Volume 168 — South Western Reporter

<p>1. Master and Servant (§ 330*) — Torts of Servant — Actions—Sufficiency of Evidence.</p> <p>Evidence, in an action against a telegraph company for an assault committed by an operator making a threatening demonstration and insulting a lady in a dispute about the transmission of some money by the company, held sufficient to support a verdict for the plaintiff in the sum of $300.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dee. Dig. § 330.*]</p> <p>2. Assault and Battery (§ 2*) — Civil Liability-Acts Constituting — ‘ ‘Assault. ’ ’</p> <p>Drawing back or lifting the arm to strike one .who could have been hit had she not stepped out of the way constituted an assault, within Pen. Code 1911, art. 100S, declaring that any attempt to commit a battery or threatening gesture, made with the immediate intention and ability to commit a battery, is an “assault.”</p> <p>[Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 1; Dec. Dig. § 2.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 532-538; vol. 8, p. 7582.]</p> <p>8. Assault and Battery (§ 38*) — Damages— Assault by Servant.</p> <p>Damages could be recovered for pain and mental suffering caused by' an assault without a battery, with the remark that the person assaulted was “poor white trash,” and the injury was not lessened because it was not intended to -be heard by the person assaulted.</p> <p>[Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 53; Dec. Dig. § 38.*]</p>

<p>1. Habeas Corpus (§ 99*) — Custody of Child — Right of Pahent.</p> <p>While the best interest of a child will be determinative of the question of its custody, the presumption is in favor of the surviving parent, and, in the absence of evidence showing his disqualification, he has a paramount right to the custody of his child which the courts are not at liberty to disregard.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.*]</p> <p>2. Habeas Corpus (§ 85*) — Custody of Child — Qualification of Surviving Parent.</p> <p>On an application of a father for custody of his infant child on the death of his wife, as against the child’s maternal grandparents, there being evidence that the father had since boyhood been a good citizen, industrious and law-abiding, that he lived with his mother, who had a small farm and was able to support the child, proof by the child’s maternal aunt that the father on two occasions had been intoxicated and on one occasion had punished the child with a switch as large as a woman’s finger was insufficient to justify the court in denying him the child’s custody.</p> <p>[Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dee. Dig. § 85.*]</p>

<p>Appeal from District Court, Jefferson County; John M. Conley, Judge.</p> <p>Action by H. W. Johns-Manville Company of Texas against H. D. Appelgate & Son. Judgment for defendant, and plaintiff appeals.'</p>

<p>Appeal from District Court, Tyler County; A. E. Davis, Judge.</p> <p>Action by J. R. Chapman and others against Sim Moore. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Judgment (§ 106*) — Default Judgment-Default in Pleading — Excuses.</p> <p>While under Rev. St. 1911, art. 1934, providing that the second day of each term of the district or county court is appearance day, and article 1936, providing that, upon the call of-the appearance docket or at any time after appearance day, plaintiff may take judgment by default against a defendant duly served with process, who has not previously filed an answer, plaintiff would ordinarily have been entitled to judgment by default on the appearance day of the April term where, though service was perfected in time to require defendant to answer at that term, no answer was filed, the court did not abuse its discretion in refusing to grant judgment by default and in treating the case as an appearance case for the July term and denying a judgment by default on the first day of that term, where, at the January term, it had ordered that only probate matters would be heard at the April term, that no civil matters would be called for trial and no judgment by default or otherwise rendered, and that no cases would be tried except by agreement, since the judge is invested with a large discretion in the matter of the control of his docket, and would doubtless have set aside a default judgment on the simple showing that defendant relied upon the order of the court continuing the docket.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 160, 162, 180-197; Dee. Dig. § 106.*]</p> <p>2. Railroads (§ 484*) — Actions for Injuries bt Fire — Questions for Jury.</p> <p>In an action against a railroad company for the value of pecan trees destroyed by fire, evidence held to make a question for the jury as to whether the fire was set out by defendant’s locomotive, and a verdict for defendant was therefore improperly directed.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. § 484.*]</p>

<p>Appeal from District Court, Gillespie County; Clarence Martin, Judge.</p> <p>Suit by Gillespie County against the Fred-ericksburg Land Company. From a judgment for defendant, plaintiff appeals.</p>

Suit by E. S. Davis and others against W. M. Holland and others to require defendants, as Mayor and Commissioners of the City of Dallas, to create an examining and supervising board of plumbers and pass ordinances regulating house draining and plumbing, and asking a writ of mandamus to enforce the judgment sought. From a judgment denying the relief sought, plaintiffs appeal.

<p>1. Limitation of Actions (§ 121*) — Commencement of Actions — Stopping of Running of Limitations.</p> <p>Where a suit was brought against a defendant, described as a foreign corporation, with which plaintiff had made the contract sued on, and defendant filed an answer in the corporate name, and subsequently an individual appeared and answered, alleging that she did business in the corporate name and that there was in fact no corporation and that she was the party with whom plaintiff had contracted, the commencement of the action stopped the running of limitations against the cause of action relied on.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 537, 540; Dec. Dig. § 121.*]</p> <p>2. Sales (§ 418*) — Breach of Contract — Special Damages.</p> <p>Where a buyer of machinery for a manufacturing plant rented a building for the machinery and plant and employed employés in reliance on a prompt delivery of the machinery and demanded damages for rental and wages paid pending delivery, which was delayed by the seller, the damages demanded were special, and to recover the buyer must prove that it was reasonably within the contemplation of the parties at the time of the making of the order that the damages would likely result from the seller’s delay.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.*]</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by C. W. Gibson against W. G. Ster-rett and others. From an order issuing a temporary injunction, defendants appeal.</p>

<p>EVIDENCE (§ 359*) —DEMONSTRATIVE EVIDENCE — PHOTOGRAPHS—ADMISSIBILITY.</p> <p>Where photographic tracings showing the weakness of the pulse of the plaintiff in a personal injury action and microscopic photographs of his excretions indicating injuries to his kidneys were shown to have been taken with scientific accuracy, as well as tracings showing the impairment of his vision, such demonstrative evidence is properly received in evidence.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§• 1509-1512; Dec. Dig. § 359.*]</p>

<p>1. Judgment (§ 949*) — Res Judicata — Plea —Sufficiency.</p> <p>In a suit for breach of a contract to furnish water for irrigation under an alleged contract to furnish sufficient water for one-fifth of plaintiff’s rice crop, a plea reciting that a former suit between the same parties had been instituted on the identical contract, which had been construed therein to cover continuous seasons, that a judgment had been recovered by plaintiff which had been affirmed on appeal, and that the identical issues raised in the pending action as to thq interpretation, scope, and validity of the contract were raised and decided on their merits in the former suit, was sufficient as a plea of res judicata.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1794-1S03; Dec. Dig. § 949.*]</p> <p>2. Judgment (§ 601*) — Res Judicata — Matters Concluded.</p> <p>Where a judgment in a former suit for breach of an irrigation contract determined that the contract was a continuous one and valid, such judgment, though not res judicata in a subsequent suit between the same parties for a further breach of the contract because the causes of action were not identical, was nevertheless operative as an estoppel as to the validity and construction of the contract and any other matter or issue determined in the prior suit and sought to be raised in the subsequent one.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1116; Dec. Dig. § 601.*]</p> <p>3. Waters and Water Courses (§ 261*)— Irrigation — Contracts — Breach — Damages.</p> <p>Where plaintiff had a continuing contract binding defendant to furnish, him water through continuous seasons to irrigate his rice crop for one-fifth of the crop, the fact that defendant, prior to the time plaintiff planted his crop for 1910, positively repudiated the contract and declared that it would furnish plaintiff no water thereunder during that season, did not obligate plaintiff to refrain from expending money or labor in planting such crop on the faith of obtaining water from defendant under the contract, for plaintiff in planting his crop was not performing any part of.the contract which defendant had renounced, and hence plaintiff was entitled to recover, for defendant’s failure to furnish water, the expenditures made by him in planting and cultivating the crop up to the time of defendant’s refusal to furnish water.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 261.*]</p> <p>4. Appeal and Error (§ 1002*) — Verdict— Conflicting Evidence.</p> <p>A jury’s finding on a particular issue on which the evidence is conflicting will not be set aside on appeal.</p> <p>TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 10Q2.*]</p> <p>5. Waters and Water Courses (§ 249*)— Irrigation — Contract—Constructions.</p> <p>Plaintiff conveyed a right of way for irrigation ditches over a tract of land described as containing 427.7 acres on the T. survey, defendant agreeing to furnish plaintiff his equal pro rata share for water for irrigating his rice crop during successive farming seasons; he paying the reasonable water rent for water therefor. Held, that defendant was bound to furnish water to irrigate the rice crop on the whole 427.7 acres, though 80 acres thereof were located in another survey.</p> <p>TEd. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 249.*]</p> <p>On Motion for Rehearing.</p> <p>6. Evidence (§ 265*) — Admissions—Conclusiveness.</p> <p>Where, in a suit to recover damages to plaintiff’s crops by defendant’s failure to furnish water to irrigate the crop in accordance with the contract, plaintiff admitted that the value of the crop he did raise during the season in question was $637.75, such admission concluded plaintiff from showing that the value was less than such amount, but was not conclusive on that issue and did not prevent defendant from showing that the crop raised was of greater value.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.*]</p>

<p>Appeal from District Court, Polk County; L. B. Hightower, Judge.</p> <p>Action by Hiram Knox against the Benford Lumber Manufacturing Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Wichita County; P. A. Martin, Judge.</p> <p>Action by C. E. Bland, against R. S. Allen. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error (§ 527*) — Record— Conclusions of Fact and Law.</p> <p>Conclusions of fact and law filed by the trial court 28 days after adjournment of court cannot be considered by the appellate court; they not being a part of the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2381-2383; Dee. Dig. § 527.*]</p> <p>2. Adverse Possession (§ 60*)— Hostile Character of Possession — Party Wall.</p> <p>A bank, owning the north half of a lot and desiring to build thereon, entered into an agreement with the owner of the other half, whereby the bank was to build its south wall on the line, and, when the other owner built on his half, he was to pay the bank one-half the cost thereof, the covenant to run with the land. The other owner having built and sold to plaintiff, the bank demanded from plaintiff one-half the cost of the wall, who refused to pay and repudiated the covenant, and held possession for 16 years thereafter. Held, that plaintiff had acquired title by adverse possession, as limitations began to run from the repudiation of the covenant; the 10-year statute of limitations being applicable.</p> <p>[Ed. Note. — For other cases, see Adverse. Possession, Cent. Dig. §§ 282-312, 323, 328; Dec. Dig. § 60.*]</p> <p>3. Adverse Possession (§ 63*) — Hostile Character of Possession — vendor and Purchaser.</p> <p>A vendor may retain title to land as against the vendee as security for the purchase money, and the vendee’s possession is not ordinarily adverse, but, on repudiation by the vendee, adverse possession begins to run from that time, notwithstanding the title of the vendor.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Gent. Dig. §§ 333-357; Dec. Dig. § 63.*]</p> <p>4. Party Walls (§ 8*) — Right of Support. The easement to an adjoining building by a party wall is the right of support of the wall.</p> <p>[Ed. Note. — For other cases, see Party Walls, Cent. Dig. §§ 24r-41; Dec. Dig. § 8.*]</p> <p>5. Injunction (§ 108*) — Action fob Injunction — Defenses.</p> <p>In an injunction suit by an adjoining owner against a bank seeking to compel the bank to close an opening in plaintiff’s wall, it was not a condition precedent to the relief prayed that plaintiff should comply with a previous agreement to pay one-half the cost of the party wall in which the opening was cut.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 184-186; Dec. Dig. § 108.*]</p>

<p>Appeal from Collin County Court; H. L. Davis, Judge.</p> <p>Action by Biggerstaff & Perkins against Sam Jackson. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by E. F. McCarty against J. W. Fraser. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by J. B. Titterington against C. R. Hughes and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>1. Injunction (§ 118*) — Pleading — Sufficiency.</p> <p>The rule of pleading that the statements of a party are to be taken most strongly against himself is reinforced in injunction suits by the further requirement that the elements essential to entitle plaintiff to relief shall be sufficiently certain to negative every reasonable inference from the facts stated, that he might not, under other supposable facts, be entitled to relief.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dee. Dig. § 118.*]</p> <p>2. Judgment (§ 588*) — Conclusiveness — Matters Concluded — Payment of Judgment.</p> <p>An adverse judgment in a proceeding to enjoin an execution against plaintiff and another judgment debtor on the ground that the other judgment debtor had paid the judgment, or that it had been satisfied By the application of his deposit in the judgment creditor’s bank, was conclusive as against plaintiff in a subsequent proceeding to enjoin execution on the same ground.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1062, 1090; Dec. Dig. § 588.*]</p> <p>3. Appeal and Error (§ 522*) — Injunction —Statement of Facts — Necessity.</p> <p>Under Rev. Civ. St. 1911, art. 4645, providing that it shall not be necessary to brief injunction cases in the Court of Civil Appeals or the Supreme Court, and that the case may be heard therein on the bill and answer and such affidavits as have been admitted by the judge granting or refusing such injunction, affidavits properly a part of the petition and answer will come up with the transcript,' but, where evidence was introduced, it must in some appropriate way be included in the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2367-2371; Dec. Dig. § 522.*]</p> <p>4. ARRE AT. AND ERROR (§ 907*) — PRESUMPTION —Support op Judgment.</p> <p>Under such statute, and in the absence of evidence in the record to the contrary, everything must be presumed in favor of the judgment of the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.*]</p>

<p>Appeal from Johnson County Court; J. B. 1-Iaynss, Judge.</p> <p>Action by the National Bank of Commerce against W. T. 'Sparks and others. Judgment for plaintiff, and defendant Sparks appeals.</p>

<p>Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.</p> <p>Action by I. N. Wynn against R. H. Burck. From a judgment for plaintiff, defendant appeals.</p>

E. Mullally, Judge. Action by O. E. Richards against Asher Richardson and others, individually and as trustees of the Asherton High School. Prom a judgment dismissing the action, plaintiff appeals.

<p>1. Carriers (§ 228*) — Shipment ox Live Stock — Actions for Damages — Evidence.</p> <p>In an action against a carrier for damages to a shipment of live stock, evidence held insufficient to show any unreasonable delay _ in transportation, or that any of the cattle died en route as alleged.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]</p> <p>2. Evidence (§ 545*) — Expert Testimony — Qualification of Experts.</p> <p>Witnesses testifying as experts must show their qualification to so testify or their testimony may be disregarded.</p> <p>[Ed. Note. — For other cases, see Evidence, Cerft. Dig. §§ 2360-2362; Dec. Dig. § 545.*]</p> <p>3. Appeal and Error (§ 1001*) — Review— ,. Questions of Fact. »</p> <p>In an action for damages to a shipment of live stock, tried by the court sitting as a jury, where unreasonable delay in transportation is not so clearly shown that reasonable minds would not differ thereon, the trial court’s finding will not be disturbed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928 — 3934; Dec. Dig. § 1001.*]</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Action by T. G. Jackson against T. M. Anderson and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Justices oe the Peace (§ 145*) — Appeal— Decisions Reviewable — Amount Involved — “Interest.”</p> <p>Under Rev. St 1911, art 1589, cl. 3, giving the Court of Civil Appeals jurisdiction in cases of which the county court has appellate jurisdiction, when the judgment or amount in controversy or judgment rendered shall exceed $100, exclusive of interest and costs, and article 4973, defining interest as the compensation allowed by law or fixed by the parties to a contract for the use or detention of money, no appeal lay from the judgment of the county court on appeal from a justice to recover the balance of a bank deposit amounting to $100, though the petition prayed for the recovery of such $100 and damages in the sum of $25; there being no fact alleged authorizing a recovery of damages, other than the mere detention of the money, and “interest” being the only damages recoverable for such detention.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 479-489; Dec. Dig. § 145.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3692-3709; vol. 8, p. 7691.]</p>

<p>Appeal from District Court, Collin County; F. E. Wilcox, Special Judge.</p> <p>Action by Sam Graham against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Schools and School Districts (§ 81*)— Public Schools — Contracts — Contractors’ Bonds.</p> <p>Rev. St. 1911, tit. 48, c. 15, authorizing the trustees of a school district to contract for and superintend the construction of school buildings, carried with it authority to require bond for faithful compliance with the contract, and incidentally to protect the laborers and material-men, as they could acquire no lien on school property.</p> <p>[Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196, 340; Dec. Dig. § 81.*]</p> <p>2. Schools and School Districts (§ 81*)— Contractors’ Bonds — Actions—Parties.</p> <p>A school building contractor’s bond to the school district and all parties furnishing labor or materials, for the faithful performance of the contract and payment of all indebtedness incurred, inured to the benefit of the laborers and materialmen, any of whom could sue thereon in his own name, irrespective of whether the labor or materials were furnished on the faith of the bond.</p> <p>[Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196, 340; Dee. Dig. § 81.*]</p> <p>3. Schools and School Districts (§ 81*)— Public Schools — Contracts—Contractors’ Bonds.</p> <p>That the Thirty-Third Legislature (Acts 33d Leg. c. 99) enacted a law requiring any person contracting with a school district for the construction of a building' to give a bond obligating himself to pay for labor and material did not prove want of previous authority to require such a bond; the object being to require a bond in every case, whereas before it was optional with the trustees.</p> <p>[Ed. Note. — For other cases, see Schools and .School Districts, Cent. Dig. §§ 195, 196, 340; Dec. Dig. § 81.*]</p>

<p>1. Trial (§ 365*) — Special Interrogatories —Construction of Findings.</p> <p>In an action for the price of fuel oil, in which defendant counterclaimed for a breach by plaintiff of a contract to furnish all the fuel oil required for six. months, and the court submitted a question as to whether the oil shipped was shipped in recognition of a verbal agreement or,¡ to supply the immediate demands of defendant in the belief that it would execute a written contract, an answer, “One car on verbal contract, two cars on written contract,” wa3 not a finding that the last two cars were shipped in acceptance of a written contract never executed by plaintiff, the question not calling for such an answer, and would be construed as meaning that they were shipped under the belief that defendant would execute a written contract.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. § 365.*]</p> <p>2. Trial (§ 350*) — Special Interrogatories —Ultimate or Evidentiary Facts.</p> <p>Where proof of a fact submitted, though evidentiary, is equivalent to proof of the ultimate fact and carries with it the same legal consequences, there is no objection to its submission.</p> <p>[Ed. Note. — For other cases, see Trial, Cent Dig. §§ 828-833; Dec. Dig. § 350.*]</p> <p>3. Sales (§ 53*) — Actions— Sufficiency of Evidence — Acceptance op Contract.</p> <p>In an action for the purchase price of fuel oil, in which defendant counterclaimed for breach of a contract to furnish all the oil required by it for six months, evidence held insufficient to make a question for the jury as to whether the seller accepted and acted upon a written agreement between the buyer and its agent to the effect alleged by defendant.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 145-151; Dec. Dig. § 53.*]</p> <p>4. Sales (§ 53*) — Acceptance op Contract-Questions por Jury.</p> <p>If the undisputed facts showed that contracts signed by a buyer were accepted by the seller and acted on as a binding contract, the court should have so held,as a matter of law, instead of submitting the question to the jury, as it is not the province of the jury to declare the law arising upon undisputed facts.</p> <p>[Ed. Note. — For other cases, see Sales, Cent Dig. §§ 145-151; Dec. Dig. § 63.*]</p> <p>5. Limitation op Actions (§ 127*) — Computation op Period — Amendment op Pleadings.</p> <p>In an action for the purchase price of fuel oil, defendant counterclaimed for breach of a contract to furnish all the oil required by defendant for six months, and alleged damages from such breach, amounting to the difference between the contract price and the market price of the oil. By an amended answer, filed more than two year? after the breach of such alleged agreement, it alleged and sought to recov-ed damages sustained by shutting down its factory because of the failure of plaintiff to furnish oil. Held, that the claim for such damages was barred by limitations, since, while the courts are very liberal- in sustaining amendments as a mere continuation or amplification of the original suit, the original pleadings must disclose an intention to litigate the matter set up in the amendment, and no intention to plead such damages was disclosed by the original answer.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*]</p> <p>6. Sales (§ 411*) — Breach op Contract — Special Damages — Necessity op Pleading.</p> <p>A buyer of fuel oil could not recover the wages of its employes and profits lost during the time it was compelled to close its factory by reason of the seller’s failure to furnish the oil as agreed, without pleading such damages.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1161-1164; Dec. Dig. § 411.*]</p> <p>7. Principal and Agent (§ 174*) — Acts op Agent — Ratification — Questions por Jury.</p> <p>In an action fof the purchase price of fuel oil, in , which defendant counterclaimed for breach of a contract to furnish all the oil required by defendant for six months, evidence-held sufficient to justify the submission of a question as to whether plaintiff’s agent, before the shipment of the oil sued for. communicated with and advised plaintiff that he had closed a verbal contract to furnish a car load of oil every third day for six months.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 725; Dec. Dig. § 174.*]</p> <p>8. Appeal and Error (§ 1062*) — Trial (§ 350*) — Special Issues — Matters to be Submitted — Harmless Error.</p> <p>In such action the court should have submitted the issue whether plaintiff knew that its agent had made a verbal contract to furnish a car Toad of oil every third day for six months when the oil sued for was shipped, instead of submitting the issue whether the agent communicated such information to plaintiff; but any error in submitting the latter issue was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 4212-4218; Dec. Dig. % 1062 ;* Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.*]</p> <p>9. Appeal and Error ($ 1170*) — Harmless Error — Submission op Issues.</p> <p>The submission of an issue already covered-by another issue was not reversible error under rule 62a for Courts of Civil Appeals (149 S. W. x), forbidding reversals for errors at the trial unless the appellate court shall be of the opinion that the error amounted to such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.</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>10. Sales (§ 52*) — Actions por Breach — Sufficiency of Evidence.</p> <p>In an action for the purchase price of fuel oil, in which defendant counterclaimed for breach of a contract to furnish all the oil required by it for six months, evidence held to sustain a finding that defendant’s president and plaintiff’s agent both intended a verbal contract to that effect, made' by them, to be binding.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 118-144, 1045; Dec. Dig. § 52.*]</p> <p>11. Principal and Agent (§ 173*) — Acts op Agent — Ratification — Sufficiency op Evidence.</p> <p>In such action, evidence held to sustain a finding that the oil sued for was shipped in recognition of a verbal contract between defendant’s president and plaintiff’s agent to so furnish the oil required for six months.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 659-661; Dec. Dig. § 173.*]</p> <p>12. Principal and Agent (§ 170*) — Unauthorized Acts — Ratification.</p> <p>Where a seller recognized a verbal contract by its agent for the sale of fuel oil, and shipped a part of the oil pursuant thereto, it was bound by the contract, whether the agent had authority to make the contract or not.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 638-643; Dec. Dig. §■ 170.*]</p> <p>13. Judgment (§ 256*) — Conformity to Special Findings.</p> <p>In an action for the purchase price of fuel oil, in which defendant counterclaimed for breach of a contract to furnish all the oil required by it for six months, it was not entitled to judgment for profits lost while its -plant was closed for want of fuel oil, where the issues submitted did not call for sufficient information to determine the number of days the plant was closed nor the amount of cement it would have produced during that time, and the jury found ■the market value of the cement without stating the quantity referred to, as the verdict could not be aided by reference to the evidence,_ and Sayles’ Ann. Civ. St. 1897, art. 1331, providing that an issue not submitted and not requested shall be deemed as found by the court in such manner as to support the. judgment, provided there be evidence to sustain such finding,. had no application; the court having denied judgment for such lost profits.</p> <p>[Ed. Note. — For other cases, see Judgment, •Cent. Dig. §§ 446-454; Dec. Dig. § 256.*]</p>

<p>Appeal from District Court, Grayson County; W. J. Mathis, Judge.</p> <p>Action by James H. Freeman against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Public Lands (§ 173*) — School Lands— Power op Counts' Court — Delegation op Authority.</p> <p>As the commissioners’ court of a county is the trustee of school land owned by the county, it cannot delegate to others the authority to sell the land, for the sale of the land involves an exercise of discretion, and a trustee cannot delegate any duty involving the exercise of discretion.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p> <p>2. Public Lands (§ 173*) — Sale op School L AND — R ATIFIC ATIO N.</p> <p>The commissioners’ court of a county delegated to others the power to sell county land. Pursuant to this power the agents sold the land for an adequate consideration, only part of which was paid in cash. Thereafter, the remainder of the consideration having been paid, the court of county commissioners directed the treasurer to execute to the purchaser a release of the mortgage retained. Held that, while the first sale did not pass title because the court could not delegate to others its functions as trustee, there was a complete ratification of the acts of the unauthorized agents, and the county could not thereafter question the sale.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]</p>

<p>Appeal from District Court, Bexar County ; W. F. Ezell, Judge.</p> <p>Action by the Texas Produce Company against W. E. Sorrell and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Death (§ 14*) — Trespasser of Invitee-Liability..</p> <p>Where defendant corporation, desiring to move certain laborers, including plaintiff and his wife, directed a teamster to transport their property with his team, and, when the women mounted the wagon on top of the property, defendant’s superintendent ordered them off and directed them to stay off, but they afterwards got on the wagon again, and, by reason of the teamster’s negligence or otherwise, plaintiff fell from the wagon and received injuries from which she died, she was a trespasser, and not an invitee, and defendant was therefore not liable.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 16; Dec. Dig. § 14.*]</p> <p>On Motion for Rehearing.</p> <p>2. Master and Servant (§ 185*) — Injuries to Third Persons — Vice Principal.</p> <p>Where defendant, desiring to move certain laborers and their property from one point to another, procured a team to transport the property, and defendant’s superintendent, desiring to know why the wagon had not left, ordered M. to hurry the laborers, and then ordered the women to get out of the wagon and stay out, M., by reason of his orders, did not become a vice principal with authority thereafter to permit the women to ride in the wagon.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*]</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by W. M. Freeman and others against the Ford Motor Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Eoree, Judge.</p> <p>Action by Mrs. J. D. Hooper against E. O. Dalton and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Kaufman; County Court; James A. Coley, Judge.</p> <p>Action by the National Novelty Import Company against Griffin & Griffin. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>John Russell was convicted of misdemean- or theft, and he appeals.</p>

A. King, Judge. Action by C. M. Cauble and another against the Texas & Pacific Railway Company and another. From a judgment against it in favor of plaintiffs and the other defendant, the defendant named appeals.

G. Tayloe, Judge. Action by Clark & Bliss against D. B. Chapin and against John Closner and another, in which defendant Chapin filed an answer admitting the claim against him and filed a cross-action against codefendants John Closner and another. Prom a judgment for defendant D. B. Chapin against codefendants, both parties appeal.

<p>1. Evidence (§ 11*) — Judicial Notice — Geographical Pacts.</p> <p>Judicial notice will be taken that Palafox wa.s established as a town by the Spanish government.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 15, 16; Dec. Dig. § 11.*]</p> <p>2. Appeal and Error (§ 1051*) — Harmless Error — Evidence.</p> <p>Where there was enough proper evidence to establish a fact, the admission of illegal evidence was harmless.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>3. Adverse Possession (§ 7*) — Municipal Corporations (| 51*) — Property Subject to Prescription — Public Lands.</p> <p>In 1810 the Spanish government established the town of Palafox, granting to it four leagues of land. In 1818, the town was completely destroyed by Indians, and most of the inhabitants killed, and remainder abandoned the town, and for more than 65 years there was a complete abandonment of the town. More than 50 years after such abandonment defendants “squatted” on the land. Held, that upon abandonment of the town all parts of the grant not having been conveyed by the town to individuals reverted to the Spanish government, and hence passed and became a part of the public domain of the state of Texas by the treaty of Guadalupe Hidalgo, and, being such, defendants could not acquire title to any part thereof by limitations.</p> <p>[Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 24 — 42; Doc. Dig. § 7;* Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. § 51.*]</p> <p>On Motion for Rehearing.</p> <p>4. Appeal and Error (§ 832*) — Rehearing— Grounds.</p> <p>A motion for rehearing, which made no complaint of the opinion on the merits of the case, the only complaint being the refusal to dismiss the case because appellant’s briefs had not been properly filed, was overruled; it not appearing that appellees were prejudiced in any way.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3215-3228; Dec. Dig. § 832.*]</p>

<p>Appeal from District Court, Jefferson County; John M. Conley, Judge.</p> <p>Action by Jules R. Simms against the Gulf Refining Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Waters and Water Courses (§ 75*)— Pollution — Injunction — Jurisdiction —Statutory Provisions.</p> <p>Acts 33d Leg. c. 47, punishing the pollution of any water course by the discharge of any sewage therein, and providing that on conviction the county court shall issue an injunction enjoining the person or corporation responsible for the pollution from a further continuance thereof, does not deprive the district court of jurisdiction to prevent and suppress nuisances by injunction, and at most the remedy by injunction conferred on county courts is only cumulative of the remedy resting in the district courts.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 66; Dee. Dig. § 75.*]</p> <p>2. Municipal Corporations (§ 736*) — Powers — Núisance.</p> <p>A city incorporated under the general laws, with authority under its charter to provide a sewer system, must exercise its authority in a proper manner, and it may not create or maintain a nuisance, and in the construction of a septic tank for the purifying of sewage it must exercise care to build one of such character and dimensions as to prevent the escape therefrom of foul odors in such volume as to create a nuisance to any of its citizens.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1552; Dec. Dig. § 736.*]</p> <p>3. Municipal Corporations (§ 742*) — Powers — Nuisance.</p> <p>■ In a suit against a city and the owner of a franchise to construct and maintain a septic tank in connection with the sewer system in the city, evidence held to support a finding that the construction and operation of a proposed septic tank would create a nuisance, but not to support a finding that the construction and operation of a tank of proper dimensions and character would create a nuisance.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1560, 1563; Dec. Dig. § 742.*]</p> <p>4. Municipal Corporations (§ 736*) — Powers — Nuisance.</p> <p>Where a method can be adopted by which sewage of a city may be purified and discharged practically free from odor, or where the odor will not interfere with the comfortable use and enjoyment by an individual of his home, and where the effluent will not so contaminate a stream as to render it unfit for drinking water for stock, the mere fact that the proximity of a septic tank to the residence of an individual will produce a degree of mental annoyance or tend to lessen the value of his property does not justify an injunction to restrain the establishment and operation of the tank, for the individual may be compensated in money for the damages sustained.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1552; Dec. Dig. § 736.*]</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by the Galveston, Harrisburg & San Antonio Railway Company and others to enjoin A. H. Harris from enforcing a judgment by execution. From judgment for the defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.</p> <p>Action by A. J. Gaines against Palo Pinto County. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Nolan County; W. W. Beall, Judge.</p> <p>Action by E. A. Barcroft against J. F. Young and others. From a judgment for plaintiff, the defendant named appeals.</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Action by Wristen & Jolmson against the Continental Oil & Cotton Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Young County; P. A. Martin, Judge.</p> <p>Action by W. C. Bell against the Chicago, Rock Island & Gulf Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Denton County Court; S. H. Hoskins, Judge.</p> <p>Action by W. H. Wattam and others against the Wichita Falls & Northwestern Railway Company. Judgment for complainants, and defendant appeals.</p>

<p>Appeal from District Court, Eastland. County; Thos. L. Blanton, Judge.</p> <p>Action by W. S. Moore and wife against J. V. Jenkins and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Carriers (§ 211*) — Liability foe Injuries to Live Stock — Defenses.</p> <p>Where a carrier’s negligence in failing to furnish a shipper of mules proper facilities and an opportunity to feed and water them proximately contributed in causing injury to the mules, it was not relieved of liability by the fact that the shipper’s act, in failing to restrain the mules, when subsequently watering them, was the immediate cause of the injury, unless such failure on the part of the shipper was negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.*]</p> <p>2. CaRrieks (§ 211*) — Liability eor Injuries to Live Stock — Proximate Cause.</p> <p>Where a carrier failed to furnish a shipper of mules proper facilities and an opportunity to feed and water them, as a result of which they were unloaded in a famished condition and sustained injuries when watered by the shipper without restraint, the jury were justified in finding that the carrier’s negligence was the proximate cause of the injuries, since, while it could not be required to anticipate the shipper’s negligence in the manner in which he watered the mules, it might well have anticipated that the mules would be in a famished condition and that the shipper would attempt to relieve their distress by watering them.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.*]</p> <p>3. Carriers (§ 228*) — Actions for Injuries to Live Stock — Sufficiency of Evidence.</p> <p>In an action for injuries to a shipment of mules, evidence held to support the jury’s conclusion that the shipper was not negligent in the manner in which he watered the mules when unloaded in a famished condition, due to the carrier’s failure to furnish proper facilities and an opportunity to feed and water them.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]</p>

<p>1. Appeal and Error (§ 501*) — Assignments op Error — Statements Accompanying Assignment.</p> <p>Assignment complaining of the action of the court in overruling exceptions, where the record did not disclose that such exceptions were ever presented to or acted on by the court, will be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. §</p> <p>2. Vendor and Purchaser (§ 299*) — Default — Rights op Vendee.</p> <p>Where, in an action by a vendor to recover land after default by the purchaser, the petition alleged that the value of the use of the premises exceded all payments made and all improvements; and asked that the value thereof be ascertained and adjustment made, an instruction that defendant was entitled to a return of the purchase money paid, as well as the value of the improvements, was proper, since, under the pleadings, the rule that a defaulting purchaser cannot recover purchase money paid nor the value of improvements, was inapplicable.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 837-842; Dec. Dig. § 299.*]</p>

<p>1. Judgment (§ 419*) — Injunction—Parties.</p> <p>An employe of plaintiff herein, the “Abilene Independent Telephone & Telegraph Company,” filed a suit for injury against the “Abilene Independent Telephone Company,” and citation, duly issued on this petition, was served on plaintiff by delivering a true copy to its local manager. The employs intended to sue plaintiff, and plaintiff knew that service was intended for it, and though it suggested that the employs had not correctly stated its name and declined to answer, it made no timely objection, and a default judgment was entered against the “Abilene Independent Telephone Company.” Held, that plaintiff could not enjoin an enforcement of such judgment on the ground that it Was not a party thereto.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 794; Dec. Dig. § 419.*]</p> <p>2. Judgment (§ 502*) — 'Validity—Name of Party.</p> <p>A person erroneously sued by an improper name is bound by the judgment rendered until vacated or set aside by some legal method; the proper method being to raise the question by a plea in abatement.</p> <p>[Ed. Note — For other cases, see Judgment, Cent. Dig. § 942; Dec. Dig. § 502.*]</p> <p>On Rehearing.</p> <p>3. Courts (§ 247*) — Supreme Court — Jurisdiction — Certified Question.</p> <p>Under Rev. Civ. St. 1911, art. 1521, as amended by Acts 33d Leg. c. 55, to give the Supreme Court appellate, jurisdiction of questions of law arising in the Courts of Civil Appeals when brought to such courts from, final judgments of trial courts in cases involving certain specified matters, and article 1522, declaring that' all cases mentioned in article 1521 may be carried to the Supreme Court by writ of error or certificate of a Court of Civil Appeals, except matters covered by subdivision 6, which must be presented by writ of error, the Supreme Court’s jurisdiction by certified question is limited to matters embraced in article 1521, subds. 1-5, and a ease involving only substantive law cannot be certified.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.*]</p>

<p>Appeal from District Court, Wise County; E. O. McKinzie, Judge.</p> <p>Action by W. E. Loftis and others against the Chicago, Rock Island & Gulf Railway Company. Erom a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Brazoria County; Sam’l J. Styles, Judge.</p> <p>Suit by Elmer P. Stockwell against Charles W. Melbern. From an order denying complainant’s application for a temporary injunction, he appeals. ■</p>

<p>1. Railroads (§ 425*) — Injuries to Animals —Proximate Cause.</p> <p>The negligence of a railroad company causing the wreck of a train was not the proximate cause of the death of cattle which escaped from their pasture in a district, where cattle were prohibited by law from running at large, crossed a public road into the pasture of E., and from there went upon the right of way, which was fenced, and drank cotton seed oil which had escaped from a tank car and which caused the death, where it did not appear that it was known that the cattle were at large, or that the insufficiency of the owner’s or E.’s fences were known, as to constitute a proximate cause of an injury, it must appear that a -reasonably prudent person would, under the -circumstances, have anticipated the result or some similar result.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1527-1533; Dec. Dig. § 425.*]</p> <p>2. Railroads (§ 405*) — Injuries to Animals —Negligence.</p> <p>Where a train which contained a tank car was wrecked, if the act of the trainmen in constructing an embankment to confine the cotton seed oil escaping from such car constituted negligence, it was not actionable negligence making the company liable for the death of cattle which went upon the right of way and died from drinking such oil, where -it did not appear that it was known that cotton seed oil was poisonous or that the cattle if given an opportunity would drink it and die.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1393-1398; Dec. Dig. § 405.*]</p> <p>3. Railroads (§ 406*) — Injuries to Animals —Liability—Statutory Provisions.</p> <p>Rev. St. 1911, art. 6603, making railroad companies liable for the value of stock killed or injured by locomotives and cars, and providing that such liability sháll also exist in counties adopting the stock law prohibiting the running at large of animals, but that in all cases if the railroad company fence its road it shall only be liable for injury resulting from a want of ordinary care, did not make a railway company liable, irrespective of negligence, for the death of cattle which went upon its fenced right of way and died from drinking cotton seed oil which had escaped from a tank ear in a wrecked train.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1400, 1401; Dec. Dig. § 406.*]</p>

<p>Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.</p> <p>Injunction by the Ward Cattle & Pasture Company against William Carpenter. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Nacogdoches County Court; Geo. P. Ingraham, Judge.</p> <p>Action by W. T. Wilson against I. D. Fairchild and another. Prom judgment for plaintiff, the defendant named appeals.</p>

<p>1. Trial (§ 194*) — Instructions—Weight of Evidence.</p> <p>In an action against a railroad to recover for an alleged shortage in a shipment of wheat delivered by it, on the ground that it -did not weigh as much, as the invoice weights shown in the bills- of lading, an instruction that, if the cars on arrival contained the same number of bushels as shown by the bills of lading, the road would not be liable was not objectionable as authorizing the jury to find for defendant only if the cars contained the amount shown by the bills of lading, nor as taking from the jury the question whether the plaintiff’s scales weighed short, and the determination of what the shortage actually was.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439 — 441, 446-454, 456-466; Dee. Dig. § 194.*]</p> <p>2. Trial (§ 260*) — Requested Instructions— Given Instructions.</p> <p>Where the instructions given fairly submitted the case, a requested charge, which would have been but a repetition, was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>3. Appeal and Error (§ 216*) — Objection Below — Requested Instruction.</p> <p>In an elevator company’s action against a carrier to recover an alleged shortage in a shipment of wheat, an instruction requiring plaintiff to show, by a preponderance of the evidence, that there was a shortage, if not sufficiently definite upon the burden of proof, was not ground for a reversal, where no special charge thereon was requested.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216.*]</p> <p>4. Evidence (§ 105*) — Relevancy — Condition oe- Subject-Matter.</p> <p>In an elevator company’s action to recover for a shortage in wheat delivered by a carrier, where the testimony indicated that certain scales were often tested with plaintiff’s wagon scales, and that the two were always balanced, evidence that such wagon scales were correct in 1910 was admissible to show that the other scales were correct early in February, 1911.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 169-176; Dec. Dig. § 105.*]</p>

<p>Appeal from District Court, Waller County; Samuel J. Styles, Judge.</p> <p>Action by J. W. Avery against W. D. Cooper arid others, as assessor and trustees of the Brookshire Independent School District. Prom a decree granting plaintiff a temporary injunction, defendants appeal.</p>

<p>Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.</p> <p>Suit by W. H. Henderson against the Texas Moline Plow Company and others. Judgment for complainant, and defendants appeal.</p>

E. Mann, Judge. Action by the First National Bank of Shreveport against the City National Bank of Galveston, which impleaded the Stockyards National Bank of Ft. Worth. From a judgment in justice court for plaintiff and for defendant over against the impleaded defendant, defendant appealed to the county court, and from a judgment there for defendant, plaintiff appeals.

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

<p>1. Assignments (§ 49*) — Deposits—Checks.</p> <p>The mere giving of a check on a bank, even for a valuable consideration, does not, prior to acceptance by the bank, operate as an assignment pro tanto of the amount standing to the credit of the drawer, though the circumstances may be such as to amount to an assignment pro tanto before acceptance of the check.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 85-98; Dec. Dig. § 49.*]</p> <p>2. Assignments (§ 49*) — Deposits—Checks.</p> <p>To constitute the giving of a check on a bank by a depositor thereof an assignment pro tanto of the deposit, the parties must have intended that the check should so operate.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 85-98; Dec. Dig. § 49.*]</p> <p>3. Assignments (§ 49*) — Deposits—Checks.</p> <p>Where the court found that a deposit was subject to the payment of checks generally, and was not a special deposit, but did not find that it was understood that the giving of a check should operate as an assignment pro tanto, the findings warranted the legal conclusion that the check was not an assignment of any part of the deposit.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 85-98; Dec. Dig. § 49.*]</p>

<p>Appeal from District Court, Denton County; C. F. Spencer, Judge.</p> <p>Action by R. H. Chastain and others against S. H. Hoskins and. others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Counties (§ 170*) — Warrants—Indorsers —Liability.</p> <p>A petition in an action on a county warrant brought against the county and indors-ers, which shows that the suit was not brought at the first term of the court after the maturity of the warrant, but which alleges the invalidity of the warrant as against the county because issued under an illegal contract, states a cause of action against the indorsers, who are liable as original obligors, and not within the protection of Rev. St. 1911, arts. 579, 583, 584, requiring an action at the first term of the court after the accrual of a cause of action to fix the liability of an indorser.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 256-259; Dec. Dig. § 170.*]</p> <p>2. Bills and Notes (§ 299*) — Indorsers— Actions — Time to Sue — Statutory Provisions.</p> <p>Rev. St. 1911, arts. 579, 583, 584, requiring the bringing of a suit at the next term of court after the accrual of the right of action to fix the liability of an indorser, is a substitute for protest under the law merchant, and does not apply in a case in which protest is not required, and, where a maker is insolvent or a nonresident, protest and notice or suit at the first term of the court are not necessary to hold an indorser.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 680-705; Dec. Dig. § 299.*]</p> <p>3. Counties (§ 167*) — 'Warrants—Collection.</p> <p>Where a bank contracting with a county as depository of the county funds to keep all county warrants at par purchased, to comply with its contract, all county warrants offered to it, and, when a particular warrant was presented by an individual, an officer of the bank requested the individual to indorse it, and on his doing so the amount thereof was paid to him, and the warrant was carried by the bank as an asset, and where the warrant was void, he must refund the money to the bank and cannot escape liability on the theory of a sale to the bank.</p> <p>[Ed. Note. — For other eases, see Counties, Cent. Dig. § 249; Dec. Dig. § 167.*]</p> <p>4. Counties (§ 150*) — Contracts—Validity —“Debt.”</p> <p>A contract for the drilling for a county of an artesian well in the courthouse square, executed at a time when there was not sufficient revenue on hand or to be collected for the year with which to pay the price, creates a debt within Const, art. 11, §§ 5, 7, and, when no provision is made for the payment of the debt, the contract is void.</p> <p>[Ed. Note. — For other eases, see Counties, Cent. Dig. §§ 165, 166, 215-217; Dec. Dig. § 150.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1864-1886; vol. 8, p. 7628.]</p>

<p>Appeal from District Court, Jefferson County; John M. Conley, Judge.</p> <p>Action by Jessie P. Cunningham and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Estoppel (§ 58*) — Agreement oe Surety— Prejudice.</p> <p>Where a surety on a cropper’s note for supplies agreed that a debt for additional supplies should be first paid from the proceeds of the crop to induce the creditor to furnish the additional supplies, the surety would be estop-ped to deny the validity of such agreement, though he received no benefit therefrom.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 144, 145; Dec. Dig. § 58.*]</p> <p>2. Principal and Surety (§ 114*) — Discharge of Surety — Satisfaction of Debt.</p> <p>Where a surety signed a cropper’s note for supplies to be paid out of the proceeds of the crop, and afterwards agreed that a further note signed by the cropper alone for additional supplies should be first paid out of the crop, and the creditor received sufficient cotton from the debtor to pay both notes, the creditor could not successfully claim apy liability against the surety, though .it failed to apply the proceeds of the cotton to the full satisfaction of the note the surety signed.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§' 240-243; Dec. Dig. § 114.*]</p>

<p>Appeal from Parker County Court; T. F. Temple, Judge.</p> <p>Action by Mrs. Alice Gorman against J. W. Brazelton. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.</p> <p>Action by H. C. Bradshaw and wife against Kearby & Kearby and others. From a judgment for defendants, plaintiffs appeal.</p>

F. Spencer, Judge. Action by Mabel G. Oxford and her husband, J. N. Oxford, against George W. Oxford, Ira J. Holloman, and another, with cross-plea by Holloman against George W. Oxford. Judgment for plaintiff, and for Holloman, against George W. Oxford, and defendant Holloman appeals.

<p>Error to District Court, Tarrant County; Marvin H. Brown, Judge.</p> <p>Action by S. H. Shuttlesworth against Armour & Company. There was a judgment for defendant', and plaintiff brings error.</p>

<p>1. Trial (§ 349*) — Special Interrogatories — Statutory Peovisions.</p> <p>Rev. St. 1911, art. 1984a, passed by the last Legislature (Acts 33d Leg. c. 59), requiring the court in all jury cases, upon request of either party, to submit the cause upon special issues, provided that, if the nature of the suit is such that it cannot be determined on the submission of special issues, the court may refuse such request, but such refusal may be reviewed on proper exception in the appellate court, is mandatory and requires such submission in a cause of such a nature as to be determinable on special issues, even though this construction renders the proviso meaningless.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.*]</p> <p>2. Teial (§ 349*) — Special Interrogatories —Statutory Provisions.</p> <p>In an employé’s action for injuries caused by falling from a ladder on an oil derrick, plaintiff alleged that a step of the ladder was insecurely fastened and insufficient to .bear his weight, and that defendant failed to inspect it, though by reasonable inspection such defective condition could have been discovered. Defendant pleaded contributory negligence, assumed risk, and a contract of settlement, to which plaintiff replied, alleging a lack of mental capacity to execute such contract. Replying to the reply, defendant alleged that, if plaintiff was mentally incompetent when the contract was executed, he thereafter ratified it with a conscious knowledge of its previous execution by appropriating the proceeds of the settlement. Meld, that the cause was one which could be determined on special issues, within Rev. St. 1911, art. 1984a, as added by Acts 33d Leg. c. 59.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.*]</p> <p>3. Appeal and Error .(§ 1170*) — Harmless Error — Submission of Special Issues.</p> <p>Rule 62a for Courts of Civil',Appeals (149 S. W. x), providing that no judgment shall be reversed for error on the trial unless the appellate court shall be of opinion that it amounted to such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause an improper judgment, does not apply to the trial court’s refusal to submit a cause on special issues, as expressly directed by Rev. St. 1911, art. 1984a, as added by Acts 33d Leg. c. 59.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4006, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]</p> <p>4. Master and Servant (§ 285*) — Actions for Injuries — Questions for Jury.</p> <p>In an employé’s action for injuries caused by falling from a ladder on an oil derrick, evidence held to make a question for the jury as to whether the accident was due to a defect in the ladder and not to present a case of mere speculation or conjecture.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. § 285.*]</p> <p>5. Master and Servant (§ 265*) — Actions for Injuries — Presumptions and Burden of Proof.</p> <p>In an employé’s action for injuries, caused by falling 52 feet from a ladder where the resulting concussion and injury was such that the circumstances of the accident were a blank to him, it would be presumed that he was exercising due care, in the absence of circumstances pointing to the contrary.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]</p> <p>6. Master and Servant (§ 239*) —Liability for Injuries — Contributory Negligence.</p> <p>An employé pursuing a dangerous method of ascending an oil derrick, where an ordinarily prudent person would have pursued a safer method, was guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 749, 750; Dec. Dig. § 239:*]</p> <p>7. Master and Servant (§ 293*) — Actions for Injuries — Instructions—Appliances.</p> <p>In an employé’s action for injuries caused by falling from a ladder alleged by plaintiff to have been defective, the court should have charged that it was the employer’s duty to exercise ordinary care to furnish the employé with reasonably safe appliances with which to work and to exercise the same character of diligence in keeping them in condition, and the instruction given that it was the- employer’s duty to furnish the employé with reasonably safe appliances for the purpose for which they were to be used, and, after having provided such appliances, to keep them in a reasonably safe condition, might not meet the full measure of the law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec.. Dig. § 293.*]</p> <p>8.Trial (§ 355*) — Special Interrogatories —Ultimate or Evidentiary Facts.</p> <p>Under Rev. St. 1911, art. 1984a, as added by Acts 33d Leg. c. 59, requiring the court upon request to' submit causes upon special issues raised by the pleadings and the evidence, and article 1985, providing that a special verdict must find the facts established by the evidence and not the evidence by which they are established, an interrogatory should be so framed as to evoke a finding upon fact issues, and a finding of merely evidential facts is improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 846-848; Dec. Dig. § 355.*]</p>

<p>Appeal from Denton County Court; S. H. Hoskins, Judge.</p> <p>Action by T. A. Rowe against Marion Crutchfield and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Bosque County; O. L. Lockett, Judge.</p> <p>Action by Gustav Seedig against the First National Bank of Clifton and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by Bassett Blakely against Clara Kanaman and husband. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Exceptions, Bill of (§ 31*) — Approval— Questions Reviewable — Denial of Motion fob Judgment Nunc Peo Tunc.</p> <p>Denial of motion for judgment nunc pro tune will not be reviewed where the record contains no bill of exception approved by the trial judge, but contains only a bill of exception ordered filed as a part of the record but not approved because incorrect.</p> <p>TEd. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 36; Dec. Dig. § 31.*]</p> <p>2. Divorce (§ 93*)— Grounds — Ceuelty—Pe-tition— Sufficiency.</p> <p>The allegation of a petition for divorce on the ground of cruelty that defendant was guilty of many other excesses, outrages, and cruel treatment, so as to render the future living together of the parties insupportable, following acts of cruelty specifically alleged, is too general to put defendant on notice of what he is called on to answer.</p> <p>[Ed. Note. — For other cases," see Divorce, Cent. Dig. §§ 292-307; Dec. Dig. § 93.*]</p> <p>3. Appeal and Eekor (§ 1071*) — Harmless Error — Erroneous Findings.</p> <p>Where findings of fact sustained by evidence support the judgment, it is immaterial whether the court in making other findings considered testimony heard on a former trial without any proof on the trial of the former testimony.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dee. Dig. § 1071.*]</p> <p>4. Appeal and Error (§ 206*) — Questions Reviewable — Rulings on Evidence.</p> <p>The admission of the testimony of witnesses called by the court on its own motion is not reviewable, where no objection was urged to the testimony at the time of its introduction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1273, 1283-1289; Dec. Dig. I 206.*]</p> <p>5. Divorce (§ ,116*) — Grounds — Cruelty — Evidence — Admissibility.</p> <p>In a suit by a wife for divorce on the ground of cruelty in the making of charges against her, evidence of the wife’s bad reputation for chastity was admissible on the issue whether the .charges made by the husband so wounded her feelings as to render further living with him insupportable.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 379-385; Dec. Dig. § 116.*]</p> <p>6. Divorce (§ 124*) — Evidence — Sufficiency.</p> <p>Under Rev. St. 1911, art. 4633, providing that, before a divorce can be granted, the proor must be full and satisfactory, a divorce is properly denied, where the only testimony consisting of the testimony of a wife and of her mother and grandmother is not full and satisfactory.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 392-398, 450, 455, 456; Dec. Dig. § 124.*]</p>

<p>Appeal from District Court, Parker County; F. O. McKinzie, Judge.</p> <p>Action by R. W. Davis against W. C. McFall, in which J. M. McFall intervened. From a judgment for the intervener, plaintiff appeals.</p>

Masterson, Judge. Action by the Washington County State Bank against the Central Bank & Trust Company of Houston and others. There was a judgment for defendants, and plaintiff brings error.

<p>1. Courts (§ 170*) — County Court — Jurisdiction — Necessity of Alleging.</p> <p>The county court has no jurisdiction to restrain trespass and the cutting of timber, where the petition contains no allegation as to the value of the subject-matter of the controversy.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 170.*]</p> <p>2. Justices of the Peace (§ 47*)— Jurisdiction — Injunction.</p> <p>A justice of the peace has no jurisdiction to issue writs of injunction.</p> <p>[Ed. Note. — For other cases, see Justices of the^Peaee, Cent. Dig. §§ 184-188; Dec. Dig. §</p> <p>3. Courts (§ 120*)— Jurisdiction — Amount in Controversy.</p> <p>Under Const, art. 5, § 8, declaring that the district court shall have general original jurisdiction over all causes of action for which a remedy is not provided by law, and Rev. St. 1911, art. 4643, empowering judges of the district court to grant injunctions, where the party applying is entitled to the relief demanded, which requires the restraint of some act prejudicial to the applicant, the district court has jurisdiction to restrain a trespass and the cutting of timber, regardless of the value of the timber.</p> <p>LEd. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436; Dec. Dig. § 120.*]</p>

<p>1. Partition (§ 25*) — Allowance of Claim against Decedent — Jurisdiction.</p> <p>In a suit to partition decedent’s estate, plaintiffs could not insist that the court had no jurisdiction to provide for the payment of a debt against deceased in favor of defendants without showing that there was no administration pending, since, by the institution of the partition suit, plaintiffs virtually asserted that there were no debts against the estate, and hence no necessity for administration.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 77-79; Dec. Dig. § 25.*]</p> <p>'2. Limitation of Actions (§ 50*) — Accrual of Right of Action — Continuing Contract.</p> <p>A cause of action by a- daughter for compensation for personal services rendered her deceased father during his life was upon a continuing promise and did not arise until his death, and hence limitations would only run from the death of the father.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 273-279; Dec. Dig. § 50.*]</p> <p>3. Contracts (§ 245*) — Parent and Child.</p> <p>A contract between an aged father and his daughter, who was caring for him, made just prior to his death recited the fact that many years previously he had agreed that the daughter, in consideration of her services, should have all hjs property at his death, and provided that, as she had never received any compensation for her services, etc., she should receive all money on hand at his death. Held, that such contract did not supplant the prior agreement, but the compensation provided for therein was meant to be additional to that contemplated in the prior agreement.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1129, 1130; Dec. Dig. § 245.*]</p>

<p>It Vendor and Purchaser (§ 278*) — Vendors’ Liens — Enforcement — Limitations. The right of a vendor who sold land in 1893 to enforce his vendor’s lien for the price is not destroyed by lapse of time, wherd the ven-dee, who held possession of the land and paid taxes, did not repudiate the vendor’s title j Rev. St. 1911, art. 5694, prescribing a limitation to the enforcement of vendors’ liens, not applying to conveyances made before 1905.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §'§ 776, 777; Dec. Dig. § 278.*]</p> <p>2. Vendor and Purchaser (§ 281*) — Vendors’ Liens — Enforcement — Evidence — Sufficiency.</p> <p>In an action to foreclose vendor’s lien notes upon land, evidence held insufficient to show that the vendee or his grantee had repudiated the vendor’s title.</p> <p>[Ed. Note; — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. § 281.*]</p>

T. Prewitt, Judge. Action between E. R. & D. C. Kolp and F. P. Shrader. There was a judgment for the latter, and the former bring error.

<p>Appeal from District Court, Collin County; M. H. Garnett, Judge.</p> <p>Action by J. T. Hall against Cooper & Jones. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Sales (§ 427*) — Contracts—Warranty— Right of Action.</p> <p>Where a seller of a car of wheat warranted grade and quality, but did not have a car of that grade and quality, but learned that a third person had a car in transit and bought the same from him under a like warranty to fill the contract, and the car was transported' to the buyer, who found that the wheat did not come up to the grade and quality, the transactions were independent, and the .buyer could recover from the seller for breach of warranty, and the seller could recover from the third person for breach of warranty, though both rights depended on the same facts.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1210-1213; Dec. Dig. § 427.*]</p> <p>2. Sales (§ 442*) — Breach of Warranty— Measure of Damages.</p> <p>In the absence of special circumstances, the measure of damages for breach of warranty in a contract of sale is the difference between the value of the goods at the time of delivery and the value they would have had if they had conformed to the warranty.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.*]</p> <p>3. Sales (§ 442*) — Breach of Warranty-Measure of Damages.</p> <p>The rule that, in the absence of special circumstances, the measure of damages for breach of warranty in the sale of goods is the difference between the value of the goods at the time of delivery and the value they would have had if they had conformed to the warranty is not changed by the fact that the buyer has resold for even a higher price than he paid for the goods.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284^1301; Dec. Dig. § 442.*]</p> <p>4. Sales (§ 248*) — Breach of Warranty-Liability.</p> <p>A seller of wheat, with a warranty of grade and quality, purchased wheat from a third person under a similar warranty to fill the contract. The buyer sued the seller for breach of warranty, and the seller made the third person a party. The buyer obtained a judgment against the seller and the seller a judgment over against the third person. Thereafter the seller settled with the buyer by paying a less sum than the amount of the judgment. The third person declined to participate in the settlement, but elected to prosecute an appeal from the judgment. Held, that the third person, on the affirmance of the judgment, was liable to the seller for the amount thereof, for the contract of the third person was one of warranty and not of indemnity, though the seller at one time indicated a willingness to treat the judgment in his favor against the third person as one for indemnity.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 707; Dec. Dig. §• 248.*]</p>

<p>Brokers (§ 48*) — Commissions — When Earned.</p> <p>Where an owner, employing a broker to procure a purchaser of real estate at a compensation in excess of the specified sum received on a sale of the property, did not interfere with the broker in his efforts to procure a purchaser, nor collude with any other person'to defraud the broker by pricing the property to a purchaser procured by the broker at the specified sum, he was not liable to the broker, though a sale was made to the purchaser procured by the broker at the specified sum.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 65; Dec. Dig. § 48.*]</p>

<p>1. Railroads (§ 398*) — Injuries to Person-on Track — Negligence—Evidence.</p> <p>Evidence held not to sustain a recovery for Injuries to a pedestrian on a track struck by a train, on the theory of the failure of the trainmen to exercise proper care after the discovery of the pedestrian’s peril.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.*]</p> <p>2. Damages (§ 165*) — Personal Injuries— Evidence — Admissibility.</p> <p>In an action for personal injuries negligently inflicted the testimony of witnesses as to the number of operations made necessary by the accident and the details thereof, and that plaintiff suffered from an attack of gangrene following the operation, was admissible as a part of the history of the case, the nature and extent of the injury and the probable suffering of plaintiff.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 460; Dec. Dig. § 165.*]</p>

<p>Appeal from District Court, Johnson County; O. L. Lockett, Judge.</p> <p>Action by L. C. Dickey against the Cle-burne Street Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.</p> <p>Action by John Guitar against the Commercial National Bank of Abilene and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Clay County; P. A. Martin, Judge.</p> <p>Action by R. J. Dice against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Wise County Court; E. M. Allison, Judge.</p> <p>Suit by J. T. House and others against P. C. Funk, garnishee. Judgment for plaintiffs, and defendant appeals.</p>

Conley, Judge.. Suit by P. H. Wiess and others against W. P. H. McFaddin and others. From an order granting a temporary mandatory injunction, defendants appeal.

W. Dean, Judge. Action by the A. B. Frank Company against Charles Clarke and others, prosecuted after the death of Charles Clarke against Charles Clarke, Jr., as administrator. From a judgment for plaintiff, defendant Charles Clarke, Jr., administrator, appeals.

<p>Appeal from and Error to District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Consolidated actions by Annie P. Krause against Thomas D. Pryor, individually and as executor and trustee, and others. There was a judgment for plaintiff, and defendant Thomas D. Pryor, in his individual capacity, appeals, and in his representative capacity, brings error.</p>

<p>1.Banks and Banking (§ 226*)-Deposits— Actions — Variance Between Allegations and Proof.</p> <p>In an action by one bank against another on a forged check, the petition alleged that the check was drawn on plaintiff bank, while the check in evidence was originally drawn on another bank, but on the face thereof near the top was written the name of plaintiff bank. Held, that there was no fatal variance; there being no question as to, the identity of the check.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 867-870; Dec. Dig. §</p> <p>2. Banks and Banking (S 147*) — Deposits— Payment of Forged Checks — Rights as Between Banks.</p> <p>The rule that a bank is conclusively presumed to know the signature of its depositors and cannot recover for the payment of a forged check to a bona fide purchaser is applicable only where the purchaser is not negligent in failing to discover the forgery.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 438-154; Dec. Dig. § 147.*]</p> <p>3. Banks and Banking (§ 149*) — Deposits— Payment of Forged Check — Rights as Between Banks.</p> <p>A bank paid a forged cheek drawn on a bank in another town, and, indorsing it for collection, sent it to plaintiff bank located in the same town with the drawee bank. The drawee refused to pay it because the drawer bad no account with it, whereupon plaintiff, believing the check was meant to be drawn on it, as the drawer had an account with it, paid it. Held that, as the indorsement to plaintiff was for collection only, and did not pass title, the payment by plaintiff was in the nature of an advancement by it as agent for defendant bank, and hence it could recover the amount advanced.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 453, 454; Dec. Dig. § 149.*]</p> <p>4. Banks and Banking (§ 147*) — Following Trust Property or the Proceeds Thereof.</p> <p>A bank, after having paid a forged check, could not follow the money paid to the forger into the hands of a third party, who took it in due course of business in good faith upon a valuable consideration.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 438-454; Dec. Dig. § 147.*]</p>

<p>1. Bills and Notes (§ 497*) — Presumptions.</p> <p>Where a negotiable instrument is shown to have been indorsed in blank, there is a presumption that it was so indorsed and transferred before maturity.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. § 497.*]</p> <p>2. Bills and Notes (§ 358*) — Tsanseee-—Con-sideration.</p> <p>Indebtedness is a sufficient consideration for the transfer of a note.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 913-923, 961; Dec. Dig.</p> <p>3. Bills and Notes (§ 358*) — Bona Fide Purchasers — Consideration.</p> <p>Though plaintiff received a note in payment of a debt which he had lost all hope of collecting, the debt was a valuable consideration for the note, so that he took it free from defenses such as want of consideration, which could have been asserted against the payee.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 913-923, 961; Dec. Dig. § 35S.*]</p> <p>4. Bills and Notes (§ 497*) — Burden or Proof.</p> <p>In an action by an indorsee of a note who took it before maturity, -the maker has the burden of proving that the indorsee received it without consideration and that he took it with notice that the consideration therefor had failed.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. § 497.*]</p> <p>5.Bills and Notes (§ 497*) — Actions—Burden or Prooe.</p> <p>In an action by an indorsee of a note procured by fraud or based on illegal consideration, the maker first has the burden of proving the fraud or illegality, but upon that proof the indorsee must show that he paid consideration before maturity, whereupon the maker is hound to show that he took the note with knowledge of the fraud or illegality.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. § 497.*]</p> <p>6.Bills and Notes (§ 497*) — Defenses—Notice.</p> <p>Where a maker of a note seeks to defeat recovery by an indorsee on the sround that the consideration failed, he must show that the in-dorsee at the time he received the note had notice of failure of consideration.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. § 497.*]</p> <p>7.Bills and Notes (§ 337*) — Defenses—Notice — Failure of Consideration.</p> <p>An indorsee of a note who has no actual notice of defenses available by the maker against the payee is not charged with constructive notice of such defenses, unless the circumstances are such that had faith must be presumed in the absence of inquiry.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 818, 856-863; Dec. Dig. § 337.*]</p> <p>8.Bills and Notes (§ 525*) — Actions—Defenses — Evidence.</p> <p>In an action by an indorsee of a note, evidence held insufficient to show that he was charged with notice of the failure of consideration for the note.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. § 625.*]</p>

<p>1. Appeal and Error (§ 499*) — Questions Reviewable — Rulings on Instructions— Bill oe Exceptions — Statutory Provisions.</p> <p>Under Rev. St. 1911, arts. 1970,1971,1973, 1974, 2061, as amended by Acts 33d Leg. c. 59, and art. 1972, providing for the submission of instructions to counsel and the presentation of objections before reading to the jury, and declaring that objections not so made shall be waived, and that either party must present to the judge in writing such instructions as he desires to be given, and, when instructions asked are refused, the judge shall note which are given and whjch refused, and the ruling in the giving, refusing, or qualifying of instructions shall be regarded as approved, unless excepted to, when considered in connection with articles 2058, 2059, 2062, authorizing either party dissatisfied with any ruling of the court to except and embody the same in a bill of exceptions, etc., objections to the general charge must be presented before the same is read to the jury, and that fact must be shown by a bill of exceptions, and bills of exception to the refusal of several requested special charges must show that the charges, were presented before the general charge was read, or the rulings cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.*]</p> <p>2. Evidence (§ 271*) — Admissibility— Self-Serving Declarations.</p> <p>A statement by plaintiff, suing for a personal injury, made several hours after the accident to a night watchman in explanation of his having a lamp burning, to the effect that he had been injured by an accident, and that his injuries were paining him, and he kept the lamp burning to apply a liniment, is inadmissible as self-serving.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.*]</p> <p>3. Evidence (§ 127*) — Admissibility— Self-Serving Declarations.</p> <p>One suing for a personal injury may not testify to statements made several hours after an injury to third persons as to his injuries and pain suffered in consequence thereof.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 377-382; Dec. Dig. § 127.*]</p> <p>4. Evidence (§ 123*) — Declarations — Res Gestas.</p> <p>A statement by a foreman of a section railroad crew, made two or three hours after an injury, to a member of the crew; is not a part of the res geste, and is inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. § 123.*]</p> <p>5. Evidence (§ 271*) — Declarations -Self-Serving Declarations.</p> <p>The testimony of a witness that plaintiff, suing a railroad company .for a personal injury, told her a few days after the accident that he was hurt on the railroad was inadmissible as self-serving.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.*]</p> <p>6. Master and Servant (§ 270*) — Injury to Servant — Evidence—Admissibility.</p> <p>In an action for injuries to a section hand by falling from a hand car by the breaking of a handle bar, the testimony of a witness that, if he was going to make a handle bar, he would not make it out of wood like that out of which was made the handle bar which was broken in the accident, was not admissible on the issue of whether the employer used ordinary care in furnishing a suitable handle bar.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. " 270.*]</p> <p>7. Trial (§ 120*) — Argument of Counsel — Improper Argument.</p> <p>Though counsel in his argument may draw deductions from the facts and present them to the jury, he cannot charge that the adverse party has induced witnesses to give perjured testimony, where there is nothing to show it in the record, beyond the mere fact that the adverse party endeavored to secure the attendance of witnesses necessary to maintain his case, or to hunt up persons familiar with the facts in the case.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. § 120.*]</p> <p>8. Trial (§ 125*) — Argument of Counsel-Improper Argument. ■</p> <p>The argument of counsel for plaintiff, suing a railroad company for a personal injury received while employed as a section hand, that plaintiff was poor, and that the railroad company had access, not only to its own books, but to the books of other railroads, to ascertain the location of other men who were working with plaintiff at the time of the injury, and that such men had the privilege of transportation over other roads, was improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.*]</p> <p>9. Trial (§ 121*) — Argument of Counsel-Improper Argument.</p> <p>Where the district attorney was counsel for plaintiff in a civil action, the argument of the district attorney that a witness for defendant had committed perjury, and that he could convict him of that offense, was improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 294^-298, 300; Dec. Dig. § 121.*]</p> <p>10. Appeal and Error (§ 1060*) — Prejudicial Error — Argument of Counsel.</p> <p>The argument of counsel for plaintiff that the refusal of the court to direct a verdict for defendant showed that the court thought that plaintiff had a case, and that the jury ought to find for him, was prejudicial to defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*]</p>

<p>1. Criminal Law (§ 1032*) — Indictment — Objections in Lower Court — Review.</p> <p>An indictment in the language of Pen. Code 1911, art. 373, punishing municipal officers becoming interested in any contract for the purchase of any order on the municipal treasury, is not insufficient when attacked for the first time on appeal for failing to describe the particular warrant purchased by accused or failing to set it out in hsfec verba.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2627, 2628, 2642; Dec. Dig. § 1032.*]</p> <p>2. Municipal Corporations (§ 174*) — Officers — Criminal Liability — Statutes — Indictment.</p> <p>An information, alleging that accused, being an alderman of a town, became interested in a contract for the purchase of a draft on the treasurer of the town for which it was liable for $60, sufficiently alleges that the draft was for $60.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 410-414; Dec. Dig. § 174.*]</p> <p>3. Municipal Corporations (§ 174*) —Officers — Criminal Liability — Indictment —“Amount.”</p> <p>The word “amount,” in Pen. Code 1911, art.. 373, punishing any municipal officer becoming interested in any contract for the purchase of any order on the treasurer of the municipality by fine of not less than 10 nor more than 20 times the amount of the draft, means the face amount of the draft, and not its cash value at the time it was purchased by the officer or what he in fact paid for it.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 410-414; Dec. Dig. " 174.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 375, 376.]</p> <p>4. Municipal Corporations (§ 174*)— Officers— Criminal Liability — Statutes.</p> <p>An alderman of a town purchasing a draft drawn in favor of a third person against the town violates Pen. Code 1911, art. 373, notwithstanding his ignorance of the law or his acting in good faith.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§' 410-414; Dec. Dig. " 174.*]</p>

<p>Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.</p> <p>A. J. Fitzgerald was convicted of a misdemeanor, and he appeals.</p>

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>E. D. Pullum was convicted of swindling, and he appeals.</p>

<p>Assault and Battery (§ 78*) — Aggravated Assault — Serious Bodily Injury — Indictment.</p> <p>Where, in a prosecution for aggravated assault, in violation of White’s Ann. Pen. Code 1911, art. 601, subd. 7, serious bodily injury was relied on as ground of aggravation, an indictment charging that defendant did unlawfully commit an aggravated assault and battery on prosecutor and did beat, wound, and. bruise prosecutor with his hands and feet by kicking and stamping him, and did thereby inflict serious bodily injury on him, was not objectionable for failure to charge the means by which the injury was inflicted; the injury and not the means being, the criterion under such subdivision by which the aggravation is determined.</p> <p>[E.d. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 116-122; Dec. Dig. § 78.*]</p>

<p>1. Criminal Law (§ 595*) — Continuance— Materiality of Testimony of Absent Witness.</p> <p>Where, on a trial for selling intoxicating liquor in prohibition territory, witnesses for the slate claimed to have purchased liquor from accused in his restaurant, it was error to deny a continuance because of the absence of his wife and another witness, who would have testified that they helped to carry on the business of the restaurant and that no intoxicating liquor could have been about the premises without them knowing it, that he was not engaged in selling intoxicating liquor, that no such liquor was kept about the premises, that he had not been absent from his home town to any place -where such liquor could be purchased, that no such liquor had been shipped or carried to him or received or stored by him anywhere about the premises, and that he had no premises or storage in Ms custody, but that he kept and sold publicly nonintoxicating cider; it appearing that his diligence was sufficient. •</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.*]</p> <p>2. Juey (§ 131*) — Examination oe Juboes— Rioht to Examine.</p> <p>While counsel should not be permitted to fritter away the time of the court in asking useless questions of the jurors, accused’s counsel was entitled to a list of the jurors and to ask each juror separately any'question tending to show whether he had formed an opinion or had any bias or prejudice and should not have been required to address his questions to the jury as a whole.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.*]</p>

<p>1. Appeal and Error (§ 230*) — Instructions —Necessity of Objection.</p> <p>Objections to instructions given, not presented to the court before he read his charge to the jury, as required by Vernon’s Gayles’ Ann. Civ. St. 1914, art. 1971, cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 230;* Trial, Cent. Dig. § 680.]</p> <p>2. Appeal and Error (§ 544*) — Instructions —Necessity of Exception.</p> <p>Rulings of the court in refusing special charges, not presented for review by bills of exception, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, providing that the giving, refusing, or qualifying of instructions shall be deemed to have been approved, unless excepted to in the manner provided, cannot be considered on appeal.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.*]</p> <p>8. Explosives (§ 7*) — Injuries fbom-x-Ver-DICT — SUFFICIENCY OF EVIDENCE.</p> <p>In an action for negligence proximately causing an explosion, in that defendant failed to furnish electric or other safe and sufficient lights which would not permit the flames thereof being communicated to oil used in torches, the fact that it appeared' that the oil furnished was that commonly used in torches, and that it was not shown that a better grade of oil could have been furnished for such use, did not render a verdict for plaintiff contrary to the evidence, where, for aught appearing to the contrary, the finding of defendant’s liability was based on its negligence in not furnishing safe and sufficient lights.</p> <p>[Ed. Note. — For other cases, see Explosives, Cent. Dig. § 3; Dee. Dig. § 7.*]</p> <p>4. Explosives (§ 7*) — Injuries from — Question FOB JUBT — CONTRIBUTORY NEGLIGENCE.</p> <p>On the evidence in an action for negligence proximately causing an explosion, held, that whether plaintiff was guilty of contributory negligence in the manner in which he held his torch to be filled with oil was for the jury.</p> <p>[Ed. Note. — For other cases, see Explosives, Cent. Dig. § 3; Dee. Dig. § 7.*]</p>

T. Armistead, Judge. Action by Mrs. Kate Lawson and others against the City of Texarkana, Tex. Judgment for plaintiffs, and defendant appeals. Appellees were the plaintiffs in the court below.

<p>Appeal from Denton County Court; S. H. Hoskins, Judge;</p> <p>Action by J. A. Pain and others against M. P. Kelley and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action by Juan Sanches against the Texas & Pacific Railway Company, in which W. C. Lane intervened. Prom a judgment dismissing the action of plaintiff against defendant, and in favor of the intervener against defendant, the latter appeals.</p> <p>In his petition filed June 15, 1912, Sanches alleged that he was in appellant’s service as a section hand, and .that while riding on one of its trains was wrongfully thrown therefrom by the conductor in charge thereof, whereby his arm was so broken as to necessitate its amputation In its answer appellant, after denying generally the truth of the allegations made by Sanches, averred that he “attempted to board a moving train without any right, said train being a freight train, and not being provided for passengers, and at a time when the train was going at a rate of speed that was dangerous to board it, and he assumed the risk of being injured in mailing the attempt he did, and he was guilty of negligence in making the attempt at that time.”</p> <p>While the suit was pending, to wit, on July 6, 1912, Sanches executed and delivered to appellant a release in writing as follows, omitting formal parts thereof:</p> <p>“Whereas, on May 12th, 1912, at Ector, Texas, I, Juan Sanches, received personal injuries which resulted in the loss of my arm between the elbow and shoulder, said injuries being caused by falling or being thrown from train Second 92, a freight train on the Texas & Pacific Railway; and whereas, I have made claim against the Texas & Pacific Railway Company for damages on account of said personal injuries including the loss of my arm and any and aE other injuries that may have been sustained by me at said time; and whereas, the said Texas & Pacific Railway Company denies its liability for said injuries, but is willing for the sake of saving the expense of litigation and to forever settle and dispose of my said claim, to pay the sum of two hundred and twenty-five ($225.00) dollars in fuE settlement and satisfaction: Now, therefore, know aE men by these presents that I, Juan Sanches, in consideration of the payment to me by the Texas & Pacific Railway Company of the said sum of two hundred and twenty-five ($225.00) dollars the receipt of which is hereby acknowledged, do hereby release and discharge the Texas & Pacific Railway Company from any and all claim, demands or canses of action accruing to me by reason of said accident and said personal injuries. The said two hundred and twenty-five ($225.00) dollars is accepted by me in full and complete settlement and X hereby acknowledge that no promises or representations as to employment or as to any other consideration have been made to me to induce me to make this settlement. I further authorize the Texas & Pacific Railway Company to dismiss a certain suit filed in my name in the district court of Harrison county, to recover damages on account of said injuries, said suit being numbered •on the docket of said court. Said suit was brought without my knowledge and authority, and I disclaim any connection therewith, but this is to confer upon the Texas & Pacific Railway Company any and all authority that it may need from me to secure a dismissal of said suit.”</p> <p>By a petition filed September 4, 1912, W. C. Bane intervened in the suit, alleging that after it was instituted, to wit, on June 15, 1912, Sanches, by an instrument in writing, transferred to him an undivided one-half interest in the cause of action, “and that after-wards” Quoting from the intervener’s petition, “on or about, to wit, the 30th day of June, 1912, the said defendant, the said Texas & Pacific Railway, settled said suit with the said plaintiff without the knowledge and consent of this intervener and paid to the said plaintiff (Sanches) the sum of $500, with full knowledge and notice of the facts hereinbefore set up and of the rights of this intervener. So this intervener says that the said defendant is indebted to him in the sum of $250, the same being one-half of the amount paid plaintiff in settlement of said suit.”</p> <p>Appellant in an answer- to the petition of the intervener alleged that Sanches was a Mexican, did not understand the English language, in which the contract set up by intervener was written, therefore did not understand, and was not bound by, the contract, and then alleged that ‘intervener “has no cause of action, because the plaintiff, Juan Sanches, has no cause of action against the defendant, and the amount of money paid to him by the defendant was a mere gratuity, and not by any legal obligation to pay him the same; that Juan Sanches was guilty of negligence in attempting to board a fast-moving freight train without any authority to do so, and in trying to board said train he fell and received the injury for which he originally brought suit”</p> <p>The trial resulted in a judgment dismissing the suit of Sanches against appellant, and in intervener’s favor against appellant for $125.</p>

<p>Appeal from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by J. L. Isaacs against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Taylor County ; Thos. L. Blanton, Judge.</p> <p>Action by M. Armstrong and others against the First National Bank of Merkel and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Wilson County ; F. G. Chambliss, Judge.</p> <p>Action by J. C. Houston and others against Rev. P. P. Zarb. From an order granting a temporary injunction, defendant appeals.</p>

<p>Justices of the Peace (§ 128*) — Judgment —Restraining Enforcement — Remedy.</p> <p>Injunction does not lie to restrain the enforcement of a void judgment of a justice, where the right of appeal has not expired.</p> <p>[Ed. Note. — For other eases, see Justices of the Peace, Cent. Dig. §§ 402-407; Dec. Dig. § 128.*]</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by Genevieve Chilson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Dismissal and Nonsuit (§ 19*) — Right to Dismiss.</p> <p>. Under Rev. St. 1911, arts. 1900, 1955, providing that, where defendant has filed a counterclaim seeking affirmative relief, plaintiff cannot by discontinuance prejudice the right of defendant to he heard, an intervener, in a suit where plaintiff sought to enforce a lien for the repair of an automobile, cannot withdraw her plea of intervention without prejudice, where plaintiff joined issue on the plea and prayed that its lien be declared a superior lien.</p> <p>[Ed. Note. — Eor other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 33-36; Dec. Dig. § 19.*]</p>

<p>1. Constitutional Law (§ 60*) — Legislative Powers — Delegation.</p> <p>Rev. St. 1911, art. 7476, levies a state tax on sellers of nonintoxicating malt liquors of 82,000, and authorizes counties, incorporated cities, and towns to levy an additional tax not exceeding $1,000 on such persons. Section 7477 requires persons engaged in the business to apply for a license and pay the taxes prescribed. Meld, that Pen. Code 1911, art. 496, defining a disorderly house as any house situated in territory where the sale of intoxicating liquors is prohibited where nonintoxicating malt liquors, requiring an internal revenue license, are sold or kept for sale, was not invalid as delegating to Congress the power of determining whether the business of selling nonintoxicating malt liquors shall be valid, and as conferring on another jurisdiction power to suspend a state law; since, if Congress should exempt sellers of nonintoxicating malt liquors from the internal revenue, requirement, a person prosecuting such business in prohibition territory where the sale of intoxicating liquors is prohibited would owe his immunity from punishment, not to the suspension of the state law, but to the fact that he was not keeping' a disorderly house under the conditions prescribed by the Penal Code.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 89, 90, 93; Dec. Dig. § 60.*]</p> <p>2. Criminal Law (§ 13*) — 1Offenses—Defini-tion.</p> <p>Pen. Code 1911, art. 496, declaring that a house located in a district where the sale of intoxicating liquors is prohibited in which non-intoxicants, for the lawful sale of which an internal revenue license is required, are sold or kept for sale shall constitute a disorderly house, was not objectionable for uncertainty in referring to the laws of Congress to determine the conditions under which it should be applicable.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 13, 14; Dec. Dig. § 13.* For other definitions, see Words and Phrases, vol. 3, pp. 2108-2110.]</p> <p>3. Intoxicating Liquoks (§ 45*) — Wrongful Sale — Statutes.</p> <p>Pen. Code 1911, art. 496, providing that a house located in a prohibition district, in which nonintoxicating malt liquor is sold or kept for sale, requiring the seller to have an internal revenue license, shall be- a disorderly house, should be construed as constituting a special exception to Rev. Civ. St. 1911, arts. 7476, 7477, providing for the licensing of persons to sell nonintoxicating-malt liquors, with reference to particular territory, and was therefore not in conflict with such sections.</p> <p>[•Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 47; Dec. Dig. § 45.*]</p> <p>4. Intoxicating Liquoks (§ 15*) — Nonintoxi-cants — Sale—Regulation—‘ ‘Police Power.”</p> <p>Pen. Code 1911, art. 496, including in the definition of a disorderly house a place in prohibition territory where nonintoxicating malt liquors, requiring a United States retail liquor dealer’s license are sold or kept for sale was a proper exercise of the state’s “police power,” which includes authority to restrict the pursuit of any business or occupation injurious to the health, peace, security, morals, or general welfare of society.</p> <p>[Ed. Note. — For other cases, seé Intoxicating Liquors, Cent. Dig. §§ 17, 18; Dec. Dig. § 15* For other definitions, see Words and Phrases, vol. 6, pp. 5424-5438; vol. 8, p. 7756.]</p> <p>5. Constitutional Law (§ 47*) — Police Power.</p> <p>To justify the courts in holding that a statute is an unwarranted invasion of the fundamental rights of the citizen, and therefore beyond the state’s police power, the objection must appear from the face of the act itself or from facts of which the court must take judicial notice.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. Dig. § 47.*]</p> <p>6. Evidence (§ 20*) — Judicial Notice — Police Power — Sale oe Nonintoxicating Malt Liquors — Regulation.</p> <p>There are no facts of which courts can take judicial notice justifying the conclusion that the business of keeping and selling nonintoxicating malt liquors under a federal license is not calculated to disturb the peace and good order of society, or in some manner to injuriously affect the public welfare so as to preclude a regulation of the business by an exercise of state’s police power.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. § 24; Dec. Dig. § 20.*]</p> <p>7. Mandamus (§ 154*) — Official Dutt — Performance — Petition—Requisites.</p> <p>A petition for mandamus to compel performance of an official duty enjoined by law must not only aver every fact essential to show the petitioner’s right to the service demanded, but must also negative every other fact which the officer might urge as a legal excuse for not per-' forming such service.</p> <p>[Efi. Note. — For other cases, see Mandamus, Gent. Dig. §§ 296-316 ; Dec. Dig. § 154.*]</p> <p>8. Mandamus (§ 164*) — Issuance of Writ-Allegations of Petition.</p> <p>In mandamus proceedings to compel the performance of an official duty, the propriety of issuing the writ must depend on the allegation and proof of facts showing affirmatively the particular circumstances establishing the respondent’s obligation to render the service demanded, and not on the officer’s failure to set up a valid defense.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 344-360; Dec. Dig. § 164.*]</p> <p>9. Mandamus (§ 154*) — Jurisdiction — Pleading.</p> <p>Rev. St. 1911, art. 7476, levies on all persons, firms, etc'., selling nonintoxicating malt liquors an annual state license tax of $2,000, and provides that counties, incorporated- cities, and towns where such sales are made may each levy an annual tax not exceeding $1,600 on all such persons. Held, that a petition for mandamus against a county tax collector to compel issuance of a nonintoxicating malt liquor license alleging tender of the $2,000 license fee, but containing no allegation of a tender of the local license tax or that the county commissioners had not levied any tax under the act, was fatally defective.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 296-316; Dec. Dig. § 154.*]</p>

H. Buck, Judge. Action by W. H. Wattam against the International & Great Northern Railroad. Company. From a judgment granting insufficient relief, plaintiff appeals. Over appellee’s line of railway and connecting lines appellant shipped a carload (600 bushels) of apples from Marionville, Mo., to Bryan, Tex.

<p>Appeal from Johnson County Court; O. L. Lockett, Judge.</p> <p>Action by W. C. HufChines against E. N. Heath. From a judgment for plaintiff, defendant appeals.</p>

Prewitt, Judge. Condemnation proceedings by the City of Ft. Worth against Nettie R. Morgan and others. Judgment of condemnation, and fixing the amount to be paid, and plaintiff appeals.

<p>Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.</p> <p>Action by A. H. Kincaid against the George W. Saunders Live Stock Commission Company and another, in which Armour & Co. was made a party. From a judgment for plaintiff against defendant the George W. Saunders Live Stock Commission Company, and in favor of defendant Womble and Armour & Co. against plaintiff and the Stock Commission Company, the Stock Commission Company alone appeals.</p>

<p>Garnishment (§ 38*) — Property Subject-Negotiable Note.</p> <p>A negotiable note is not subject to garnishment, and, where the only proof was the .execution of the note to a third person for the purchase price of land and the garnishee’s duly abstracted judgment against such third person, there was nothing to take it out of the rule.</p> <p>[Ed. Note. — For other cases, see Garnishment Cent. Dig. §§ 73-77; Dec. Dig. § 38.*]</p>

<p>Appeal from District Court, Rains County; William Pierson, Judge.</p> <p>Action by John Killett against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error (§ 759*) — Assignments of Error — Condensed Assignments.</p> <p>Under rules 23 and 29 for Courts of Civil Appeals (142 S. W. xii), requiring the record to contain the assignments of error, and that appellant shall file a brief of the assignments of error relied on, presenting each ground separately under the proper assignments,' and that each assignment not so copied and accompanied with its appropriate propositions and statements shall be regarded as abandoned, assignments in a brief not purporting to be the same as those set by in the motion for new trial, but being condensed assignments, were waived.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>2. Appeal and Error (§ 742*) — Assignments —Statements.</p> <p>Where the assignments of error and propositions thereunder were not followed by a statement referring to the record, as required by rule 31 (142 S. W. xiii) for Courts of Civil Appeals, the brief of appellant on such assignment would be disregarded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>3. Trial (§ 356*) — Special Issues — Answer to Part — Judgment.</p> <p>The mere fact-that some of the issues are not answered does not necessarily render a verdict void or insufficient to support the judgment, where .the issues answered decide the essential questions on which the merits of the case depend.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 849-854; Dec. Dig. § 356.*]</p> <p>4. Contracts (§ 94*) — Rescission—Fraud.</p> <p>Where plaintiff was induced to enter into a fraudulent and illegal contract upon defendant’s misrepresentation that it had been held by the courts to bo a legal contract which might be sent through the United States mail, plaintiff, on ascertaining such misrepresentations, was entitled to rescind the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164; 1165; Dec. Dig. § 94.*]</p> <p>5. Contracts (§ 139*) — Rescission—Parties in Pari Delicto.</p> <p>Plaintiff who, on defendant’s false representations that a proposed contract had been held legal by the courts, entered into it, and who received no benefit therefrom and abandoned it when he found it was illegal, was not in pari delicto, and could rescind and cancel the note given to defendant.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 684-700; Dee. Dig. § 139.*]</p> <p>6. Appeal and Error (§ 759*) — Assignments —Waiver.</p> <p>An assignment of error not copied into a brief will be considered as waived.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>7. Evidence (§ 207*) — Judicial Admissions— Admissibility.</p> <p>In an action to rescind a contract on the ground that plaintiff had been induced to enter into it by defendant’s false and fraudulent representations that the contract had been held by the courts to be legal and one that would not be excluded by the United States mail, and further alleging that defendant had pleaded guilty to an indictment in the federal courts for sending such contract through the mails and adver- ' tising it, the indictment and pleas of guilty were admissible in evidence.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 707-712; Dee. Dig. § 207.*]</p>

<p>1. Conspiracy (§ 1*) — Civil Liability — Cause op Action — Elements.</p> <p>A conspiracy cannot be made the subject of a civil action, though damage results, unless something is done which, without the conspiracy, would give a right of action; the test being whether the act accomplished after the conspiracy has been formed is itself actionable.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 1-5; Dec. Dig. § 1.*]</p> <p>2. Courts (§ 480*) — Jurisdiction—Judgment —Injunction.</p> <p>A district court other than that in which a judgment has been rendered has jurisdiction to enjoin its enforcement by execution.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. § 480.*]</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by Elizabeth Kelley against the Sel-den-Breek Construction Company, and another. Judgment for plaintiff against Selden-Breek Construction Company, and it appeals.</p>

<p>1. Sales (§§ 843, 344*) — Contracts—Quantum Meruit.</p> <p>Whhre the parties to a contract for the sale of goods did not agree on the essential terms of the sale, but the buyer admitted that he received the goods and appropriated the same to his own use, and both parties introduced evidence as to the reasonable market value and the quantity of the goods delivered, the court properly permitted recovery on quantum meruit as alleged in the pleadings.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 947-955; Dec. Dig. §§ 343, 344.*]</p> <p>2. Sales (§ 348*) — Action lor Price — Defense-Evidence.</p> <p>Where in an action for the price of gravel sold and delivered, there was evidence that a car of gravel had to be cleaned, and that the buyer disposed of the same at the same price as he disposed of other gravel, and did not show that he paid anything for cleaning, he was not entitled to anything for cleaning.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 973-986; Dec. Dig. § 348.*]</p> <p>3. Sales (§418*) — Contracts—Breach—Measure of Damages.</p> <p>The measure of damages for a breach of contract of sale of gravel, caused by the seller delivering a car of gravel which had to be cleaned, is the difference between the value of the gravel in the condition it was when delivered and that which it should have been under the contract calling for clean gravel.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.*]</p> <p>4. Trial (§ 192*)— Instructions — Assumption of Facts.</p> <p>A party who admits in his pleading .a fact, is bound thereby, and the court may assume that fact in its instructions.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 482-434; Dec. Dig. § 192.*]</p> <p>5. Appeal and Error (§ 1068*) — Harmless Error — Repetitions in Instructions.</p> <p>The error in repeating in the instructions a proposition that plaintiff was entitled to recover a specified sum was not reversible, where the jury found for a much larger sum.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225^1228, 4230; Dec. Dig. § 1068.*]</p> <p>6. Trial (§ 315*) — Evidence—Questions fob Jury.</p> <p>Where, in an action on a quantum meruit, the testimony as to the weight of a cubic yard of gravel is conflicting, the jury may take an average between the two extremes stated by the witnesses, and they are not confined to the express contract pleaded.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740-742; Dec. Dig. § 315.*]</p> <p>7. Witnesses (§ 391*) — Impeachment—Evidence.</p> <p>Where a party testified that a witness had made a statement to him, the testimony of a third person that in conversation with him the witness had made a contrary statement was admissible as impeaching testimony.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1248'; Dec. Dig. § 391.*]</p> <p>8. Witnesses (§ 395*) — Examination—Corroboration.</p> <p>Where an effort is made to show that the testimony of a witness is fabricated, proof that the witness made other statements at other times similar to his testimony is admissible.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.*]</p> <p>9. Evidence (§ 354*) — Books—Admissibility.</p> <p>Where, in an action for gravel sold and delivered, a witness testified that the books of the seller would show the price and the number of pounds per cubic yard agreed on, and defendant showed that the witness had stated that the gravel was contracted for at a specified number of pounds to the cubic yard, the books were admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. § 354.*]</p> <p>10. Appeal and Error (§ 548*) — Questions Review able — Rulings on Evidence.</p> <p>Assignments of error complaining of the admissibility of evidence will not be considered on appeal, in the absence of any bills of exceptions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*]</p>

L. Lockett, Judge. Action by H. P. Barnes and. wife against the Cleburne Street Railway Company. From a judgment for plaintiffs, defendant appeals; plaintiffs making cross-assignments.

<p>Husband and Wife (§ 259*) — Community Property — Liability for Husband’s Debts — Separate Property of Wife.</p> <p>Where a husband, after becoming insolvent, suffered judgment on a community debt, and thereafter purchased property to the price of which the wife contributed money earned by her by keeping boarders, such money, as against the debt, was community funds, notwithstanding an antecedent agreement between her and her husband that such earnings should constitute her separate property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 911; Dec. Dig. § 259.*]</p>

<p>Appeal' from Jones County Court.</p> <p>Action by R. B. Mallard against the Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

A. Martin, Judge. Action by L. F. Wilson against Zane Cetti and others. From a judgment for plaintiff and the other defendants, the defendant named appeals.

<p>1. Carriers (§ 130*) — Injury to Goods — Actions — Jurisdiction.</p> <p>Where defendant shipped a car load of mixed fruit with the right to unload 100 bunches of bananas in one county and 100 bunches in another county, and, the bananas having arrived in bad order, defendant refused to unload any at either place, it was not entitled to maintain a suit in each county for the injury to the bananas intended to be unloaded in each place, and hence a recovery in one of the suits could be pleaded in bar of the other.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 130.*]</p> <p>2. Injunction (§ 26*) — Prosecution of Action at Law — Legal Remedy.</p> <p>Rev. St. 1911, art. 759, provides that either •party may plead any new matter in the county or district court which was not presented in the court below, but no new cause of action shall be set up by plaintiff nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the trial court. Held that, while such article refers to writs of cer-tiorari to justice courts, it also applies to appeals prosecuted in the ordinary form, and hence, where a consignor brought two suits in different counties before justices of the peace for an injury arising out of a single transaction and recovered judgment in one of them, the defendant was entitled on appeal of the other to the circuit court to plead the judgment recovered in the first action in bar of the second, and was therefore not entitled to an injunction to restrain the prosecution of the second.</p> <p>[Ed. Note. — For other cases, see Injunction, •Cent. Dig. §§ 24r-49, 54-61; Dec. Dig. § 26.*]</p>

<p>Error to District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Action by the Law Reporting Company against the Texas Grain & Elevator Company. There was a judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Eastland County Court; E. A. Hill, Judge.</p> <p>Claim by L. D. Taylor to attached property against Z. Z. Butler. Judgment for defendant, and claimant appeals.</p>

<p>1. Evidence (§ 318*) — Hearsay — Admissibility.</p> <p>In an action on an accident insurance pol-icy_ which required in case of death notice in writing of the accident, with full particulars thereof, an instrument executed by a physician certifying that in his judgment the death was due to paralysis of the heart caused by tetanus furnished the insurer as a part of the proofs of death, was admissible to show that the provision in question was complied with.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. § 318.*]</p> <p>2. Trial (§ 86*) — Reception oe Evidence-Objections — Sueeiciency.</p> <p>A general objection that testimony is not admissible at all should not be sustained, where it is material and admissible for any purpose, even though inadmissible for other purposes.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 226; Dec. Dig. § 86.*]</p> <p>3. Trial (§ 207*)— Instructions — Limiting Eeeect oe Evidence.</p> <p>In an action on an accident insurance policy, an instruction that a physician’s certificate as to the cause of death, properly received as showing compliance with a provision of the policy requiring notice of the accident, with full particulars thereof, could not be considered as in any way establishing the cause of the death, should have been given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 498, 499, 501; Dec. Dig. § 207.*]</p> <p>4. Insurance (§ 648*) — Actions on Policies —Evidence—Admissibility.</p> <p>In an action on an accident insurance policy, wherein the statutory damages for failure to pay and attorney’s fees were sought to be recovered, letters written the insurer by plaintiff’s attorney pressing for payment of the claim were admissible as a basis for the recovery of such damages and attorney’s fees.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1669, 1676; Dec. Dig. § 648.*]</p> <p>5. New Trial (§ 41*’) — Harmless Error — Admission oe Evidence.</p> <p>In an action on an accident insurance policy, letters written the insurer by plaintiff’s attorney were received in evidence as a basis for the recovery of attorney’s fees and the statutory damages for failure to pay. The letters urged payment, and further stated that a doctor’s certificate showing that insured died from the result of an accident had been sent the insurer; that the attorney had heard that the insurer had attempted to get plaintiff to withdraw the matter from his hands; that the insurer knew that insured died from tetanus caused by an accident; that the insurer had sent plaintiff a draft for a small sum, which stated that, if she signed it, she thereby acknowledged payment in full for all claims; that she would not sign it, .but would keep it as evidence; and that the insurer had on file a doctor’s certificate as to the cause of death and proofs of death. The evidence was conflicting as to cause of death. Held that, while there were some expressions in such letters which were not strictly admissible, the effect of such expressions was not sufficiently prejudicial to the insurer’s rights to require a new trial.</p> <p>[Ed. Note. — For other cases, see New Trial, Gent. Dig. §§ 67-71; Dec. Dig. § 41.*]</p> <p>6. Evidence (§ 213*) — Admissions — Attempts to Compromise.</p> <p>In an action on an accident insurance policy to recover the amount agreed to be paid in case of death, the admission of a draft or voucher for the amount of a disability claim made by insured, sent plaintiff after insured’s death, and after the insurer knew that plaintiff was claiming the amount stipulated in case of death, did not violate the rule against evidence as to offers to compromise litigation; the sending of the draft not being an offer of compromise of the claim sued on.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 745-751, 753; Dec. Dig. § 213.*]</p> <p>7. Insurance (§- 662*) — Actions on Policies — Evidence—Admissibility.</p> <p>Such draft or voucher was admissible as tending to show a refusal to pay the death claim.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1697, 1698, 1700-1706; Dec. Dig. § 662.*]</p> <p>On Motion for Rehearing.</p> <p>8. Appeal and Error (§ 1170*) — Harmless Error — Instructions.</p> <p>In an action on an accident insurance policy, where the testimony as to the cause of insured’s death was conflicting, but would have supported a finding that it was not the result of tetanus, physicians whose standing, experience, and abflity were not questioned testifying positively that the period of incubation of the tetanus germ was such that death could not have been due to tetanus, and a physician’s certificate furnished the insurer as part of the proofs of death stating emphatically that the death was due to paralysis of the heart caused by tetanus was admitted, without qualifying or limiting its use to the question of compliance with a provision of the policy requiring notice of the accident with full particulars thereof, the refusal of an instruction that such certificate could not be considered as establishing the cause of the death was not harmless under rule 62a, forbidding reversals, except for errors such as were reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.</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>

T. Armistead, Judge. Action by Emma Johnson against the Supreme Lodge of the Pathfinder and another. From a judgment for plaintiff, defendants appeal. On December 31, 1900, the Supreme Lodge of the Pathfinder, a fraternal beneficiary association, issued to Charles L. Johnson, who was a member of the order, a benefit certificate in the sum of $2,000.

<p>1. Insurance (§ 603*) — Subrogation — Release of Claim bt Insured — Effect.</p> <p>Where one procuring insurance on Ms automobile against damage by collision settled with the wrongdoer for the damage to the machine in a collision and executed a release purporting to effect a complete settlement, he could not recover on the policy stipnlating that insurer, on payment of the loss, should be sub-rogated to all right of recovery by insured for the loss, and that the right should be assigned to insurer by insured on receiving payment.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 1499; Dec. Dig. § 603.*]</p> <p>2. Insurance (§ 606*) — Subrogation — WlAIVEB.</p> <p>Where insured against damage to his automobile in a collision offered to assign his claim against the wrongdoer to an attorney for insurer, who refused to take it at the time for want of authority to act, and because reasonable time had not elapsed to make investigations, and immediately afterwards insured filed a claim with the wrongdoer and settled, insurer did not waive his right to subrogation stipulated for in the policy.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 1504-1511, 1514-1516; Dec. Dig. § 606.*]</p>

<p>Appeal from Kaufman County Court; J. A. Cooley, Judge.</p> <p>Action by S. T. Ray against the Texas Midland Railroad. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bowie County; W. T. Armistead, Judge.</p> <p>Action by W. C. Hardin against the Texas & Pacific Railway Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.</p> <p>Action by Emma Love against W. H. Holt. From a judgment for plaintiff, defendant appeals.</p> <p>A report showing the disposition of this cause made on a former appeal thereof will be found in 131 S. W. 857.</p> <p>The land in controversy is 80 acres of the Isaac Caradine survey of 160 acres in Tar-rant county. Said 80 acres was conveyed to E. Wl Chism by a deed dated March 13, 1882. At that time said E. W. Chism and Mahaley Jane Chism were husband and wife. Ma-haley Jane Chism died in September, 1888, leaving her husband and two children, to wit, appellee and Mrs. Ella Taylor, surviving her. E. W. Chism married again in November, 1888, and died in July, 1889, leaving his last wife, ten children by a marriage he contracted before he married Mahaley Jane Chism, and appellee and Mrs. Taylor, his children by her, surviving him. During the lifetime of Mahaley Jane Chism, to wit, on March 14, 1884, Isaac Caradine and others commenced a suit against E. W. Chism and others than said Mahaley Jane Chism to recover the said Isaac Caradine survey of 160 acres. In his answer to that suit E. W. Chism disclaimed as to all the survey except the 80 acres in controversy here, and as to that pleaded not guilty and the statute of limitations of five and ten years. The suit was pending at the date of his death. After his death, to wit, on August 25, 1893, the plaintiffs therein by an amended petition made E. W. Chism’s last wife, appellee, Mrs. Taylor and others, children and grandchildren of his first marriage, parties defendant. January 2, 1896, the suit was disposed of by a judgment by agreement of the parties, which determined that Mrs. M. A. Sharp owned an undivided % interest in the 80 acres, that appellee owned an undivided 2/39 interest in same, and that other parties to the suit owned the remaining undivided interest in the land. The court at the time he rendered the judgment directed a partition of the land to be made, and appointed commissioners to make it. The commissioners having reported that a “fair and equitable” partition thereof could not be made, the court ordered the land sold and the proceeds of the sale distributed among the owners thereof in the proportion he had determined their respective interests to be. At a sale of the 80 acres made as directed by the court, appellant was the purchaser thereof for the sum of $500. This sale was confirmed by an order of the court; and after-wards the sheriff, as directed by the order, by a deed dated September 21, 1897, conveyed the land to appellant as such purchaser. This suit was brought by appellee against appellant. The pleadings are voluminous. The petition contained three counts. In the first of the three counts the allegations were those usually made by a plaintiff in a suit of trespass to try title. In the second count appel-lee alleged, among other things, that the land was the separate property of her mother; that appellant’s claim of title thereto was under the deed to him from the sheriff, mentioned above; that the deed was based on the judgment referred to above; that said judgment was void as to her because she was a minor and without a guardian at the time it was rendered; that citation therein was never served on her; that she never knew anything about the suit until the latter part of 1906; and that appellant knew the facts recited at the time he purchased. She prayed that the judgment be canceled and for general relief. In the third count appellee alleged that in the administration of her father’s estate the land had been set apart to her as a homestead, and alleged facts in regard thereto which, she claimed, entitled her to recover the land. Appellant in his answer denied the truth of the allegations in the petition, and among other things pleaded not guilty, the statute of limitations of three and five years as against appellee’s claim of a right to recover the land, the statute of limitations of four years as against her claim of a right to set aside the judgment in the Caradine suit, set up the judgment in that suit, the sale thereunder, his purchase at the sale, the confirmation thereof by the court, and the deed made to him by the sheriff, and alleged that he was an innocent purchaser for value of the land at that sale, without notice of any of the facts relied upon by appellee to avoid it, and without notice of the fact that appel-lee owned or claimed any interest in the land other than that shown by the judgment to be in her. In a supplemental petition appellee alleged, among other things, that the pleadings in the Caradine suit were not sufficient as a basis for the judgment rendered therein, that that judgment was procured by fraud, that the price paid by Holt as the purchaser at the sale thereunder was inadequate, and other matters which, she alleged, were sufficient to charge appellant with notice of her rights.</p> <p>The cause was submitted to the jury upon 31 special issues which the trial court thought were raised by the pleadings and the evidence. Among findings not material to the question which, on the view we take of it, is decisive of the appeal, are these: (1) That appellee was born March 13, 1881. (2) That the deed to appellant from the sheriff was duly recorded September 21, 1897. (3) That appellant in person or by tenants, claiming it as his own, occupied and used the land continuously from January 1, 1898, to the date of the trial, to wit, July 3, 1913. (4) That appellant paid all taxes assessed against the land after he purchased same to the date of the trial.</p> <p>The judgment was in favor of appellee for an undivided one-third interest in the land, and for $200 as the part she was entitled to of sums received by appellant as rents.</p>

<p>1. Appeal and Errob (§ 770*) —Briefs—Piling.</p> <p>Where plaintiff in error did not comply with Rev. St. 1911, art. 2115, and district court rule 102 (142 S. W. xxiv), requiring the filing of briefs in the court below not less than five days before the time of filing the transcript in the Court of Appeals, the briefs must be stricken.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.*]</p> <p>2. Appeal and Ebeob (§ 770*) — Beiefs—Ne-cessity.</p> <p>Where briefs of the plaintiff in error were stricken because not filed in time, only fundamental errors can be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.*]</p>

<p>1. Appeal and Error (§ 934*) — Questions Review able — Presumptions.</p> <p>The presumption is in favor of the regularity of the judgment appealed from, and where the court on appeal cannot determine whether the party complaining is entitled to a credit, or, if entitled thereto, whether he has not received a credit, the judgment will not be disturbed on the theory of a disallowance of the credit.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 37S2; Dec. Dig. § 934.*]</p> <p>2. Sales (§ 233*) — Rights ox Original and Subsequent Buyer prom Same Seller.</p> <p>Where, in an action by the original buyer of an automobile against a subsequent buyer from the same seller, who had remained in possession after the first sale, there was no evidence that the original buyer’s title was questioned in a suit in which he was not a party, or that he was liable to the subsequent buyer for any money he might pay in settlement of the action, evidence of payment by the subsequent buyer was inadmissible.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 653-656; Dec. Dig. § 233.*]</p> <p>3. Appeal and Error (§ 171*) — Questions Reviewable —Theory ox Case in Trial Court.</p> <p>Where the pleadings in an action for the title and possession of goods showed that the parties were adverse claimants, and the jury found that plaintiff was the sole owner, subject to the payment of a part of the purchase price, refusal to charge that the parties were tenants in common, and that one tenant in common could not sue his cotenant for any rent of the common property, was not erroneous.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1053-1063, 1066, 1067, 1161-1165; Dec. Dig. § 171.*]</p>

<p>Appeal from District Court, Tarrant County; M. H. Brown, Judge.</p> <p>Action by Annie E. Bennett against the Sovereign Camp, Woodmen of the World. Judgment for defendant, and plaintiff appeals.</p>

T. Prewett, Judge. Action by the Burrus Mill & Elevator Company against the St. Louis Southwestern Railway Company of Texas and another. From a judgment for plaintiff, defendant appeals. On December 16, 1910, the appellee shipped a car load of flour and shorts from Ft. Worth, under through bill of lading, to Fincher Bros., as consignees, at Waldo, Ark.

<p>Appeal from Franklin County Court; J. J. Walker, Judge.</p> <p>Action by the Merchants’ & Planters’ National Bank and others against H. C. Solomon and others. From judgment for plaintiffs, defendants Solomon and another appeal.</p> <p>The appellee bank, plaintiff below, sought a recovery against appellees J. R. Penn and W. T. Barnett and appellant Solomon and Morton on a promissory note, whereby they and one J. T. Adair, and each of them, undertook to pay to the order of said bank on October 1, 1912, the sum of $336. In its petition the bank alleged that the other makers of the note were sureties for Adair, who, it averred, was the principal debtor. As a reason why it did not sue Adair, the bank alleged that he was insolvent, and that his residence was unknown to it. The trial court peremptorily instructed the jury to find in favor of the bank, and on their verdict rendered judgment in its favor against Solomon, Morton, Penn, and Barnett for the sum of $346.64. The appeal is prosecuted by appellants Solomon and Morton alone.</p>

<p>1. Trial (§ 255*) — Instructions—Requests— Necessity.</p> <p>Where the court’s charge does not place the burden of proof on either party, a party desiring an instruction on the burden of proof must request it.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.*]</p> <p>2. Teespass to Try Title (§ 35*) — Issues — Burden of Proof.</p> <p>A plaintiff in trespass to try title who sues as landlord against a tenant, holding over after the term and notice to vacate, or in violation of the rental contract, must show a wrongful holding of possession by defendant.</p> <p>[Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.*]</p> <p>3. Malicious Prosecution (§ 72*) — Wrongful Sequestration — Instructions.</p> <p>An instruction authorizing exemplary damages on finding that plaintiff was actuated by hate and malice in suing out a writ of sequestration, and that he did not have probable cause to “believe” that' his property -would be injured by defendant, is not objectionable for the use of the word “believe” in place of the word “fear.”</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173; Dec. Dig. § 72.*]</p> <p>4. Tbespass to Try Title (§ 47*) — Judgment.</p> <p>Where, in trespass to try title, the issues involved the right of possession and damages for the wrongful ouster of defendant, a judgment for defendant for possession, and for damages as found by the jury, was sufficient as against plaintiff not entitled to possession.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.*]</p> <p>On Motion for Rehearing.</p> <p>5. Trial (§ 251*) — Instructions — Issues — Evidence.</p> <p>Where evidence raising an issue was received without objection, though the issue was not presented by the pleadings, instructions submitting the issue to the jury were proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>6. Trial (§ 296*) — Instructions—Requests— Necessity.</p> <p>A party failing to request a correct charge on a point may not complain of a charge, which, though verbally inaccurate, was substantially correct, when taken in connection with the other instructions given, and not likely to have prejudiced the objecting party.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]</p>

<p>Assignments (§ 49*) — Equitable Assignment — Checks—Bank Deposit.</p> <p>That the maker of an antedated check exhibited to the payee a deposit slip covering the amount of the check when it was executed did not necessarily indicate an intention that the check was intended as an equitable assignment pro tanto of the borrower’s deposit.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 85-98; Dec. Dig. § 49.*]</p>

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>Action by C. W. Harrison against C. L. Hunter and others. Judgment for defendants, and plaintiff appeals.</p>

E. Ashe, Judge. Trespass to try title by George H. Her-mann against William W. Thomas and others. Judgment for plaintiff in part, and for defendants in part, and plaintiff appeals.

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge. Habeas corpus on petition of Lee Stacy. From an order denying bail, and remanding relator to custody, he appeals.</p>