Volume 173 — South Western Reporter

<p>Shippino &wkey;>132 — Cakrieks op Goods — Negligence — Evidence.</p> <p>Evidence in an action against a carrier by water for injuries to property held insufficient to show negligence.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487; Dec. Dig. <§=¿>132.]</p>

<p>Appeal frofn District Court, Hill County;. Horton B. Porter, Judge.</p> <p>Action by the Empire Express Company against the Trinity & Brazos Valley Railway Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Hunt County; Wm. Pierson, Judge.</p> <p>Action by the Empire Express Company against the Missouri, Kansas & Texas Railway Company of Texas and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Pleading <@=»166 — Reply—New Issues.</p> <p>Where the petition, in an action against a carrier for damages to corn during transit, alleged that the com was good, dry, and merchantable when shipped, and was damaged by rain which the carrier negligently permitted to come in contact therewith, an answer alleging that the corn was shelled while too green, and that the same was shipped in a green, damp, and unripe condition, was only a denial that the corn was damaged by rain and was ripe and merchantable corn when loaded, and raised no new issue.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 321%-328; Dec. Dig. <s=»166J</p>

<p>1. Vendor and Puechaseb <@=^301 — Rescission by Purchaser — Nonbereormanoe by Vendor.</p> <p>A vendor under an executory contract of sale, whereby he retains the superior title, may, upon failure of the purchaser to perform, either sue for the purchase money and foreclose his lien, or rescind the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 844; Dec. Dig. <@=> 301.]</p> <p>2. Vendor and Purchaser <@=>101 — Rescission by Puechaseb — Notice.</p> <p>Where a purchaser has partly performed a contract for the purchase of land, the vendor must give him reasonable notice of his intention to rescind for nonperformance.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 170-174; Dec. Dig. <@=>101.]</p> <p>3. Vendor and Puechaseb <@=>98 — Rescission by Purchaser — Return oe Money Paid.</p> <p>Where a petition in equity to recover possession of land sold under an executory contract alleged that the contract provided that upon default in the payment of one of the notes all should become due, that defendant failed to pay two of the notes when due, and the plaintiff notified him that unless they were paid at a certain time the contract would be rescinded, that defendant entered into a conspiracy to deprive plaintiff of the rents arising from the property, and that the amount paid by defendant on the purchase price was all applied on the payment of the broker’s commission, which allegations were not denied and therefore must be taken as true under Acts 33d Leg. c. 127, § 4. the defendant is not equitably entitled to a return of the money paid by him as a condition for the rescission of the contract by the plaintiff.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 163-165; Dec. Dig. <@=v98J</p>

<p>1. Exemptions &wkey;>45 — Property Exempt — Tools and Implements.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3785, providing that the property therein specified, including the homestead of the family, all implements of husbandry, two horses and one wagon, and all saddles, bridles, and harness necessary for the use of the family, shall be reserved to every family exempt from attachment or execution, it is not necessary to the exemption of agricultural implements that they be used in the cultivation, use, and enjoyment of a homestead, or that the owner thereof own a homestead.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. &wkey;45.]</p> <p>2. Exemptions <&wkey;45 — Property Exempt — Tools and Implements.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3785, all implements of husbandry used by a farmer in conducting his farming operations directly, and also those used by his tenants and employes, are exempt.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. i&wkey;>45.]</p> <p>3. Exemptions <&wkey;4^-ExsMPTioN Laws — Dib-eral Construction.</p> <p>Exemption laws are so favored in their construction that they are excepted from the rule that laws in derogation of the 'common law must be strictly construed, and such laws should be liberally construed.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 4; Dec. Dig. &wkey;>4.]</p> <p>4. Exemptions <®=e22 — Property Exempt — Tools and Implements.</p> <p>Implements of husbandry and other articles exempted by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3785, were exempt, though the owner may have been engaged in other work besides farming.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 24r-27; Dec. Dig. <&wkey;>22.]</p> <p>•5. Exemptions <&wkey;44 — Property Exempt — Tools and Implements.</p> <p>The cart owned by a farmer, in which he rode to his farm, and the harness used in connection therewith, were exempt, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3785.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 51-55; Dec. Dig. &wkey;44.]</p> <p>6. Exemptions <3&wkey;28 — Persons Entitled — Separation of Husband and Wife.</p> <p>That a husband and his wife were temporarily or permanently residing in different parts of the state did not destroy the family and deprive it of its exemptions, under Vernon’s Sayles’ Ann. Civ. St. 3914, art. 3785.</p> <p>[Ed. Note. — For other eases, see Exemptions, Cent. Dig. §§ 31, 32; Dec. Dig. <&wkey;>28.]</p> <p>7. Exemptions <&wkey;34-9 — Actions por Damage —Amount of Reoovery.</p> <p>A party whose horses, mares, and mules, including those exempt, are attached and sold, may recover the value of any two horses, mares, or mules, but not more.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 179; Dec. Dig. &wkey;?149.]</p> <p>8. Exemptions &wkey;>149 — Actions for Damage —Amount of Recovery.</p> <p>A party attaching and selling exempt property is liable for the actual value thereof, and, if the facts justify such damages, for exemplary damages.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 179; Dec. Dig. <&wkey;>149.]</p> <p>9. Appeal and Error <&wkey;75G — Briefs—Citation of, Authorities.</p> <p>Parties citing cases in their briefs should always give the names of the litigants, as well as the book and page, and, where the names of the litigants are not given, should verify the numbers of the reports and pages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. <®=>756J</p>

<p>1. Carriers <§=>26 — Control and Regulation — Through Rates — Interstate Commerce Commission.</p> <p>The rulings of the Interstate Commerce Commission permit a railroad to take advantage of through rates in hauling its own property, but require that the carriage be in good faith, with intention to use the property at the point where the transit ends.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67-82; Dec. Dig. <®=»26J</p> <p>2. Carriers <§=>26 — Control and Regulation' — Rates.</p> <p>In intrastate commerce, a railroad may not have the benefit of through rates on its own line in the carriage of its own property apart from the contract.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67-82; Dec. Dig. <§=>26.]</p> <p>3. Carriers <§=329 — Connecting Carriers— Division oe Receipts.</p> <p>Plaintiff and defendant were connecting railroads. Defendant loaded coal for plaintiff’s use at mines at Minera billed through to Pescadito and hauled it 26 miles to Laredo, ■whence plaintiff took it to be hauled 18 miles to Pescadito, on its line, but actually used much of it at Laredo, either stopping the coal there or hauling it to Pescadito and back. In October, 1912, defendant railroad began to require the mining- company at Minera, which acted as agent for the plaintiff road, to prepay the 80-eent through rate on coal from Minera to Pescadito. Thereafter, on complaint of the plaintiff road, the State Railroad Commission ordered a division of the through rate receipts from the traffic in the ratio of 65 cents • to the defendant and 55 cents for plaintiff, the local rates of the two companies from Laredo. Weld that, in a suit to recover from defendant road the amount due on past transactions under such ruling, it having been retaining out of the 80-eent rate its full local rate, to Laredo, plaintiff could not recover for carriage of coal hauled by it to Pescadito and then back to Laredo; such transactions not calling for division of the receipts under the Commission’s ruling, nor for switching charges on cars stopped by it at Laredo.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 80; Dec. Dig. <§=>29.]</p>

<p>Set-Oee and Counterclaim <S=^>29 — “Counterclaim’ ’ — U NLIQUIDATED DEMAND — SAME Transaction.</p> <p>Rev. St. 193.1, art. 1329, provides that, if plaintiff’s cause of action be a claim for un-liquidated or uncertain damages founded on tort or breach of covenant, defendant shall not set off any debt due him by plaintiff, and, if suit is founded on a certain demand, defendant shall not be permitted to set off unliquidated, or uncertain damages founded on tort or breach' of covenant on the part of plaintiff. Article 1330 declares that nothing in the preceding article shall be so construed as to prohibit the defendant from pleading in set-off any counterclaim, founded on a cause of action arising out of oi incident to or connected with plaintiff’s cause of action. Held that, where defendant purchased real property from plaintiff on September 9, 1911, which was conveyed to him on that date, and on October 21st following defendant purchased certain personal property from plaintiff, for which he executed notes on which plaintiff subsequently sued, a breach of plaintiff’s covenant of warranty, consisting of his failure to deliver possession of a part of the land, did not arise out of the same transaction as the notes for the personal property, nor was it connected with plaintiff’s cause, of action on the notes, and hence defendant’s claim for unliqui-dated damages for breach of such covenant was unavailable as a counterclaim against the notes (citing Words and Phrases, vol. 2, pp. 1645, 1646).</p> <p>[Ed. Note. — Eor other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 49-51; Dec. Dig. <®=»29J</p>

<p>Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge.</p> <p>Action by the Methodist Episcopal Church South, of Paducah, and others against E. D. Walsh and the Texas Fidelity & Bonding Company. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Deeds <@=>66 — Delivery — Question for Jury — Undisputed Testimony.</p> <p>Where two deeds, one from W. to R. and the other from R. to W., were executed and delivered on the same day, and, R. being dead, W. was impleaded in trespass to try title as a warrantor, and testified that R.’s deed to him was delivered after his deed to R„ and that he had never thereafter reconvoyed the property to R., being interested in sustaining his subsequent deed of the property, through which plaintiff claimed, it was the court’s duty to submit the question of the order of delivery of such deeds to the jury, though W.’s testimony was uncontradicted.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 127, 633; Dec. Dig. <©=66.]</p> <p>2. Evidence <@=>230 — Admissions Against Interest — Declarations op Grantor.</p> <p>Declarations of a grantor, made before execution of the deed, that he did not claim the land, are admissible as against his grantee.</p> <p>[Ed. Note.- — For other cases, see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. <@=>230.]</p> <p>3. Evidence <©=5230 — Admissions Against Interest — Declarations op Grantor.</p> <p>While declarations or admissions of a grantor in disparagement of title are admissible against the grantee, if made prior to. the grantee’s purchase, they are not admissible as against an innocent purchaser.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. <©=>230.]</p> <p>4. Appeal and Error <@=>835 — Record—Stipulations — Admissions.</p> <p>Where the determination of an appeal in trespass to try title depended on which of two deeds, made and delivered on the same day, was delivered last, and the Court of Civil Appeals determined that that question should have been submitted to the-jury, it would not reverse its decision and affirm by reason of a stipulation, filed in connection with an application for rehearing, by which the parties agreed that the deed from R. to W. was delivered last; the parties not being permitted to stipulate away the record as presented in order to present an issue in form of a question of law.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3241-3243; Dec. Dig. <©= 835.]</p>

<p>Appeal from District Court, Parmer County; D. B. Hill, Judge.</p> <p>Action by Robert Collins against tbe Pecos & Northern Texas Railway Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>1. Trial <§=3333 — Verdict—Amount of Re-POVERY.</p> <p>In a shipper’s action for damages, a verdict finding for plaintiff for $472.02, less freight charges, but not stating the amount of the freight to be deducted, was insufficient as a general verdict, and did not justify a judgment for plaintiff; the defect not being cured by anything stated in the pleadings or the charge, as the evidence could not be referred to, especially where the evidence would not have aided the verdict.</p> <p>[Ed. .Note. — For other cases, see Trial, Cent. Dig. §§ 784, 786; Dec. Dig.'<§=>333.]</p> <p>2. Trial <§=3355 — Verdict — Special Findings — Sueficiency.</p> <p>In a shipper’s action for damages to a ship-' ment of vegetables, alleged to have been worth $472.02, after deducting freight charges, a special finding that the shipment was worth $472.-02, with no finding as to the freight charges, furnished no basis for a judgment for plaintiff, where it was apparent from the pleadings that the freight had not been paid.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 846-848; Dec. Dig. <§=>355.]</p> <p>3. Judgment <§=>251 — Conformity to Pleadings — Special Findings.</p> <p>In an action for damages to a shipment of vegetables, where the only negligence alleged was the failure to keep the car properly iced, special findings that no negligence occurred until after the shipment reached its destination, and that the damages occurred through negligence in failing to advise the shipper’s agent of the ■amount of the freight charges, thus causing a delay in delivery, entitled defendants to judgment in their favor.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. <5^=251.]</p> <p>4. Carriers <§=>177 — -Loss or Injury to Goods — Liability eoe Negligence of Connecting Carriers.</p> <p>Where a shipper, after delivering a shipment to a carrier for transportation over its lines and the lines of the M. Company to Ft. Worth, concluded to send the shipment to Denver and wired the M. Company to deliver the shipment at Ft. Worth to the F. Company, neither the initial carrier nor the M. Company were liable for any negligence occurring after such delivery to the F. Company.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. <§=> 177.]</p>

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

<p>Appeal from Travis County Court; Wm. Von Rosenberg, Judge.</p> <p>Action by the Maury-Cole Company, a corporation, against the Lockhart Grocery Company, a partnership. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Carson County Court; Fay-ette Ratliff, Judge.</p> <p>Condemnation proceedings for a right of way by the Southern Kansas Railway Company of Texas against J. C. Vance. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Suit by Frank Wells Brown against Frank G. Morris, Sam B. Gillett, and P. E. Kern. From a judgment for plaintiff, ' defendant Morris appeals.</p>

N. Denton, Judge. Action by John Robertson, as next friend of George Wright and others, against the Grand Lodge of Knights of Pythias, Colored, which impleaded Georgia Johnson Matthews and another. From a judgment for the latter, plaintiff appeals,

<p>1. Caeeiees @=>219 — Carriage of Live Stock — Connecting Caeeiees.</p> <p>Where by express contract the initial carrier contracts to deliver at the end of its line and to be bound only on its own line, the connecting carrier is not liable, under Rev. St. 1911, art. 731, for injuries to cattle shipped occurring on the line of the initial carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. @=>219.]</p> <p>2. Caeeiees @=>228 — Live Stock — Connecting Carriers — Presumptions.</p> <p>In an action against a connecting carrier, evidence held sufficient to rebut the. presumption that the cattle were received by defendant from the initial carrier in good condition.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent.. Dig. §§ 957-960; Dec. Dig. @=>228.]</p> <p>3. Appeal and Eeeoe @=>1103 — Deteemination of Cause — Reveesal.</p> <p>Where the verdict is clearly contrary to the evidence, it is the duty of the appellate court to reverse and remand.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dee. Dig. @= 1103.]</p> <p>4. Evidence @=>474 — Maeket Value — Cattle Shipped.</p> <p>To establish the market value at the place of delivery of cattle injured in shipment, it must be shown that like cattle had been bought and sold there in sufficient quantity and often enough to establish a market, and a witness having no knowledge of any sale of such cattle as were injured at the place of delivery within a year prior to shipment is not competent to testify as to market value.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dee. Dig. @=>474.]</p> <p>5. Caeeiees @=229 — Evidence @=>113 — Mae-ket Value — Cattle.</p> <p>Where the market value at the place of delivery of an animal injured in shipment is not shown, the intrinsic value of the animal is the measure of damages, and may be shown by the price paid therefor, but otherwise if market value is shown.</p> <p>[Ed. Note. — For other cases, see Carriers Cent. Dig. §§ 930, 963, 964; Dec. Dig. @=>229-, Evidence, Cent. Dig. §§ 259-296; Dec. Dig. @=* 113.]</p> <p>6. Appeal and Eeeoe @=>263 — Exceptions-Insteuctions.</p> <p>Assignments of error to the giving and refusal of charges cannot be reviewed, in the absence of exception, as required by Acts 1913, c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, §§ 1954, 1970, 1971, 1973, 1974, 1984a. 2061).</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. @=>263.]</p>

Error from District Court, McLennan County; Tom L. McCullough, Judge. Intervention by George Durr in an action by J. P. Clevinger against the Mecca Fire Insurance Company. From, a judgment granting to the claim of the intervener a priority to certain funds in the hands of the receiver, John S. Oglesby, the receiver brings error.'

<p>1. Limitation on Actions <&wkey;167 — Bae on Debt as Bae on Security — Vendob’s Lien.</p> <p>Where a lien on land to secure purchase-money notes is only equitable, not expressed in the deed to the land or in the notes, it is barred when such notes are barred by limitation.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 651-653; Dec. Dig. <&wkey;> 167.].</p> <p>2. Subrogation &wkey;>23 — Advances to Discharge Incumbrance.</p> <p>Where defendant advanced the owner money to pay the original purchase-money notes, he thereby acquired an equitable lien upon the land which he could assert within any period before the extinction of the lien by limitation running on the debt</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. &wkey;23.]</p> <p>3. Husband and Wife <s&wkey;273 — Community Pbopeety — Rights op Subvivoe — Mort-gagb to Pay Pub,chase Money.</p> <p>Where a husband bought land and executed purchase-money notes therefor, at his death the debt was owed by the community estate, not by his wife personally, and she, as survivor of such estate, could sell or mortgage the property to pay or secure the debt, but upon remarriage her power as survivor ceased.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. <&wkey;> 273.]</p> <p>4. Husband and Wipe &wkey;>273 — Community Pbopeety — Rights op Subvivob — Mobt-gage to Pay Purohase-Money Notes — Rights of Children.</p> <p>Where a purchaser gave notes for land and died, his widow, as survivor of the community, was tenant in common of the land with her -minor children, and had a right to take measures to preserve the property, but, as against the children, she had no power to mortgage the land for a sum greater than the original debt.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 100S-1024; Dec. Dig. <&wkey;> 273.]</p> <p>5. Mobtgages <&wkey;372 — Sale Under a Void Deed op Trust — Effect.</p> <p>A trustee’s deed was void and conveyed no title when the sale was under a deed of trust which the mortgagor had no authority to execute, as against her minor children, to .secure payment of money borrowed to discharge the original purchase-money notes given for the land by her husband.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1102, 1103, 1105-1117; Dec. Dig. &wkey;>372.]</p> <p>6.Husband and Wipe <&wkey;154 — Mortgage by Wife — Personal Liability — Effect op Extensions op Payment.</p> <p>Where a married woman mortgaged land jointly with her husband, joining in the execution of the note, she did not thereby become personally liable for the debt, and if, after her husband’s death, she secured extensions of time for payment so long as to bar the husband’s debt by limitation, such extensions did not affect her personal liability for the debt, and so had no vigor to render valid, as to her or her minor children, the sale of the mortgaged land.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 604; Dec. Dig. &wkey;>154.]</p> <p>7.Mortgages <&wkey;350 — Place op Sale — Deed op Trust — Statute.</p> <p>Under statute of 1889 requiring that sales under deeds of trust be made in the county where the land is situated unless otherwise stipulated, a new promise by. a widow to pay notes secured by joint deed of trust of herself and husband did not authorize the sale, except as directed by statute, although the deed of trust contained such an authorization.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1048; Dec. Dig. <&wkey;>350.]</p> <p>8.Acknowledgment &wkey;>20 — Who May Take —Married Woman — Deed op Trust — Interest op Officer.</p> <p>Where a married woman executed a mortgage upon her homestead jointly with her husband, and acknowledged the same before a no-' tary, who was financially interested in the consummation of the transaction by way of commission from the lender, the mortgage is void; knowledge of the facts on the part of the lender being imputed to him, as a matter of law, from the knowledge of his agent.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 104^-111; Dec. Dig. 20.].</p> <p>9.Acknowledgment <&wkey;62 — Interested Notary — Sufficiency of Evidence.</p> <p>Evidence held to show that an agent had knowledge that the acknowledgment of a married woman’s deed was taken before an officer financially interested in the transaction.</p> <p>[Ed. Note. — For other eases, see Acknowledgment, Cent. Dig. §§ 345-347; Deo. Dig. <&wkey;62.]</p>

A. Wilcox, Judge. Action by the State against the West End Dock, a corporation. From a judgment forfeiting and canceling its charter, defendant appeals.

<p>Appeal from District Court, Montgomery County; L. B. Hightower, Judge.</p> <p>Trespass to try title by John Williams against T. C. Wickizer. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Walker County; S. W. Dean, Judge.</p> <p>Bmsy Handy was convicted of burglary, and be appeals.</p>

<p>Appeal from District Court, Bexar County; W. S. Anderson, Judge.</p> <p>L. R. Ortiz was convicted of murder, and he appeals.</p>

<p>Criminal Law <@=>1090 — Record—Bills of Exception — Statement op Facts..</p> <p>Where the record contains no bills of exception or statement of facts, refusal of reguest-ed charges and denial of motion for new trial will not be reviewed.</p> <p>[Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789,2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. <@=> 1090.]</p>

<p>Appeal from District Court, Potter County ; J. N. Browning, Judge.</p> <p>Action by P. E. Boeson against the County of Potter. Judgment of dismissal, and plaintiff apxieals.</p>

<p>1. Limitation of Actions &wkey;>127 — Amend ment oí? Pleadings — Action of Tout.</p> <p>In an action of tort for an injury, such as a libel, where the place and circumstances are stated in the original petition, which is filed before limitation has barred the action, limitation cannot successfully be urged to an amendment stating more specifically the results of the injury, filed when the statute would bar a recovery on a suit then brought.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. <&wkey;> 127.]</p> <p>2. Libel and Slandee <&wkey; 120 — Exemplary Damages — Malice.</p> <p>To recover exemplary damages in an action for libel, it is necessary to prove actual or express malice.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 350, 351; Dec. Dig. &wkey;> 120.]</p> <p>3. Libel and Slandee <&wkey;>112 — Evidence-Malice — “Willful oe Wanton Wrong”— “GROSS INDIFFERENCE.”</p> <p>Evidence in a libel suit founded upon the publication of an answer filed in a divorce suit held not to show “gross indifference,” or “willful or wanton wrong,” which, as used in the definition of “malice,” means an act done with the specific intention to injure the person in-jui'ed, or an act done with such utter recklessness as to indicate a^ disregard of consequences, so as to support a verdict for exemplary damages.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 325-341; Dec. Dig. <&wkey;> 112.]</p> <p>4. Trial &wkey;>115 — Conduct of Attorney-Reference to Former Trial and Verdict.</p> <p>In the trial of a libel suit it was improper for plaintiff’s attorney to state in his argument to the jury that the case had been tried before and a verdict returned for plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 279-2S3, 295, 298; Dec. Dig. &wkey;115.]</p> <p>5. Libel and Slander <&wkey;51 — Privilege— Malice.</p> <p>A publication is not privileged where actual malice is shown.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 149; Dec. Dig. &wkey;>51.]</p> <p>6. Libel and Slander <&wkey;38 — Privilege— PLEADINGS — “JUDICIAL PROCEEDING’ ’ — “OFFICIAL Proceeding” — “Proceeding”—Statute.</p> <p>Rev. St. 1911, art. 5597, declaring a" fair, true, and impartial account of proceedings in a court of justice, unless the court prohibits its publication, or any other official proceeding authorized by law in the administration of the law, privileged, does not justify the publication of a libelous written pleading, properly filed, upon which no action by the court', judge, or any other officer has been taken in reference to the matter referred to therein; but the privilege is limited to proceedings while the court is in session and may have an opportunity to prohibit publication. The filing of a pleading by the clerk is merely a ministerial act not constituting a “proceeding.” While a pleading, and especially one asking for some relief, may be designated as part of a judicial proceeding, it does not constitute an official proceeding; the distinction being that a “judicial proceeding,” as applied to pleadings, refers to something done by the parties to the suit, while an “official proceeding” denotes action taken by an officer.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 117-123; Dec. Dig. <&wkey;> 38.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Judicial Proceeding; Proceeding.]</p>

<p>1. Trial <@=^392 — Findings of Fact — Time for Request.</p> <p>Where plaintiff’s request for the filing of conclusions of law and fact was not made until after the overruling of her motion for new trial, and there was no bill of exceptions or anything to show that the matter was called to the court’s attention, the failure of the court to act on the motion was waived.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 916-919; Dec. Dig. <S=^392.]</p> <p>2. Appeal and Error <®==>1071 — Harmless Error — Failure to File Findings.</p> <p>Where there was an agreed statement of facts in the record signed by the counsel for both parties and approved by the court, any error in the court’s failure to file findings of fact and conclusions of law, as requested, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234^-4239; Dec. Dig. <§^> 1071.]</p> <p>3. Insurance <@=o116 — Insurable Interest —What Constitutes.</p> <p>Illegitimate children, recognized and maintained by their putative father, have an insurable interest in his life.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 158-162; Dec. Dig. <§^>116.]</p>

<p>1. Corporations &wkey;>92 — Spook Subscriptions — Ageeements as to Payment.</p> <p>Where defendants subscribed for stock in a proposed corporation, and thereafter, in evidence of their agreement to pay therefor, executed a note secured by a chattel mortgage, but there was no agreement on behalf of the corporation to sell and deliver the stock on their promise to pay therefor, and the stock was not in fact delivered there was no violation of Const, art. 12, § 6, which provides that no corporation shall issue stock, except for money paid, labor done, or property actually received.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 366; Dec. Dig. <&wkey;92.]</p> <p>2. Cobpobations &wkey;>92 — Subscription to-Stock — Right to Stock Before Payment.</p> <p>Where defendants subscribed for stock in a corporation, and gave their note for the amount thereof, without any agreement that the stock would be sold and delivered to them upon their promise to pay, they were not entitled to the stock until they paid therefor, and the failure or refusal of the corporation to deliver the stock did not constitute a failure of consideration for the note.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 366; Dec. Dig. &wkey;>92.]</p> <p>3. Corporations <&wkey;240 — Stock Subscriptions — Liability—“Teust Fund.”</p> <p>Where defendants subscribed for stock in a corporation, and gave their note for the amount of the stock, and did not deny their obligation upon their subscription or the note until after the rights of a creditor, to whom the corporation executed a deed of trust on its property, including plaintiffs’ note, had intervened such creditor had a right to enforce payment from them, and to have their note sold under the deed of trust, and the purchaser had a right to enforce collection of the note by suit, as unpaid stock subscription constitute a “trust fund” for the benefit of the creditors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 934-942, 1099-1100%; Dec. Dig. <S&wkey;240.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Trust Fund.]</p>

<p>Appeal from District Court, De Witt County ; John M. Green, Judge.</p> <p>Action by John W. Burns against T. H. Davis, receiver of the Union Trust Company, with cross-action by the receiver. Judgment for plaintiff, and the receiver appeals.</p>

<p>Appeal from District Court, Liberty County; J. Llewellyn, Judge.</p> <p>Action by Mrs. Josie Higginbotham and others against the Gulf, Colorado & Santa Pé Railway Company. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>1. Appeal and Error &wkey;>1010 — Verdict— Conclusiveness.</p> <p>The weight of evidence is for the jury whose finding will not be disturbed on appeal unless the verdict is palpably and overwhelmingly against the evidence or entirely without evidence to support it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. <&wkey;>1010.]</p> <p>• 2. Negligence <&wkey;134 — Fires — Proximate Cause oe Loss.</p> <p>Evidence held sufficient to justify a special finding that fire to a house was not communicated from a heap of burning timbers.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 267-270, 272, 273; Dec. Dig. <i&wkey;134.]</p> <p>3. New Teial <&wkey;44 — Misconduct op JuRORS — Comment on Witness — Discretion op Court.</p> <p>Adverse comments in the jury room, made by jurors out of their own knowledge, as to the character of witnesses for plaintiff, did not render the denial of a new trial therefor an abuse of discretion, where the evidence of the witnesses was in part uncontradieted and in part immaterial, in view of the jury’s findings.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85, 105; Dec. Dig. ig=^44.]</p> <p>4. Appeal and Error <&wkey;978 — Review—Discretion op Trial Court — Refusal of New Trial.</p> <p>The exercise of the trial court’s discretion in denying a new trial for misconduct of jurors will not be disturbed on appeal, except where clearly abused.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 3866-3870; Dec. Dig. &wkey; 978.]</p>

<p>1. Insane Persons <&wkey;73 — Contracts—'Validity.</p> <p>A contract of an insane person is not void, but voidable at bis election.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 125, 132-138, 153; Dee. Dig. &wkey;>73.]</p> <p>2. Insane Persons <&wkey;>74 — Contracts for Necessaries — Validity.</p> <p>An attorney employed by an insane person, charged with crime, to defend him, may recover the reasonable value of the services rendered, but not .the contract compensation.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 126, 127; Dec. Dig. <&wkey;>74.]</p> <p>3. Insane Persons <&wkey;77 — Contracts—Enforcement.</p> <p>An action on a note and mortgage securing it, given by an insane person for services to be performed by the payee, may be defeated by the payment of reasonable compensation for the services.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 131; Dec. Dig. <@=>77.]</p> <p>4. Insane Persons <@b>77 — Contracts—Enforcement.</p> <p>Where attorneys, obtaining from an insane client a note and mortgage securing it, for services to be performed, rendered no services, they could not recover on the note and mortgage.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 131; Dec. Dig. <&wkey;>77.]</p> <p>5. Mortgages <&wkey;258 — Insane Maker — Right of Bona Fide Purchaser.</p> <p>A purchaser for value before maturity, without notice of a note and mortgage securing it, given by an insane person to the payee, for services to be rendered, may not enforce the note and mortgage, where the payee did not render any service.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 689-691; Dec. Dig. <@=>258.]</p>

<p>1. Courts <&wkey;65 — Special Judge — Duration of Term — Death of Regular' Judge.</p> <p>Where a special judge was selected in the absence of the regular judge, as authorized by Rev. St. 1911, art. 1678, the enactment of which was authorized by Const, art. 5, § 7, empowering the Legislature to provide for the holding of district courts when the judge is -absent or from any cause disabled or disqualified, the death of the regular judge during the term did not end the term, but the special judge might thereafter grant a new trial in a cause tried at that term.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 230, 246; Dec. Dig. &wkey;65.]</p> <p>2. Judges <@=>14 — Special Judge — Appointment.</p> <p>Under Const, art. 5, § 7, empowering the Legislature to provide for the holding of district courts when the judge is absent or from any cause disabled or disqualified, the Legislature could not provide for the appointment of a special judge to hold term when the regular judge dies before or during the term and before any special judge has been appointed.</p> <p>[Ed. Note. — For other cases, see Judges, Cent. Dig. § 47; Dec. Dig. <@=»14.]</p> <p>3. Judges &wkey;>25 — Special Judge — Powers— Death of Regular Judge.</p> <p>A special judge dogs not derive authority in any way from the regular judge, so that the rule that the death of the donor of a power destroys the power does not apply to deprive a special judge of power to act after the death of the regular judge.</p> <p>[Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 99-106; Dec. Dig. &wkey;25.]</p>

<p>1. Paetition t®^46 — Pasties — Necessary Parties.</p> <p>Unless all persons having an interest in the land are parties to the suit for its partition, the judgment will not. be binding on any one.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. § 114; Dec. Dig. <§=»46.]</p> <p>2. Partition &wkey;>27 — Jurisdiction—Venue.</p> <p>The jurisdiction of the district court of a county over a suit in partition brought by plaintiff entitled to sue in that court is unaffected by a pending suit in another county for the same relief, to which plaintiff was not made a party.</p> <p>[Ed. Note. — For other cases, see Partition, Dec. Dig. <&wkey;>27; Abatement and Revival, Cent. Dig. § 105.]</p> <p>3. Injunction <&wkey;>143 — Temporary Injunction — Service oe Citation.</p> <p>A temporary injunction to restrain the prosecution of a suit in another county may be granted without notice when necessary, though the injunction is not binding until service of notice of its issuance.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 315; Dec. Dig. <5&wkey;143.]</p> <p>4. Courts <@=»480 — Conflicting Jurisdiction — Staying Proceedings in Other Court — Statutes.</p> <p>Rev. St. 1911, art. 4653, providing that suits to enjoin the execution of a judgment or stay proceedings thereon must be brought in the court in which the judgment was rendered, does not apply to persons not parties to the suit in which the judgment was rendered, and they may sue for an injunction in another court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. &wkey;480.]</p> <p>5. Courts <&wkey;480 — Staying Proceedings in Other Court — Statutes—Applicability. Rev. St. 1911, art. 4653, does not apply where the injunction sought is only ancillary to the main purpose of the suit.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. &wkey;480.]</p>

<p>Appeal from District Court, Travis County ; Geo. Calhoun, Judge.</p> <p>Action by W. H. C. Lovett against William Von Rosenberg and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Jefferson County; John M. Conley, Judge.</p> <p>Action by A. De Baune against the Beaumont Irrigating Company. From a judgment striking items from a bill of costs, defendant appeals.</p>

<p>1. CARBINES <&wkey;318 — PASSENGER’S ACTION fob Injuries — Sufficiency of Evidence.</p> <p>In a passenger’s action for injuries caused by the derailment of a car in which he was riding, evidence held sufficient to sustain a jury finding that plaintiff was injured in such derailment, notwithstanding the contention that his evidence as to the direction in which he was thrown was contrary to the laws of momentum.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1807-1314; Dec. Dig. &wkey; 318.]</p> <p>2. Damages <&wkey;130 — Excessiveness — Personal Injuries.</p> <p>Where, in an action for injuries to a passenger caused when the car in which he was riding was derailed, by lurches which threw him against another xiassenger and the window of the car, and then across the aisle against the arm of a seat, there was evidence that he received severe injuries, that he suffered much pain, and that he was required to expend considerable sums for medical attention, a verdict for $3,000 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. &wkey;130.]</p>

<p>1. Partnership i&wkey;197 — Actions—Pasties.</p> <p>A partner-ship is not a distinct legal entity, and actions by or against a partnership must be conducted in the names of the partners.</p> <p>[Ed. Note. — If or other cases, see Partnership, Cent. Dig. § 300; Dee. Dig. <@¿5197.]</p> <p>2. PARTNERSHIP <&wkey;219 — ACTIONS—JUDGMENT —Validity.</p> <p>A judgment for two partners, one of whom was not a party to the action, is invalid.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 429-440, 442-445; Dec. Dig. &wkey; 219.]</p> <p>3. Appeal and Error &wkey;>223 — Questions Reviewable — Fundamental Error — Abatement — Demurrer.</p> <p>Error in rendering judgment for two partners, one of whom was not. a party to the action, is fundamental, and objection may be made by plea in abatement, demurrer, or appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1338-1342, 1344, 1346-1350; Dec. Dig. &wkey;223.]</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by J. E. Keevil against H. T. Pons-ford and another. Verdict directed for defendants, and plaintiff appeals.</p>

<p>1. Husband and Wife <@=221— Personal Injuries to Wife — Actions—Parties.</p> <p>The wife is not a necessary party to an action by her husband for injuries to her person.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 707, S02-808, 90S, 973, 976%; Dec. Dig. <@=221J</p> <p>2. Appeal and Error <@=187 — Harmless Ebror — Misjoinder of Parties.</p> <p>Where defendant, in an action by a husband and wife for personal injuries to- the wife, did not object to the improper joinder of the wife, and no injury resulted therefrom, he could not on appeal complain of the misjoinder.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1184-1189; Dec. Dig. <@= 187.]</p> <p>3. Carriers <@=344 — Injuries to Passengers — Contributory Negligence.</p> <p>The burden of proving contributory negligence of -a passenger, sustaining a personal injury while alighting, rests on the carrier, and never shifts to plaintiff.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1399; Dec. Dig. <@=344.]</p> <p>4. Trial <@=315 — Misconduct of Jury — Quotient Verdict.</p> <p>A verdict, with a few dollars added to obtain a round sum, was the amount of a quotient verdict. Most of the jurors averred that they did not agree to abide by the result, but one juror, who favored a verdict for $2,000, agreed to the verdict for $6,000. Held, that the verdict was a quotient verdict and must be set aside.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740-742; Dec. Dig. <@=315.]</p> <p>5. Trial <@=306 — Misconduct of Jurors.</p> <p>Jurors who, during the deliberations of the jury, in an action for personal injury causing injury to the sciatic nerve, narrated their personal experience with sciatica, and one of them exposed his leg to show the effects of the disease thereon, were guilty of misconduct, necessitating the setting aside of the verdict.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 731, 742; Dec. Dig. <S=30G.]</p>

F. Ezell, Judge. Quo warranto by the State of Texas, on relation of T. M. Dechman and others, against the San Antonio Independent School District and others. Judgment for relators, and defendants appeal.

<p>Appeal -from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by W. G. Orenbaum against the Trinity & Brazos Valley Railway Company, which filed a cross-action. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Carriers <&wkey;2S0 — Care fob Passengers Alighting.</p> <p>The care to be exercised by a carrier to prevent injury to a passenger alighting from a train is that high degree that a very cautious and prudont person would exercise under the circumstances.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. &wkey;280J</p> <p>2. CARRIERS &wkey;>303 — Care for Passengers Alighting — Special Contract.</p> <p>As regards passengers not parties to, or acquainted with the terms of, a special contract of a carrier to run a train and transport passengers to a place where it had no station, or facilities for discharging, and ordinarily did not receive or discharge, passengers, the carrier is not absolved from its duty as to their safety in alighting.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. &wkey;303.]</p> <p>3. Carriers &wkey;>320 — Care for Passengers Alighting — Question for Jury.</p> <p>Whether the carrier, in the exercise of the high degree of care imposed on it for the safety of a passenger in alighting, where there were no facilities therefor, should have provided a step box, or some such appliance, is a question for the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. &wkey;320.]</p> <p>4. Carriers &wkey;»284 — Injury to Passenger Alighting — Negligence of Volunteers.</p> <p>The carrier is not liable for injury to a passenger in alighting because of persons assisting her, though not employés of, or authorized to act for, the carrier, being incompetent therefor or negligent in so doing.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. <&wkey;>284.]</p> <p>5. Carriers &wkey;>284 — Injury to Passengeh Alighting — Negligence of Assistant Liability of Carrier.</p> <p>Where by the agreement between a society and a railroad for running a special train and stopping at a place where there was no station members of the society were to assist passengers off, the carrier would be liable for incompetency or negligence of members so assisting a passenger to alight.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. &wkey;>284.]</p> <p>6. Appeal and Error &wkey;>736 — Riaiilr to CUmplain of Ebroe> — Inconsistent Positions.</p> <p>Defendant’s assignment of error to the giving of an instruction, as unauthorized by the evidence, will not be overruled because it also complains of the exclusion of testimony, which, if admitted, would have authorized the instruction, where it was not admissible on the theory on which it’was offered, which was that under it the law would be the opposite of that given by the instruction.</p> <p>[Ed. Note. — For other cases, see Appeal and •Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. &wkey; 736.]</p>

<p>Appeal from Shelby County Court; Edgar W. Hooker, Judge.</p> <p>Action by the First National Bank of Center against the Cummer Manufacturing Company of Texas and T. T. Sanders. From the judgment, deie33<lant Manufacturing Company appeals.</p> <p>The appellee hank was the plaintiff, and the appellee T. T. Sanders and appellant were the defendants, in the court below. In its petition the bank alleged that on March 12, 1913, Sanders gave it a draft drawn by him in its favor on appellant for $250, “which,” quoting from said petition, “was commission due by the defendant Cummer Manufacturing Company to the defendant Sanders on 500,000 feet of lumber shipped from Texas Manufacturmg Company, I-Ioney Island, Tex., to the defendant Cummer Manufacturing Compaiiy, which was 50 cents per 1,000 feet commission due the said T. T. Sanders by said Cmnmer Manufacturing Company of Texas on the sale of said lumber, and the said commission being due by the defendant Cummer Manufacturing Company to the said T. T. Sanders, and the said T. T. Sanders executing said draft in the name of this plaintiff for said sum of $250, the said Sanders and the said Cummer Manufacturing Company of Texas became liable and bound to pay the plaintiff the said sum of $250 as aforesaid. Plaintiff says that about April 1, 1911, the Texas Manufacturing Company, Honey Island, Tex., had a great quantity of hardwood lumber 03i their yard at Honey Island, Tex., of more than 500,000 feet, consisting mostly of oak and gum lumber, known ns hardwood, and the defendant Cummer Manufacturmg Company negotiated with the defendant Sanders for the purchase of said lumber, and agreed to pay said Sanders the sum of 50 cents per 1,000 feet commission on all the lumber of Texas Manufacturing Company as aforesaid, a?id the said Cu3nmer Masiufacturing Company of Texas purchased all of said lumber, amounting to more than 500,000 feet, through the defendant Sanders, and by such purchase and agreement to pay the said Sanders the 50 cents per 1,000 feet commission as aforesaid the defendant Cummer Manufacturing Company of Texas became liable and bound to pay to the defendant Sanders the commission as aforesaid amounting to the sum of $250. Plaintiff says it is now the legal owner ai3d holder of the indebtedness due by the Cummer Manufacturing Company to the defendant Sanders,” etc.</p> <p>Appellant’s answer consisted of a general denial and a plea setting up the statute of limitations of two years. Sanders did not file an answer to the suit.</p> <p>From testimony hoard it appeared that the basis of the suit was a claim by Sanders, which he had assigned to the bank, that appellant, by the terms of a contract between him and one Broimiier, acting for aispellant as its agent, owed him $250. With refer-C3ice to that asserted contract Sanders testified that about March 1, 1911, Brommer was looking for hardwood lumber which ho could purchase for appellant; that he (Sanders) then told Brommer he was in a position to let liim know where he (Brom-mer) could buy between 350,000 asid 500,000 feet of such lumber; that Brommer then stated to him that if he would furnish him such information appellant would pay him 50 cents per 1,000 feet for all the lumber it might purchase from the party he referred it to; that he then stated to Brommer that he understood that the Texas Lumber Manufacturing Company of Honey Island had between 300,000 and 500,000 feet of such lumber which could, he thought, be purchased at a reasonable price; that Brommer then stated to him that some time in the very near future he would go down and look over the lumber, and if the grades and prices were satisfactory appellant would pay him 50 cents per 1,000 feet for all thereof it purchased; that within a few weeks afterward he met Brommer again, and was informed by him that he 'was then on his way to Honey Island to inspect the lumber for appellant, and that Brommer then again stated to him that appellant would pay him 50 cents per 1,000 feet for “all the hardwood lumber he took up for it from the yard stock of the Texas Lumber Manufacturing Company then on hand.” Sanders further testified that he had no contract with the Texas Lumber Manufacturing Company to sell its lumber, had never been to Honey Island, and did not know at the time he had the conversation with Brommer, what lumber, if any at all, the Texas Lumber Manufacturing Company then had on its yards, “but understood from correspondence that they had something about 500,000 feet.”</p> <p>If appeared from other testimony that from March 14, 1911, to March 29, 1912, the Texas Lumber Manufacturing Company sold to appellant 362,164 feet of hardwood lumber.</p> <p>Brommer testified that from October, 1910, to October, 1911, he was employed by appellant as an inspector and buyer of lumber for it; that he had no authority to make, and did not make, with Sanders any such contract as the one Sanders claimed he had made with him; that Sanders talked to him about selling lumber, and was informed by him that he could not make a contract with him (Sanders); that he told Sanders to “go to the Cummer Manufacturing Company himself”; and. that he “never offered Sanders any commission on any transaction, and was not advised by him that this [the Texas Lumber Manufacturing Company’s] lumber was for sale, as I knew long before it was for sale.”</p> <p>On special issues submitted to them the jury found: (1) That Brommer contracted with Sanders as the latter claimed he did; (2) that Brommer, as the agent of appellant, had authority to so contract; (3) that appellant, within the terms of that contract, purchased 362,164 feet of hardwood lumber of the Texas Lumber Manufacturing Company.</p> <p>On the findings made by the jury and findings made by himself, the court rendered judgment in favor of the bank against appellant and Sanders for $165.23, and against Sanders for the difference between that sum and $250, to wit, the sum of $S4.77. The appeal is prosecuted by appellant alone.</p>

<p>Appeal from District Court, Bowie County; I-I. F. O’Neal, Judge.</p> <p>Action by C. G. Crump against M. C. Wade. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Harrison County; H. T. Dyttleton, Judge.</p> <p>Application for injunction by W. F. Bled-soe against John C. Sanders and others. Injunction granted, and respondents appeal.</p>

<p>Appeal from Franklin County Court; J. J. Walker, Judge.</p> <p>Action by W. T. Kelly against the St. Louis Southwestern Railway Company of Texas. From a Judgment for plaintiff, defendant appeals.</p>

T. Armistead, Judge. Action by James Vaughan against E. T. Page and others, in which defendants filed a cross-petition. Judgment for defendants for insufficient relief, and defendant named appeals.

F. O’Neal, Judge. Action by A. R. Coomber against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. The passenger engine that the appellee was operating was suddenly derailed on the main line, inflicting upon him grievous bodily injury.

<p>Appeal from Lamar County Court; Rube S. Wells, Judge.</p> <p>Action by W. H. Adams against A. A. Patón & Co. From a judgment for defendants on appeal from a justice’s court, plaintiff appeals.</p>

<p>Appeal from District Court, Harrison County ; H. T. Lyttleton, Judge.</p> <p>Action by Albert Hall against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Estoppel <@=>31 — Deed — Execution as Trustee.</p> <p>One who, as trustee of a lodge, executed a warranty deed conveying certain lots, of part of which he was then as an individual in adverse possession, but had not acquired title thereby, is estopped to claim such adverse possession against the grantee for any period prior to the execution of the deed, since an estoppel by deed applies to a grantor who executes it in a fiduciary or representative capacity.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 75-80; Doc. Dig. <@=>31.]</p> <p>2. Improvements <§=>4 — Boundaries — Mistake.</p> <p>If the possession of the trustee was due to such mistake as to the boundary of the lots as would give him the full legal benefit of the mistake, the only right thereby protected was his right to the value of improvements made on the lots in good faith, since he admittedly had no title even by adverse possession.</p> <p>[Ed. Note. — For other cases, see Improvements, Cent. Dig. §§ 4, 7-26; Dec. Dig. <@=>4.]</p> <p>3. Trespass to Try Title <@=>56 — Recovery por Improvements.</p> <p>In order for defendant in trespass to try title to recover a judgment for improvements made in good faith, allowed by Rev. St. 1911, art. 7763, he must plead and prove that the value was increased by the improvements, since that is the measure of his recovery, not the value of the improvements made.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 87; Dee. Dig. <@=>56.]</p>

Wilcox, Judge. Suit by the State of Texas to enjoin the Country Club from selling intoxicating liquors to its members, from selling liquors on Sundays and election days, from maintaining pool and billiard tables upon its premises, and from using its property for such purposes or any purpose other than maintaining a golf club. Decree granting injunction only against selling intoxicating liquor on election days, and the State appeals.

<p>Error from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Action by Kate Bock against the Fellman Dry Goods Company. From a judgment for defendant on a directed verdict, plaintiff: brings error.</p>

Styles, Judge. Suit by the Merchants’ & Planters’ Lumber Company against J. A. Conlee and wife on an open account for building materials and to foreclose a mechanic’s lien. Judgment for plaintiff, and defendants appeal.

<p>Master and Servant @=>204 — Injury to Servant — Assumption of Risk — Safety Appliance Act.</p> <p>Under the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1913, § 8605]), as amended in 1896 (Act April 1, 1896, c. 87, 29 Stat. 85 [U. S. Comp. St. 1913, § 8610]) and 1908 (Act May 27, 1908, c. 200, 35 Stat. 324 [U. S. Comp. St. 1913, § 8616]), which makes it the absolute duty of all railways to have all their cars eouipped with secure handholds and denies the defense of assumed risk, and, in view of Act April 14, 1910, c. 160, § 2, 36 Stat. 298 (U. S. Comp. St. 1913, § 8618), providing that all cars having ladders shall be equipped with secure handholds, that the defective handhold, by which plaintiff was injured, was on the roof at the top of the car, was unimportant.</p> <p>[Ed. Note. — Ror other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. <@=> 204.]</p>

<p>Pleading <§=>412 — Waiver of Objections— Insufficient Reply.</p> <p>An objection that the reply did not specifically deny allegations in the answer, and therefore, under the statute, they are to be taken as admitted, is waived, where no exceptions were taken to the reply, but the parties proceeded to trial as if the answer had been denied, and defendant raised no exceptions to the refusal of its requested charge that the allegations were admitted.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§' 1387-1394; Dee. Dig. <§=>412.]</p>

<p>1. Witnesses <@=>205 — Confidential Communications — ATTORNEY AND CLIENT.</p> <p>Where a claimant for damages for personal injuries against a railroad company employed an attorney to get a settlement from the railroad for him, he must have contemplated that the attorney would disclose to the railroad company the. facts concerning the accident as stated by claimant, and the communication of such facts to the attorney was therefore not privileged as a confidential communication.</p> <p>[Ed. Note.- — For other cases, see Witnesses, Cent. Dig. §§ 754, 763; Dec. Dig. <@=>205.]</p> <p>2. Witnesses <@=>391 — Inconsistent Statements — Hearsay — Impeachment of Witness.</p> <p>Testimony as to statements made by a witness offered to impeach his testimony is not objectionable as hearsay.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1248; Dec. Dig. <@=>391.]</p> <p>3. Witnesses <@=>392 — Impeachment—Inconsistent Statements — Statements of Attorney.</p> <p>A letter written by claimant’s attorney to a railroad company asking for a settlement, in which he related facts in a manner different from claimant’s testimony at the trial, is inadmissible to impeach claimant’s testimony, since the statements were those of the attorney and not of the claimant.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251, 1257; Dec. Dig. <@=> 392.]</p> <p>4. Evidence <@=>213 — Declarations of Parties — Offer to Compromise.</p> <p>A request for settlement of a claim for damages for personal injuries, made before the railroad company had denied liability, or there had been any disagreement as to the amount of damages, is not an offer of compromise so as to render statements made therein inadmissible to impeach the testimony of the claimant.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. <@=5213.]</p> <p>5. Carriers <@=>361 — Ejection from Train-Liability.</p> <p>One who paid a brakeman less than the passenger fare for the privilege of riding on a freight train cannot recover from the company for injuries resulting from being ejected by the brakeman while the train was in motion.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1409-1466, 1469, 1470, 1472-1476, 1478-1501; Dec. Dig. <@=>361.]</p> <p>6. Appeal and Error <@=>1048 — Prejudicial Error — Exclusion of Evidence — Impeaching Evidence.</p> <p>Where plaintiff’s testimony was the only evidence in the • case showing that plaintiff was ejected from a moving train by the conductor, for whose act the' railroad would be liable, not by the brakeman for whose act it would not be liable, error in excluding statements by plaintiff that it was the brakeman, and not the conductor, who ejected him, was prejudicial to defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140 — 4145, 4151, 4158-4160; Dec. Dig. <@=>1048.]</p>

<p>Error from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by George W. Smith against William Carr and wife. Judgment for defendants, and plaintiff brings error.</p>

J. Walker, Judge. Action by the Merchants’ & Planters’ National Bank of Mt. Vernon, Tex., against C. J. Jones. Judgment for defendant, and plaintiff appeals.

<p>Appeal from District Court, Zavala County; B. H. Burney, Judge.</p> <p>Action by Ilario Moya against the San Antonio, Uvalde & Gulf Bailroad Company, through its receiver, Duval West. From a judgment for plaintiff, defendant appeals.</p>

<p>Boundaries <§=^3 — Calls eor Course and Distance — Galls eor Lines.</p> <p>■ A patentee’s field notes called for the western boundary of a section as his eastern boundary. The western boundary of the section, not evidenced by any location on the ground, was ascertained by measurements. A marked line did not conform to the line fixed by measurements, and there was nothing to show who marked the line, or when it was done, except that it appeared to be an old survey. Held, that the call in the field notes for the boundary line must prevail over any call for course and distance, though courses and distances prevail, except when in conflict with a survey as actually made.</p> <p>■ [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <§=>3.]</p>

<p>Evidence <§=>264 — Admissions—Foece and Effect.</p> <p>In an action on a note, where defendant, to secure the privilege of opening and closing, admitted the cause of action stated in the petition, except in so far as it might be defeated by the plea in reconvention, such admission carried with it proof of all of the facts essential to support a recovery for the full amount of the note, with interest and attorney’s fees.</p> <p>[Ed. Note. — For other cases, see Evidence., Cent. Dig. § 1028; Dec, Dig. <§=>264.3</p>

<p>1. Bills and Notes <®==>518 — Consideration —Evidence.</p> <p>In an action on notes and to foreclose a chattel mortgage securing them, evidence held to sustain a finding that the notes were supported by a consideration.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1816-1820; Dec. Dig. 518.]</p> <p>2. Appeal and Error @^>501 — Question Reviewable— Refusal to Consolidate Actions — Exception.</p> <p>An exception to refusal to consolidate actions, on the answer or motion of party complaining, must be preserved, or the ruling will not be reviewed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. <§==> 501.]</p>

M. Milam, Judge. Action by M. A. Hamon and another against tlie International & Great Northern Railway Company and another. From a judgment against it, the defendant named appeals.

<p>Appeal from Guadalupe County Court; J. M. Woods, Judge.</p> <p>Action by H. E. Short against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. CORPORATIONS <&wkey;6'88 — ACTIONS— SERVICE op Process — 'Validity.</p> <p>The court, on suggestion that service on a foreign corporation was not procured by service on an individual as local agent, may consider the affidavit of the individual, averring that he was not at the time of filing of the affidavit, or at the time of the bringing of the suit and service of citation on him, an officer or local agent of the corporation, and that the corporation was not engaged in business in the state.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2603-2G27; Dec. Dig. &wkey;668.]</p> <p>2. Corporations <®=o6G8 — Foreign Corporations — Service op Process — Service on Agent.</p> <p>Service of process on a foreign corporation by service on one who came into the county to sell stock and to establish a local sales agency, and whose territory was unlimited, was not good as made on a local agent within the statute authorizing service on foreign corporations by service on such agents, and, even if such person was a general agent, the service was not within the statute.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. &wkey;668.]</p> <p>3. Corporations <&wkey;6G9 — Foreign Corporations — Service op Citation — Appearance.</p> <p>The appearance of the regular attorney of a foreign corporation as amicus curise, to object to the sufficiency of service of citation on the corporation, is not an appearance for it.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2641, 2642; Dec. Dig. &wkey;G69J</p>

<p>Appeal from Special District Court, Bowie County; W. T. Armistead, Judge.</p> <p>Action by Chas. S. Todd and wife against the St. Louis Southwestern Railway Company of Texas. From a judgment for defendant, plaintiffs appeal.</p> <p>Lots 1, 2, and 3, in block 22, each fronts east 50 feet on State street in Texarkana, and extends west 140 feet to an allqy. Lot 1 is bounded on the north by Third street. Lot 2 adjoins lot 1 on the south, and lot 3 adjoins lot 2 on the south. In 1900 or 1901, one Hardin, who then owned lots 1 and 2, had same graded down to about the level of State and Third streets. In 1902, Hardin conveyed said lots 1 and 2 to F. H. Britton. In August, 1912, appellants became the owners of the north one-half of lot 3, on which a two-story brick house, fronting east 25 feet on State street and extending thence west 100 feet, was situated. After appellants became the owners of said one-half of lot 3, they leased the lower story of the house thereon to one Smith, who used same to carry on his business as a retail grocer. In January, 1913, and at times subsequent thereto, the stock of goods owned by Smith was injured by water entering the storeroom he had leased from appellants. The latter claimed that the water entered the storeroom because of the manner in which lots 1 and 2 had been graded, and, having paid to Smith a sum of money representing damages he had suffered because of the water, and having taken from him an assignment of .his claim for such damages, they brought this suit against appellee and sought to recover against it as the owner of said lots 1 and 2 at the times water entered their building the sum they had paid to Smith, sums they had expended in efforts to prevent water from entering the building, and a sum they claimed as damages suffered by them because of injury to the north wall of their building caused by water which, they alleged, had been impounded against same as a result of the manner in which said lots 1 and 2 had been graded and maintained. In their petition appellants alleged that their building was “constructed upon a foundation beneath the surface of the ground made of cement, brick, and mortar, which was substantial, durable, and sufficient foundation for a house of its size and kind,” and further alleged as follows:</p> <p>“That the defendant’s said lots numbered 1 and 2, according to their natural lay, were higher at the place where they joined the plaintiffs’ lot than they were at either end thereof or the. north side thereof. That the defendant or its vendors of said lots graded or caused to be graded its said lots prior to January 1, 1910, and so graded same that the portion of the defendant’s said lot No. 2 at and near the central portion of the wall of plaintiffs’ said building was much lower than the remainder of lot No. 2 east and west'thereof, and was much lower than any portion of lots Nos. 1 and 2, and all the water falling on lots numbered 1 and 2 was by the negligence and carelessness of defendant in permitting said lots to remain in such condition and in maintaining said lots in said condition caused to flow in a basin which was formed by the manner of grading aforesaid, and that the said basin held and retained all the water so flowing or falling into same until it was absorbed or had percolated through the adjoining foundation and wall of plaintiffs’ building, and the defendant had been prior to January 3d notified of the conditions aforesaid on their said premises, and they had also been notified by plaintiffs that, by reason of the existence of the said basin and the accumulation of water therein in times of ordinary rainfall, the plaintiffs’ building and foundation thereunder had been and would be injured, damaged, and impaired thereby, and the contents of said storeroom damaged, injured, and destroyed.</p> <p>“That heretofore, about the 3d day of January, 1913, and at sundry times thereafter, there were heavy rainfalls in Texarkana, Tex., and on the property aforesaid. That by reason of the manner of grading and the fact that de-, fendant was maintaining its lots in the condition aforesaid, large quantities of water fell upon defendant’s said lots 1 and 2, and which would have naturally flowed away from plaintiffs’ building but for the negligent manner of grading aforesaid, was on said account caused to flow into and remain in the basin formed as hereinbefore described, and the same did collect and stand near to and against the foundation and wall of the north side of plaintiffs’ said house or storeroom, and so continued to stand there. That same did undermine the foundation of plaintiffs’ said storeroom and soak through the' mortar, cracks and bricks in said foundation, and softened the ground thereunder, and washed through the lower part of the wall of said building, thereby damaging the plaintiffs’ said building in the sum of $500. That the water flowed through the wall thereof into said storeroom and damaged the goods of Paul M. Smith, the plaintiffs’ said tenant, in the full sum of $145.75.”</p> <p>The court below found as facts: (1) That E. H. Britton held the title to lots 1 and 2 in trust for appellee; (2) that lots 1, 2, and 3 originally were several feet higher than the grade line established by the city, and were cut down by their respective owners to conform to that line; (3) that lots 1 and 2 were so cut down by Hardin while he owned them, but that in grading them he did not change the natural flow of surface water thereon; (4) and that the flow of surface water on said lots 1 and 2 as graded by Hardin was toward the northwest corner of lot 1 and away from appellants’ building. Other findings of fact by said court were stated by him as follows:</p> <p>“I find that plaintiffs have a concrete floor in their building which is several inches lower than the surface of lot No. 2, and considerably lower than the surface of the west end of the south half of lot No. 3. I further find that at the back of plaintiffs’ said building there is an excavation with a concrete floor which is considerably lower than the surrounding soil. I find that after January 1 and prior to January 11, 1913, water seeped into plaintiffs’ building through the north and south walls and also ran in the back and front door of the same, and that the goods were damaged to some extent ; but I find it impossible to determine from the evidence what damage, if any, was caused by water that came through the north wall. I find .that the defendant herein had no notice that water ever came through said north wall until January 11, 1913, and after said damage had occurred. I find again in February, 1914, water ran in said building in practically the same way as in January, 1913, and some of the goods were damaged by moisture; but I find it impossible, from the evidence, to determine what damage, if any, was caused by the water that seeped through the north wall. I find from the evidence that the walls have not been damaged.”</p> <p>The court made other findings, which he designated as “conclusions of law,” as follows:</p> <p>“First. I conclude that plaintiffs have shown that the defendant is the owner of lots 1 and 2, and that it is not responsible for any of the damage for which plaintiffs sue.</p> <p>“Second. I further conclude that plaintiffs have failed to show that the surface of lots 1 and 2 has been changed so as to cause the surface water thereon to flow over the plaintiffs’ lot, or against their wall, or changed in any manner so as to constitute a nuisance. I still further conclude that no illegal use has been made of lots 1 and 2, and that if plaintiffs have been damaged in any way same is damnum absque injuria, and that plaintiffs are not entitled to recover in this suit.”</p> <p>In accordance with the findings made by him, the court rendered judgment that appellants take nothing by their suit.</p>

<p>1. Evidence <&wkey;>544 — Experts—Competency— PRELIMINARY EVIDENCE.</p> <p>Testimony of a witness, showing his long-continued familiarity with and experience in the use and effect of dynamite as an explosive, held to qualify him to testify as an expert as to the effect of exploding dynamite on a human body.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2356; Dec. Dig. <&wkey;>544.]</p> <p>2. Evidence &wkey;>570 ■ — Expert Testimony — Weight.</p> <p>The weight of the testimony of an expert is for the court on a trial without a jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2395; Dec. Dig. <S=»570.]</p> <p>3. Appeal and Error <&wkey;1050 — Harmless Error — Admission op Evidence.</p> <p>Any error in admission of testimony is harmless, other witnesses having, without objection, given similar testimony.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §| 1068, 1069, 4153-4157, 4166; Dec. Dig. &wkey;5l050.]</p> <p>4. Appeal and Error <&wkey;690 — Becord—Be-view.</p> <p>The record not affirmatively showing articles were admitted, an assignment of error to their admission must be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. &wkey;690J</p> <p>5. Appeal and Error <&wkey;>204 — Objections in Lower Court — Evidence.</p> <p>Admission of evidence having been without' objection, error cannot be predicated thereon.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. &wkey;204.]</p> <p>6. Appeal and Error <&wkey;501 — Bill op Ex-ceptio ns — Evidence .</p> <p>Exception to admission of evidence need not be preserved by bill of exceptions, but by provision of Bev. St. 1911, art. 2060, may be reserved and noted in the statement of facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. &wkey; 501.]</p> <p>7. Appeal and Error <&wkey;501 — Statement op Facts — Dispensing with Bill op Exceptions.</p> <p>One relying on the right under Bev. St. 1911, art. 2060, to have his objections and exceptions noted in the statement of facts, thus dispensing with bills of exceptions, must present the grounds of his objections clearly, so that the appellate court will not be left in doubt as to which one of numerous objections and exceptions is presented for review, or required to search a mass of statements of facts to ascertain what objection was made.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. &wkey;501.]</p> <p>8. Municipal Corporations <&wkey;122 — Ordinances — Adoption—Evidence.</p> <p>Whether a city council adopted an ordinance is a question of fact, and to show that it was passed, it may, if necessary, be shown a mistake in the minutes was made, by reciting' that it was adopted as a chapter instead of a title.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 281-289; Dec. Dig. <&wkey;>122J</p> <p>9. Explosives <§^S — Personal Injury — Concurrent Proximate Cause.</p> <p>Defendant’s negligence per se, in keeping dynamite in quantity in its warehouse, in violation of an ordinance, was a concurrent proximate cause of plaintiff’s injury from explosion thereof, rendering- it liable whether its servant who caused the explosion was at the time performing any service for it, or negligently or intentionally caused it.</p> <p>[Ed. Note. — For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;>8.]</p> <p>10. Explosives &wkey;>8 — Illegal Keeping — Liability.</p> <p>A holding that the keeping by a railroad company for over two days from 200 to 400 pounds of dynamite in the warehouse in its depot, in the center qf the town, in close proximity to business houses and dwellings, constitute!! a public nuisance, rendering it liable for injury to one in an office in the vicinity from explosion of the dynamite, without regard to its care in keeping it, would be justified, did not under an ordinance render its keeping the dynamite negligence per se.</p> <p>[Ed. Note. — For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;>8.]</p>

<p>1. Judgment <@=475 — Pinal Judgment — COLLATERAL ATTACK.</p> <p>Pinal judgments, including a final judgment of the county court rendered in matters within its probate jurisdiction, can only be directly attacked by-a proceeding instituted for that purpose, and set aside only for want of jurisdiction or for mistake or fraud in their rendition ; otherwise remaining valid and not subject to collateral attack in another proceeding..</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 910; Dee. Dig. <@=>475.]</p> <p>2. Guakotan and Ward <§=>105 — Confirmation oe Guardian’s Sale — Vacation—Collateral Attack.</p> <p>Where the probate court of H. county authorized guardian to sell certain land of Ms minor ward at private sale and confirmed the sale, reciting that it was fairly made, the same court, on application for the guardian’s removal and the appointment of petitioner and for judgment against the guardian for misappropriation of the ward’s money, without service on the guardian or upon his sureties, had no jurisdiction to reopen or set aside the sale and render judgment against the guardian and his sureties for his gross negligence in selling for less than actual value.</p> <p>[Ed. Note. — Por other oases, see Guardian and Ward, Cent. Dig. §§ 383-389; Dec. Dig. <©=> 105.]</p> <p>3. Guardian and Ward <@=>182 — Guardian’s Bond — Liability of Sureties —Jurisdiction.</p> <p>In such case, the probate court had no jurisdiction to decree an indebtedness against the sureties on the guardian’s bond, since it had no jurisdiction as to them.</p> <p>[Ed. Note. — Por other oases, see Guardian and Ward, Cent. Dig. §§ 423, 623-636, 638-652, 654-663; Dec. Dig. <@=>182.]</p>

Action by the Winfield State Bank against Walter Harper and others. Judgment for plaintiff, and defendant Harper appeals.

<p>Appeal from Fannin County Court; Rosser Thomas, Judge.</p> <p>Action by Ben Stevens against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hardin County; L. B. Hightower, Judge.</p> <p>Action by Horace Word against Thomas M. Colley and another. From a judgment for defendants, plaintiff appeals.</p>

B. Hightower, Judge. Trespass to try title by S. G. Hanks and others against the Houston Oil Company of Texas. Prom a judgment directing a verdict for defendant, plaintiffs appeal.

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by W. B. Jones against Sisters of Charity of the Incarnate Word. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Action by John Tyler against J. T. Sow-ders. From, a judgment for defendant, plaintiff appeals.</p>

<p>Courts <&wkey;>247 — Jurisdiction of Court of Civil Appeals — Certification of Questions to Supreme Court.</p> <p>The Court of Civil Appeals has no jurisdiction to certify questions to the Supreme Court after the expiration of the term at which the case was finally disposed of by overruling a motion for rehearing, though there was a dissenting opinion.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. &wkey;247.] -</p>

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Action by J. P. Jeans and others against the Liquid Carbonic Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Uvalde County; R. H. Burney, Judge.</p> <p>Mollie Wilson was convicted of murder in the second degree, and she appeals.</p>

<p>1.Evidence @=>375 — I-Iandwrrting—Admis-sibility.</p> <p>Where, in an action for negligent death of a brakeman struck by a passenger train, there was evidence of the finding near the place of the accident of an envelope containing in pencil the statement that decedent was thrown from a freight train onto track and was caught by a rail, and a witness knowing decedent’s handwriting testified that the statement was written by decedent, the statement was properly received in evidence as against the objection that it had not been properly identified and shown to be the writing of decedent.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1591, 1602, 1604, 1606; Dec. Dig. @=>375.]</p> <p>2. Evidence @=>382 — Admissibility—Objections.</p> <p>Where a writing was properly received under the evidence when offered, the fact that subsequent evidence attacked the identity and genuineness of the writing did not render the ruling improper, but the party complaining should renew his objection to the admissibility of the writing.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1658, 1659; Dec. Dig. @=>382.]</p> <p>3. Railroads @=>367 — Operation of Trains —Lookout.</p> <p>A railroad engineer must, for the safety of Ms passengers and of persons who may be on the track, keep a lookout in the daytime or at nighttime for persons and obstructions on the track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1257, 1258; Dee. Dig. @=>367.]</p> <p>4. Master and Servant @=>278 — Injury to Servant — Negligence—Evidence.</p> <p>Evidence helé to sustain a finding that an engineer operating a passenger train running over a freight brakeman thrown from a freight train on ■ the passenger track was guilty of negligent failure to keep a lookout.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 071, 972, 977; Dec. Dig. @=>278.]</p> <p>5. Master and Servant @=>265 — Injury to Servant — Negligence —< Evidence — Burden of Proof.</p> <p>One suing for the death of a freight brakeman thrown from the train and onto a passenger track, and there run over by a passenger train while unable to move from the track, has the burden of pi'oving the negligence of the freight conductor in failing to discover decedent on the track in time to avoid the accident.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-90S, 955; Dec. Dig. @=^265.]</p> <p>6. Trial @=>S5 — Evidence — Objections — Sufficiency.</p> <p>A general objection to evidence, as a whole, is untenable, where a part is admissible, and the overruling of the objection is not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. @=>85.]</p> <p>7. Death @=>99 —Action for Negligent Death — Damages—Excessive Damages.</p> <p>A verdict for $2,500 for the death of a man 33 years old, earning $80 per month, leaving surviving his parents, 70 and 71 years old, respectively, will not be disturbed, where decedent had contributed something like $110 in money to the parents after his attaining majority, and had contributed labor on his parents’ farm at different periods.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig-. @^99.]</p> <p>On Motion for Rehearing.</p> <p>8. Master and Servant @=>278 — Injury to Servant — Negligence.</p> <p>In an action for the death of a freight brakeman thrown from a freight train onto a passenger track and run over by a passenger train, evidence held not to show the negligence of the freight conductor in failing to discover decedent on the track in time to avoid the accident.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 900-969, 971, 972, 977; Dec. Dig. @=>278.]</p> <p>9. Negligence @=>56 — Proximate Cause — Acts Constituting.</p> <p>Where several causes concurred to produce a result, any one of them could be the proximate cause, provided it was an efficient cause, but the proof must show a proximate connection between the wrong and the injury complained of.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. @=>56.]</p> <p>10. Appeal and Error @=>995 — 'Verdict-Evidence — Review.</p> <p>An appellate court will not weigh conflicting evidence and balance probabilities and draw inferences in determining an issue of fact.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3907; Dec. Dig. @=>995.]</p> <p>11. Negligence @=>56 — “Proximate Cause” —Acts Constituting.</p> <p>Where there is no reason to expect an injury and no knowledge in one doing a wrongful act that such a state of things exists as to render an injury to another probable, the wrongful act is not a proximate cause, which depends on the question whether a reasonatuy prudent man, in view of the facts, would have anticipated the result, though not necessarily the precise actual injury complained of, but some like injury produced by similar agencies.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. @=>56.]</p> <p>12. Master and Servant @=>146 — Operation op Trains — Care Required of Trainmen.</p> <p>The rule of a railroad company that conductors are expected to see that the trainmen are on the train before leaving a station does not prevent conductors from relying on the presumption that trainmen will get on the train and be at their ordinary places of duty.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 2S4; Dec. Dig. @=>140.]</p>

<p>1. CONSTITUTIONAL LAW <S^2íL-REPEAL OP Former Statute — Recovery por Death.</p> <p>Comp. Laws N. M. 1897, § 3213, limiting recovery for death caused by a carrier to $5,-000, to be recovered by deceased husband, wife, children, or parents, being in conflict with, was on admission of the territory as a state, repealed by, Const. N. M. art. 20, § 16, declaring a carrier liable in damages for death of an employs through its negligence, action for which shall be by the executor or administrator for the benefit of the surviving spouse and children; the recovery to be distributed as provided by law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 21-29; Dec. Dig. <i&wkey; 24.]</p> <p>2. Constitutional Law <&wkey;29 — Self-Executing Provisions — Recovery for Death.</p> <p>As to the unlimited amount of recovery for death of an employé by negligence of a carrier, and authority -of the executor or administrator to sue, Const. N. M. art. 20, § 16, is self-executing, unaffected by its provision that the recovery may be distributed as provided by law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig'. § 32; Dec. Dig. &wkey;?29.]</p> <p>3. Trial <&wkey;136 — Court Question — Foreign Law.</p> <p>Proof of foreign laws is made to the court rather than to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323-327; Dec. Dig. &wkey; 136.]</p> <p>4. Evidence <&wkey;82 — Presumptions — Judicial Proceeding.</p> <p>In the absence of evidence to the contrary, it will be presumed that the county court, which had appointed plaintiff temporary admin-istratrix to prosecute the action, had, as authorized by statute, by proper orders made at each succeeding term, continued the temporary administration so long as necessary to accomplish the purpose of the appointment.</p> <p>[Ifld. Note. — For other cases, see Evidence, Cent. Dig. § 104; Dec. Dig. <&wkey;>82.]</p> <p>5. Executors and Administrators <&wkey;443— Actions — Capacity to Sue — Temporary Administrator — Pleading.</p> <p>The lapsing of the temporary administration of plaintiff is to be raised by. sworn plea in abatement, under Rev. St. 1911, art. 1906, subd. 2, as to verification of an answer setting-up want of capacity of plaintiff to sue.</p> <p>[Ed. Note. — ITor other cases, see Executors and Administrators, Cent. Dig. §§ 1798-1811, 1823-1830, 1842-1845, 1848; Dec. Dig. &wkey; 443.]</p> <p>6. Trial <&wkey;296 — Instructions—Curing Error.</p> <p>Any error of an instruction in action for death, as to deceased being at the time an employé on duty, was harmless to defendant, another instruction requiring, as condition to recovery, a finding that defendant’s yards, where deceased was struck by an engine, were customarily and generally used by the public, as well as by the defendant’s employés when off duty, as a highway and public place for the purpose of crossing the tracks.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. &wkey; 296.]</p> <p>7. Appeal and Error <&wkey;100T — Reviewed— Verdict.</p> <p>A verdict reasonably supported by the evidence will not be disturbed on appeal.</p> <p>[Ed. Note.-*-For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. <&wkey;>1001.]</p>

■ Appeal from District Court, Franklin County;- H. F. O’Neal, Judge. Action by Willie Mae Hall and another against the United States Fidelity & Guaranty Company and another. From a judgment for plaintiffs against defendant named, it appeals.

L. Blanton, Judge. Trespass to try title by J. B. Knox against John R. Daniel, in which the First State Bank of Blackwell, Tex., intervened, claiming the property. Judgment for plaintiff, and the intervener appeals.

<p>Appeal from District Court, Wood County; R. W. Simpson, Judge.</p> <p>Action for statutory penalties by the State against the' Texas & Pacific Railway Company. From a judgment for defendant, the State appeals.</p>

<p>Original petition for mandamus on the relation of P. Albert Cooney against S. J. Isaacks and another.</p>

<p>Appeal from District Court, Smith County; R. W. Simpson, Judge.</p> <p>Action by R. W. Moore against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p> <p>Appellee was one of a switching crew engaged in moving cars in appellant’s yards at Tyler. One Phillips was foreman of the crew, and one Beaird was the engineer in charge of the locomotive used in switching the cars. During the nighttime of November 17, 1913, immediately after a string of several cars had been “kicked” to go onto a side track, appellee, in the discharge of his duty, mounted one of them for the purpose of controlling the speed thereof, by operating a brake thereon, as it approached other cars already parked on the side track. At the time he mounted it the car was moving at a speed of from five to eight miles an hour. The side track was downgrade toward the cars parked on it; and notwithstanding ap-pellee’s effort to check the speed thereof, by means of the brake, the string of kicked cars was moving at a rate of from 12 to 14 miles an hour when same collided with the other cars on the side track. Appellee claimed he suffered serious injury to his person as a consequence of the collision; and by the suit resulting in the judgment in his favor, from which this appeal is prosecuted, sought a recovery of damages against appellant, on the ground that it had been guilty of negligence in that it had permitted the brake he endeavored to operate to become and be defective, and in that it had caused the string of cars to be kicked with unusual and unnecessary violence.</p> <p>The defect claimed to exist in the brake was shown by testimony of appellee, as a witness in his own behalf, as follows:</p> <p>“Hand brakes are on a round wheel, and you work them with your hands. There is what they call a ‘brake wheel.’ Tou work the brakes with your hands. You set them up as tight as you can with your hands, and then you have a stick, and you can set them up five or six notches tighter with the stick than you can with your hands. The brakemon here usually and ordinarily carry brake sticks. * * * Those brake sticks are about two feet long. They are pick handles. * * * When a brake is set up by turning the wheel, and you want to release the brake (that is to say, you want to take your hands off of it, but you want the brake to remain set up and want the power to remain on), then that is done with a dog right down at your foot. There is a ratchet wheel on the brake staff that is stationary, and the dog comes right out here, and you have to work it with your foot while you are pressing it, and every time you go to take slack you shove it in; then you pull again. That dog works in notches on the ratchet wheel. • The ratchet wheel has notches, or cogs, you might call them, all around it. The dog itself is not attached to the ratchet wheel, but it is attached to the top of the car. The dog is not stationary, but it works backwards and forwards. * * * I mounted the cars and went on top with my lamp on my arm. I set the ratchet and got the brake and started "to-setting it, started to pulling it on, and got up there and twisted it around, and seen the cars was not slowing down any, and I applied my stick, and they still kept going; then 1 went to fasten the dog, and the brake staff had come up, and the dog went underneath it. The brake staff, 1 mean, would rise. When the brake staff would rise, that would bring the ratchet wheel up with it. I don’t know what it is that makes or permits a brake staff to rise when you wind it up, unless the key is gone from the bottom of it. * * 41 There is an apparatus or appliance in the shape of a brake key underneath and down at the bottom or near the bottom end of the brake rod that holds it in place and prevents it from rising as you operate it. * * * Ordinarily, when a brake is in good working order, and when you wind it up, the brake rod ought not to rise as that one did. It is not intended to rise. * * * When I applied the stick, the brake staff raised up. I tried only once to fasten that with the dog. The dog had to go underneath at this time, and I did not have time to throw it out. Then, in the meantime, by the time I did that and discovered that the dog would not work, I was right on those cars — right close to them. When I saw the brake would not work and that the dog would not hold, I did not then turn the brake loose and let it go and protect myself because I was scared to, because I was scared the stick would knock me off. ;s * * If I had turned the stick loose, I don’t know what would have become of the stick; don’t know where it would have went to. It would have flew off somewhere if I could have turned it loose, but I could not; I was scared to turn it loose, scared it would hit me.”</p> <p>With reference to the manner, etc., in which the cars were kicked, there was testimony as follows:</p> <p>Axspellee, as a witness, testified:</p> <p>“The cars were kicked pretty hard. The foreman give the signal, and the engineer taken the foreman’s signal to kick them.”</p> <p>Appellant’s witness McKenzie on his cross-examination testified as follows:</p> <p>“Phillips, the night foreman, was acting as night foreman on this night of November 17th. The night foreman is the man who is supposed to give the signals, and so forth, for the switching, and when to come backwards and forwards. * ■* * i don’t remember whether Mr. Earl, the superintendent, was down there in the yard on the night of November 17, 1913. I could not say whether it was the night of the 17th, but he was down there one night, and just about that time. Q. Don’t you remember that the night you say Mr. Earl was down there was about this time — that he complained to the men there in the yard of the rough manner in which the cars were being kicked and handled, and the rapidity with which they were being sho't over the track? A. Well, Mr. Earl was there, and he was talking to Phillips; that is, the foreman. After he left he was telling— Q. Well, did you yourself hear anything that Mr. Earl said to Mr. Phillips that night, or to any of the switching force down there, with reference to the manner of handling the cars that night? A. No, sir; as a matter of fact, the cars were not handled with unusual roughness on that night. That is the way Phillips kicked the cars ever since he worked the engine. He kieked them no harder that night than he did any other night. Q. Wasn’t Phillips — the way in which he had the cars handled, and the directions he gave for the cars being kicked — wasn’t he an unusually rough man in the handling of the cars? A. Yes, sir. I-Ie gave the signals, and we obeyed; or the engineer and the fireman and the men who had charge of the operation of the cars obeyed the signals of the foreman who gave them. Q. Well, didn’t he that night — the night this man said he was injured, whatever particular night of the week or the month it might have been — the night he was injured, didn’t Phillips on that night and the other nights, didn’t he have the cars and cause the cars to be kicked with more violence and speed and momentum than was usual and customary down there in those yards? A. Well, I don’t see as he did. I don’t see no difference that night and no other night. Q. I ask you how Phillips ordinarily and customarily had the cars handled and give the signals? Didn’t he have the cars kicked and handled in a manner that was unusually and unnecessarily rough? A. Yes, sir. Q. Now, the particular night Mr. Earl was down there and you saw him talking to Phillips — on that particular night, whatever night that was — Phillips was handling the ears and having them kicked with unusual speed and violence and roughness that night, wasn’t he? A. I think he was. Yes, sir.”</p> <p>Appellant’s witness Beaird, the engineer in charge of the locomotive, on his direct examination testified:</p> <p>“In regard to the switching of the cars in the yards there at night, in the movement of my train (engine?) and the cars, I switch them in keeping with and am governed by lamp signals. * * * When I get these signals, if I think they are not as they should be, I use my judgment. If I think they are all right, I execute them like they give them. There was nothing unusual on that night, that I can recall to mind, regarding the unusual manner in which the cars were handled by my crew. I don’t remember of anything.”</p> <p>On his cross-examination the witness testified:</p> <p>“I think this man Phillips was the night foreman of the switching crew at that time, but I am not exactly certain about it. The foreman of the switching crew is the man who ordinarily gives the signals for the movement of the cars, when he is in sight. Q. Isn’t it a fact that Phillips ordinarily and customarily had the cars kicked and moved with unusual violence and speed and momentum? A. He tried to; yes. And but for the intervention of my own judgment, when I felt like he was doing it too violently, but for that fact, he would have had the cars kicked all the time too violently. When it come to kicking cars, I always use my own judgment. If I were kicking cars in on the side track and letting them run down a certain distance and stopping them, the train switching the ears and kicking them around, and if it became necessary to kick some more down that same track, frequently I would not know just how far the cars would have to run. Q. Consequently, when he gave the signal to come back, kick them a certain distance or certain speed, you had to depend very largely upon the foreman's signals at that time? A. Yes. Q. It is a fact, is it not, that some of the time you have to be governed by what signals you got from the foreman, because you could not tell, from where you were, just exactly how far those cars would have to run? A. Yes, I couldn’t tell.”</p> <p>The evidence was sufficient to show that appellee, without fault on his part, was injured, as alleged, because of negligence on the part of appellant, and we so find.</p>

<p>1. Railroads &wkey;>457 — Pires—Liability por Damages.</p> <p>A railroad on whose boarding car a fire started, and which failed to-extinguish it before it reached plaintiff’s grass or pasture land and destroyed the grass, was liable in damages.</p> <p>[Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 1661; Dec. Dig. <&wkey;>457.]</p> <p>2. Appeal and Error <&wkey;719 — Review—Assignment.</p> <p>In an action for damages for burning defendant’s grass, where the court assumed that the fire was started in defendant’s boarding car through negligence of its employés, and no assignment of error for such assumption was presented, a proposition that there was no evidence that the fire originated through any negligence of defendant’s employés could not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. &wkey;719.]</p> <p>3. Railroads &wkey;>482 — Eire®—Negligence.</p> <p>Where railroad employés were using a boarding car shortly before the fire, and the railroad put in no evidence of probability that the fire started through some other agency than the negligence of its employés, there was a showing prima facie that the fire originated through some act or omission of its employés.</p> <p>[Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1730-1732, 1734-1736; Dec. Dig. <S=>482.]</p> <p>4. Damages &wkey;>112 — Pires—Evidence.</p> <p>Where it appeared that plaintiff was using his land for pasturage and hay purposes, the measure.of damages for injury to the land was the depreciation in its market value for that or any lawful purpose.</p> <p>[Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. &wkey;>112.]</p> <p>5. Damages &wkey;>138 — Excessive Damages — Injury to Land.</p> <p>In an action for the burning of plaintiff’s grass and for injury to his land, where there was evidence that the grass burned was worth $432, that the depreciation of the land was $334, that the cost of replacing fence posts was $52, aggregating $818, a verdict for $813, with interest, was not excessive.</p> <p>[Ed. Note. — Por other case, see Damages, Cent. Dig. §§ 397, 398; Dec. Dig. <&wkey;138.]</p>

<p>1. Baileoaus <@=^367— Operation of Trains —Care Bequired — Lookout.</p> <p>Trainmen must at all times exercise a proper degree of care in keeping a lookout to discover -persons and objects in any situation on the track, and a failure so to do makes the railroad company liable for injury to a person on the track unless he was guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1257, 1258; Dec. Dig. <@=>367.]</p> <p>2. Railroads @==>39S — Operation—Lookout —Negligence—Evidence.</p> <p>In an action for the death of a person run over by an engine, evidence held to support a finding of negligent failure to keep a proper lookout.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. <©=> 398.]</p> <p>,3. Railroads <£5=^396 — Operation—Lookout —Negligence—Evidence.</p> <p>Where a person on a track was run over because of the failure of trainmen to keep a proper lookout, the company, to escape liability, must show that the person was guilty of negligence proximately causing the accident.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1341-1343, 1357; Dec. Dig. 396.]</p> <p>4. Negligence <®=»58 — “Proximate Cause” —Wiiat Is.</p> <p>Before an act or omission is the “proximate cause” of an injury, the injury must be the natural and probable result of the act or omission; for one is not responsible for the consequences of an act not reasonably foreseen.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 71; Dec. Dig. <§¿^58.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]</p> <p>5. Railroads @=o380— Injuries to Person on Track — Contributory Negligence — Proximate Cause.</p> <p>The negligence of one in jumping from a moving train and falling injured on a track is not the proximate cause of his death by being run over by an engine while remaining on the track, unable to leave it because of his injuries, but his falling on the track was the result of accident, and the railroad company, guilty of negligent failure to properly keep a lookout while operating the engine, was liable for his death.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1319-1323; Dec. Dig. <S=»389.J</p> <p>6. Railroads <S=>369 — Injuries to Person on Track — Trespasser.</p> <p>One negligently jumping from a moving train and falling on a track, so injured as to be unable to leave the track, is not a willful trespasser, and the company owes to him the duty of a proper lookout.</p> <p>[Ed. Note — For other cases, see Railroads, Cent. Dig. §§ 1259-1262; Dec. Diig. <§=^369.J</p>

<p>1. Boundaries <@=337 — Evidence — Sufficiency-Location of Corner.</p> <p>In a suit to determine the boundary line between two surveyed blocks, evidence held sufficient to sustain the finding of the court that the southeast corner of one block was located at a point 317 varas north of where it should be according to the call for course and distance.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dee. Dig. <@=>37.]</p> <p>On Motion for Rehearing.</p> <p>2. Boundaries <@=>37 — Evidence — Sufficiency — Location of Corner.</p> <p>In a boundary suit, evidence held to show, contrary to the finding of the court, that the south line of a certain block ran southwesterly from the southeast corner to the corner of blocks in another survey, rather due west, according to the course called for.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184^-194; Dec. Dig. <@=>37.]</p> <p>3. Boundaries <@=>1 — Determination — Rules'.</p> <p>The object of the rules for the ascertainment of boundary lines is to determine where the line was originally in fact located by the surveyor, not where it should have been located.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 1; Dec. Dig. <@=ol. ]</p> <p>4. Boundaries <@=>3 — Determination—Relative Importance — Course and Distance.</p> <p>The call for course and distance is a lower grade of evidence, and must yield to a call for a natural object, marked tree, or a fixed determinable corner.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <@=>3.]</p> <p>Dunklin, J., dissenting in part on motion for rehearing.</p>

<p>1. Schools and School Districts <§=>55 — Suit bt Trustees oe School Distbict eob Money Misdeposited by Fobmeb Trustees.</p> <p>.Where the legal depositary of county funds had refused to bring suit against former trustees of a school district who had deposited money of the district elsewhere than with the depositary, the existing trustees of the district, as beneficiaries of the fund, might maintain such a suit.</p> <p>[Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 137, 138; Dee. Dig. '<§=>55.]</p> <p>2. Appeal and Error <§=>843 — Questions Unnecessary to Decision.</p> <p>Where the trial court sustained a general demurrer and also special exceptions to the petition, and the appellate court reverses the ruling on the demurrer, it need not consider the rulings on the exceptions, as to which plaintiff, because of the sustaining of the demurrer, has had no chance to amend.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. <§=> 843.T</p>

<p>Appeal from Clay County Court; W. T. Allen, Judge.</p> <p>Action by John H. Firestone against the Ft. Worth & Denver City Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.</p> <p>Action by Taylor County against I. G. Harris and another. Judgment for plaintiff, and defendants appeal.</p>

C. Burford, Judge. Trespass to try title by W. Pauline Baugh against Julia A. McLain and others. Judgment for defendants, and plaintiff appeals. This is an action of trespass to try title, brought by appellant for the recovery of 1,280 acres of land in Panola county. The case was tried before the court without a jury, and judgment entered denying appellant a recovery of the land.

<p>Appeal from Cooke County Court; R. V. Bell, Judge.</p> <p>Action by D. D. Keeler against the Wells Fargo & Co. Express. From a judgment for plaintiff, on appeal from a justice, defendant appeals.</p>

<p>Error from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Action by Mrs. Nellie McMurray against the Fort Worth & Rio Grande Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

Action by Rufus 'A. Gossett against A. M. Vaughan, in which Catherine Vaughan, defendant’s wife, intervened. From a judgment for defendants, ifiaintiff appeals. By his deed dated July 16, 1912, A. M. Vaughan conveyed the property known as the “Richmond Plill addition to the city of Dallas” to his wife, Catherine Vaughan.

<p>Appeal from District Court, Tarrant County; Marviri. H. Brown, Judge.</p> <p>Action by Harry L. McKinnell against the Gulf, Colorado & Santa Fé Railway'Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Knox County ; J. A. P. Dickson, Judge.</p> <p>Suit by Mrs. M. A. Reeder against the Orient Land Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Erbob <&wkey;659 — Certiobabi TO PERFECT RECORD — PAPERS MISSING IN Lower Court.</p> <p>Under Rev. St. 1911, arts. 2157-2163, providing' for the substitution of lost papers and records on motion, such motion can only be made in the trial court, unless it is agreed to by the adverse party, and is available where the lost papers, pleadings, etc., are in existence and on file in the court below, and a writ of certio-rari would require' the clerk thereof to send them up, but is not available where such papers, etc., are missing in the court below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig'. §§ 2834-2843; Dec. Dig. <&wkey; 659.]</p> <p>2. Judgment <&wkey;18-4REQUisiTBs — Pleading to Sustain.</p> <p>Where the record contained no pleadings to sustain a judgment for defendant against his codefendants for the amount he might be required to pay under the judgment against him, and in favor of plaintiff in the court below, such judgment was reversible error.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 34-37; Dee. Dig. &wkey;18.]</p> <p>3. Judgment <&wkey;18 — Parties—Misnomer.</p> <p>In an action against a defendant named in the petition as “C. B. B.,” where service was had on “C. V. B.” (the correct middle initial), there was no error in disregarding the misnomer and rendering judgment against C. Y. B.</p> <p>[Ed. Note. — For. other cases, see Judgment, Cent. Dig. §§ 34-37; Dec. Dig. <§=^18.]</p> <p>4. Assignments &wkey;>131 — Action—Pleading —ALLEGATION OE ASSIGNMENT.</p> <p>A petition in an action against a copart-nership, and alleging that L. sold the firm a I car of grain and drew a draft for the price in j favor of plaintiff bank, and guaranteed the amount of the draft, and that plaintiff gave him credit for the amount thereof, did not sufficiently allege L.’s assignment of the debt, so as to constitute the bank the real owner as .against the firm.</p> <p>[Ed. Note. — For other cases, see Assignments,. Cent. Dig. §§ 220-226; Dec. Dig. &wkey;131.]</p>

<p>1. NEGLIGENCE ¡$=^119 — PETITION — ISSUES, Proof, and Vabiance.</p> <p>One suing for negligence cannot recover on a ground not alleged in his petition.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. &wkey;119.]</p> <p>2. Principal and Agent <&wkey;177 — Notice to Agent — Dangerous Premises1 — Poison.</p> <p>One cannot recover for loss of his cattle by poison, placed by a railroad company on its right of way to kill Johnson grass, on the ground of the company’s failure to notify him of the distribution of the poison, where the agents in charge of the cattle knew the facts.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 670-679; Dec. Dig. <&wkey;> 177.]</p> <p>3. Railroads '<&wkey;411 — Killing Stock — Dangerous Premises — Poison.</p> <p>Rev. St. 1911, art. 6603, making a railroad company failing to fence its tracks liable for stock killed, applies only to stock killed by trains or locomotiv.es, and to authorize one to recover for the loss of his cattle by poison placed on the right of way he must show negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. &wkey;411J</p> <p>4. Animals <&wkey;96 — Injury to Trespassing Cattle — Liability—Poison.</p> <p>One placing poison on his premises for a legitimate purpose is not liable for the death of another’s cattle trespassing thereon and eating the poison, unless he failed to exercise reasonable care.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 375-379; Dec. Dig. &wkey;96.]</p> <p>5. Railroads <@=»411 — Failure to Fence — Stock Law — Effect.</p> <p>A railroad company placing poison on its right of way to kill Johnson grass, where the stock law (Rev. St. 1911, arts. 7227, 7248) is in force, need not foresee that stock may be running at large, and is not guilty of actionable negligence for failing to station guards at gates in the pasture of an adjacent owner or along its right of way to prevent trespassing cattle from entering on the track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. &wkey;>411.]</p> <p>6. Animals <&wkey;96 — Trespass — Dangerous Premises — Liability.</p> <p>Where the willful or negligent act of a third person in opening a gate in a fence adjacent to a railroad right of way on which poison had been placed caused cattle to escape on the right of way and eat the poison, failure of the railroad company to notify the owner that it was going to put out poison was not actionable negligence.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 375-379; Dec. Dig. &wkey;96.]</p> <p>Buck, J., dissenting.</p>

<p>1. Evidence ' <&wkey;444 — Parol — Conditional Liability — Bonds.</p> <p>Where defendant, who signed a bond, made it a condition that the signature of others should be procured, and that condition which was agreed to by the o.ne presenting the bond for signatures was made known to the obligee before delivery, evidence thereof is admissible in a suit on the bond where the signatures of the others were not procured.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944, 2049; Dec. Dig. &wkey; 444.]</p> <p>2. Appeal and Error &wkey;>216 — Objections at Trial — Necessity—Requests for Instructions.</p> <p>Where plaintiff sued on a bond both as obligee and assignee of an obligee, he cannot complain of the general admission of evidence of a condition precedent to the obligor’s liability, which was binding on plaintiff, but not his assignor, where there was no request to limit such testimony to plaintiff’s suit as ob-ligee.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <®=>216; Tidal, Cent. Dig. § 627.]</p> <p>3. Guaranty <&wkey;25 — Actions—Evidence.</p> <p>In a suit on a bond, evidence held not to show that plaintiff’s assignor knew of a condition precedent to the obligor’s liability.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 102, 103, 104; Dec. Dig. &wkey;25.]</p> <p>4. Guaranty <&wkey;32 — Right op Assignee.-</p> <p>Where, one of the obligees of a bond, who did not know of a condition imposed by the obligor, assigned his interest to the other ob-ligee, who knew of the condition and was bound thereby, such obligee may recover as assignee, though he could not recover as obligee.</p> <p>[Ed. Note. — For other cases, see ■ Guaranty, Cent. Dig. § 35; Dec. Dig. <&wkey;32.]</p> <p>5. Guaranty i&wkey;25 — Actions—Evidence.</p> <p>In a suit on a bond, evidence held to sustain a verdict that the obligor notified the ob-ligee- that he would not be bound unless the signatures of others were procured.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 102, 103, 104; Dec. Dig. &wkey;25.]</p>

Blanton, Judge. Action for injunction by J. E. Ryan and others against W. S. Witt and others. Judgment for defendants, and plaintiffs appeal.

<p>1. Public Lands &wkey;>173 —School Lands — Vacating Sales — Admissibility — Sub-bounding Conditions.</p> <p>In a suit to set aside a sale of school land on the ground of fraud, evidence that the interest charged on the deferred purchase money was less than was the usual rate in such cases was not admissible, where it was not first shown that the surrounding conditions were the same.</p> <p>[Ed. Note. — Eor other cases, see Public Lands, Cent. Dig-. §§ 544-551; Dec. Dig. &wkey;173.]</p> <p>2. Appeal and Eekob <&wkey;232 — Review — Presentation in Court Below.</p> <p>Where evidence was rejected on one objection, the ruling cannot on appeal be justified on another ground not raised.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. <i&wkey;232.]</p> <p>3. Public Lands <&wkey;173 — School Lands — Adequacy op Pbice — Evidence.</p> <p>In a suit to set aside a sale of school land, evidence that the interest charged on the deferred purchase money was less than usual is admissible to show adequacy of price.</p> <p>[Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]</p> <p>4. Public Lands t&wkey; 173 — School Lands — Sales — Vacation.</p> <p>A sale of school land will not be set aside because of a mere inadequacy of price.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]</p> <p>5. Appeal and Ebeor &wkey;>1170 — Review — Harmless Error.</p> <p>In a suit to sot aside a sale of school land, the erroneous exclusion of evidence showing inadequacy of price should be disregarded, under court rule 62a (149 S. W. x), where there was like evidence of similar import.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;1170.]</p> <p>6. Public Lands <&wkey;173 —School Lands — Setting Aside Sale — Actions—Evidence.</p> <p>In a suit to set aside a sale of school lands, evidence held to warrant a finding that a better price could not have been obtained, and that the price charged was not inadequate.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544 — 551; Dec. Dig. <&wkey;>173.]</p> <p>7. Trial <&wkey;350— Special Findings.</p> <p>Special findings on evidentiary matters are not required.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-S33; Dec. Dig. <¿»350.]</p> <p>8. Trial <&wkey;351 — Special Findings.</p> <p>In a suit to set aside a sale of school land for fraud and inadequacy of price, the court refused to submit special issues whether the commissioners’ court sold the land without investigating its character, or without advertisement, and with notice that it could be sold upon better terms. Special issues whether the sale was made with fraudulent understanding, whether a better price could have been obtained, and whether the price charged was inadequate, were submitted. Held, that the special issues requested went merely to evidentiary matters, being substantially covered by the issues submitted, and hence the refusal was not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. &wkey;351.]</p> <p>9. Public Lands <&wkey;173 — School Lands— Sales — Vacation.</p> <p>Though the commissioners’ court in selling school land fraudulently intended to favor the purchaser, that fact does not warrant a vacation of the sale, where the county received full value and was in no way injured.</p> <p>[Ed. Note. — For other cases, see Public Lands, • Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]</p> <p>10. Public Lands <&wkey;173 — School Lands— Sales — Commissioners’ Court — Powers —“County.”</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1365, declaring that “counties” are bodies politic and corporate, with power to sue and be sued, the commissioners’ court of a county may ratify a sale of school land, which the court might originally have made, and such ratification cures defects in the original sale.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;H73.</p> <p>For other definitions, see Words and Phrases, First and Second Series, County.]</p> <p>11. Vendor and Purchaser <&wkey;43 — Fraudulent Sales — Vacation oe.</p> <p>That a sale was induced by the purchaser’s fraud does not render it ipso facto void, and the vendor may thereafter affirm it.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 67, 68; Dec. Dig. <&wkey;> 43.)</p>

<p>1. Bailboads &wkey;>276 — In juey to Child in Engine Cab — Liability.</p> <p>Where a hostler in charge of a locomotive saw a young child in the cab, and did not warn or remove him, but instead opened the injector, with the result that the child was scalded by steam escaping from a squirt valve, supposed to be closed, the railroad company was liable.</p> <p>[Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 878-886; Dec. Dig. &wkey;276.]</p> <p>2. Appeal and Ebeoe &wkey;>544 — Beview—Pre-sumptions.</p> <p>In the absence of a proper bill of exceptions, a defendant is presumed to have approved of a peremptory instruction fixing its liability, and cannot complain of the refusal of requested instructions tending to exonerate it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey; 544.]</p> <p>3. Trial <&wkey;260 — Instructions—Befusal.</p> <p>The refusal of requests covered by the charge given is not error.</p> <p>[Ed. Note. — For other cases, see Tidal, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]</p> <p>4. Trial <&wkey;194 — Instructions—Weight op Evidence.</p> <p>In a personal injury action, a charge that in assessing damages the jury should not consider the. fact that the scars on the leg and body of plaintiff present an unnatural and abnormal appearance is properly refused, being on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. <&wkey;>194.]</p>

<p>1. Master and Servant <&wkey; 177 — Master’s Liability — Fellow Servants.</p> <p>A servant injured as the immediate result of the negligence of a fellow servant cannot recover.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Doc. Dig. &wkey;177.]</p> <p>2. Master and Servant <&wkey;217 — Master’s Liability — Assumption oe Risk.</p> <p>A servant, undertaking work with full knowledge of the usual way in which it has been done, assumes the risks of injury, unless relieved by the master’s promise to change the method of work so as to eliminate the risks.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574^600; Dec. Dig. &wkey;> 217.]</p> <p>3. Master and Servant <&wkey;221 — Master’s Liability — Assumed Risk — Promise to Remedy Defect.</p> <p>The rule that relieves a servant of an assumed risk, where the master promises to remedy the defect complained of, does not apply to cases of ordinary labor, not involving the use of dangerous and intricate machinery or any complicated method of performance, and the master need not promulgate formal rules therefor.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-645; Dec. Dig. <&wkey;-221J</p> <p>4. Master and Servant <&wkey;189 — Fellow Servants — ’“Vice Principal.”</p> <p>One who had no power to either employ or discharge plaintiff, but who was a kind of general foreman, whom plaintiff generally obeyed, was not a “Vice principal.” <</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. &wkey;>189.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Vice Principal.]</p> <p>5. Master and Servant <&wkey;279 — Action for Injuries — Evidence—Promise to Remedy Defect.</p> <p>In a servant’s action for injury, evidence held to show that the one whom he generally obeyed, and who, on his complaint of a defect and danger in the method of work, promised to try to have it fixed, was not a vice principal, on whose promise the servant might rely, so as to .preclude assumption of the risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. <&wkey;>279.]</p> <p>6. Mastek and Servant <&wkey;-221 — Action for Injuries — Assumed Risk — Promise to Remedy Defect — Change in Method of Work.</p> <p>The promise to repair or remedy a danger, which will relieve a servant from the consequences of continuing in his employment with knowledge of the danger, necessarily implies that the work is to continue substantially as before, with the added safety furnished by the remedy, and does not apply where the promised change would be an abandonment of the defective appliance, so that where a servant complained of the danger of throwing bags of mill waste from a window, into a wagon below, and suggested a chute, and the master promised to install an apparatus which would do away with the hauling by wagon, and the servant continued work, he assumed the risk incident to that method of work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-645; Dec. Dig. <®=^221.]</p> <p>7. Mastér and Servant <&wkey;-276, 278 — Action for Injury —Sufficiency of Evidence — Danger in Method of Work.</p> <p>In a servant’s action for injury from the negligence of a fellow servant in throwing a bag of mill waste out of a window into a wagon below, in which plaintiff was stowing it, evidence hold not to justify the conclusion that the master was negligent in respect to the method or plan of work, or that the plan was a contributing cause of injury.</p> <p>. [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-652, 954, 956-972, 976, 977; Dec. Dig. &wkey;276, 278.]</p> <p>8. Master and Servant &wkey;»130 — Master’s Liability — Method of Work.</p> <p>A master is not bound to adopt the best possible method of doing his work, but, in cases where a formal rule or plan is necessary at all, is only required to exercise due care to adopt and promulgate a reasonably safe rule for doing it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 264, 266, 276; Dec. Dig. <&wkey;-130.]</p> <p>9. Master and Servant &wkey;>264 — Action for Injury — Issues and Variance.</p> <p>In a servant’s action for injury, where a promise of an alleged vice principal was not declared upon as a promise to remove risk of danger from the negligence of fellow servants, it could not, after judgment, be given such effect.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dee. Dig. &wkey;> 264.]</p> <p>Buck, J., dissenting.</p>

<p>1. Master and Servant <©=>257 — Injury to Servant — Existence oe Relation — Petition.</p> <p>A petition in an action against a railroad company and its contractor to construct a line of road for injuries to an employs which alleges that the company and contractor jointly constructed the road, that the employé was employed by both, and that the contractor was but an agent of the company in the doing of the work, states a cause of action against the company and the contractor as against a general demurrer, though the principle of respondeat superior does not apply to a mere agent not an active participant in a wrong made to constitute the foundation of an action.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 813, 814; Dec. Dig. <©=> 257.]</p> <p>2. Pleading <©=>218 — Petition—Construction.</p> <p>The court, in determining the sufficiency of a petition attacked by general demurrer, must indulge every reasonable intendment in favor of the petition.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 549-566; Dec. Dig. <©=>218.]</p> <p>3. Damages <©=>143 — Personal Injuries — Petition— Sufficiency.</p> <p>A petition for personal injuries which alleges that plaintiff was with great violence hurled from the top of a tank and fell to the ground, 30 feet below, and that by reason thereof he was rendered unconscious, and his back broken or greatly crooked, and was injured in the small of his back and paralyzed from his hip down, and that the injuries were permanent, and rendered him incapable of doing any work or of earning money in any capacity that he ever had, informs defendant of the nature of the injuries as against a special exception that the description is too general.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 433; Dec. Dig. <©=>143.]</p> <p>4. Appeal and Error <©=1040 — Harmless Error — Rulings on Pleadings.</p> <p>Where defendant, when sued for a personal injury received by plaintiff, did not show that he was surprised by evidence of the injuries or misled by the allegations of the petition describing the injuries and did not question the extent of the injuries or the amount of the verdict, error, if any, in overruling special exception to the petition because the allegations descriptive of the injury were too general was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. <©=> 1040.]</p> <p>5. Masteií and Servant <©=264t — Injury to Servant — Issues, Proof, and Variance.</p> <p>The variance between a petition in an action for injuries to an employé alleging that, while the employé was standing on a board extending from the tender of the engine to the top of a water tank on a car, the engine started, throwing him off and to the ground below, and the proof that the plank extended from the first tank back, of the engine to the second tank on the car, was not fatal, where defendant was not surprised thereby.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <©=> 264.]</p> <p>6. Appeal and Error <©=>501 — Questions Reviewable — Instructions—Record.</p> <p>Objections to instructions given and refused will not be considered where the record does not show that exceptions were taken as required by Acts 33d Leg. c. 59.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. <©= 501.]</p> <p>7. Appeal and Error <©=3-719 — Questions Reviewable — “Error Apparent op Record’’ —“Apparent.”</p> <p>“Error apparent of record” within the statute requiring consideration of such an error without an assignment is error ascertainable on looking at the face of the record, and the question of the sufficiency of the evidence to sustain the verdict cannot be considered as error apparent of record, for the court must search the statement of facts and consider the conflicting contentions of opposing counsel to determine, not only what the evidence is, but also as to what are the proper inferences to be drawn therefrom; the word “apparent” meaning clear or manifest to the understanding; plain; evident; obvious; proper to the mind or eye.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. <©=>719.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Apparent; Error Apparent.]</p> <p>8. Appeal and Error <©=>169 — Questions Reviewable — Waiver.</p> <p>Where the trial court had jurisdiction of the subject-matter and of the parties, and the judgment was one that could be rendered under the pleadings, error, to be available on appeal, must have been properly called to the attention of the trial court, so that it might have cured the error.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1018-1034; Dec. Dig. <©=> 169.]</p> <p>9. Appeal and Eeeob <©=^882 — Questions Reviewable — Invited Bkbok.</p> <p>A party requesting instructions submitting issues to the jury may not complain of the refusal of a subsequent requested peremptory instruction in his favor because the error, if any, in refusing the peremptory instruction was invited.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. <§=> 882.]</p> <p>10. Appeal and Eeeob <®^500 — Questions Review able — Pebsumptions.</p> <p>Where the court on appeal cannot determine from the record whether a peremptory instruction was refused because the party requesting it had previously requested instructions submitting issues to the jury, or whether the peremptory instruction was first presented, refusal of the peremptory instruction will not be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 500.]</p>

<p>Appeal from District Court, Reeves County; Dan M. Jackson, Judge.</p> <p>Action by P. Albert Cooney against Leslie A. Needham and others. Judgment for the plaintiff, and defendants appeal.</p>

Error from Jones County Court; Joe C. Randel, Judge. Action by D. C. Cave against the Texas & Pacific Railway Company and others. There was a judgment for plaintiff, and the named defendant brings error.

<p>1. Fraud @=>11 — Sale of Stock — Misrepresentations- — Actions fob Damages.</p> <p>Where defendants sold the entire capital stock of a milling corporation, representing that all the capital had been paid in, and the purchasers thereafter improved the property, which improvements, together with those made by defendants before sale, exceeded the amount unpaid on the capital stock, plaintiffs cannot recover on account of defendant’s misrepresentation; the secretary of state having allowed them to set off the value of such improvements.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 12, 13; Dec. Dig. @=>11.]</p> <p>2. Corporations @=>119 — Sale of Stock-Effect.</p> <p>Where the entire capital stock of a corporation is sold, its physical properties pass, for that must be the intention of the parties.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 499-503; Dec. Dig. <@=>119.]</p>

Thomas, Judge. Action by O. B. Colquitt, Governor, for the use and benefit of Jones County, against M. P. Myers and others. From a judgment for plaintiff, defendants appeal.

Error from District Court, Tarrant County; Marvin H. Brown, Judge. Action by the Western National Bank of Ft. Worth, Texas, against R. L. McCaulley and others. Judgment for plaintiff by default for $1,553.10, and defendant brings error.

Brown, Judge. . Action by tbe City of Ft. Worth against Mrs. Mattie F. Eubank and another. From a judgment for plaintiff against defendant named, she appeals.

<p>Appeal from Nueces County Court; Walter F. Timón, Judge.</p> <p>Action by Weil Brothers against E. R. Kolp and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Appeal and Error <®=3756 — Briefs—Motions to Affirm.</p> <p>Where motions to-affirm show the correctness of the judgment, they serve the purpose of a brief on the part of the appellees.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. <@=>756.]</p> <p>2. Justices of the Peace <@=>141 — Appeal— Jurisdiction — Cross-Action.</p> <p>Where the offset pleaded in a cross-action in justice’s court was not within the jurisdiction of that court, the county court could not acquire jurisdiction thereof on appeal.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 467-476; Dec. Dig. <@=>141.]</p>

<p>Appeal from Atascosa County Court; Walter E. Jones, Judge.</p> <p>Suit by S. B. Hethcock against D. O. Richardson. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Mastee and Seevant @=>276 — Action fob Injubies— Sufficiency of Evidence — Negligence.</p> <p>Evidence in a servant’s action for injury from the sudden blowing of a newly installed whistle, making a loud, shrill, unusual noise, frightening a gentle team of mules, so that they started and threw him from a wagon, held, to sustain findings of the master’s negligence, proximately causing the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. @=>276.]</p> <p>2. Negligence @=>136 — Question foe Juey.</p> <p>The issues of negligence and of the proximate cause of an injury are nearly always questions for the jury, and never become questions of law, where there is evidence of probative force in support of the issue, and the question of negligence should not be taken from the jury, except where there is no material conflict in the evidence, and where there is no room for doubt or for different minds to draw different inferences.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §3 277-353; Dee. Dig. @=>136.]</p> <p>3. Negligence @==>58 — '“Peoximate Cause.”</p> <p>If an injury follows an act of negligence in natural sequence, without independent intervening cause, and would not have occurred but for the negligence, the wrongdoer, as a matter of law, is held to have had the injury in contemplation, so that the negligence is the “proximate cause” of the injury.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 71; Dec. Dig. @=>58.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]</p> <p>4. Teial @=>194 — Instructions—Weight of Evidence — Statute.</p> <p>In a servant’s action for injury, where the court submitted the issue as to whether or not the whistle sounded just before the accident occurred was an unusual one, reasonably calculated to frighten an ordinarily gentle team, the court’s explanatory words on submitting another issue, “If you find that it was unusual and of such frightening character, your answer to this question will be, ‘Yes,’ otherwise, ‘No,’ ” was not within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, forbidding the court to charge or comment on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. @=>194.]</p> <p>5. Damages @=>132 — Excessive Damages — Injuey to Foot.</p> <p>A verdict of $2,000 for an injury to the left foot, fracturing one or more of the smaller bones of the foot and one of the bones of the leg, which caused a great deal of pain, suffering, and inconvenience, and which was probably permanent, was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. @=>132.]</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by Jack Goldman and others against James W. Spann and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Judgment <&wkey;713 — Conclusiveness — Questions Concluded.</p> <p>A judgment on the merits is conclusive between the parties and those in privity with them as to every matter litigated and any other matter which might have been litigated.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. &wkey;713.j</p> <p>2. Judgment &wkey;>715 — Res Judicata — Bae to Subsequent Suit.</p> <p>The principle of- res judicata operates as a bar to a second suit only when the point in controversy is the same in both suits.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1244-1246; Dec. Dig. <S&wkey;715.]</p> <p>3. Judgment &wkey;>715 — Res Judicata — Bae to Subsequent Suit.</p> <p>A judgment that funds in possession of a garnishee are exempt, because proceeds of a sale of the debtor’s homestead less than six months before the service of the writ, and discharging the garnishee, is conclusive on plaintiff, and bars a subsequent garnishment on the theory that before the judgment more than six months had expired since the sale, for the question could have been litigated in the original proceeding.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1244-1246; Dec. Dig. &wkey;715.]</p>

<p>1. Criminal Law @=>306 — Evidence — Presumption on Presumption — Insanity.</p> <p>Where accused contended that a drink of whisky containing cocaine, given him by deceased, rendered him temporarily insane, evidence that deceased had long been addicted to the excessive use of cocaine is not admissible to aid the jury in determining whether the whisky given to accused contained so much cocaine as to render him temporarily insane, for to reach that conclusion the jury would have to presume as to the quantity of cocaine contained in the whisky, and then as to its effect on accused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 719; Dec. Dig. <¿=306.]</p> <p>2. I-Iomicide <@=> 120 — Defenses — Self-Defense.</p> <p>Where accused in self-defense inflicted a mortal wound, and deceased thereafter abandoned the combat, accused cannot pursue and inflict other wounds, and if he does so, and death is hastened or contributed to, he is guilty of an offense.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 175; Dec. Dig. <@=>120.]</p> <p>3. Criminal Law <@=>1043 — Appeal—Objections.</p> <p>Under Code Cr. Proc. 1911, art. 743, as amended, requiring specific objections to instructions, accused, not having raised that particular objection, cannot complain that the instructions on self-defense did not inform the jury what would be the grade of the offense, if, after inflicting a mortal wound in self-defense, accused pursued deceased and inflicted other wounds, hastening death.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. <@=> 1043.]</p> <p>4. Homicide <@=>179 — Evidence — Admissibility.</p> <p>Where accused claimed that deceased gave him whisky containing cocaine, and that he was thereby rendered insane, evidence -that deceased was drunk on the morning of the homicide was inadmissible.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 380; Dec. Dig. <@=>179.]</p> <p>5. Homicide <@=>179 — Evidence — Admissibility.</p> <p>In such case, evidence that deceased, some weeks before the homicide, was seen to put a drug in whisky, is also inadmissible.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 380; Dec. Dig. <@=>179.]</p> <p>Davidson, J., dissenting.</p>

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

<p>1. Telegraphs and Telephones <&wkey;67 — Delay in Transmitting Message — Contemplated Damages.</p> <p>Where a person sending money by a telegram notified the telegraph company’s agent that his wife was dangerously ill and needed the money, and that it was being sent for her benefit, the increased physical and mental suffering occasioned to the wife by negligent delay in delivering the telegram were reasonably within the contemplation of the company as a result of such negligence.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. &wkey;67.]</p> <p>2. Telegraphs and Telephones <&wkey;73 — Delay in Transmitting Message — Action por Damages — Evidence—Peremptory Instruction.</p> <p>Where, in an action for damages from delay in delivering a telegram, plaintiff’s evidence, though contradicted, materially supported his allegations of damages, the court properly refused defendant’s request for a peremptory instruction.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dee. Dig. &wkey;»73.]</p> <p>3. New Trial <&wkey;76 — Excessive Recovery-Jurisdiction — Discretion.</p> <p>Where the trial court believed that the verdict in a damage case was excessive, he had jurisdiction to grant a new trial on account thereof.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 153-156; Dec. Dig. &wkey;76.]</p> <p>4.Telegraphs and Telephones &wkey;>71 — Delay in Delivering Telegram — Excessive Damages.</p> <p>A recovery of $1,250 for physical and mental suffering caused by a negligent delay of seven or eight days in delivering a telegram transmitting money, in consequence of which plaintiff’s wife, who was dangerously ill, suffered additional pain for want of proper medical attention and supplies, which she was unable to procure for want of money, and also suffered mental worry from failure to receive the money, was excessive above $500.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. <&wkey;> 71.]</p>

Error from District Court, Bexar County; W. F. Ezell, Judge. Action by H. Kanner against Santiago Martinez and another, with Solomon Dal-kowitz and another as garnishees, and action by the same plaintiff to restrain garnishees from paying out money, in which Santiago Martinez and another intervened.

<p>1. Contracts &wkey;>9 — Validity—Meeting of Minds.</p> <p>Where plaintiff proposed that defendant purchase a residence and sell it to him on installments, the contract was not consummated, where the parties had not agreed as to its terms, such as the payments, etc.; consequently defendant, having bought in the property for his own benefit, was not guilty of a breach of contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. <&wkey;9.]</p> <p>2. Frauds, Statute of <&wkey;74 — Agreements Relating to Land.</p> <p>An agreement to purchase realty, improve it, and thereafter sell it to another on installments, is within the statute of frauds, and cannot be enforced, unless reduced to writing.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 122-131; Dec. Dig. <&wkey;>74.]</p> <p>3. Trusts &wkey;>63% — Resulting T!rusts.</p> <p>Where plaintiff requested defendant to purchase a residence and sell it to him on installments, and defendant bought the property for himself, no resulting trust arose, as payments were to be made, if at all, by plaintiff, after title vested in defendant.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 91, 92, 98-100; Dec. Dig. &wkey;63%.]</p>

<p>FORCIBLE E-NTÉY AND DETAINEE <®=>43 — APPEAL — Final Judgment.</p> <p>A county court judgment dismissing a forcible entry and detainer case appealed to it from a justice’s court, and for judgment for less than $100 against plaintiff and sureties on his appeal bond, is final under Rev. St. 1911, art. 3962, and is not reviewable on writ of error.</p> <p>[Ed. Note. — For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 169-182; Dec. Dig. <@=»43.]</p> <p>Error from Cameron County Court; E. I-I. Goodrich, Judge.</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by W. M. Wilson and C. W. Walker against John R. Hancock and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Attachment &wkey;>375 — Action for Wrongful AttachmentMeasure of Damages.</p> <p>In an action for wrongful attachment of cotton, the measure of actual damages was the value of the cotton when levied upon and interest thereon, less the amount of the judgment in the attachment suit against the attachment debtor.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1378-1385,1387, 1393, 1394, 1398, 1399; Dec. Dig. &wkey;375.]</p> <p>2. Attachment <&wkey;374 — Action for Wrongful Attachment — Evidence—Damages.</p> <p>In such action, the judgment in the attachment suit, if valid, was admissible in evidence on the question of damages.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. &wkey; 374.]</p> <p>3. Malicious Prosecution &wkey;>71 — Wrongful Attachment — Question for Jury-Malice.</p> <p>In an action for damages for an attachment of cotton, alleged to have been sued out maliciously and without ■ probable cause, the question of defendant’s malice was for the jury, with reference to the claim for exemplary damages, since, while the existence of malice may be inferred from the absence of probable canse, it need not be.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 160-167; Dec. Dig. &wkey;71.]</p>

<p>Appeal and Error &wkey;>1135 — Assignment oe Errors.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1607, requiring an appeal to the Court of Civil Appeals to be tried on error in law, either assigned or apparent on the face of the record, article 1612, requiring appellant to file assignments of error before taking the transcript of record from the clerk of the court below, and article 2113, requiring the transcript to contain a copy of the final judgment, assignments of error, etc., a transcript not containing a copy of the assignment of errors filed below and not on its face disclosing reversible error required an affirmance. *</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4454, 4455; Dec. Dig. <i&wkey; 1135.]</p>

B. Hopldns, Judge. Suits by Alice W. Wriglit and husband against Edwards H. Smith and A. B. Chandler, and by A. B. Chandler against Alice W. Wright, her husband, and Edwards I-I. Smith, were consolidated, and from an adverse judgment Alice W. Wright and husband appeal.

<p>1. Tbial <&wkey;403 — Findings and Conclusions — Delay in Filing.</p> <p>The findings of fact and conclusions of law filed by the trial court more than 10 days after the adjournment of the term are a nullity and cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 954r-956; Dec. Dig. <&wkey;>403.]</p> <p>2. Aepeal and Ebbob <&wkey;544, 719 — Questions Review able — Necessity oe Bill oe Exceptions.</p> <p>An appellant, who failed to secure a bill of exceptions and assign error upon the failure of court to file findings of fact and conclusions of law within the time prescribed, is not entitled to a reversal for such failure by the court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479, 2968-2982, 3490; Dee. Dig. <&wkey;544, 719.]</p> <p>3. Appeal and Ebbob &wkey;>742 — Recobd — Facts.</p> <p>Where no questions arise on the pleadings, and there is no fundamental error, but all the assignments relate to the conclusions of law and are dependent upon the facts, the judgment must be affirmed if there is no statement of facts or finding of facts in the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 300; Dec. Dig. <®=^742.]</p>

Error from District Court, Panola County; W. C. Buford, Judge. After final decree in divorce proceedings between herself and T. R. Gully, Mrs. M. E. Gully moves for an order of sale of defendant’s property. Judgment for plaintiff, and defendant brings error.

W. Simpson, Judge. Action by the Carlton Lumber Company against tlie First Baptist Cluircli oí Tyler, Tex., and others, to foreclose a mechanic's lien. Judgment was rendered personally for the plaintiff against the contractor and for foreclosure of a lien against the building. From that part of the judgment decreeing the foreclosure, the defendants appeal. The suit was by appellee against appellants for foreclosure of a mechanic’s lien in the sum of $2,789.93.

T. Armstead, Judge. Bill of review by A. J. Barrett, as guardian, and others, against Ed Whittle and Clax-ton Mullinax. From a judgment for plaintiffs, defendant Mullinax appeals. Ed Whittle, and Jack Whittle, Jim Whittle, and Lizzie Whittle, as heirs of W. H. Whittle and his wife, owned in common 145.6 acres of the Wm. Y. Lacey survey in Franklin county. Jim and Lizzie Whittle were minors. Ed Whittle was guardian of their estates.

<p>Appeal from Panola County Court; J. R. Duran, Special Judge.</p> <p>Action by F. N. Staples against O. C. Cren-shaw and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Karnes County; F. G. Chambliss, Judge.</p> <p>Action by H. A. Blair against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.</p>

H. Burney, Judge. Action by the Globe Eire Insurance Company against the Boerne Electric Power & Manufacturing Company and others, in which Walter E. McCaleb and the West Texas Bank & Trust Company intervened. Erom a judgment in favor of defendant the Farmers’ Mortgage Loan Company,'the interveners appeal.

<p>Appeal from District Court, Fayette County; Frank S. Roberts, Judge. Robert Euell was convicted of rape, and he appeals.</p>

<p>Appeal from District Court, El Paso County; Dan M. Jackson, Judge. Gonzalo Garfios was convicted of burglary, and he appeals.</p>

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

<p>Dissenting opinion.</p>