Volume 167 — South Western Reporter

M. Bowen, Judge. Action by William Broad against T. B. Noble and others. On appeal from a justice of the peace to the county court, judgment was rendered for the plaintiff, and defendants appeal.

<p>1. Pleading (§ 104*) — Change of Venue — Plea oe Peivilege — Requisites.</p> <p>Rev. St. 1911, art. 1903, provides that a plea of privilege shall state that none of the exceptions to exclusive venue in the county of one’s residence, mentioned in Rev. St. arts. 1830 or 2308, exist in the ease. Raid,, that a plea of privilege, stating that none of the exceptions to exclusive venue in the county of one’s residence, mentioned “in articles 1194, 1585, of the Revised Statutes,” exist in the case, which articles did not relate to venue, was insufficient.</p> <p>[Ed. Note. — For other cases, see Pleading, ■ Cent. Dig. §§ 213-217; Dec. Dig. § 104.*]</p> <p>2. Pleading (§ 8*) — Change oe Venue — Plea oe Privilege.</p> <p>An allegation in a plea of privilege that the suit did not come within any of the exceptions provided by law in such cases, authorizing suit to be brought or maintained in the county of Milam or elsewhere outside the county of Harris, was a mere conclusion of law, and ineffective.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%, 68; Dec. Dig. § 8.*]</p>

<p>Evidence (§ 185*) — Secondary Evidence.</p> <p>In an action for commissions for the sale of cattle, evidence held to show that the possession of a letter evidencing the contract was wrongfully and fraudulently obtained by defendant, thus rendering secondary evidence of the contents thereof admissible without notice to defendant to produce the original.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 642-660; Dec. Dig. § 185.*]</p>

<p>Appeal from Kaufman County Court; James A. Cooley, Judge.</p> <p>Action by L. H. Ardis against the McFadden, Weiss, Kyle Rice Milling Company and another. From a judgment for plaintiff, the named defendant appeals.</p>

<p>Appeal from Caldwell County Court; J. T. Ellis, Judge.</p> <p>Action by H. C. Withers against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

Houze, Judge. Action by Benge & Flemister against W. S. Newman begun in justice court. From a judgment for plaintiffs in the county court, defendant appeals.

<p>1. Justices oe the Peace (§ 141*) — Appeal— Jurisdiction — County Courts — Amount in Controversy.</p> <p>The county court has jurisdiction of an appeal from a justice’s judgment for less than $20.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 467-476; Dec. Dig. § 141.*]</p> <p>'2. Appeal and Error (§ 65*) — Jurisdiction — Court oe Civil Appeals — Amount in Controversy.</p> <p>A Court of Civil Appeals has no jurisdiction, under Rev. St. 1911, art. 1589, subd. 3, of an appeal from a judgment of the county court rendered on appeal from a justice’s court, where the amount in controversy and the judgment of the county court are for less than $100.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 315-328; Dec. Dig. § 65.*]</p>

<p>Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge:</p> <p>Action by W. T. La Grone against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant ap-. peals.</p>

E. Wilcox, Judge. Action by W. D. Coffey against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals. The suit was brought by the father to recover in his own right damages for injuries sustained by his minor son. Ross Coffey, the son of appellee, at the time of the suit was a minor 17 years of age.

<p>Appeal from Grayson County Court; J. Q. Adamson, Judge.</p> <p>Action by H. M. Jones against the First Texas State Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant (§ 137*) — Liability for Injury to Servant — Sane Place to Work.</p> <p>Plaintiff’s intestate was an employé of defendant, an engineering company, which was engaged in stringing an overhead feed wire for an electric car, and, at the time of his death, had charge of a team of mules hitched to the forward end of the wire to drag it along and pull it off the reel, which was located one half mile away. The reel having become exhausted, the men in charge thereof, after starting the signal along the line notifying deceased to quit pulling, “snubbed” the wire, or tied it around a pole, preparatory to attaching it to another reel. Deceased never received the signal, and consequently kept pulling until the clevis which fastened the end of the singletree to the doubletree broke, causing the doubletree to fly back, striking deceased in the head and killing him. Held, that it was the primary and nondelegable duty of defendant to exercise ordinary care to distribute a sufficient number of men along the highway for the purpose of transmitting signals from one end of the line to the other, since the supplying of such line of communication was essential to the safety of deceased.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.*]</p> <p>2. Master and Servant (§ 106*) — Liability for Injury to Servant — Duty to Furnish Safe Appliances.</p> <p>Where a master hired a team from a third party and placed a servant in charge as driver, it was the master’s duty to exercise ordinary care to furnish such servant a reasonably safe doubletree, the master being as much responsible for its condition as though it were its own property.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 193-198; Dee. Dig. § 106.*]</p> <p>3. Trial (§ 203*) — Instructions.</p> <p>There was no error in refusing defendant’s requests instructing the jury to find for_ it as to certain acts of negligence set forth in the petition, where the court did not make those allegations grounds of recovery in the instructions which he gave.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477 — 479; Dec. Dig. § 203.*]</p> <p>4. Exceptions, Bill of (§ 8*)— Sufficiency.</p> <p>Bills of exceptions complaining of the admission of testimony, not showing what testimony was objected to, were too indefinite to be considered.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 10; Dec. Dig. § 8.*]</p> <p>5. Trial (§ 253*) — Instructions.</p> <p>In an action for the death of a servant, a teamster, caused by a clevis breaking, causing the doubletree to fly back and strike him, a request that, if the team was not controlled by defendant, but under the control of the servant, and that' if defendant did not assume the custody and inspection of the doubletree, but left such to the servant, and if the servant was an experienced teamster and familiar with the doubletree, to find for defendant, was properly refused, because ignoring another ground of liability submitted, and also because there was no evidence that the servant had the exclusive control of the doubletree, and that it was his duty to inspect it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dee. Dig. § 253.*]</p>

<p>Appeal from District Court, Harris County; Charles E. Ashe, Judge.-</p> <p>Action by E. C. Sturgis against T. F. Loftus. Judgment for the plaintiff, and defendant appeals.</p>

Street, Judge. Trespass to try title by J. T. Gibbons against J. H. Ross and others. From an order of the district court refusing plaintiff’s prayer for a temporary injunction, plaintiff appeals.

G. Chambliss, Judge. Action by Lillian Vineyard and others against Fannie W. Heard and others, in which Anna W. Vineyard and another inter-yened and adopted plaintiffs’ pleadings. From a judgment as stated, plaintiffs appeal.

<p>Injunction (§ 9*) — 1Trespassing Fowls.</p> <p>An injunction to restrain a person from allowing his chickens and turkeys to run at large will not issue, in absence of a statute prohibiting fowls from running at large.</p> <p>[Ed. Note — For other cases, see Injunction, Cent. Dig. § 8; Dec. Dig. § 9.*]</p>

<p>1. Judgment (§ 565*) — Conclusiveness—Dismissal “Without Prejudice.”</p> <p>A judgment sustaining a plea in abatement and dismissing the suit without prejudice to plaintiff’s right to file a new suit did not bar a new suit by plaintiff on the same cause of action; a dismissal “without prejudice,” even though erroneous, allowing a new suit to be brought.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. § 1018; Dec. Dig. § 565.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7507-7509, 7837.]</p> <p>2. Partnership (§ 317*) — Accounting—Legality oe Object.</p> <p>That a partner was insolvent and owed a large amount of money to his creditors and invested money in the partnership for the fraudulent purpose of placing it beyond the reach of his creditors did not defeat his right to a partition and accounting from the other partner.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 733; Dec. Dig. § 317.*]</p> <p>? appeal and Error (§ 719*) — Assignments op Error — Fundamental Error.</p> <p>An error in overruling a demurrer to a plea of res adjudicata was a fundamental error, and objections to the assignment complaining thereof were not well-founded.</p> <p>TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.*]</p>

<p>Appeal from Madison County Court; W. W. Sharp, Judge.</p> <p>Action by A. L. Smith against J. Q. Adams. From a judgment of dismissal for want of jurisdiction, plaintiff appeals.</p>

<p>Appeal from District Court, Grayson County ; W. M. Peck, Judge.</p> <p>Action by W. H. Dereberry against the Missouri, Oklahoma & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.</p> <p>Appellant’s carpenter shop was on the north side, and its “rip” or repair track on the south side, of its main line track in Den-ison. Appellee, employed by appellant as a carpenter, having occasion, in the discharge of his duty as such, to go from the carpenter shop to the rip track, in attempting to cross over the main track, between cars forming a part of a long freight train then standing thereon, fell between the ears and was injured by the wheels of one of them running over his legs and one of his arms. He claimed he was caused to so fall by the act of em-ployés of appellant in charge of the train in causing same, while he was between the cars, to suddenly move forward, and that their act was negligent in that they failed to give warning that they were about to move the train. His contention that said employés in charge of the train owed him the duty to give warning of their intention to move it was based on testimony showing it theretofore to have been the custom for appellant’s employés to cross the main track as he was attempting to cross it, and for employés in charge of trains standing thereon before moving same to give warning of their intention to do so by ringing the bell or blowing the whistle of the locomotive. The appeal is from a judgment for $12,500 in appellee’s favor.</p>

<p>Appeal and Error (§ 773*) — Dismissal—Delay in Filing Briefs.</p> <p>Where an appellant failed to file her brief in the district court within the time limited by Rev. St. 1911, art. 2115, the appeal will be dismissed on appellee’s motion, if the appellant fails to give a sufficient excuse for her disregard of the statutory provision.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Suit by J. C. Hambrick against E. G. Meyers, trustee, and others. From a judgment for plaintiff, defendants appeal. Reversed, and cause dismissed.</p> <p>By a suit commenced in the county court at law of Dallas county, February 13, 1909, E. G. Meyers, as trustee for the A. G. Elliott Paper Company, sought a recovery against one R. E. Grabel on a promissory note for $33.33%, and against appellee Hambrick on certain promissory notes made by said Ham-brick to said Grabel, held by said Meyers as trustee to secure the payment of said note for $33.33%. Meyers also sought as against Hambrick a foreclosure of "a mortgage on certain personal property, alleged to be of the value of $600, made by Hambrick to secure his said notes to Grabel and assigned by the latter to Meyers as trustee. April 21, 1911, said county court at law rendered judgment in favor of said Meyers against Grabel for the amount then found by it to be due on said note for $33.33%, and in Meyers’ favor against Hambrick for $195.50, the amount found to be due on the notes held by Meyers as collateral security for said note for $33.-33%. By the terms of the judgment the lien of the mortgage on said personal property was foreclosed. By a suit commenced in the district court of Dallas county June 24,1911, resulting in the judgment from which this appeal is prosecuted, Hambrick sought and obtained an injunction restraining Meyers and one Brandenburg, sheriff of Dallas county, from “causing to be issued any executions upon or orders of sale upon said judgment (rendered by the county court at law as aforesaid), or in any wise undertaking to enforce said judgment of said county court at law.”</p>

D. Guinn, Special Judge. Action by the San Augustine Grocery Company, as assignee of the San Augustine Lumber Company, against W. A. Fink, and another. Judgment for plaintiff, and defendant Fink -brings error.

<p>1. Justices oe the Peace (§ 174*) — Appeals to County Coukt — Amended Pleadings.</p> <p>Where the amended account, filed in the county court on appeal from a justice’s judgment, only amplified and enlarged the grounds of negligence originally alleged as a ground for recovery, and the county court determined that all the matters presented by the amended account had been orally pleaded in justice’s court, refusal to strike out the amended account was proper.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]</p> <p>2. Evidence (§ 481*) — Nonexpert Witnesses —Statement oe Facts.</p> <p>A nonexpert may testify that the engines of a railroad company throw out more or less sparks.</p> <p>[Ed. Note.' — For other cases, see Evidence, Cent. Dig. §§ 2248-2254; Dec. Dig. § 481.*]</p> <p>3. Railroads (§ 485*) — Fires—Liability.</p> <p>Though a railroad company need only exercise ordinary care to equip its engines with suitable spark arresters, yet where, in an action for loss of property by fires set by sparks, there was no evidence by the company on that issue, it was not reversible error to charge that it was its duty to use suitable spark arresters.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.*]</p> <p>4. Railroads (§ 480*) — Fires — Burden oe ' Proof.</p> <p>Proof that sparks escaped from a railroad engine and destroyed property by fire, either' directly or indirectly, established a prima facie case of actionable negligence of the railroad company, and to escape liability it must show that the engine was equipped with proper spark arresters, and that the same were in good repair, and that the company exercised reasonable care to keep the same in good repair.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1709-1716, 1733; Dec. Dig. § 480.*]</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by J. H. Heubler against Corrigan, Lee & Halpin and others. Prom a judgment for plaintiff against the named defendants, they appeal.</p>

F. Whitehurst, Judge. Action by the Brown-Lloyd Company against the Gulf Refining Company and others, begun in justice’s court and appealed by defendant to the county court, where, judgment being again rendered for plaintiff, defendants again appeal.

<p>1. Boundaries (§ 37*) — Sufficiency of Evidence.</p> <p>Evidence, in trespass to try title to certain land alleged to be a part of survey No. 188, and to be a strip lying between the plotted part of such survey and the east boundary line thereof, held not to show the location of the east boundary line.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184r-194; Dec. Dig. § 37.*]</p> <p>2. Boundaries (§ 33*) — Burden of Proof.</p> <p>In trespass to try title to a strip of land lying between the plotted part of a survey and the east boundary line thereof, the plaintiff had the burden of showing the true location of such line, and of furnishing testimony by which the court could ascertain and by its judgment fix such line.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. § 33.*]</p> <p>3. Evidence (§ 471*) — Fact or Conclusion —Survey.</p> <p>In such action, the statement by a witness that the section was never actually surveyed upon the ground was clearly speculative, where he further testified that he got that idea because the field notes do not call for any corners on the ground.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>4. Evidence (§ 83*) — Presumption—Survey.</p> <p>In the absence of proof to the contrary, it must be presumed that surveyors, in making a survey, did their duty and marked the corner thereof with some object of reasonable permanence, and the presumption is that the original survey was actually made on the ground.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. § 83.*]</p>

<p>1. Banks and Banking (§ 171*) — Collections — Liability for Wrongful Acts.</p> <p>Where a bank, which received and accepted drafts with bills of lading attached, indorsed in blank by the shipper, with the shipper’s written instructions that they should be delivered to the S. Company upon payment of the drafts, in violation of the instructions and without authority permitted the hills of lading to be detached from the drafts and attached to different drafts drawn by the S. Company on a third party, thereby placing the apparent legal title to the shipment in the S. Company and enabling and causing its creditors to attach and sell the shipment as its property, it was liable as for conversion for the damages thereby occasioned the shipper.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 697-617; Dec. Dig. § 171.*]</p> <p>2. Limitation of Actions (§ 127*) — Computation of PERIOD of Limitation — Amendment of Pleadings.</p> <p>Where, in an action against a bank receiving drafts for collection, which in violation of its instructions detached the attached bills of lading and attached them to others drawn by the consignee, as a result of which the consignee’s creditors attached and sold the shipment, the original petition filed in time to stop the running of limitations alleged the facts in respect to detaching the bills of lading and the loss occasioned thereby, and was sufficient as against a general demurrer to set up default or conversion, the cause of action was not barred by limitations, though an amended petition making the allegations more specific was filed after the expiration of the period of limitation.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. '§§ 543-547; Dec. Dig. § 127.*]</p> <p>3. Limitation of Actions (§ 56*) — Computation of Period of Limitation — Commencement of Period.</p> <p>Limitations would not run against the right of action of a bank which received drafts for colection against another bank to which it forwarded them and which detached the attached bills of lading and attached them to others drawn by the consignee until it paid the judgment recovered against it by the drawer.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 307-311; Dec. Dig. § 56.*]</p> <p>4. Banks and Banking (§ 175*) — Collections — Measure of Damages for Wrongful Acts.</p> <p>The measure of damages for the act of a bank to which drafts were sent for collection in detaching the attached bills of lading and attaching them to other drafts drawn by the consignee enabling the consignee’s creditors to attach and sell the shipment was prima facie the face of the drafts which represented to the bank’s knowledge the contract amount payable by the consignee.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 634-652; Dec. Dig. § 175.*]</p>

M. Peck, Judge. Action by J. A. Wallace against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Appellant’s fast passenger train, known as the “Limited,” collided with the rear end of á regular freight train on the main line.

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by B. F. Brandenburg, Sr., and wife, •against the Gulf; 'Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by W. A. Key and others against R. E. Key individually and as administrator of R. C. Key, deceased. Erom a judgment for defendant, plaintiffs appeal.</p>

<p>1. Insurance (§ 328*) — Forfeiture—Change in Interest.</p> <p>Under the clause of a fire policy voiding it in the event of any change in the interest, title, or possession of the subject-matter of in-? surance, insured having, before the fire, without knowledge of or notice to the insurer, taken in partners in his business, received part of the purchase price, and put one of the purchasers in possession, it is immaterial that he retained a lien on the goods for balance of pur-“ chase money, or that after the fire he settled with his partners, and paid back part of the purchase money.</p> <p>[Ed. Note. — For other cases, see Insurance Cent. Dig. §§ 794-S22, 825; Dec. Dig. § 328.*]</p> <p>2. Insurance (§ 335*) — Foeeeituke—Failure to Take Inventory.</p> <p>An invoice of goods bought during three months, some time before issuance of a fire policy, does not satisfy a provision of the policy that it shall become void, if a complete, itemized inventory be not taken within a certain time, unless one has been taken within a certain time prior to the policy.</p> <p>[Ed. 'Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dee. Dig. § 335.*]</p>

C. Douglas, Judge. Suit for injunction by John Jones against Frank Lane and others. From judgment granting temporary injunction prayed for, defendants appeal.

<p>1. Evidence (§ 273*) — Declarations—Admissibility.</p> <p>A statement of a husband prior to the incurring of an indebtedness to a third person that personal property belonged to his wife was admissible in a contest between the third person and the wife to determine the ownership of the property.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. § 273.*]</p> <p>2. Husband and Wife (§ 49%*)— Separate Property — Gifts .</p> <p>Where a husband and wife treated animals as her separate property under a mistaken view of the law as to the increase of the property,, there was no gift to the wife, but if the husband relinquished his claim to the increase because it was just to the wife that she should have the increase of her separate property, there was a gift by him to her of the increase.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 249-255; Dec. Dig. § 49%.*]</p> <p>On Motion for Rehearing.</p> <p>3. Appeal and Error (§ 1070*) — Harmless Error — Immaterial Issues. 1</p> <p>Where on a contest between a creditor and wife of the debtor, claiming property levied on, the uncontroverted evidence showed a gift by the debtor to the wife prior to the debt, the question as to when the debtor made the gift was immaterial, within Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, requiring the court to submit controverted questions of fact only, and the submission of the question and an insufficient answer thereto were immaterial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231 — 4233; Dec. Dig. § 1070.*]</p>

<p>1. Pleading (§ 205*) — Demurrer — Exceptions.</p> <p>Where the causal connection between the negligence of the master and the injury to the servant is sufficiently shown by reasonable deduction from the facts set up in the petition, the petition is good against a general demurrer, although a special exception to its sufficiency in that respect would have been well taken.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. § 205.*]</p> <p>2. Pleading (§ 403*) —Petition — Cube by Answer.</p> <p>Where a servant’s petition for damages for injuries sustained was defective in not showing causal connection between the master’s negligence and the injury, an answer, which alleged that the proximate cause of the injuries, if any, was the negligence of fellow servants cured the defect in the petition.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.*]</p> <p>3. Charities (§ 45*) — Liability bob Torts— Injuries to Employé.</p> <p>A charitable hospital, which administers to the sick of all nations and creeds, accepting pay if the patients are able to pay, but otherwise rendering the service gratuitously, is liable for damages to an employs for personal injuries sustained through its negligence, and its property is not exempt from execution to enforce the payment of such demand.</p> <p>[Ed. Note. — For other cases, see Charities, Cent. Dig. §§ 80, 81, 102-104; Dec. Dig. § 45.*]</p> <p>4. Master and Servant (§ 151*) — Injuries to Servant —Duty oe Master — Warning and Instructing Servant.</p> <p>Whether a charitable hospital was liable for the negligent act of its employés or not, it is liable for injuries to a servant caused by the negligent failure to warn and instruct the servant, since that is the duty which cannot be delegated by the master.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 298; Dec. Dig. § 151.*]</p>

<p>1. Telegraphs and Telephones (§ 10*)— Right to Construct Line — Statutes.</p> <p>Rev. St. 1911, arts. 1231, 1235, relating to the use of streets and roads by telegraph companies, applies only to companies organized to construct and maintain telegraph or telephone lines.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.*]</p> <p>2. Eminent Domain (§§ 13, 69*) — Right of Condemnation.</p> <p>Land cannot be taken for private purposes in any event, and, upon being taken for public use, compensation must be paid; hence a private concern should not be allowed to appropriate another’s property by the denying of an injunction to prevent the appropriation.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 51-53, 171-179; Dee. Dig. §§ 13, 69.*]</p> <p>3. Eminent Domain (§ 47*) — Construction of Telephone Line — Effect.</p> <p>Where the fee of a county road as well as that of the right of way of a railroad company remains in the landowner, the erection, of a telephone line on either is an appropriation of his property which cannot be justified, except in case of condemnation by a public service telegraph or telephone company.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. § 47.*]</p> <p>4. Telegraphs and Telephones (§§ 10, 11*) —Construction—Easements.</p> <p>Neither a county which has an easement in a public road, nor a railroad company which has an easement in a right of way over plaintiff’s land can authorize the establishment of a private telephone line over such ways, as easements granted for public purposes cannot be used for private purposes.</p> <p>[Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. §§ 6, 7; Dec. Dig. §§ 10, ll.*J</p> <p>5. Injunction (§ 16*) — Issuance—Adequate Remedy at Law.</p> <p>Under Rev. St. 1911, art. 4643, providing that an injunction shall be issued where the applicant is entitled to the relief demanded, and the relief requires the restraint of some act prejudicial to the applicant, an applicant is entitled to an injunction, regardless of his remedy at law.; the amendment of 1909, which added a provision, authorizing the issuance of injunctions to prevent irreparable injury to real property, irrespective of any legal remedy, not changing the previous rule.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 15; Dec. Dig. § 16.*]</p> <p>6. Injunction (§ 49*) — Issuance—“Irreparable Injury.”</p> <p>As a landowner would be put to a multiplicity of suits to recover damages at law, and as defendants might in time acquire an easement, an injunction restraining defendants from erecting a telephone line over plaintiff’s property should be issued, under Rev. St. 1911, art. 4643, providing for the issuance of injunctions in case irreparable injury to real estate is threatened, irrespective of any remedy at law, for by the term “irreparable injury” it is not meant that the injury must be beyond the possibility of repair by money compensation, but that it must be of such a nature that no fair and reasonable .redress may be bad in a court of law, and to refuse an injunction will work a denial of justice.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 102; Dec. Dig. § 49*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3772-3774.]</p> <p>7. Injunction (§ 12*) — Issuance.</p> <p>An injunction will not be issued to prevent an act already committed.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 12; Dec. Dig. § 12.*]</p> <p>8. Injunction (§ 118*) — Issuance—Petition —Sufficiency.</p> <p>A petition merely alleging that plaintiff did not consent to defendants’ erection of a telephone line over plaintiff’s land does not sufficiently negative plaintiff’s acquiescence therein to warrant an injunction to restrain the use of such a line.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*]</p>

<p>Appeal from District Court, Hardeman County; J. A. Nabers, Judge.</p> <p>Action by the Acme Cement Plaster Company against John C. Keys. From an order refusing an injunction, plaintiff appeals.</p>

Attachment by the J. W. Crowdus Drug Company against A. C. Daniels and another, in which R. L. Williams filed a claimant’s oath and bond. Judgment for the plaintiff, and the claimant appeals.

<p>Adverse Possession (§ 13*) — Acts Constituting.</p> <p>Where plaintiff and those under whom he claimed resided about four miles from the tract in controversy, and the tract was never occupied by them or by a tenant and was not fenced or improved, and the only visible claim of right of ownership was the cutting of timber and converting it into lumber and for firewood, and the cutting of timber was not continuous for ten years, there was no such adverse possession as ripened into title, though plaintiff showed payment of taxes for over ten years and until the holder of the legal title set up his claim.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. § 13 .*]</p>

R. Wilhelm, Judge. Action by Hawkins & Nance and others against the Houston & Texas Central Railroad Company and the International & Great Northern Railway Company. Judgment for the plaintiffs 'against the defendant the Houston & Texas Central Railroad Company and against the plaintiffs and in favor of the International Great Northern Railway Company, and the Houston & Texas Central Railroad Company appeals.

<p>Appeal from District Court, Travis County; C. A. Wilcox, Judge.</p> <p>Action by the State of Texas against the Gulf, Colorado & Santa Fé Railway Company and another. Prom a judgment for the State, defendants appeal.</p>

J. Mathis, Judge. Action by T. B. Walker, prosecuted after his death by Camille Walker and Fount Walker, for themselves and as next friends of their minor sisters, as heirs and survivors of deceased, against the Houston & Texas Central Railroad Company. Judgment for plaintiffs as surviving children, and defendant appeals.

<p>Appeal from Ellis County Court; J. O. Lumpkins, Judge.</p> <p>Action by Homer Tomlin against E. Y. Clay. From a judgment of dismissal, plaintiff appeals.</p>

C. Lumpkins, Judge. Action by R. B. White against A. J. Brin-berry, one Anderson, the Corsicana National Bank, and others. Judgment for plaintiff, and Anderson and the Bank appeal.

<p>Appeal from District Court, McCulloch County; John W. Goodwin, Judge.</p> <p>Action by J. E. Stevens and others against G. E. Cobern and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Bell County; John D. Robinson, Judge.</p> <p>Action by E. M. Duncan against Charles B. Smith, doing business as Charles B. Smith &■ Co. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by Ocie Owens against the Supreme Hive of the Ladies of the Maccabees of the World. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>Action by Sadie Dodd, administratrix, against the Trinity & Brazos Valley Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.</p> <p>Suit by J. W. Singley and others against Ethel Suggs and others. Judgment for complainants, and defendants appeal.</p>

<p>Appeal from District Court, Jackson County ; John M. Green, Judge.</p> <p>Action for slander by C. L. Lyons against John Burkhiser. Judgment for the plaintiff, and defendant appeals.</p>

<p>1. Railroads (§ 356*)—Injuries to Persons on Tracks—Licensees—Who Are.</p> <p>Where a railroad company acquiesced in the public’s use of a path on its right of way for many years, there was an implied permission which rendered passers licensees, instead of trespassers.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1228-1234; Dec. Dig. § 356.*]</p> <p>2. Negligence (§ 32*)—Licensees—Status.</p> <p>While a landowner is not bound to keep his premises safe for the benefit of licensees, yet he is liable for injuries received by licensees owing to his active negligence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.* 1</p> <p>3. Raileoads (§ 364*) — Injuries to Persons Beside Tracks — Licensees—Active Negligence.</p> <p>Where a licensee proceeding on a path adjoining a railroad track was injured by a piece of scantling which the movement of the train threw from one of the cars, the railroad company was liable for the injury; its negligence in allowing the scantling to be on the floor of the car being active negligence, instead of a mere condition of the premises.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1252, 1253; Dec. Dig. § 364.*]</p> <p>4. Railroads (§ 398*) — Injuries to Persons Near Tracks — Actions—Jury Question.</p> <p>In an action for damages for injuries to plaintiff’s wife hurt by a piece of scantling thrown from a moving train, which struck her while walking on a path adjoining the tracks, a finding that the railroad company was negligent in not discovering and removing the scantling from its car held justified under the evidence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.*]</p> <p>5. Railroads (§ 398*) — Injuries to Persons on Tracks — Actions—Findings.</p> <p>A finding by the jury that plaintiff’s wife was struck by a piece of scantling, thrown from a moving train, while walking on a path adjacent to the tracks held not in conflict with the physical facts.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.*]</p> <p>6. Railroads (§ 400*) — Injuries to Licensee — Contributory Negligence — Questions for Jury.</p> <p>Where a licensee using a path on the right of way of a railroad company was injured by the active negligence of the company, recovery cannot be defeated because there was another way as near and in as good condition as the path over which the licensee might have traveled; the question whether she was guilty of contributory negligence in selecting the path being for the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.*]</p> <p>7. Railroads (§ 401*) — Injuries to Licensee —Actions—Instructions to Jury.</p> <p>In an action for injuries to a licensee struck by a piece of scantling thrown from a moving train, an instruction that, if the scant-ling was, by reason of the roughness of the tracks and the motion of the train, thrown against the licensee, and if the railroad company, by reasonable care, could have discovered and removed it, finding should be for plaintiff is not improper, as imposing upon the railroad company the duty of keeping its tracks in good condition for the benefit of licensees; the only negligence submitted being that of leaving the scantling in the ear.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig-. §§ 1382-1390; Dec. Dig. § 401.*]</p> <p>8. Railroads (§ 395*) — Injuries to Persons Near Tracks — Actions—Evidence—Admissibility.</p> <p>Where a licensee, while using a path near a railroad track, was struck by a piece of scant-ling hurled from a moving train, and the negligence claimed was that the railroad company failed to remove the scantling from the floor of the car, evidence of the roughness of the track, which tended with the motion of the train to throw the scantling out of the car, is admissible.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1339, 1340; Dec. Dig. § 395.*]</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by N. L. Cook for herself and minor child against Pete Urban. Judgment for defendant, and plaintiff appeals.</p>

<p>Error to District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by Sarah F. Burrow and husband against C. N. Brown and others. Judgment for defendant Brown, and plaintiffs bring error.</p>

<p>Appeal from Lubbock County Court; E. R. Haynes, Judge.</p> <p>Action by the A. S. Cameron Steam Pump Works against the Lubbock Light & Ice Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from El Paso County Court; A. S. Eylar, Judge.</p> <p>Action by the Iowa City State Bank against W. S. Friar. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.</p> <p>Action by Audie Burns, by his guardian, George Burns, against the Texas Midland Railroad and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Henderson County; John S. Prince, Judge.</p> <p>Action by H. C. 'Scott and another against Geo. H. Watson and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by P. A. Johnston against the Western Union Telegraph Company. Judgment for defendant on demurrer, and plaintiff appeals.</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by Wilkerson & Satterfield against F. A. McMurry and others. From a judgment for defendants, plaintiff appeals.</p>

.Appeal from District Court, Dallam County; D. B. 1-Iill, Judge. Action by R. E. Staleup, administrator, against the Ft. Worth & Denver City Railway Company and another. Dismissed as to the other defendant before judgment, judgment for plaintiff, and defendant Ft. Worth & Denver City Railway Company appeals.

<p>Appeal from District Court, Hamilton County; J. H. Arnold, Judge.</p> <p>Action by W. M. Taylor against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Injunction (§ 26*) — Adequacy or Remedy at Law.</p> <p>A railroad company, prosecuted by a city in courts having jurisdiction for the penalties imposed by Rev. St. 1911, art. 1068, for failure to place its roadbed over a street in a proper condition for travel, has an adequate remedy at law to determine whether it is liable for penalties, and it may not sue for an injunction to restrain actions at law.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.*]</p> <p>2. Justices oe the Peace (§ 36*) — Jubisdiction — Title to Land.</p> <p>An action by a city against a railroad company for the penalty imposed by Rev. St. 1911, art. 1068, for failure to place its roadbed over a street in a proper condition for travel, is for a money judgment within the jurisdiction of a justice’s court, and the fact that title to land is incidentally involved does not render the action one to try title to land, or of trespass to try title, not within the jurisdiction of the justice.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 83-97; Dee. Dig. § 36.*]</p> <p>3. Injunction (§ 26*) — Adequate Remedy at Law.</p> <p>A railroad company, prosecuted by a city in justice’s courts having jurisdiction for the penalty imposed by Rev. St. 1911, art. 1068, for failure to place its roadbed over a street in a.proper condition for travel, may not maintain a suit in equity to restrain the actions on the ground that they are an attack on its franchise.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.*]</p>

Robinson, Judge. Petition by C. E. Winn and others, for an injunction against A. D. Dyess, County Attorney, and others. From an order denying an injunction, plaintiffs appeal.

<p>Appeal from District Court, Foard. County; J. A. Nabers, Judge.</p> <p>Action by the Bank of Crowell against the Enterprise Trading Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Homestead (§ 77*) — Exemption — Nature op Exemption.</p> <p>Where the owner of a homestead traded it for another tract of land upon which he never resided, such land is exempt from attachment or garnishment for a period of six months, for Rev. St. 1911, art. 3787, declaring that the proceeds of the voluntary sale of a homestead shall not be subject to garnishment or forced sale within six months after sale, apply, not only to the proceeds where a homestead is sold for cash, but to where it is exchanged for other lands.</p> <p>[Ed. Note. — Por other cases, see Homestead, Cent. Dig. § 109; Dec. Dig. § 77.*]</p> <p>2. Pkaudulent Conveyances (§ 52*) — What Constitutes Fraudulent Conveyance — Sale op Land Taken in Exchange pob Homestead.</p> <p>Land taken in exchange for a homestead is exempt from attachment for a period of six months, and the owner’s conveyance within that period, although made with the intent of defrauding his creditors, passes good title ; hence, in an action between the owner’s grantee and a purchaser at a sale under a judgment had against the owner, evidence of an attachment levied upon the land before the expiration of six months is inadmissible as showing notice to a purchaser that the conveyance was fraudulent.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 118-127; Dee. Dig. § 52.*]</p> <p>3. Husband and Wipe (§§ 254, 267*) — Community Peopebty — Land Taken in Exchange pob Homestead — Conveyance.</p> <p>Where a husband and wife exchanged their homestead for other land upon which they never resided, such land becomes jjart of the community estaté, and may be disposed of by the husband alone, without the consent of his wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896-899, 929-938; Dec. Dig. §§ 254, 267.*]</p> <p>4. FRAUDULENT CONVEYANCES (§ 286*) — CONVEYANCE in Trust for Debtor — Evidence.</p> <p>Where plaintiff claimed under a conveyance of land which a debtor received in exchange for his homestead, made within six months after exchange, and defendant claimed by purchase at sale under a judgment against the debtor, plaintiff may be interrogated as to whether he holds the land for the debtor.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 822-825, 827-834, 863-866; Dec. Dig. § 286.*]</p> <p>5. Appeal and Error (§ 1170*) — Review-Harmless .Error.</p> <p>Under court rule 62a (149 S. W. x), providing that no judgment shall be reversed, unless the error complained of was calculated to cause the • rendition of an improper judgment, the improper exclusion of testimony is not reversible error, where it could not have changed the result.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]</p>

<p>Appeal from District Court, Austin County; Frank S. Roberts, Judge.</p> <p>Action by Elizabeth Jenke Vanderwolk and others against W. A. Matthaei. Judgment for defendant, and plaintiffs appeal.</p>

Suit by J. B. Cranfill against W. M. Holland and others to contest a municipal election on the question of issuing bonds. From a judgment in favor of plaintiff, defendants appeal.

<p>1. Justices of tee Peace (§ 166*) — Jurisdiction.</p> <p>Where, on appeal to the county court from a justice of the peace, the county court dismissed the appeal because no final judgment was rendered by the justice of the peace, the dismissal left the case in the justice’s court, and he could proceed to trial thereof.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 638-646; Dec. Dig. § 166.*]</p> <p>2. Justices of the Peace (§ 162*) — Appeal-Trial De Novo.</p> <p>An appeal from a justice’s court to the county court abrogates the judgment of the justice’s court and puts the case in the county court for trial de novo.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 600, 603, 605; Dec. Dig. § 162.*]</p> <p>3. Venue (§ 32*) — Plea of Privilege — WAIVER.</p> <p>Defendant, by pleading a counterclaim and going to trial without calling his plea of privilege to the attention of the court, waived it.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. § 32.*]</p>

<p>1. Appeal and Errob (§ 267*) — Review—Exceptions.</p> <p>An exception embodied in an order overruling-a motion for a new trial is sufficient to authorize a review of the judgment, without a special exception to the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1447, 1460, 1572-1578, 1581; Dec. Dig. § 267.*]</p> <p>2. Judgment (§ 143*) — Default—Yacation-Fraud.</p> <p>Where defendants neglected to appear at the appearance term and defend because they were informed by their attorneys that the case was settled and either had or would be dismissed, which was in fact untrue, and a default judgment was thereupon entered, the attorneys’ misrepresentation, whether due to mistake or fraud, was not mere negligence, which would be imputed to complainants, but constituted fraud in law, for which complainants were entitled to have the judgment set aside in equity.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. § 143.*]</p> <p>3. Judgment (§ 809*) — Pboceeding'in Rem— Entbt — Time.</p> <p>Ordinarily where an action is brought against a nonresident by attachment of property located within the state, judgment will not be rendered until jurisdiction and service has been procured for the required length of time before the court convenes for the term at which judgment is rendered.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1434; Dec. Dig. § 809.*]</p> <p>4. Constitutional Law (§ 309*) — Due Pbo-cess of Law — Pboceeding in Rem — Jurisdiction — Notice.</p> <p>Where jurisdiction is sought to be acquired in a proceeding in rem by attachment, the seizure of the property placed it within the jurisdiction of the court; but due process of law requires that the owner shall have an opportunity to be heard on the claim sought to be subjected, to which end some notice of the proceedings, beyond that arising from the seizure, prescribing the time within which appearance must be made is essential.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 929, 930; Dec. Dig. § 309.*]</p> <p>5. Judgment (§-143*) — Default — Negligence.</p> <p>Where a suit was brought against nonresidents, and at the appearance term was changed to a proceeding in rem by the attachment of real property within the jurisdiction, and defendants did not appear because of notice from their attorneys that the case had been settled and would be- dismissed, whereupon plaintiff at the same term took judgment by default, without further notice of the change in proceedings, plaintiff’s manner of taking judgment, without notice, refuted the imputation of negligence on defendants’ part in failing to appeal-.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. § 143.*]</p> <p>6. VENDOR, AND PURCHASER (§ 16*) — CONTRACT —Meeting of Minds.</p> <p>The owner of land offered to sell for $8,000, $4,000 cash, and the balance in two equal payments of $2,000 in one and two years, to be secured by vendor’s lien and deeds of trust signed by the purchaser and his wife, the papers and cash payment to be deposited in a bank of the vendor’s home town, and when so deposited the vendor agreed to execute a deed to the land. In the vendor’s first letter she expressly stated she would not be bound by the letter until after she heard from the purchaser that the deal was closed and the papers on the way, and she would not obligate herself to hold the trade open' until she knew the land was sold. The purchaser did not accept these terms, but sent to the designated bank a contract for the sale of the land and a check for $300, which he thought was sufficient compensation for an option on the land in case he failed to take it. The vendor refused to sign the contract so sent, but insisted the procedure should be as required by her first letter. In reply the purchaser stated that, if N. wanted to close the deal according to his proposition, she should sign the contract in duplicate, keep one and return the other, collect the $300 check, and, if he failed to comply with the contract, retain the same as a forfeiture. This was refused by a letter from N.’s husband, who stated that they would call the deal off. Held, that there was no contract of sale.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 17, 20; Dec. Dig. § 16.*]</p> <p>7. Husband and Wife (§ 193*) — Wife’s Land — Contract to Convey.</p> <p>A wife, during coverture, neither at common law nor under Rev. St. 1911, arts. 4621, 4622, prescribing the rights and powers of married women, could make an enforceable contract to convey her land, unless joined by her husband.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 716-718, 940; Dec. Dig. § 193.*]</p> <p>8. Discovery (§ 70*) — Interrogatories — Failure to Answer — Effect.</p> <p>Where complainants did not refuse to answer certain interrogatories as certified by the notary, the court did not err in permitting complainants to testify, and in not regarding the interrogatories as confessed.</p> <p>[Ed. Note. — For other eases, see Discovery, Cent. Dig. §§ 84-86; Dec. Dig. § 70.*]</p> <p>9.Appeal and Error (§ 548*) — Statement of Facts — Omission—Review.</p> <p>In the abenee of a statement of facts, an objection that the court’s findings are not supported by the evidence will not be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*]</p>

B. Hill, Judge. Action by Mrs. Kathryn Hutson, adminis-tratrix with the will annexed of John Hut-son, deceased, against L. T. Lester. Judgment for plaintiff, and defendant appeals.

<p>1. INSURANCE (§ 553*) — FlBE Policy — Writing — Fraud—False Swearing.</p> <p>Where a .fire policy provided that it should be void in case of fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after loss, and if the insured had concealed or -misrepresented in writing any material fact or circumstances concerning the insurance or the subject thereof, etc., the “writing” and “fraud” and “false swearing” were applicable to misrepresentations and misstatements in the proof of loss required to be made in writing and to be subscribed and sworn to by the insured.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1362-1366; Dec. Dig. § 553.*]</p> <p>2. Insuran.ce (§ 645*) — Misrepresentations —False Statements — Statutes.</p> <p>Rev. St. 1911, art. 4949, provides that any provision in a policy that it shall be void or voidable for misrepresentations or false statements in proofs of loss shall be ineffective, unless it be shown on the trial it has been fraudulently made and has misrepresented a fact material to the insurance company’s liability, and that the insurance company has been thereby misled and caused to waive or lose some valid defense to the policy. Held, that such provision was applicable to a defense of fraud and misrepresentation in the proofs of loss under a fire policy, which defense was unavailable in the absence of pleading or proof that the insurer-had been misled, or that, on account of the proofs filed, by virtue of the misrepresentations therein, it had waived or lost a valid defense to the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1554, 1632-1644; Dec. Dig. § 645.*]</p> <p>3. Insurance (§ 533*) — Proof of Loss — Statement with Reference to Fire — Requirements of Policy — Reasonableness.</p> <p>A provision of a fire policy requiring insured to render to the company proof of loss, signed and sworn to, containing an itemized statement of the property claimed to have been lost and damaged, and stating insured’s knowledge and belief as to the time and origin of the fire, was reasonable and valid.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1320; Dec. Dig. § 533.*]</p> <p>4. Insurance (§ 558*) — Fire Policy — Proof of Loss — Waiver.</p> <p>Where, after insured had delivered to defendant insurer a statement of his loss, defendant notified him that, if the list of property sent and sworn to was intended as a compliance with the policy showing the facts called for in the policy bearing upon the company’s liability, it was unsatisfactory, and unsatisfactory as any compliance with the requirements of the policy as to furnishing information with reference to the loss and the property involved in the fire, as required by the contract, and there was no further suggestion indicating an intention to dispense with proofs of loss, there was no-waiver thereof.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1382-1390, 1405; Dec. Dig. Í 558.*]</p> <p>5. Appeal and Error (§ 742*) — Assignments of Erroe — Proofs—Applicability.</p> <p>A proposition not germane to the assignment of error under which it is urged will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

<p>1. Carriers (§ 134*) — Action for Injury to Goods — Sufficiency of Evidence.</p> <p>In an action by a shipper against a carrier for damages to a shipment of dressed turkeys, comprising three classes, varying in value, evidence held sufficient to support the verdict, though there was no evidence as to what class the spoiled turkeys belonged, where the verdict was less than the loss, in whatever class the turkeys belonged.</p> <p>[Ed. Note. — Eor other eases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. § 134.*]</p> <p>2. Carriers (§ 117*) — Action for Injury to Goods — Defenses.</p> <p>Where a contract of carriage contained an absolute and unconditional stipulation requiring the carrier to re-ice the cars at every icing station, the carrier could not excuse noncompliance therewith because its employés in charge did not consider re-icing necessary.</p> <p>. TBld. Note. — For other cases, see Carriers, Cent. Dig. §§ 508-516; Dec. Dig. § 117.*]</p>

<p>Criminal Law (§ 1121*) — Appeal—Record.</p> <p>Where the sufficiency of the evidence to support a conviction was assigned as ground for new trial, it cannot be reviewed, unless the evidence is in the record on appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2938, 2939; Dec. Dig. § 1121.*]</p>

<p>Appeal from District Court, Collin County; H. L. Davis, Judge.</p> <p>Action by Alice S. Barnum against J. M. Howard. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Boundaries (§ 46*) — Boundaries by Agreement — Validity.</p> <p>Where adjacent owners knew that the boundary between their land was a creek called for in their deeds, but their dispute involved which creek was called for, a boundary by pa-rol agreement not following the meanders of either creek was invalid.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.*]</p> <p>2. Boundaries (§ 46*) — Parol Agreements— Evidence.</p> <p>A parol agreement fixing a disputed boundary is binding on the parties, though it may be subsequently, discovered that the agreed line is not the true line, but it is essential to the validity of such an oral agreement that the line be in dispute, and that its true location be unknown.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.*]</p> <p>3. Frauds, Statute of (§ 70*) — Boundary Agreements.</p> <p>Where the true location of a boundary line is unknown to the contiguous owners, and they orally agree on a line which they know is not the true boundary, the agreement is void under the statute of frauds.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 112; Dee. Dig. § 70.*]</p> <p>4. Appeal and Error (§ 1064*) — Harmless Error — Erroneous Instructions.</p> <p>Where the court on appeal cannot determine whether the jury based their verdict on the issue of an agreed boundary line, in which case the agreement, being in parol, was void, or on limitations, justified by the evidence, the error in an instruction submitting the issue of agreed line was reversible.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*] '</p>

<p>1. Trial (§ 143*) — Questions ox Law oe Fact—Direction ox Verdict—Conxlicting Evidence.</p> <p>It. was proper for the trial court to direct a verdict, though the evidence was conflicting, where the conflicts were immaterial or could not affect the result.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]</p> <p>2. Payment (§ 85*)—Recovery—Double Payment ox Debt.</p> <p>Where defendant bank, acting for and by authority of a shipper of cotton seed, and on information received from him, collected twice from plaintiff oil company a debt it owed such shipper for seed delivered to it, the bank was in possession of money of the oil company which in equity and good conscience it ought not to keep; and hence the oil company or its as-signee was entitled to recover the same in a suit for money had and received, which remedy was not affected by the various agencies, ramifications, or means by which the result was accomplished.</p> <p>[Ed. Note.—For other cases, see Pajunent, Cent. Dig. §§ 272-281; Dec. Dig. § 85.*]</p> <p>3. Payment (§ 89*)—Recovery—Double Payment ox Debt.</p> <p>Where plaintiff oil company paid to defendant bank its debt to a shipper of cotton seed to the oil company, and the bank used the bill of lading,' which it should have surrendered to the oil company, as a means of collecting a second time for the same debt, the oil company, after haying received the Seed, being required to take up the bill of lading then in the hands of another, its act in so doing only amounted to the performance of a legal duty, and hence operated as an equitable assignment of or a subrogation to any claim the owner of the bill had against the bank to recover the second payment.</p> <p>[Ed. Note.—F'or other cases, see Payment, Cent. Dig. §§ 291-296; Dec. Dig. § 89.*]</p> <p>4. Action (§ 38*)—Causes ox Action—Mis-joinder.</p> <p>Where, plaintiff oil company having paid to defendant bank its debt to a shipper of certain cotton seed, the bank used the bill of lading, which it should have surrendered to the oil company, as a means of collecting a second time for the same debt, whereupon the oil company took up the bill of lading from the holder and brought suit against the bank, as for money had and received, to recover the second payment, the fact that plaintiff set np all the facts showing its ownership of the draft attached to the bill of lading and the second payment of the money under mistake did not indicate a misjoinder of causes, of action.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 549, 565; Dec. Dig. § 38.*]</p> <p>5. Banks and Banking (§ 140*) — Drafts— Acceptance.</p> <p>Where a draft on which plaintiffs’ cause of action was based was not drawn against a fund on deposit with defendant bank belonging to plaintiff company, but was a transfer of a debt and a demand for its payment, the rule that a bank is not liable on a check drawn against a deposit which the bai^k has never accepted had no application.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 380-392, 394-397; Dec. Dig. § 140.*]</p>

<p>1. Landlord and Tenant (§ 109*) — Acceptance oe Surrender — Acts Constituting.</p> <p>Where a lessee, abandoning the premises, and securing the consent of the lessor to sublet for the unexpired term, was only able to secure third persons who would take the premises for the unéxpired term at the same rental on condition that the lessor would extend the period at the same rental, refusal of the lessor to lease the premises beyond the unexpired term was not an acceptance of a surrender of the premises so as to relieve the lessee from liability for rent.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 350-360, 363-365, 368-371; Dec. Dig. § 109.*]</p> <p>2. Landlord and Tenant (§ 110*) — Abandonment op Premises — Obligation oe Lessor.</p> <p>Where a lease authorized the lessor in. ease of abandonment to resume possession and relet for the unexpired term, the act of the lessor in performing his duty to relet for the unexpired term on the lessee abandoning the premises was not an acceptance of a surrender, but was for the benefit of the lessee by reducing his liability by the difference between the rent received under a reletting and the rent reserved in the lease.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 366-369, 371; Dec. Dig. § 110.*]</p> <p>3. Landlord and Tenant (§ 195*) — Abandonment oe Premises — Obligation oe Lessor.</p> <p>Where a lessee abandoned the premises, the refusal of the lessor to accept a new tenant on condition of a lease for a period beyond the unexpired term for the same rental was not a failure to exercise ordinary diligence to relet the premises, and he could recover from the lessee the loss sustained.</p> <p>[Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. §§ 790-793; Dec. Dig. § 195.*]</p> <p>4. Triad (§ 141*) — Evidence—Instructions.</p> <p>Where the liability of defendant and the ■amount thereof were established by undisputed ■testimony, it was proper to direct a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.*]</p>

L. Goodman, Judge.- Action by Abe Rathblath against the International & Great Northern Railway Company and another, in which Yaearro Bros. & Co. intervened. From a judgment for plaintiff and for the intervener, defendants appeal.

<p>1. Evidence (§ 441*) — Parol Evidence — Varying Written Instruments.</p> <p>One signing a stock subscription contract which recites that no representation made by the person talcing the subscription shall annul the contract, unless reduced to writing, and that the contract constitutes the sole agreement, may not, in the absence of fraud, accident, or mistase, show by parol an agreement not embodied in the contract.</p> <p>[Ed. Note. — For other eases, see Evidence, Oent. Dig. §§ 1719, 1728-1763,1765-1845,2080-2047; Dec. Dig. § 441.*]</p> <p>2. CORPORATIONS (§ 583*) — MERGER OJP CORPORATIONS — CONSENT oe Stockholders — Necessity. i</p> <p>A stockholder who is present by proxy, but who declines to vote for a merger of corporations, does not assent thereto, and is not bound by the action of the majority stockholders favoring a merger.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2338-2340; Dec. Dig. § 583.*]</p> <p>3. Appeal and Error (§ 1001*) — Verdict— Conclusiveness.</p> <p>A verdict amply supported by evidence will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]</p> <p>4. Corporations (§ 579*) — New Corporation — Liability por Debts op Old Corporation.</p> <p>In the absence of an agreement to that effect, a new corporation, organized to succeed an old one, is not liable for the debts of the old one, unless the new corporation is merely a continuation of the old one, or unless the new corporation expressly or impliedly assumes the debts of the old corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2307, 2309, 2313-2318; Dec. Dig. § 579.*]</p> <p>On Motion for Rehearing.</p> <p>5. Corporations (§ 579*) — New Corporation —Liability por Debts op Old Corporation.</p> <p>A new corporation organized to succeed an old one, which assumes the debts and receives and takes possession of the assets of the old one, is liable for a debt of the old one not in excess of the assets.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2307, 2309, 2313-2318; Dec. Dig. § 579.*]</p>

<p>Appeal from Robertson County Court; J. L. Goodman, Judge.</p> <p>Action by Abe Rathblath against the International & Great Northern Railway Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Limitation of Actions (§ 127*) — Commencement of Action — Amendment of Pleadings.</p> <p>The original petition in an action to recover double the usurious interest paid to defendant, alleged that he owned the loan company from which the money was borrowed, the first amended petition alleged that defendant, on January 1, 1909, and thereafter, owned and conducted a number of loan offices, including the one from which the money was borrowed, and the second amended petition alleged that it was borrowed from defendant, doing business under the loan company names. Mold, in the absence of any exception requiring plaintiff to show whether defendant or his agents were guilty of taking unlawful interest, that the suit throughout was against defendant as sole owner of the company, so that his plea of limitations was bad.</p> <p>[Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]</p> <p>2. Usury (§ 138*) — Loan—Recovery.</p> <p>Loans of $10 at the rate of $3 a month were usurious, entitling the borrower to recover double the amount of interest paid.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. § 424; Dec. Dig. § 138.*]</p>

<p>Appeal from District Court, Payette County; Prank S. Roberts, Judge. '</p> <p>Trespass to try title by Clarence Gosch and, another against I. Vrana. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Anderson County; Jno. S. Prince, Judge.</p> <p>Action by Curley Williams and others against J. A. Stewart. From a judgment in favor of plaintiffs, defendant appeals.</p>

Appeal' from Tom Green County Court; Oscar Frink, Judge. Action by A. F. Collett, doing business as the Globe-Star Realty Company, against W. B. Mathews and others. Judgment for plaintiff, and defendants appeal.

<p>Appeal from District Court, Dallas County; R. C. Roberts, Judge.</p> <p>Action by P. A. Meyers against the Texas Purniture Company. Prom a judgment for plaintiff, defendant appeals.</p>

T. Allen, Judge. Action by M. W. Boger against the Wichita Valley Railway Company and another. Erom a judgment for plaintiff against the defendant named, it appeals.

<p>1. Carriers (§ 83*) — Bills of Lading.</p> <p>Under the Texas statute requiring a railroad company to deliver up the possession of goods to the owner or consignee upon payment of the freight charges, as shown by the bill of lading, etc., a railroad company has no right to impose, as a condition to the delivery, the surrender of the bill of lading, but can only require the production of the bill of lading for inspection.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 308-315; Dec. Dig. § 83.*]</p> <p>2. Carriers (§ 94*) — Transportation of Goods — Failure to Deliver — Measure op Damages.</p> <p>In an action by a consignee against a carrier for conversion of a car of apples in refusing to deliver them on the production of the bill of lading, the measure of damages was the interest on the value of the property during the time of its retention and any amount that the property depreciated in value while it was withheld.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dee. Dig. § 94.*]</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by Jessie Logan against the American Bonding Company of Baltimore. Judgment for the plaintiff, and defendant appeals.</p>

<p>1. Officers (§ 82*) — Title to and Possession of Office — Injunction to Restrain Occupancy of Office.</p> <p>Though a court of equity will protect by injunction an incumbent of an office, who claims the same under color of title, as against an intruder, the incumbent must show that he himself is not a mere intruder and establish by proof some right to the office he occupies.</p> <p>[Ed. Note.- — For other eases, see Officers, Cent. Dig. § 114; Dec. Dig. § 82.*]</p> <p>2. Officers (§ 82*) — Title to and Possession of Office — Injunction.</p> <p>Acts 31st Leg. (4th Called Séss.) c. 10 (Rev. St. 1911, art. 6175), authorized the Governor to appoint three prison commissioners with the advice and consent of the Senate with terms of two years, except the first ones, whose terms should be 8, 16, and 24 months. This act became effective during a recess of the Legislature, and the Governor, during such recess, appointed plaintiff as one of such commissioners. Shortly after such appointment was made, Const, art. 16, § 58, was amended, making the office a constitutional office with terms of six years, and providing that the terms of office of the commissioners, after the adoption of the amendment, “shall begin on January 20, 1913.” The Legislature convened on January 14th, and on the 20th, the day the amendment went into effect, the Governor submitted plaintiff’s appointment, together with several other recess appointments, to the Senate for confirmation, which was both by the Governor and the Senate treated as a recess appointment to the statutory office. Thereafter, during the same session, the Governor submitted plaintiff’s name for appointment- to the constitutional office, which was rejected by the Senate, and, after adjournment of the Legislature, he appointed defendant to the constitutional' office and issued to him a commission. Held, that plaintiff’s appointment was to the statutory office, and the fact that it was not confirmed until January 20th, the day the amendment went into effect and the statutory office ceased to exist, did not have the effect of rendering it an appointment to the constitutional office, and the office to which plaintiff was appointed being abolished on January 20th, and the constitutional office coming into existence on that date, and the defendant holding the commission of the Governor for such office, plaintiff, as to defendant, was neither a de jure nor a de facto officer with no title or color of title to the office, and hence was not entitled to an injunction restraining defendant from ousting him and taking possession of the office.</p> <p>[Ed. Note. — For other eases, see Officers, Gent. Dig. § 114; Dec. Dig. § 82.*]</p> <p>3. Officers (§ 81*) — Title to and Possession of Office.</p> <p>Where a person holds a certificate of election or a commission of appointment to an office, he is entitled to the possession of the office; such certificate or commission being the highest and best evidence of title to the office until it is annulled by a judicial determination in quo warranto or other proceeding.</p> <p>[Ed. Note. — For other cases, see Officers, Cent. Dig. § 113; Dec. Dig. § 81.*]</p> <p>4. Officers (§ 58*) — Appointment by Gov- . ERNOR.</p> <p>The power of the Governor under the Constitution to make appointments to certain offices in case of vacancies applies equally to filling vacancies occurring during the session as well as recess.</p> <p>[Ed. Note. — For other cases, see Officers, Cent. Dig. § 87; Dec. Dig. § 58.*]</p>

M. Peck, Judge. Action by F. M. Thomas against the St. Louis, San Francisco & Texas Railway Company, in which Hamp P. Abney and another intervened as plaintiffs. From a judgment for interveners, defendant appeals.

<p>Appeal from Ector County Court; E. V. Graham, Judge.</p> <p>Action by Martin Bros, against the Texas & Pacific Railway Company. • From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from.District Court, Coke County; J. W. Timmins, Judge.</p> <p>Action by B. T. Owens against the First State Bank of Bronte. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Coleman County Court; F. M. Bowen, Judge.</p> <p>Action by J. R. Sparks against W. M. Kidd. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Action by J. A. McCall against the Lisle-Dunning Construction Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by C. B. Sharpe against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Reformation of Instruments (§ 45*)— Sufficiency of Evidence — Insurance Policy-Mistake.</p> <p>Evidence in- an action for the reformation of an insurance policy, naming L. as the insured and K. as mortgagee and payee in case of loss, held sufficient to support a judgment reforming the policy by inserting plaintiff’s name in the mortgage clause, on the ground of the insurer’s mistake in not making that clause in favor of plaintiff.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. .Dig. § 45.*]</p> <p>2. Pleading (§ 69*) — Petition—Admissions.</p> <p>In an action to reform an insurance policy, made out to L. as the insured and to K. as mortgagee and payee, by inserting the name of plaintiff as mortgagee and payee, an allegation of the petition that L. was the contractor who was building on the premises, and that at the time of the loss he had no interest therein and never had any interest therein, related to the premises described and, being true, was not an admission that L. never had any interest in the building, so as to show that, according to its express terms, the policy was void for want of insurable interest.</p> <p>[Ed. Note. — For other cases, see Pleading, . Dec. Dig. § 69.*]</p> <p>3. Insurance (§ 378*) — Estoppel—Delivery of Policy.</p> <p>An insurance company, whose agent was fully informed of the interest of the party named as the insured, who in fact had an insurable interest, and that the party mistakenly named as mortgagee and payee was in fact the owner, could not be heard to say that it delivered what it then knew to be an invalid policy, so as to defeat recovery by the party designated as the insured.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 968-997; Dec. Dig. § 378.*]</p> <p>4. Reformation of Instruments (§ 45*)— Evidence — Presumption and Burden of Proof.</p> <p>In an action to reform an insurance policy, the evidence must be clear and convincing to overcome the presumption that the policy embodies the real intention of the parties.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. Dig. § 45.*]</p> <p>5. Trial (§ 194*) — Instructions—Weight of Evidence.</p> <p>The rule that in a particular case the evidence must be clear and convincing to justify equitable relief by reformation of an instrument should not be given in the charge to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439 — 441, 446-454, 456-466; Dec. Dig. § 194.*]</p> <p>6. Appeal and Error (§ 1001*) — Review— Verdict.</p> <p>A verdict for plaintiff in an action to reform a fire policy by inserting its name as mortgagee and payee, brought on the ground of mistake in the writing of the policy, and in which the rules of evidence required that the evidence be clear and convincing, could not be set aside, without invading the province of the jury, merely because the Court of Civil Appeals would have judged differently as to the credibility of the witnesses.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]</p> <p>7. Contracts (§ 155*) — C onstruction against Party Drawing up Contract.</p> <p>A contract drawn by one party is always construed most strictly against such party.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 736; Dec. Dig. § 155.*]</p> <p>8. Insurance (§ 322*) — Conditions—Occupancy.</p> <p>A provision, in a so-called union mortgage clause, that the mortgagee should notify the insurer of a change in occupancy was not violated by failing to notify the insurer of the owner’s neglect to occupy the house when completed.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 760; Dec. Dig. § .322.*]</p> <p>9. Insurance (§ 115*) — Insurable Interest —Contractor.</p> <p>A contractor for a building may have an insurable interest sufficient to sustain a fire policy on the building under construction to the extent of whatever is due him, even though he is to be paid by the week and has no rights other than the statutory one of filing a mechanic’s lien.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 139-157, 177; Dec. Dig. § 115.*]</p> <p>10. Insurance (§ 146*) — Construction—Forfeiture.</p> <p>A forfeiture clause in an insurance policy should be strictly construed.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 292, 294-298; Dec. Dig. § 146.*]</p> <p>11. Insurance (§ 328*) — Conditions — Change of Ownership.</p> <p>Under a policy on a building under construction, naming L. as the insured and K. as mortgagee and payee, with a rate analysis slip attached naming K. as “owner or occupant” of the premises, and with a mortgage clause providing that the mortgagee should notify the insurer of any change of ownership or occupancy known to him, and that, unless such change was permitted, the policy should be void, the ownership was that of K., as mentioned in the analysis slip, and not the interest of L., so that, when the insurable interest passed from L., it did not necessitate a report by plaintiff, the mortgagee named in the policy as reformed.</p> <p>•[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 794-822, 825; Dec. Dig. § 328.*]</p> <p>12. Witnesses (§ 345*) — Impeachment—Accusation of Crime.</p> <p>It is not competent to impeach a witness by proving that he has been indicted for a felony or other crime, but the inquiry should be confined to proof of general reputation for truth.</p> <p>[Ed. Note.- — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.*]</p>

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Action by the State of Texas against the Missouri, Kansas & Texas Eailway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error (§ 216*) — Objection Below — Requested Instructions.</p> <p>Mere omissions in the charge cannot be made a ground of complaint in the Court of Civil Appeals, where no special charges, for the purpose of curing the defects, were requested.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216 ;* Trial, Cent. Dig. § 627.3</p> <p>2. Carriers (§ 280*) — Carriage of Passengers — “High Degree oe Care” — “Ordinary Care.”</p> <p>The “high degree of care,” which it is the duty of a carrier to exercise toward its passengers, is that degree of care which a very cautious, careful, and prudent person would exercise under the same or similar circumstances, and the failure to exercise which, where required by law to do so, is negligence; and the “‘ordinary care,” which it is its duty to exercise, is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances, and the failure to exercise which is negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1092. 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7678; vol. 6, pp. 5029-5042; vol. 8, pp. 7739, 7740.]</p> <p>3. Negligence (§ 65*) — “Contributory Negligence.”</p> <p>“Contributory negligence” is such want of ordinary care on the part of the person injured as, concurring with the negligence of the party causing the injury, proximately contributes to the injury.</p> <p>[Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 83, 94; Dec. Dig. § 65.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617.]</p> <p>4. Careiers (§ 280*) — Personal Injuries— Instructions — Proximate Cause.</p> <p>In an action against a carrier for personal injuries to plaintiff’s wife while alighting from a train, an instruction that it must appear from the evidence that the injury was the natural and probable consequence of the negligence, and ought to have been foreseen as likely to occur by a person of ordinary prudence in the light of attending circumstances, was proper; the words “by a person of ordinary prudence” should not be construed to apply to the degree of care required of the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dee. Dig. § 280.*]</p> <p>5. Damages (§ 185*) — Personal Injuries— -SUFFICIENCY OF EVIDENCE.</p> <p>Evidence in an action for personal injury to plaintiff’s wife from defendant’s negligence when alighting from a car, in which defendant claimed that plaintiff was malingering and deliberately attempting to defraud, held, to sustain a verdict for defendant.</p> <p>[Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 503-508; Dec. Dig. § 185.*]</p>

<p>Appeal from District Court, El Paso County ; M. Nagle, Judge.</p> <p>Action by Awbrey ■& Semple against Mrs. Olga Kohlberg, who impleaded A. T. Sam-worth. From a judgment for plaintiff, and for the impleaded defendant, defendant appeals.</p> <p>Defendant assigned error upon the admission of testimony by Samworth that it was agreed between him and her husband that her husband should discharge a note given by Samworth to the City National Bank, which testimony was offered to show that the arrangement between Samworth and defendant’s husband was that of principal and agent.</p>

F. Mullally, Judge. Action by B. F. Walker against S. P. Ortiz, begun in justice court and appealed to tlie circuit- court. From a judgment for plaintiff, defendant appeals.

<p>Insurance (§ 654*) —Action on Fidelity Bond — Sufficiency of Evidence — Compliance with Warranties — “Once a Month.”</p> <p>Evidence, in a bank’s action on the fidelity bond of its cashier, held to show that the bank had complied with its warranties as to when his accounts were last examined, that there was then no shortage or indebtedness to the hank, and as to monthly examinations and reports as to his accounts; the warranty of an examination “once a month” not requiring an examination exactly every 30 days, but once during each month.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1677, 1680, 1681, 1683-1685; Dec. Dig. § 654.*]</p>

<p>Appeal from District Court, Dallas County; E. B. Meese, Judge.</p> <p>Action by S. Mims against the Supreme Lodge Knights of Pythias for breach of a contract- of insurance. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Adverse Possession (§ 41*) — Time Required for Acquisition of Title.</p> <p>Defendant in trespass to try title, who purchased the land involved in February, 1903, recorded his deed in-March of the same year, and to whom in February, 1905, plaintiff, under a mistake as to his own boundaries, attorned and paid rent to November, 1910, and who paid all taxes on the land from 1903 to 1912, inclusive, was entitled to the land under the five-year-statute of limitations.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 18A-206; Dec. Dig. §• 41.*]</p> <p>2. Adverse Possession (§ 31*) — Notice of Claim — Presumption.</p> <p>An owner of premises is presumed to know the true location of his boundaries, and is bound to take notice of the nature and extent of possession by a claimant.</p> <p>[Ed. Note. — For other cases, see' Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig.*</p>

<p>Appeal from District Court, Webb County; J. P. Mullally, Judge.</p> <p>Action by the City of Laredo against Thomas O’Connor. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Clay County Court; W. T. Allen, Judge.</p> <p>Action by Shank & Dean against the Ft. Worth & Denver City Railway Company and others. Judgment, for plaintiffs, and defendants appeal.</p>

<p>Appeal from Karnes County Court; C. L. Bell, Judge.</p> <p>Action by the Kenedy Mercantile Company against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Error from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Henry Hill against the Commercial Union Assurance Company of London. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Ekkoe (§ 664*) — Record— Conflict between Bill of Exceptions and Agreed Statement of Facts.</p> <p>Where the bill of exceptions stated that evidence, the admission of which was assigned as error, was.admitted mpon a witness’ redirect examination, while the agreed statement pf facts disclosed that it was developed upon his cross-examination, the agreed statement controlled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. § ■664.*]</p> <p>2. Appeal and Eeeoe (§ 882*) — Review—Invited Eeeoe.</p> <p>Defendant could not complain of the admission of testimony developed in response to ■questions propounded by its counsel on his cross-examination of plaintiff.</p> <p>[Ed. Note. — For other cases, see-Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]</p>

Error from District Court, Galveston County; John M. Conley, Acting Judge. Action by C. W. Alsworth and another against A. P. Reppert and another. Judgment for defendants, and plaintiffs bring error.

<p>Error to District Court, Jefferson County; John M. Conley, Judge.</p> <p>Trespass to try title by Ellen Craigen and another against R. S. Jackson, in which Sevenne Be Blanc and others intervened. From a judgment in favor of certain of the interveners, the defendant Jackson brings error.</p>

F. Mullally, Judge. Action between George R. Alexander and others and Augustin G. Garcia and others. From a judgment for the latter, the former appeal.

<p>Appeal from San Jacinto County Court; E. W. Love, Judge.</p> <p>Action by Miles F. Bixler against J. M. Dolieve. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and Error (§ 1002*) — Verdict— Conflicting Evidence.</p> <p>A verdict establishing the location of a disputed boundary line based on conflicting evidence will not be set aside on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>2. Estoppel (§ 32*) — Deed — Location op Boundary Line.</p> <p>Where plaintiff did not have certain tracts conveyed by him surveyed and was not present when the surveys were made, and the dividing line between his land and defendant’s was located as claimed by defendant, the fact that in the deeds the dividing line between plaintiff’s land and that of defendant was called for, which line was located by a surveyor as claimed by defendant, did not estop plaintiff from denying that the line was correctly located.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 81; Dec. Dig. § 32.*]</p> <p>3. New Trial (§ 102*) — Newly Discovered Evidence — Diligence.</p> <p>Where defendant knew of alleged newly discovered evidence prior to the trial but made no effort to produce it and his only excuse was that the matter had “slipped” his memory, the motion was properly denied.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.*]</p>

F. Ezell, Judge. Action by I. W. Poland against Natban Kallison for damages arising from false representations in tbe sale of a tract of land. From a judgment awarding damages to tbe plaintiff, but allowing tbe defendant to rescind tbe sale, both parties appeal.

B. Hopkins, Judge. Action between Eli Elstun and Mrs. Annie Seanlan. There was a judgment for the latter, and the former brings error.

<p>Courts (§ 488*) — Appellate Courts — Certi-pied Questions — Determination anb Dis- , position op Cause — Affirmance.</p> <p>Where the only question involved on an appeal to the Court of Civil Appeals was certified to the Supreme Court, which answered it in favor of the appellee, holding that the trial court correctly held in his favor, the judgment must he affirmed.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1316-1323; Dec. Dig. g 488.*]</p>

D. Guinn, Judge. Habeas corpus on petition of E. F. Webb to obtain bail on a charge for murder. From an order dismissing the writ, relator appeals.

<p>Appeal from District Court, Grayson County; M. H. Garnett, Judge.</p> <p>Arthur Flannigan was convicted of felony theft, and he appeals.</p>

<p>Appeal from District Court, Panola County; W. C. Buford, Judge.</p> <p>Joe Hutto was convicted of murder, and he appeals.</p>