article 2306.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1237-1246; Dec. Dig. § 332.*]</p> <p>2. Appeal and Erbor (§ 931*) — Findings— Review.</p> <p>Where, in an action for damages for withholding certain land, the court, under admissible evidence, might have found the value of the use of the land to have been much more than the amount he did find, the appellate court would not presume that he based his finding on certain evidence of damage which was improper.</p> <p>[Ed. Note. — For other eases, see Appeal and Error. Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.*]</p> <p>3. Payment (§ 59*) — Plea—Necessity.</p> <p>Payment is an affirmative defense, and must be specially pleaded and proved.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 143^ ; Dec. Dig. § 59.*]</p>

H. Burney, Judge. Action by Mrs. Kate L. Gilbert against Mrs. George Finberg and others in which defendants filed a cross-action. From a judg ment for defendants, plaintiff appeals.

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by Morris Rosenthal and others against the Sun Company and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Falls County; Richard I. Munroe, Judge.</p> <p>Action by Mark Brown against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1.Mandamus (§ 10*) — Ineffectuality of Writ — Appea:o-!3ecurity fob Costs.</p> <p>Under Rev. Civ. St. 1911, art. 2394, relative to appeals from justice court, which provides that where the appellant is unable to pay the costs of appeal or give security therefor he may nevertheless prosecute his appeal but shall be required to make strict proof of his inability to pay the costs or any part thereof, that such proof shall be made before the county judge or court trying the case and shall consist of the affidavit of the party stating his inability to pay the costs which may be contested by any officer of the court or party to the suit, whereupon the court or justice of the peace shall hear the evidence and determine the right of the party to his appeal, a justice of the peace, who upon a contest set aside an affidavit in lieu of a cost bond, could not be compelled by mandamus to send up the transcript in order that the appellant might perfect his appeal, where the record showed the ability of appellant to pay the costs or at least a part thereof.</p> <p>[Ed. Note. — For other cases, see Mandamus. Cent. Dig. § 37; Dec. Dig. § 10.*]</p> <p>2. Mandamus (§ 68*) — Necessity of Oleas Legal Right.</p> <p>An officer cannot be compelled by mandamus to perform an act unless it is one that is imperatively required of him by law to perform.</p> <p>[Ed. Note. — For other cases, see Mandamus, Dee. Dig. § 68.*]</p> <p>3. Justices of the Peace (§ 159*) — Appea:o-Security for Costs — Appeals in Forma Pauperis.</p> <p>Under Rev. Civ. St. 1911, art. 2394, relative to appeals from justice court, which provides that an appellant who is unable to pay the costs of appeal or give security therefor may nevertheless prosecute his appeal by making strict proof of his inability to pay the costs or any part thereof, an appellant, who with his wife owned as community property two cows and a yearling heifer which were not shown to have been the proceeds of a homestead or to be milch cows or cows intended to be used as milch cows and which were worth $105, was not entitled to appeal without giving security for costs.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578; Dec. Dig. § 159.*]</p> <p>4. Courts (§ 207*) — Appeal — Sending up Transcript — Mandamus.</p> <p>A county court has jurisdiction to compel a justice of the peace by mandamus to send up a transcript in order that an appellant may perfect his appeal; such jurisdiction being necessary to the enforcement of that court’s jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 762; Dec. Dig. § 207.*]</p> <p>On Motion for Rehearing.</p> <p>5. Mandamus (§ 187*) — Appeal—Reversal-Subsequent Proceedings.</p> <p>In a mandamus proceeding in the county court to compel a justice of the peace to send up a transcript in order that an appellant might perfect his appeal, on reversal of the judgment granting the writ on the ground that appellant had not shown that the justice of the peace erred in refusing to permit him to appeal without giving a cost bond, the cause would be remanded to the county court, which could retry it upon such pleadings and testimony as would meet the issues involved and not to the justice court.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 427-437; Dec. Dig. § 187;* Appeal and Error, Cent. Dig. § 570'.]</p> <p>6. Mandamus (§ 187*) — Appeal — Fundamental Error.</p> <p>Where the ^petition for a writ of mandamus to compel a justice of the peace to set up a transcript in order that an appeal to the county court might be perfected alleged the filing of a pauper’s affidavit in lieu of a cost bond, but did not attack the subsequent action of the justice of the peace in setting aside such affidavit on the hearing of a contest, and the evidence failed to show that the justice erred in setting it aside, the granting of the writ was a fundamental error apparent upon the face of the record.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 427-437; Dec. Dig.' § 187 ;* Appeal and Error, Cent. Dig. § 570.*]</p>

<p>1. Appeal and Error (§ 219*) — Adoption of Tbial Coubt’s Findings.</p> <p>Where the trial court’s findings of fact were not objected to, they would be adopted by the Court 'of Civil Appeals, although such findings were not requested.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315, 1317, 1320, 1322, 1323; Dec. Dig. § 219.*]</p> <p>2. Trial (§ 396*) — Findings—Conformity to Evidence.</p> <p>The trial court’s conclusions of law and fact must be based upon the evidence introduced on the trial, and not upon independent investigation and search for evidence by him.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 935-938; Dec. Dig. § 396.*]</p> <p>3. Appeal and Error (§ 527*) — Record — Matters to be Included.</p> <p>Where the trial court in overruling a motion for a new trial made additional findings, such findings were not a part of the record and could not be considered for any purpose.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2381-23S3; De*c. Dig. § 527.*]</p> <p>4. Estoppel (§ 2S*) — Eeeect of Ancestor’s Covenant as Against Heir.</p> <p>Where a grantor’s daughter, who inherited such title as he had to a tract of land, purchased a paramount title, the title did not inure to the benefit of a grantee of a part of such tract under her father’s covenant of warranty; his rights being limited to a recovery against the daughter on the warranty to the extent of the value of any property inherited from her father.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 68; Dec. Dig. § 28.*]</p> <p>5. Tenancy in Common (§ 20*) — Acquisition op Paramount Title.</p> <p>Where the owner of a tract of 127 acres conveyed a lot therein, his daughter, who inherited the part not conveyed, was not a tenant in common with the grantee, and hence a paramount title acquired by her did not inure to the benefit of the grantee.</p> <p>[Ed. Note.. — For other cases, see Tenancy in Common, Cent. Dig. §§ 60, 61; Dec. Dig. § 20.*]</p> <p>6. Appeal and Ereob (§ 1008*) — Review-Questions op Fact.</p> <p>In trespass to try title against a person claiming under a conveyance of 500 acres of land or more and being all of one-third of a league not theretofore sold, where the circumstances strongly suggested that the land in question had theretofore been sold by contract to plaintiffs remote grantor, although not deeded to him until afterwards, but did not point unmistakably to such a conclusion, whether it was so sold was a question of fact, and the trial ' court’s refusal to find such a sale would not be-disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. § 1008.*]</p> <p>7. Judgment (§ 743*) — Conclusiveness — Persons Bound.</p> <p>A judgment in a suit to remove a cloud against the executor and heirs of B. did not affect parties who had acquired B.’s title prior to the institution of such suit.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1252, 1253, 1275-1277, 1284; Dec. Dig. § 743.*]</p> <p>8. New Trial (§ 102*) — Newly Discovered-Evidence — Diligence.</p> <p>Where an action of trespass to try title was commenced in April, 1905, and tried in-January, 1912, it could-not be said that the trial. court abused its discretion in denying a new trial for newly discovered evidence, consisting of public records of the same court, for1 lack of diligence.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.*].</p>

<p>Error to District Court, Wichita County; P. A. Martin, Judge.</p> <p>Action by A. E. Mapes and another against the Ft. Worth & Denver City Railway Company. There was a judgment for plaintiffs, and defendant brings error.</p>

<p>1. Appeal and Error (§ 285*) — Motion eor New Trial — Motion—Demurrer to Petition.</p> <p>Fundamental error committed by sustaining a general demurrer to a sufficient complaint was reviewable on appeal, without a motion for a new trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1684-1690; Dec. Dig. § 285.*]</p> <p>2. Homestead (§ 213*) — Enjoining Sale— Levy on Homestead — Petition.</p> <p>A. complaint alleged that defendant, having recovered a judgment against complainant’s husband, caused execution to be levied on certain land which complainant claimed as her homestead, whereupon, their landlord employed attorneys who instituted a suit to enjoin a sale of the property for that reason, pending which complainant’s husband died, whereupon the landlord directed the attorneys no longer to prosecute the suit at his expense, and they, without notice to complainant, withdrew from the case entirely, whereupon it was dismissed for want of prosecution. The complaint also alleged that defendant knew that complainant’s husband was dead but that fact was not'known to the court; that complainant relied on the attorneys to notify her when she was wanted, and on the law which requires that defendant should suggest the death of complainant’s hus7 band and continue the cause, to make their children parties; that she did not discover the dismissal until four months later,- • when - her ■home was levied on and advertised for, sale; that, though she had been appointed as her husband’s administratrix, and the land levied on Had been set aside to her by the probate1 court as her homestead,- and the same was in fact her homestead, no claim had been filed with her, as administratrix on said judgment. Held), that such facts showed that complainant was entitled to equitable relief, and the petition alleging them not subject to a general demurrer.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 394r-396; Dec. Dig. § 213.*]</p> <p>3. Pleading (§ 193*) — Demurrer—Laches. .</p> <p>A special exception to a petition to ‘ set aside the dismissal of a prior suit for an injunction to restrain a levy on a homestead, .in that the petition had not been acted on for eight years, could not be raised by demurrer. '</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 425, 428-435, 437-443; Dec. Dig. § 193.*]</p>

W. Seeligson, Judge. Action by Smith Johnson against the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve. Judgment for plaintiff, and defendant appeals.

<p>1. Master and Servant (§§ 101, 102, 235*)— Injuries to Servant — Duty of Master-Safe Place to Work — Duty to Inspect.</p> <p>A master is bound to exercise ordinary care to furnish a safe place for his servants to work, and it is not their duty to inspect the place so furnished.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192, 710-722; Dec. Dig. §§ 101, 102, 235.*]</p> <p>2. Master and Servant (§ 219*) — Injuries to Servant — Safe Place to Work —Assumed Risk.</p> <p>Plaintiff, an ordinary laborer, while tamping dirt around a pipe in a ditch 4 feet wide and 12 feet deep as an employs of defendant city, was injured by a cave of the side of the ditch. The evidence was conflicting as to the character of the earth, and it was shown that wells dug by the city in the immediate neighborhood without supporting walls did not cave. The work of digging the ditch was superintended by the city’s chief engineer, and it was shown that he had not considered the ditch in danger of caving, and that plaintiff had no experience in such work. Held1, that the danger was not so obvious as to charge plaintiff with the assumption of the risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 610-624; Dec. Dig. § 219.*]</p> <p>3. Trial (§ 133*) — Misconduct of Counsel.</p> <p>In an action by a laborer against a city for injuries, defendant’s counsel on requesting a physical examination of plaintiff during the trial was asked by plaintiff’s counsel whether he represented the city or an insurance company, to which counsel replied that they represented the city, when counsel for plaintiff asked if they had been paid by the city, and that if defendant’s counsel would state that it was not for the benefit of an insurance company, at which point defendant’s counsel excepted, and the court directed the jury not to regard the remark. Held), that the statements by plaintiff’s counsel were improper and reversible error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.*]</p>

<p>Appeal and Error (§ 1127*) — Affirmance— Certificate.</p> <p>In order to have a judgment affirmed on certificate on appellee’s motion, appellee must file his certificate at the term of court to which the appeal is returnable, and a motion to affirm will be denied, where the certificate was filed at a subsequent term.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4432-4440; Dec. Dig. § 1127.*]</p>

<p>1. Executors and Administbatoes (§ 435*)— Actions — Vendob’s Lien — Enfoecement —Jurisdiction.</p> <p>S. conveyed land, taking notes for the purchase price secured by a vendor’s lien, and subsequently transferred the notes and lien to plaintiff, a third person also indorsing the notes for the security of plaintiff. By the foreclosure of a mortgage subsequent to the vendor’s lien, S. later obtained title to the land, and thereafter died. Beld, that an action on the notes and to foreclose the lien was properly brought in the district court, since it involved the adjustment of plaintiff’s rights against the vendee and the surety on the notes, as well as against the administrators of S. and the rights of the administrators as against the vendee, which the probate court had no jurisdiction to adjust.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1716-1725; Dec. Dig. § 435.*]</p> <p>2. Executors and Administrators (§ 431*)— Claims — Presentation—Necessity.</p> <p>It was not necessary for plaintiff to present her claim against the estate to the administrators before bringing suit in the district court.</p> <p>[Ed. Note. — For other eases, see Executors and Administrators, Cent. Dig. §§ 764, 767, 819, 1664, 1679-1682; Dec. Dig. § 431.*]</p> <p>3. Executors and Administrators (§ 454*) — Action — Lien — Enforcement of Judgment.</p> <p>The district court having jurisdiction of the action could enforce its judgment by a sale of the property which was subject to the vendor’s lien, instead of leaving its enforcement to the county court under the probate statutes.</p> <p>■ [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1909-1928; Dec. Dig. § 454.*]</p> <p>4. Executors and Administrators (§ 454*) — Action — Lien — Enforcement of Judgment.</p> <p>Any deficiency judgment against administrators should be enforced by the county court under the probate statutes, and not by an execution issued by the district court.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1909-1928; Dec. Dig. § 454.*]</p>

<p>Appeal from District Court, Grayson County ; W. M. Peck, Judge.</p> <p>Action by the Fidelity Mutual Life Insurance Company of Philadelphia against J. H. Wharton. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Eeeoe (§§ 743, 760*) — Assignments op Eeeoe — Beiep—Rules op Court.</p> <p>Where neither the assignments of error, complaining of the denial of a continuance, mu-tile brief of appellant point out the paragraph of the motion for new trial wherein the error is complained of, the assignments and brief do not conform to Court of Civil Appeals rules 24, 25, 31 (142 S. W. xii, xiii), relative to preparing a cause for submission and the briefs, and the assignments will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011, 3095; Dec. Dig. §§ 743, 760.*]</p> <p>2. Appeal and Eeeoe (§ 743, 760*) — Assignments op Eeeoe — Beief—Rules op Court.</p> <p>Where an assignment of error complained of the refusal to sustain a designated paragraph of the motion for new trial on the ground that the verdict is contray to the law and the evi-. dence, and the brief of appellant showed the pages of the transcript where the motion could be found, the assignment and brief substantially complied with Court of Civil Appeals rules 24, 25, SI (142 S. W. xii, xiii), and the assignment will be considered.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2999, 3011, 3095; Dec. Dig-. §§ 743, 760.*]</p> <p>3. Trial (§ 143*) — Question foe Juey— Conflicting Evidence.</p> <p>Where the evidence is conflicting, but not so decidedly one way as to be susceptible of but one just opinion, the court may not withdraw the question from the jury.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]</p>

<p>1. Appeal and Error (§ 216*) — Objections Below — Instructions — Necessity op Request.</p> <p>If an instruction in an action against a railroad for injuries at a railroad crossing was defective in not expressly submitting the issue whether plaintiff was injured, the defendant should have requested a special charge specifically submitting that issue, and, not having done so, cannot object on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. §§ 628, 629.]</p> <p>2. Railroads (§ 347*) — Crossing Accidents —Actions—Admission op Evidence.</p> <p>In an action against a railroad company for injuries by striking plaintiff’s wagon at a street crossing, in which the evidence raised the issue as to whether the speed of the train proximately caused plaintiff’s injuries, published ordinances prohibiting trains running at a speed exceeding six miles an hour were admissible.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. § 347.*]</p> <p>On Motion for Rehearing.</p> <p>3. Damages (§ 216*) — Instructions—Personal Injuries.</p> <p>The court instructed in an action against a railroad company for injuries at a street crossing that, if the jury found for plaintiff, they should allow him such sum of money “as will now in cash reasonably compensate him for the injury, if any, he may have received as the proximate cause of defendant’s negligence, if any,” and might consider plaintiff’s lessened ability to labor and earn money, if any, and any physical pain and mental anguish suffered up to the present time, and might further consider any lessened ability to labor and earn money in the future that plaintiff might have sustained, and any further physical pain and mental anguish he may suffer in the future, if any, as may be proximately caused by defendant’s negligence. Seld, that the instruction was not misleadingly erroneous, in that it did not require that any damages allowed for future physical and mental pain must be predicated upon past negligence, as alleged and proved, especially in view of a further charge that plaintiff could not recover for any injuries received- at any other time, or from any other source than at the time and the place as alleged in the petition.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.*]</p>

<p>Appeal from District Court, Ellis County; F. L. Hawkins, Judge.</p> <p>Action by A. A. Odom and wife against J. D. Brand. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>Action by W. A. Maxwell against the Pecos & Northern Texas Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trial (§ 252*) — Instructions — Conformity to Evidence.</p> <p>In a telephone lineman’s action against an electric light company for injuries caused by contact with a defectively insulated' electric light wire, where there- was no evidence that the lineman had been warned of the danger or the condition, an instruction that if he had previously been warned not to come in contact with electric light wires, and was negligent in so doing, he could not recover, was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>2. Trial (§ 251*) — Actions for Injuries— Instructions — Cure by Other Instructions.</p> <p>In a telephone lineman’s action against an electric light company for injuries from a defectively insulated electric light wire, defendant, by its answer, brought in the telephone company and alleged .that the condition of its wire was due to a telephone cable which sagged and came in contact with its wire, but did not allege that such contact was contributory negligence on the part of plaintiff. The court charged ,that if plaintiff, by any knowledge of the proximity of the electric light wire to the telephone cable, failed to use that care which an ordinarily prudent person would have exercised, and if such failure contributed to cause his contact with the uninsulated wire, to find for defendant, notwithstanding its negligence; that if he knew the danger to which he might be exposed in ascending the pole, and if in so doing he did not act as an ordinarily prudent person would have done, and was thereby guilty of negligence, he could not recover, and to consider all the circumstances in evidence tending to throw light on his acts. A requested instruction that if he caused the cable to come in contact with the electric wire, and if he had knowledge of the danger of such contact, or had been warned not to come in contact with electric wires, and was negligent in so doing, he could not recover, was refused. There was no evidence that he had been warned of the danger or conditions. Held, that the instruction submitted an issue not pleaded or proven, and was properly denied.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>3. Appeal and Error (§ 742*) — Burden oe Showing Error.</p> <p>In an action for injuries due to an electric shock causing a lineman to fall, an assignment that the court erred in admitting a physician’s testimony as to the permanent effects of an electric shock, because he was not qualified, would be overruled, where the hill did not show any testimony by him as to any permanent effects, and the statement under the assignment showed that, in his opinion, plaintiff’s only permanent injury was to his arm, broken from the fall.</p> <p>' [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>4. Witnesses (§ 282%*) — Examination — Repetition of Question.</p> <p>An assignment of error complaining of the exclusion of a question asked a witness on cross-examination as to whether he had not been frequently drunk, which the bill stated he would have answered affirmatively, would be overruled, where the qualification of the bill showed that he had previously repeatedly denied that he got drunk frequently; it being unlikely that he would have answered the question as claimed.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 928, 990-992; Dec. Dig. § 282y2.*J</p> <p>5. Trial (§ 260*) — Instructions — Cure by Other Instructions.</p> <p>The refusal of instructions containing correct principles of law, which were sufficiently presented by the general charge, was not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig-. §§ 651-659; Dec. Dig. § 260.*]</p> <p>6. Negligence (§ 89*) — Imputed Negligence —Employer and Employé.</p> <p>A telephone lineman, injured by contact with a defectively insulated electric light wire, is not chargeable with the telephone company’s knowledge of such condition or its negligence in causing it.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 130-137; Dec. Dig. § 89.*]</p> <p>7. Electricity (§ 16*) — Injuries — Concurrent Negligence — Liability.</p> <p>The failure of a telephone company to furnish its lineman a reasonably safe place in which to work did not relieve from liability an electric light company whose wrongful or negligent acts concurred with those of the telephone company to render such place unsafe.</p> <p>[Ed. Note. — For other cases, se.e Electricity, Cent. Dig. § 9; Dec.. Dig. § 16.*]</p> <p>8. Appeal and Error (§ 1040*) — Harmless ERROr — Sustaining Exception to Answer.</p> <p>In a telephone lineman’s action against an electric light company for injuries caused by contact with a defectively insulated electric light wire, the sustaining of an exception to a paragraph of the answer bringing in the telephone company and alleging that the condition of the wire was due to its negligence did not prejudice the electric light company, so far as its liability or nonliability to plaintiff was concerned, where the ease was fully developed on the question of whether the telephone company’s negligence was the sole cause of the injury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4089 — 4105; Dec. Dig. § 1040.*]</p> <p>9. Indemnity (§ 13*) — Recovery Over Against Wrongdoer — Pleading.</p> <p>In a telephone lineman’s action against an electric light company for injuries caused by contact with a defectively insulated electric light wire, a paragraph of the answer, alleging that the condition of the wire was due to the negligence of the telephone company in permitting a telephone cable to sag and come in contact with defendant’s wire, but not alleging whether defendant’s wires were placed before or after the cable was placed, or before or after its sagging condition, and not showing that defendant had no knowledge of the condition of its wire before the injury, did not show any right to recover over against the telephone company ; and hence an exception thereto was properly sustained, since at most it merely showed a case of concurrent negligence.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.*]</p> <p>10. Electricity (§ 16*) — Liability for Injuries — Insulation of Wires.</p> <p>It was the duty of an electric light company, of which it could not divest itself, to have its wires insulated at a place where persons whose duties called them in proximity thereto would be exposed to injury.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 9; Dec. Dig. § 16.*}</p> <p>11. Damages (§ 62*) — Duty of Injured Person to Reduce Damage.</p> <p>Where there was no question but that an injured person’s arm was given proper treatment at the time of the injury, ordinary care on his part to reduce the consequences of defendant’s negligent act did not require him to have his arm 'broken over, in order to take out the stiffness by breaking up the cartilaginous mass around the joint; and hence evidence that this could be done was properly excluded.</p> <p>[Ed. Note. — For other cases; see Damages, Gent. Dig. §§ 119-131; Dee. Dig. § 62.*]</p>

<p>Appeal and Ebbob (§ 655*) — Review—Sufficient Statement op Facts — Rulings on Evidence — Instructions.</p> <p>Where the statement of facts was stricken for failure to comply with Supreme Court rules 72 and 78, assignments of error relating to the admission of evidence and the court’s charge cannot be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825; Dec. Dig. § 655.*]</p>

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by C. L. Witherspoon and others against W. H. Staley and others. Judgment for defendants, and complainants appeal.</p>

<p>1.Appeal and Error (§ 842*) — Findings oe Fact — Conclusiveness.</p> <p>Where it is doubtful whether a grantor intended to convey the land or whether the deed was intended as a mere quitclaim, the question is one of fact, under the surrounding circumstances on which the finding of the trial court will be accepted on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. § 842.*]</p> <p>2. Covenants (§ 42*) — Covenant Against Incumbeances — Nature.</p> <p>A covenant against liens and incumbranc-es is distinct from a warranty of title and protects grantee against interests in third persons which, though consistent with the fee being in the grantor, will diminish the value of the estate conveyed.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. § 43; Dec. Dig. § 42.*]</p> <p>3. Covenants (§ 96*) — Covenant Against Incumbrances — Breach.</p> <p>A covenant against liens and incumbranc-es is breached upon the execution and delivery of a deed, if at all.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 111-129; Dec. Dig. § 96.*]</p> <p>4. Covenants (§ 96*) — Incumbrances — Breach.</p> <p>Where another than grantor had the title to a tract in fee, free from any easement or servitude in favor of any one else, his claim was an adverse claim of title, but was not an incumbrance upon the estate purported to be granted so as to operate as a breach of a covenant against incumbrances contained in the deed.</p> <p>TEd. Note. — For other cases, see Covenants, Cent. Dig. §§ 111-129; Dec. Dig. § 96.*]</p> <p>5.Eminent Domain (§ 271*) — Remedies oe Landowner.</p> <p>A landowner may waive his right to recover land wrongfully held by a railway company for right of way purposes and sue for damages resulting from the taking.</p> <p>[Ed. Note. — For other cases, see Eminent Do-.mairq Cent. Dig. §§ 725-736, 741; Dec. Dig. §</p> <p>6. Eminent Domain (§ 310*) — Remedies oe Landowner — Effect of Election.</p> <p>A landowner, by waiving his right to recover land wrongfully taken for railroad right of way purposes and suing for damages, thereby legalizes the possession, and grants the easement as of the date of his election, so that upon the award of damages he is entitled to have them fixed as a lien upon the easement granted.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 826; Dec. Dig. § 310.*]</p> <p>7. Covenants (§ 96*) — Breach of Warranty.</p> <p>A grantor would not be estopped from claiming that the facts did not show a breach of his covenant against incumbrances.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 111-129; Dec. Dig. § 96.*]</p>

S. Bell, Special Judge. Action by E'arl Conner against J. R. Skinner and others. Judgment for plaintiff for less than the relief demanded, and he appeals.

W. Seeligson, Judge. Action by N. Levin against Danforth, Roos & Eppstein. Judgment for plaintiff against all the defendants and Judgment over in favor of Wm. Eppstein against his codefendants, and defendants appeal.

<p>Appeal from District Court, Delta County; R. L. Porter, Judge.</p> <p>Suit by T. T. Garrard against S. W. Kennedy. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Conteacts (§ 186*) — Actions tor Breach.</p> <p>No person can sue upon a contract, unless he be a party to it or in privity with it.</p> <p>LEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 790-797; Dec. Dig. § 186.*]</p> <p>2, Mechanics’ Liens (§ 315*) — Contracts— .Construction.</p> <p>Where the owner of land, who desired to erect a dwelling, required the contractor to give a bond with sureties, conditioned that he would faithfully carry out the work and pay all claims and liens against the premises, with a further provision that the obligation should inure to the benefit of materialmen and subcontractors, the last clause gave a right of action to all material-men and subcontractors, regardless whether they had a lien upon the premises; it being the apparent intention of the owner to require a bond for the payment of all the debts incurred by the contractor in the erection of the dwelling.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 658; Dec. Dig. § 315.*]</p> <p>■3. Mechanics’ Liens (§ 315*) — Enforcement —Consideration.</p> <p>As a contract between two parties based upon a valid consideration may be enforced by a third when entered into for his 'benefit, material-men and subcontractors who furnished material for a dwelling have the necessary privity to maintain an action on a bond given by the contractor to perform and to pay all claims and liens against the premises, and providing that it should inure to the benefit of materialmen and subcontractors.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 658; Dec. Dig. § 315.*]</p>

A. Wilcox, Judge. Habeas corpus, on the relation of F. M. Ball, against Edgar Smith and others. Decree for defendants, and relator appeals. This action was brought by relator, F. M. Ball, against. Edgar Smith, W. B. Smith, and D. I-I. Hart, respondents, for writ of habeas corpus to recover the custody and control of his two minor children, Derie. and Hart-well Ball, aged, respectively, 12 and 8 years, alleging that they were illegally restrained of their liberty by them.

<p>Appeal from District Court, Harris County ; Norman 6. Kittrell, Judge.</p> <p>Action by S. E. Yerkes against the Texas & New Orleans Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error (§ 877*) — Harmless Error — Rulings Not Affecting Result.</p> <p>■ A proponent of a will, contested on the ground of testamentary incapacity and undue influence, who is also a defendant in a suit, consolidated with the will contest, to set aside a deed executed by testatrix and her husband and to recover personal property may not complain of the fact that a party disclaimed in open court as to all interest in the estate, on the ground that an interest in an estate may not be relinquished in such manner; the disclaimer not depriving proponent of any interest in the estate.</p> <p>[Ed. Note. — For. other cases, see Appeal and Error, Cent. Dig. §§ 3569-3572; Dec. Dig. § 877.*]</p> <p>2. Appeal and Error (§ 742*) — Assignments of Error — Sufficiency.</p> <p>An assignment of error complaining of testimony objected to will not he considered, where it is not followed by an intelligible statement, and one which does not indicate what ef- ■ feet the testimony had on any issue in the case; for the court need not seek for the possible effects to ■ consider the assignment.</p> <p>[E!d. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>3. Evidence (§ 271*) — Admissibility— Self-Serving Declarations.</p> <p>In a proceeding for the probate of a will, contested on the ground of testamentary incapacity and undue influence, consolidated with a suit to set aside a deed executed by testatrix and her husband, and to recover personal property, the testimony of the husband of proponent of the will, who is a defendant in the suits to set aside the deed, as to what he told a third person, not in the presence of testatrix’s husband, as to what the latter meant by having papers fixed up right away, or as soon as possible, before it was too late, was properly excluded as self-serving.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.*]</p> <p>4. Wills (§ 155*) — Undue Influence — Nature.</p> <p>The undue influence which will vitiate a will must be exercised at the time of the making of the will.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 375-381; Dec. Dig. § 155.*]</p> <p>5. Wills (§ 332*) — “Undue INFLUENCE” — INSTRUCTIONS.</p> <p>A charge, submitting the question as to whether a testatrix was under undue influence “at or before the time of the execution of the will” to such an extent as to induce her to make a disposition different from what she would have made had she been left free, correctly defined “undue influence” at the very time of the execution of the will.</p> <p>[Ed. Note. — Por other cases, see Wills, Cent. Dig. § 785; Dec. Dig. § 332.*</p> <p>Por other definitions, see Words and Phrases, vol. 8, pp. 7166-7172.]</p> <p>6. Deeds (§ 211*) — Wills (§ 55*) — Mental Incapacity.</p> <p>Evidence held to show that one making a will and a deed did not possess sufficient mental capacity.</p> <p>i[Ed. Note. — Por other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211;* Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.*]</p> <p>7. Deeds (§ 211*) — Wills (§ 166*) — Undue Influence — Evidence.</p> <p>Evidence held to show that a deed and will were procured by undue influence.</p> <p>[Ed. Note. — Por other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211;* Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*]</p> <p>8. Wills (§ 166*) — Undue Influence — Evidence.</p> <p>The existence of undue influence vitiating a will may be proved by circumstantial evidence, such as the condition of testator’s mind, his age, weakness, and infirmity, his surroundings and the circumstances attending the making of the will, the opportunity for the exertion of undue influence, the words and acts of testator and the beneficiary, the existence of confidential relations between them, and the unnatural character of the will.</p> <p>[Ed. Note. — Por other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*]</p> <p>9. Deeds (§ 203*) — Wills (§§ 53, 164*) — Undue Influence — Mental Incapacity — Evidence — Admissibility.</p> <p>In a suit for the probate of a will disinheriting an insane son of testatrix, and to set aside a deed executed by testatrix and her husband, on the ground of undue influence and mental incapacity, evidence that about five years before the making of the will and deed the husband gave directions for the disposition of the property showing that he did not wish to disinherit the son was admissible.</p> <p>[Ed. Note. — Por other cases, see Deeds, Cent. Dig. §§ 602, 604-611; Dec. Dig. § 203;* Wills, Cent. Dig. §§ 111, 112, 120-130, 403-414; Dec. Dig. §§ 53, 164.*]</p> <p>10. Appeal and Ebbob (§ 742*) — Assignments of Ebbob — Review.</p> <p>An assignment of error will be overruled, where the statement under it is so imperfect that no information can be obtained from it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>11. Wills (§ 374*) — Pbobate—Jurisdiction OF DISTRICT COUBT ON APPEAL.</p> <p>The district court, on appeal from the county court in proceedings for the probate of a will, tries the case de novo, and may probate the will or declare it void.</p> <p>[Ed. Note. — Por other cases, see Wills, Cent. Dig. § 840; Dec. Dig. § 374.*]</p>

<p>1. Mandamus (§ 187*) — Review—Demurrer.</p> <p>In reviewing an order sustaining a general demurrer to a petition for mandamus, the court must be governed by the allegations of the petition, and cannot consider special matters of defense pleaded by respondents in their answer.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 427-137; Dec. Dig. § 187.*]</p> <p>2. Mandamus (§ 154*) —Right to Writ — Petition.</p> <p>Plaintiff filed a petition for mandamus against the clerk to compel the issuance of execution on a judgment, alleging that the judgment was recovered April 19, 1911, and on the next day the judgment defendant filed a motion for new trial; that the regular judge being ill he was unable to hold the term of court, and that a special judge was selected, who held the court until April 23, 1911, when the regular judge died; that by his death the term came to an end, and that his successor did not qualify until April 28th following; that defendant’s motion for a new trial was not submitted to the court for decision prior to adjournment of the court occasioned by the death of the regular judge, and not having been acted on during such term, was by operation of law overruled or waived, and that the judgment in favor of plaintiff remained in full force and effect; that it was not appealed from or superseded, and that plaintiff became entitled to an execution 30 days after the adjournment of the term, and that, more than such time having elapsed, plaintiff made demand therefor on the clerk, and was refused. Held that, under the rule that all reasonable intendments in favor of the petition shall be indulged as against a general demurrer, the allegations were sufficient to show that no action had ever been taken on the motion for a new trial, and that plaintiff was entitled to his execution as a matter of right.</p> <p>[Ed. Note. — For other eases, see Mandamus, Gent. Dig. §§ 296-316; Dec. Dig. § 154.*]</p>

<p>Appeal from District Court, Brewster County; A. M. Walthall, Judge.</p> <p>Action by Joe Parker against Clay Robinson & Co. and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Culberson County; James R. Harper, Judge.</p> <p>Action by Pansy Durrill against Flora E. Rainer and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Damages (§ 208*) — Personal Injuries— Married Women — Domestic Duties —Evidence.</p> <p>Where, in an action for injuries to a wife, she testified that she had been unable, subsequent to the accident, to perform her housework, because she was unable to stand on one of her legs, which had been injured, and her husband testified that prior to the accident she had always done all the household labor, and while he could not fix any value for her loss of time it was nevertheless valuable to him, and that she had not been able to do any work since the accident, the court was justified in submitting to the jury the damage sustained by her inability to perform her household duties, present and future.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 146, 205, 220, 533, 534; Dec. Dig. § 208.*]</p> <p>2. Husband and Wife (§ 260*) — Injuries to Wife — Right to Damages — Community Property — Single Verdict.</p> <p>Since the damages sustained by husband and wife for personal injuries to the wife are community property, it was no objection, in a suit by both to recover damages, that the verdict made a single allowance for both.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 912; Dec. Dig. § 260.*]</p> <p>3. Appeal and Error (§ 1048*) — Harmless Error — Rulings on Evidence.</p> <p>In an action for injuries, the fact that the court allowed plaintiff to answer in the affirmative a leading question as to whether a physician still continued to see plaintiff was not ground for reversal, under Court of Appeals rule 62a (149 S. W. x), not being either calculated to cause, or to have probably caused, the rendition of an improper judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. § 1048.*]</p> <p>4. Municipal Corporations (§ 705*) — Streets — Automobile Accident — Contributory Negligence.</p> <p>Plaintiff walked into a city street beside a car track, waiting for an approaching car, and stood looking toward the direction from which a car would approach, when she was struck by an automobile approaching from the opposite direction, going on the wrong side of the street, in violation of a city ordinance and recognized rules of the road. Held, that plaintiff was not negligent, as a matter of law, in not having looked and listened for the approaching automobile.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*]</p>

<p>Appeal from Martin County Court; J. Turner Vance, Judge.</p> <p>Action by R. N. Henson against Paul Konz and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Harris County; Charles E. Ashe, Judge.</p> <p>Action by W. J. Murray against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

R. Spencer, Judge. Trespass to try title by W. E. Merrill and others against W. T. Bush and others to cancel a contract for the sale of real property. Judgment for plaintiffs, and defendants bring error.

<p>1. Judgment (§ 753*) — Lien—Statutory Pbo-VISIONS.</p> <p>While statutes fixing judgment liens on real property must be construed -strictly, they must be given the full meaning- that the language employed reasonably imports, and it is sufficient if they are substantially complied with.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 1312; Dec. Dig. § 753.*]</p> <p>2. Judgment (§ 768*) — Recobding and Docketing — Piling Abstbact.</p> <p>An abstract of a judgment is sufficient if it can be rendered certain by the construction of its own terms, and within its terms supplies the information required by law without looking elsewhere.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 1325, 1326; Dec. Dig. § 768.*]</p> <p>3. Judgment (§ 768*) — Recobding and Docketing — Filing Abstbact.</p> <p>An abstract of a judgment which shows the amount and date of the original judgment, rate of interest, the amount of costs, and the credits, if any, is sufficient without expressly stating the balance then due.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 1325, 1326; Dec. Dig. § 768.*]</p> <p>4. Judgment (§ 768*) —) Recobding and Docketing — Filing Abstbact.</p> <p>An abstract of a judgment stating correctly the date and amount thereof, that the costs of the suit were $15 and the interest 8 per cent., that $475 had been realized from a sale, the costs of which sale were $23, was not insufficient because it stated that of the amount so realized $473 had been credited on the judgment, $23 applied to the costs of the sale, and $15 to the costs of the suit; it being- apparent that “$473” was a clerical error for “$437.”</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 1325, 1326; Dec. Dig. § 768.*]</p> <p>5. Judgment (§ 853*) — Lien—Tebmination— Pailube to Issue Execution.</p> <p>Under Rev. St. 1895, art. 2335, requiring property executions to be issued in the first instance to the county in which judgment was rendered, and providing that upon the return thereof, wholly or partly unsatisfied, execution may issue to any other county, article 2336 providing that, where the execution requires the sale or delivery -of specific property, it may be issued to the county where the property or some part of it is situated, and article 3290 providing that duly recorded judgments shall be a lien unless plaintiff shall fail to have execution issued thereon within 12 months after the rendition thereof, an execution issued to a county other than the one where judgment was rendered for the sale of attached property in such other .county prevented the judgment becoming dormant without the issuance of any execution to the county in which judgment was rendered within 12 months.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 1565-1570; Dee. Dig. § 853.*]</p> <p>6. COEPOBATIONS (§ 672*) — POEEIGN COBPOEA-tions — Right to Sue.</p> <p>In an action pn a judgment and to foreclose the lien thereof brought by a foreign corporation, a petition which showed that plaintiff had surrendered its permit to do business in the state was not demurrable where it did not appear why it surrendered its permit, or that it was such a corporation as was required by statute to obtain such a permit, and it did appear that, at the time the abstract of the judgment was recorded in the county where the suit was brought, it had such a permit, since Rev. St. 1895, arts. 745-749, forbidding suits by foreign corporations not having such a permit, does not prevent suits for the enforcement or protection of lawfully acquired property rights.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 2645-2649; Dec. Dig. §. 672.*]</p>

<p>1. Municipal Corporations (§ 705*) — Injuries upon Streets — Violation oe Ordinance.</p> <p>Plaintiff, who had driven up to the left-hand curb of the street, and was there holding a conversation with a pedestrian, is not violating an ordinance providing that each person traveling in any vehicle upon meeting another shall turn to the right so as to enable the vehicles to pass without accident, so -as to preclude a recovery for injuries from the running away of his horse which was caused by the negligence of defendant’s driver who cracked his whip and made loud noises in driving past plaintiff; there being no meeting or passing within the ordinance.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705;* Highways, Cent. Dig. §§ 461, 465, 469.]</p> <p>2. Damages (§ 39*) — Remoteness—Injury to Property.</p> <p>Where the negligence of defendant’s driver caused plaintiff’s horse to run away, damages for the depreciation in the value of the' horse which had been a gentle animal, but was rendered vicious by the runaway, are not too remote to be recovered.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 260-284; Dec. Dig. § 39.*]</p> <p>3. Damages (§ 158*) — Personal Injuries — Pleading.</p> <p>In a personal injury action, an allegation that plaintiff’s entire nervous system was affected is not so general as to be subject to exception, and evidence that plaintiff was nervous is admissible where it did not appear he was suffering from any recognized nervous disorder.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 441-444; Dec. Dig. § 158.*]</p> <p>4. Trial (§ 251*) — Instructions — Applicability to Issues.</p> <p>In an action for damages for injuries received upon the running away of plaintiff’s horse which was caused by the negligence of defendant’s driver, where the petition averred that the driver popped his whip, stamped his feet, whistled, and hallooed, a charge submitting the negligence of the driver in whipping his horse, popping the whip, and making unusual noises was not improper as submitting grounds of negligence not pleaded.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>5. Trial (§ 139*) — Questions for Jury — Scintilla of Evidence Rule.</p> <p>In order to require an issue to be submitted to the jury, there must be something more than a mere scintilla of evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dee. Dig. § 139.*]</p> <p>6. Trial (§ 252*) — Instructions—Questions for Jury.</p> <p>In an action for damages for injuries received by plaintiff in a runaway caused by the negligence of defendant’s driver, where plaintiff testified that he did not have time to see what occurred in detail, but, when he first looked to see what caused his horse’s fright, he saw a very high express wagon drawn by two horses, the driver of which was slashing them with a whip, and there was no other-evidence that the form of the wagon caused the fright of plaintiff’s horse, the refusal .of a charge submitting the question whether the top-of the wagon caused the runaway was proper; plaintiff’s testimony at most merely describing the wagon', and not affording more than a scintilla of evidence for the question sought to be submitted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>7. Municipal Corporations (§ 705*) — Injuries on Street — Proximate Cause — Concurring Negligence.</p> <p>Where an injury is caused by the concurring force of defendant’s negligence and of some other cause for which he is not legally responsible, he is nevertheless liable if the damage would not have occurred except for his negligence, consequently, where plaintiff’s horse was caused to run away by the acts of defendant’s driver in cracking his whip over defendant’s horses, and also by the shape of defendant’s vehicle, defendant is liable if the accident would not have occurred except for the negligence of the driver.</p> <p>[Ed. Note. — For other cases, see Municipal' Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*]</p> <p>8 Tbial (§ 260*) — Instructions — Instructions Covered by Those Given.</p> <p>A requested charge covered by the charges givemis properly refused.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>9. Municipal Corporations (§ 706*) — Injuries on Street — Instructions—Contributory Negligence.</p> <p>In an action for injuries received by the running away of plaintiff’s horse, caused by defendant’s driver-, a charge submitting the defense of contributory negligence, which, after specifying the elements of the defense, stated that, “if either of the acts” on plaintiff’s part was negligent and contributed to his injury, the verdict should be for defendant, is not improper in charging that all the elements of contributory negligence must have concurred in order to support the defense.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*]</p> <p>10. Municipal Corporations (§ 706*) — Injuries to Persons upon Highways — Driver op Horse — Negligence.</p> <p>It cannot be held as a matter of law that one driving a gentle and city-broke horse is guilty of negligence in failing at all times to have such a grip on the reins that he might control the horse if it was suddenly frightened by the cracking of another driver’s whip; no one being required to anticipate such contingency.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*]</p> <p>11. Trial (§ 253*) — Instructions — Disregarding Evidence.</p> <p>In an action for injuries received upon the running away of plaintiff’s horse, where the petition alleged that it was caused by the negligence of defendant’s driver who snapped and popped his whip, whooped, and whistled, and stamped his feet upon the boards of the wagon, but part of these acts of negligence were not proven, a requested charge that, if defendant’s driver was not guilty of the negligence or of any of the acts of negligence in driving his wagon 'charged by plaintiff, then to find in defendant’s favor, is properly refused because disregarding the evidence tending to prove some of the acts of negligence charged.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>On Motion for Rehearing.</p> <p>12. Municipal Corporations (§ 705*) — Injuries to Persons on Highway — Negligence.</p> <p>One driving along a city street, who cracked his long whip within a few feet of a horse standing at a curb, is negligent, regardless of whether the driver used care in so doing.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations. Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*]</p>

<p>Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.</p> <p>Bose McCain was convicted of beeping a disorderly house, and he appeals.</p>

<p>Appeal from District Court, Henderson County; B. H. Gardner, Judge.</p> <p>Action by M. C. Stone-De Lane and another against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant railroad company appeals.</p>

<p>• Appeal from Bexar County Court for Civil Cases; Geo. W. Huntress, Judge.</p> <p>Action by Joe Diaz against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Limestone County; H. B. Daviss, Judge.</p> <p>Action by S. S. Briggs against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Suit by M. W. Hewgley against W. P. Lane, Comptroller. Judgment for plaintiff; defendant appeals.</p>

<p>1. Contracts (§ 284*)—Building Contracts —Decision of Architect.</p> <p>A.building contract providing that the decision of the architect, on any disputed point, shall he final and conclusive as to matters relating to the construction, his action is binding on the parties, in the absence of fraud or gross mistake, necessarily implying bad faith or a failure to exercise an honest judgment.</p> <p>[Ed. Note.—Eor other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344-1346, 1350, 1351; Dec. Dig. § 284.*]</p> <p>2. Contracts (§ 284*)—Building Contracts —Materials Required.</p> <p>The provision of the specifications, made part of a building contract, “wainscoting, pilasters, etc., in all corridors, * * * all lavatories and all stairs where shown” to be of marble, can well be construed by the architect to require marble wainscoting in the basement.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344-1346, 1350, 1351; Dec. Dig. § 284.*]</p> <p>3. Contracts (§ 284*)—Building Contracts —Materials to be Furnished.</p> <p>The provisions of specifications, made part of a building contract: “Wash basins: Throughout the building to be * * * complete as shown * * * these basins to be set in all lavatories and in first floor and basement where shown, but only roughed in for wherever shown in offices from second floor up. * * * There are 20 basins in this contract to be located in offices designated by the owner during construction of the building, and in making bids on the work the contractor shall stipulate how much he will put in the extra basins for in these places”—justifies' the ruling of the architect that the 20 basins were to be furnished by the contractor as included in the contract price for the building.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344^1346, 1350, 1351; Dec. Dig. § 284.*]</p> <p>4. Contracts (§ 284*) — Building Contracts — Details as to Materials — Supplying by Architect.</p> <p>The provision of a building contract that, if the plans and specifications have omitted any of the details necessary to completion of the building, they shall be worked out and furnished by the architect, and the contractor shall complete the work accordingly, as if such details had been actually set out, authorizes the architect to decide as to the material of a wainscoting, if that detail was omitted.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310,1312-1316, 1326-1338, 1340-1342, 1344r-1346, 1350, 1351; Dec. Dig. § 284.*]</p> <p>5. Contracts (§ 199*) — Building Contracts —Provision as to Materials.</p> <p>The provision of a building contract, after one that wainscoting and certain other things shall be of marble, that “in fact wherever marked ‘marble’ in plans, details,. elevations or sections’’ a certain kind of marble shall be used, does not mean that if wainscot-ig is not marked “marble” that material shall not be used, but is an addition to the enumerated parts that are to be of marble.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 884-889; Dec. Dig. § 199.*]</p>

<p>1. Appeal and Error (§ 742*) — Assignments op Error — StATEMENTs.</p> <p>Where the statement under an assignment of error does not clearly show the matter referred to, the assignment cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Appeal and Error (§ 743*) — Assignments op Error — Reference to Motion por New Trial.</p> <p>An assignment of error which does not refer to the portion of the motion for new trial in which the error is complained of cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]</p> <p>3. Sales (§ 38*) — Fraudulent Misrepresentations.</p> <p>Where a buyer of furniture bought after inspection, misstatements by the seller as to the cost of such furniture could not avoid the sale; the buyer having an opportunity to ascertain the true cost by a little diligence.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. § 38.*]</p> <p>4 Appeal and Error (§ 204*) — Objections in Lower Court — Secondary Evidence.</p> <p>Where, in an action on a note, defendant permits secondary evidence of its contents without objection, and there is no issue as to the existence of the note, and the note is not introduced in evidence, defendant cannot complain that there is nothing on which to 'base the judgment against him.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. § 204.*]</p> <p>5. Appeal and Error (§ 302*) — Objections— Motion for N'ew Trial.</p> <p>Where, in an action on a note, defendant did not, in the motion for new trial, attempt to raise any issue as to the attorney’s fees therein provided, except that the note was not introduced in evidence, no other objection can be heard in the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 1744-1752; Dec.Dig. § 302.*]</p> <p>6. Contracts (§ 278*) — Breach.</p> <p>One who breaches his contract cannot complain of a subsequent breach by the other party.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1207-1213; Dec. Dig. § 278.*]</p> <p>7. Husband and Wife (§ 93*) — Sale op Furniture— Defense op Coverture.</p> <p>A woman conducting her own business, buying furniture with her separate property, at a time when she was permanently separated from her husband, and only two months before she was divorced from him, and who ratified the sale after divorce by payments thereon, cannot rely on coverture to defeat the sale.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 369; Dec. Dig. § 93.*]</p> <p>8. Appeal and Error (§ 742*) — Assignments op Error — Proposition.</p> <p>Where the proposition under an assignment of error to remarks of the judge does not contain the remarks, the assignment cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>9. Husband and Wipe (§ 232*) — Contracts op Wipe — Evidence—Decree por Divorce.</p> <p>In an action on a note, in which defendant relied on coverture, a decree of divorce is admissible in evidence to show that she was a feme sole at the time of the suit, and had ratified the contract made while she was a feme covert.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 844-848, 981; Dec. Dig. § 232.*]</p> <p>10. Trial (§ 260*) — Request por Instructions.</p> <p>A refusal to submit a requested issue is not error where the same issue was fully submitted by the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>11. Appeal and Error (§ 742*) — Assignment op Error — Statements.</p> <p>Assignments of error not followed by statements will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>On Motion for Rehearing.</p> <p>12. Appeal and Error (§ 763*) — Briefs—Supplemental Briefs.</p> <p>There is no authority for filing a supplemental brief after the original brief has been assailed for failure to comply with the rules, so as to correct the errors in the original.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3098; Dec. Dig. § 763.*]</p> <p>13. Appeal and Error (§ 748*) — Assignments op Error — Qure by Supplemental Brief.</p> <p>Assignments of erroi' are not open to amendment in the appellate court, and hence cannot be cured by a supplemental brief.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. D'ig. §§ 3058^-3064; Dec. Dig. § 748.*]</p> <p>14 Courts (§ 85*) — Court Rules — Enforcement.</p> <p>The Court of Civil Appeals will enforce the Supreme Court rules, if they are not in conflict with the statutes.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 294, 296-301; Dec. Dig. § 85.*]</p>

Action by G. R. Ragland against John F. Reid and another. From a judgment for plaintiff and denying recovery on a counterclaim, the named defendant appeals.

<p>1. Damages (§ 166*) — Evidence—Admissibility — Injuries to Passengers.</p> <p>In an action against a railroad company for damages for injuries to female passenger who claimed that, because of defendant’s negligence, she fell and injured her back, which injury continued latent for a long time and at last wholly undermined her health, evidence of the possibility that such an injury would not show itself immediately is competent, where the carrier insisted that her present condition was caused by some later injury or illness and that she was not hurt by the shock.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dec. Dig. § 166.*]</p> <p>2. Evidence (§ 527*) — Opinion Evidence— Expert.</p> <p>Ordinarily even an expert witness cannot state what in his opinion might possibly ensue from a given state of facts, but is confined to those.things which are reasonably probable.</p> <p>[Ed. Note.- — For other cases, see Evidence, Cent. Dig. §§ 2334, 2335; Dee. Dig. § 527.*]</p> <p>3. Evidence (§ ,558*) — Opinion Evidence— Cross-Examination of experts.</p> <p>In an action against a railway company for injuries to a female plaintiff, whom the carrier claimed was not hurt by a fall induced by the sudden stopping and starting of the train, but was suffering from some later ailment or injury, where a physician testified for the defense that after the accident he examined her for life insurance and did not notice any ailments and none were spoken of, he may properly be cross-examined as to whether the injuries could not have continued latent for a long time and then developed; such questions being proper to test his skill and knowledge.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2377, 2379; Dec. Dig. § 558;* Witnesses, Cent. Dig. § 932.]</p> <p>4. Trial (§ 62*) — Reception of Evidence-Rebuttal — Declarations.</p> <p>In an action against a railroad company for damages for injuries to a female plaintiff, whom the company claimed was not injured by a fall caused by the sudden stopping and starting of the train, but was suffering from a subsequent ailment, where evidence was given that she had not complained of any injuries at the time or shortly after the accident, evidence of her declarations to the contrary is competent in rebuttal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 148-150-; Dec. Dig. § 62;* Carriers, Cent. Dig. § 1306.]</p> <p>5. Carriers (§ 318*) — Injuries to Passengers — Actions—Evidence—Sufficiency.</p> <p>In an action against a carrier for damages for injuries received by female plaintiff, evidence held sufficient to support the verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*]</p>

<p>1. Judgment (§ 949*) — Pleading—Res Judi-cata — Questions Concluded.</p> <p>Where plaintiff, suing on a contract, pleaded that the contract was separate and distinct from the contract litigated in a prior suit, the plea of res judicata, on the ground that the face of the pleadings showed that the matters in controversy had been or should have been litigated in the prior cause, must be overruled.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1794, 1795-1803; Dec. Dig. § 949.*]</p> <p>2. Trial (§ 420*)— Refusal to Direct Verdict — Waiver.</p> <p>Defendant, who introduced his evidence after the overruling of his motion for a directed verdict, thereby waived the right to complain of the ruling.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig.-§ 420.*]</p> <p>3. Trial (§ 261*) — Requests of Charge.</p> <p>A requested charge to find for defendant for certain amounts is properly denied, where the amounts specified include items for which defendant is not entitled to recover.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. § 261.*]</p> <p>4. Appeal and Error (§ 732*) — Assignments of Error — Specification.</p> <p>An assignment of error that the court erred in refusing a new trial because the verdict was excessive under the undisputed evidence was too general to justify consideration on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*]</p> <p>5. New Trial (§ 128*) — Specification of Error — Excessive Damages — Motion for New Trial.</p> <p>A motion for new trial on the ground that the verdict is excessive under the undisputed evidence must specify wherein the verdict is excessive.,</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 257-262; Dec. Dig. § 128.*]</p> <p>On Motion for Rehearing.</p> <p>6. Judgment (§ 590*) — Res Judicata — Issues Concluded.</p> <p>A judgment in an action on a contract, rendered after the court had excluded the parts of the petition which stated another cause of action, is not a bar to an action on the latter cause of action.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1035, 1063, 1064, 1102-1106; Dec. Dig. § 590.*]</p>

<p>Appeal from Galveston County Court; Geo. E. Mann, Judge.</p> <p>Action by Elder, Dempster & Co. against the St. Louis Southwestern Railway Company of Texas and another. From a judgment of dismissal, plaintiffs appeal.</p>

<p>1. Appeal and Error (§ 742*) — Questions Review able — Assignments oe Error.</p> <p>An assignment of error, not followed by a statement tending to sustain or throw any light on the contentions of appellant, will 'be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742;*]</p> <p>2. Pledges (§ 30*) — Obligation op Pledgee —Collection op Notes Pledged.</p> <p>A pledgee must collect at maturity notes deposited with him as collateral, whether the debt of the pledgor is then due or not.</p> <p>[Eid. Note. — For other cases, see Pledges, Cent. Dig. §§ 75-85; Dec. Dig. § 30.*]</p> <p>3. Pledges (§ 30*) — Enforcement op Pledged Notes — Defenses—Extension op Time op Pledgor’s Debt.</p> <p>An agreement extending the time of payment of the debt of the pledgor does not affect the liability of makers of notes pledged by him.</p> <p>[Ed. Note. — For other cases, see Pledges. Cent. Dig. §§ 75-85; Dec. Dig. § 30.*]</p> <p>4. Evidence (§ 423*) — Parol Evidence — Bills and Notes — Relation op Parties to the Contract.</p> <p>Parol evidence is admissible to show .that one signing a note, followed by the word “surety,” is a principal and not a surety.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1957-1965; Dec. Dig. § 423.*]</p> <p>5. Appeal and Error (§ 1062*) — Harmless Error — Erroneous Instructions.</p> <p>The erroneous submission to the jury of an ■issue not raised by the pleadings is not prejudicial to the defeated party where the determination of the jury did not injure him.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*]</p> <p>6. Appeal and Error (§ 750*) — Assignments oe Error— S deficiency.</p> <p>The objection that an answer in the verdict is obscure may not he reached by assignment complaining of the instructions.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750.*]</p> <p>7. Pledges (§ 58*) — Action to Enforce Pledged Note — Judgment.</p> <p>The seller of property, to whom the purchasers had given their notes for the price, secured by a pledge of notes given to them by buyers from them, sued on all the notes, asking, as did also the pledgors, that the rights of all parties be adjusted. Judgment was rendered against all the defendants, execution to be levied first against the makers of the collateral notes; any balance unsatisfied to be collected from the pledgors. Meld,, that the makers of the collateral notes had no ground of complaint.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 186-194; Dec. Dig. § 58.*]</p> <p>8. Appeal and Error (§ 742*) — Assignments of Error.</p> <p>An assignment of error, not followed by statements, will not he considered, and mere references to other assignments or to the record for statements are insufficient.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

F. Robinson, Judge. Action by the Uvalde National Bank against M. Connor and others. From a judgment entered on a verdict directed for plaintiff, defendants appeal.

<p>Error to District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Action by J. L. Walker against the National Union Fire Insurance Company. There was a judgment for plaintiff, and defendant brings error.</p>

C. Roberts, Judge. Action by E. I. Du Pont De Nemours Powder Company and others against T. R. Erwin and others. From a judgment for plaintiff and establishing the rights of defendants as between themselves, some of the defendants appeal.

<p>Appeal from Cottle County Court; W. E. Prescott, Judge.</p> <p>Action by the Bergman Produce Company against R. C. Brown. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Hutchinson County; N. P. Willis, Special Judge.</p> <p>Action by T. J. - Thompson and another against Plora Mote and others. Prom a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action between . George B. Lucas and George B. McFarland. Judgment for defendant, and plaintiff appeals.</p>

P. Greever, Judge. Action between Howard B. Crosby and others and N. A. Stevenson and others to establish a boundary line. From a judgment in favor of the latter, the former appeal.

<p>1. Tejdegbaphs and Telephones (§ 66*) — Delay in Deliveby oe Messages — Negligence — Evidence.</p> <p>In an action for delay in the delivery of a message, evidence field to support a finding that the delay was caused by the negligence of.' the company and not by act of God.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]</p> <p>2. Appeal and (EkRob (§ 934*) — Evidence— Sufficiency — Review.</p> <p>The court on appeal from a judgment for plaintiff will view the evidence in the light most favorable to the judgment when considering the sufficiency of the evidence to support it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.*]</p> <p>3. Telegbaphs and Telephones (§§ 50, 66*) —Delay in Delivery of Messages — Negligence.</p> <p>The failure of a telegraph company to deliver a message received for transmission at Santo, Tex., at 8 p. m. January 14th to Claire-mont, Tex., until 11 a. m. January 16th, establishes a prima facie case of negligence, and the company has the burden to show some cause excusing it, and a mere claim that the delay was caused by a wire being down, with no excuse for such condition, does not excuse the delay.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ S3, 61-63; Dec. Dig. §§ 50, 66.*]</p> <p>4. Telegbaphs and Telephones (§ 66*) — Delay in Delivery of Messages — Liability — Evidence.</p> <p>In an action for delay in the delivery of a message announcing the death of plaintiff’s brother-in-law, thereby depriving plaintiff and his wife of the opportunity of attending the funeral, evidence held to justify a finding that if the message had been promptly delivered they would have attended the funeral, authorizing a recovery.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]</p>

<p>1: Carriers (§ 408*) — Loss of Passenger’s Baggage — Measure of Damages.</p> <p>The measure of damages for the loss of baggage, consisting of wearing apparel of the passenger, is the value thereof at the time of the loss, determined by considering the cost of the articles, the extent of their use, and their condition at the time of the loss.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.*]</p> <p>2. Appeal and Error (§ 216*) — Instructions —Requests.</p> <p>An instruction that the measure of damages for the loss of baggage, consisting of wearing apparel of the passenger, was such an amount as the jury should determine from the testimony to be the value of the trunk and the contents thereof on the day of the loss, was correct as far as it went, and the carrier failing to request any amplification thereof by special charge could not complain.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. § 640.]</p> <p>3. Carriers (§ 408*) — Loss of Baggage — Measure of Damages — Evidence—Admissibility.</p> <p>A carrier sued for loss of baggage, consisting of wearing apparel of a passenger, may not prove that the articles had a market value as secondhand articles and prove secondhand value.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.*]</p> <p>4. Commerce (§ 8*) — Interstate Commerce— Regulation by Congress — Exclusiveness.</p> <p>The laws of Congress regulating interstate commerce, and the construction placed thereon by the federal courts, are exclusive, and conflicting' state regulations must give way.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § S.*]</p> <p>5. Carriers (§ 405*) — Passengers—Baggage —Liability.</p> <p>An interstate carrier issuing a baggage check which limits the value thereof unless a greater value is given and an excess baggage rate, provided for, paid, as declared by its rules approved and promulgated by the Interstate Commerce Commission, in accordance with the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) to the Interstate Commerce Act (Act Feb. 4, 1SS7, c. 104. § 20, 24 Stat. 3S6 [U. S. Comp. St. 1901, p. 3169]), thereby limits its liability, and the mere fact that the passenger’s trunk was actually received and delivered to him does not make the contract for transportation and delivery any the less an interstate transaction.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1544r-1549; Dee. Dig. § 405.*]</p> <p>6. Carriers (§ 408*) — Loss oe Baggage — Actions — Evidence—Admissibility.</p> <p>A carrier sued for the loss of baggage consisting of wearing apparel of a passenger may not show that the passenger was a gambler and had in his trunk in addition to the wearing apparel a complete gambler’s outfit; the passenger’s morals or character being in issue only so far as related to the truth of his testimony concerning the existence, ownership, and value of the articles sued for.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.*]</p> <p>7. Witnesses (§ 336*) — Impeachment—General Reputation.</p> <p>Where a party testifies in his own behalf, the adverse party may to impeach his credibility assail his general reputation for truth and veracity.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1112; Dee. Dig. § 336.*]</p>

<p>Appeal and Error (§ 773*) — Disposition op Case — Affirmance.</p> <p>Appellant filed no brief in the court below or on appeal, and appellee filed a 'brief asking that the judgment be affirmed. Held that, in the absence of fundamental error, the judgment would be affirmed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]</p>

<p>Appeal from McLennan County Court; Sam E. Stratton, Special Judge.</p> <p>Action by the McGregor Milling & Grain Company against the Amarillo Commercial Company, Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trover and Conversion (§ 22*) — Action— Defenses.</p> <p>In an action to recover possession of a diamond stud or its value, where it appeared that plaintiff, on default of defendant’s deceased husband, for whom he was surety, was compelled to pay certain notes, and that the husband had pledged the stud to plaintiff, and afterwards procured it from him to wear on a certain occasion, and died without having returned the same, as he had promised to do, a plea that plaintiff had in his possession other personal property, to which defendant was entitled, and asking for judgment therefor, stated no cause of action against the plaintiff.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 152-162, 167-169; Dec. Dig. § 22.*]</p> <p>2. Appeal and Error (§ 80*) — Action for Conversion — Disposition oe All Issues.</p> <p>In an action to recover possession of a diamond stud or its value, alleging a lien thereon and its conversion by the defendant, with a plea in reconvention that plaintiff had in his possession personal property of greater value, to which defendant was entitled, and a claim for damage for the same or its valué, a judgment entered only on the plaintiff’s claim for relief disposed of all the issues, even assuming the plea in intervention to have been sufficient.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ é29, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.*]</p> <p>3. Trover and Conversion (§ 40*) — Action —Sufficiency of Evidence.</p> <p>Evidence in an action to recover possession of a diamond stud or its value, alleging a lien thereon and its conversion by defendant, held sufficient to sustain a finding that defendant had converted it.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 232-244; Dec. Dig. § 40.*]</p>

<p>Appeal from Lamar County Court, Rube S. Wells, Judge.</p> <p>Action by J. D. Payne and another against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

Trespass to try title by J. H. Harvey against the Provident Investment Company, in which the company filed a plea in recon-vention. From a judgment for defendant, plaintiff appeals.

<p>1. Parties (§ 51*) — Necessary and Proper Parties.</p> <p>It is optional with either party to bring in proper but not necessary parties, and a failure by either to do so does not invalidate any judgment that may be rendered.</p> <p>[Ed. Note. — For other eases, see Parties, Cent. Dig. §§ 77-82; Dec. Dig. § 51.*]</p> <p>2. Appeal and Error (§ 753*) — Questions Reviewable — Assignments of Error.</p> <p>Under court rules 28 and 101 (142 S. W. xii, xxiv), providing that no assignment of error will be allowed in the appellate court when none has been filed in the lower court, and providing for the filing of cross-assignments when brief is filed, the court' on appeal cannot consider cross-assignments of error where they were not filed in the trial court, and where a copy of appellee’s brief, in which they are presented, was not filed in the court below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. § 753.*]</p> <p>On Motion for Rehearing.</p> <p>3. Parties (§ 29*) — Joinder—Necessary Parties — Garnishment — Beneficiaries in Deed of Trust.</p> <p>Where a garnishee’s' answer denying the possession of any effects of the judgment debtor is contradicted by a pleading alleging that the judgment debtor and his wife executed a deed of trust to the garnishee whereby they conveyed all their property to him in trust for the wife and her children, the children are necessary parties.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 41, 47-49, 51; Dec. Dig. § 29.*]</p>

<p>Appeal from District Court, Smith County; R. W. Simpson, Judge.</p> <p>Action by B. L. Walker and another against Joe Land and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Hamilton County Court; R. Q. Murphree, Judge.</p> <p>Action by J. J. Durham against R. E. Lee. Judgment for plaintiff, and defendant appeals.</p>

F. Odom, Judge. Action by Pitluk & Meyer against Powell Butler and others. From a judgment for plaintiffs granting insufficient relief, they appeal. The suit was against appellee Powell Butler on a note executed by him to appellants, and against all three appellees, to foreclose a chattel mortgage lien on personalty given by Butler to secure payment of the note.

L. Porter, Judge. Application of Mamie S. Johnson and another for their appointment as guardian of minor children, presented after the appointment of J. F. Threatt as guardian. From a judgment of the district court appointing Mamie S. Johnson and another guardian of one of the children and J. F. Threatt guardian of the other children, the latter appeals.

Error from Reeves County Court. Action by the First National Bank of Pecos against A. J. Rose and another, defendants, and C. M. Youngberg, garnishee. There was a judgment for plaintiff against defendants and against the garnishee, and the garnishee brings error.

L. Porter, Judge. Action by J. C. Lollar against the Niagara Fire Insurance Company. From a judgment for plaintiff, defendant appeals. In his original petition filed August 1,1912, appellee, who was the plaintiff below, alleged that on February 4, 1912, appellant proposed, if he would pay it $35, to insure a house and merchandise situated therein owned by him against loss by fire for a period beginning said February 4th and ending February 4, 1913.

<p>1. Appeal and Ebboe (§ 356*) — Obdebs Ap-pealable.</p> <p>Under Rev. Civ. St. 1911, art. 2079, providing that an appeal from interlocutory .orders appointing receivers shall be taken within 20 da5’s from the entry of such order, an appeal from an order appointing a receiver, which was entered April 21, 1912, will be dismissed where the appeal bond was not-filed until June 21, 1912.</p> <p>' [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1926, 1927; Dec. Dig. § 356.*]</p> <p>2. Appeal and Error (§ 101*) — Orders Ap-pealable-Orders Appointing Receiver.</p> <p>Under Rev. Oiv. St. 1911, art. 2079, permitting an appeal from interlocutory orders appointing receivers, an order overruling a motion to vacate an order appointing a receiver is not appealable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 681-687; Dec. Dig. § 101.*]</p> <p>S. Appeal and Error (§ 95*) — Orders Ap-pealable-Petition op Intervention.</p> <p>An order dismissing a petition in intervention upon motion is not appealable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 649-654; Dec. Dig. § 95.*]</p>

D. Montrose, Judge. Application by John F. ‘McReynolds and another for the probate of the will of Mary iL. Mayers, deceased. From a decree admitting the will to probate, contestants appeal.

<p>1. Brokers (§ 63*) — Compensation—Sufficiency of Services.</p> <p>Defendant listed property with plaintiff for sale for $3,500 cash to himself; the plaintiff to have as commission whatever he could obtain above that price. Plaintiff procured a purchaser for $3,700, who could not pay the entire amount in cash, and arranged that his lien notes be cashed, and the cash ($3,500), except as to $250, be turned over to defendant, who agreed to such terms, but declined to sign a contract, and afterwards, although the purchaser was willing to perform the contract on such terms, refused to consider anything except his first cash proposition. Held, that plaintiffs could recover a commission of $200, less the $50 which they had agreed to pay therefrom as a bonus to get the purchaser’s notes cashed.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 79, SI, 94-96; Dec. Dig. § 63.*]</p> <p>2. VENDO» AND PURCHASER (§ 76*) — CONTRACTS — CONCURRENT Conditions.</p> <p>A contract, providing that the cash for a purchaser’s notes was to be turned over to the vendor before the deal was closed and the deed signed, might be complied with by a simultaneous signing and delivery of the deed and paying of the money.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 117, 119; Dec. Dig. § 76.*]</p>

<p>Appeal from District Court, Cass County; P. A. Turner, Judge.</p> <p>Action by R. E. L. Davis against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals.</p> <p>In his petition appellee alleged that, because of negligence of appellant in installing and maintaining a telephone in the house in Atlanta where he resided with his wife, she was severely shocked, and so injured, by electricity conducted into the house by the telephone wire during a thunderstorm. The specific negligence alleged was the failure of appellant to provide a lightning arrester to prevent electricity from entering the house through the telephone on the occasion of such storms. The petition contained other allegations as follows: “That on or about the night of April 12, 1912, during a thunderstorm, a heavy charge of electricity was conducted along the wires of defendant into the residence of plaintiff, going into the telephone instrument, exploding, and striking the wife of plaintiff, who was sleeping in said residence at said time. That said bolt of lightning severely shocked and rendered unconscious for some time the wife of plaintiff and caused her great physical pain and mental suffering. That when plaintiff’s wife awoke from her unconscious state she found herself in nervous fright and her body numb. That said bolt of lightning had set fire to the wall of the hall wherein thQ telephone was situated and plaintiff’s wife — plaintiff being absent from home at the time — extinguished the flames with great difficulty and physical exertion. That by reason of said shock plaintiff’s wife’s nerves were shattered and her nervous system permanently injured. That thereby her hearing was permanently injured and impaired and she was' caused to suffer and continues to suffer great pain in her right ear, being unable to sleep upon her right side on account thereof. That the eyesight of plaintiff’s wife was caused by said shock to become permanently weakened and greatly diminished.” In addition to the general denial, appellant pleaded that, if appel-lee’s wife was injured as he alleged, she was injured “during a severe rain and storm,” and that her injury was due to “the act of God, same being an act or occurrence that was wholly beyond the power and control of this defendant.” The appeal is from a judgment in favor of appellee for $1,250.</p>

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Suit by Charles Mendelsohn and others against Abe Gordon and others. From an order modifying a temporary injunction, plaintiffs appeal.</p>

<p>Logs and Logging (§ 3*) — Conveyance of Standing Timber — Time fob Removal-Construction of Deed.</p> <p>A deed conveying all the mechantable pine timber, 12 inches at the stump, with warranty of title and right to enter, cut, and remove the timber, but providing that the right to remove shall be limited to two years from date, with the further agreement to extend the time to not exceeding five years, cannot be construed as conveying an interest in the land, giving the right'to remove timber after five years, but the title to timber not removed remains in the grantor.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3 ;* Sales, Cent. Dig. § 591.]</p>

<p>Appeal from District Court, Harris County; Norman G. Kettrell, Judge.</p> <p>Action by Charles Mendelsohn and others against Abe Gordon and others, involving the title to the property of a religious society. From an order authorizing the defendants to borrow money secured by a mortgage upon such property to protect it pending suit, plaintiffs appeal.</p>

A. Turner, Judge. Action by John Hudson against S. C. Childree and others.

<p>1. Release (§ 59*) — Fraud—Personal Injuries — Instructions.</p> <p>An instruction that if, before signing a release to defendant and receiving $150 therefor, defendant’s agent told plaintiff that if he did not sign he could not leave the hospital where he was confined, and that plaintiff could not read or write English and did not know the contents of the release, and defendant’s agents by words and conduct led plaintiff to believe, and he did believe, that unless he signed the release he could not leave the hospital, and defendant’s agent by fraud induced plaintiff to sign the release and receive $150, then it was not binding upon him, was not objectionable as making plaintiff’s ignorance of the contents of the release alone sufficient ground for avoidance.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 115; Dec. Dig. § 59.*]</p> <p>2. Release (§ 17*) — Fraud.</p> <p>Where plaintiff, a Mexican 24 years of age and unable to speak English, while in a hospital, was induced to sign a release for $150 by the statement of defendant’s agent, interpreted to him by a Mexican girl, that plaintiff would not be permitted to leave the hospital unless he signed the release, the jury were authorized to find that such statement, if made, amounted to a fraud which would avoid the release.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. § 17.*]</p> <p>3. Master and Servant (§ 286*) — Injuries to Servant — Railroads — Negligence — Question for Jury.</p> <p>In an action for injuries to a trackman by being throwh from a handcar, evidence held to require a submission to the jury of the question whether the jerking of the car and its rapid motion constituted actionable negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dee. Dig. § 286.*]</p> <p>4. Appeal and Error (§ 742*) — Assignments —Form—Propositions.</p> <p>Assignments of error which are not propositions in themselves, and are not followed by propositions, will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by the Cooper Grocery Company against E. G. Blume and others. Judgment for' defendants, and plaintiff appeals.</p>

<p>1. Carriers (§ 47*) — Furnishing Cabs — Station Agents — Authority.</p> <p>A station agent has authority to bind the carrier by contract to furnish a particular kind of car for the transportation of fowls.</p> <p>[Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 107, 108, 134-141, 204; Dec. Dig. § 47.*]</p> <p>2. PRINCIPAL AND AGENT (§ 116*) — AUTHORITY op Agent — Private Instructions.</p> <p>One dealing with the agent of an. express company is not bound by secret instructions given him by the company.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 377, 377%; Dec. Dig. § 116.*]</p> <p>3. Appeal and Error (§ 1058*) — Harmless Error — Exclusion op Evidence.</p> <p>Where two witnesses were permitted to testify fully as to a station agent’s want of authority to contract to furnish a compartment car for the shipment of fowls, any error in the court’s refusal to permit the agent to testify that he had no such authority was cured.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200 — 4204, 4206; Dec. Dig. § 1058.*]</p> <p>4. Carriers (.§ 47*) — Special Cars — Contract to Furnish — Authority op Agent-Instructions.</p> <p>An instruction that defendant express company’s local agent had no authority to contract to furnish a compartment car for the transportation of fowls was properly refused, since the agent, acting within the apparent scope of his authority, could bind the express company to furnish a special car, irrespective of what had been its usual course of business or private instructions to its employés.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 107, 108, 134-141, 204; Dec. Dig. § 47.*]</p>

T. ■ Lyttleton, Judge. Action by J. R. Whitfield and another against N. J. Dobbs. Judgment for the plaintiffs in the District Court upon appeal from a Justice Court, and the defendant appeals.

<p>Appeal from District Court, Panola County; W. C. Buford, Judge.</p> <p>Action by the Beckville Independent School District and others against the General Bonding & Casualty Insurance Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Frio County; J. F. Mullally, Judge.</p> <p>Action by Oscar Crawford against J. C. Piale and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Wise County; F. O. McKinsey, Judge.</p> <p>George Huddleston was convicted of manslaughter, and he appeals.</p>

<p>Criminal Law (§ 1090*)—APPEAL—RECORD-SUFFICIENCY.</p> <p>On appeal in a criminal case, where the record contains neither a bill of exceptions nor a statement of facts, the motion for a new trial presents nothing that can be reviewed.</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>

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