Volume 175 — South Western Reporter

McCullough, Presiding Judge. Action by Nora M. McMahan against E. K. McMahan and others, begun in county court, and appealed to district court. From a judgment for defendants, plaintiff appeals.

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by A. W. Levermann and others against E. C. Robinson. Judgment for plaintiffs, and defendant appeals.</p>

<p>Error from District Court, Randall County; Jas. N. Browning, Judge.</p> <p>Action by the First National Bank of Canyon, Texas, against H. H. Hawkins. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.</p> <p>Action for libel by W. M. Abernethy against F. A. Chapa. Judgment for plaintiff, and defendant appeals.</p>

Error from Dallas County Court; W. F. Whitehurst, Judge. Action by J. C. Burnside against the American National Insurance Company. Judgment of justice court for plaintiff was affirmed on appeal to the county court, and defendant brings error.

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by John F. Rowell against the American National Life Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error &wkey;>501 — Record—Exceptions — Necessity op Showing — Instructions.</p> <p>Assignments of error, complaining of the giving of a peremptory instruction for plaintiff and the refusal of instructions requested by defendants, will be overruled, where it does not affirmatively appear that exception has been taken, as required by Acts 33d Leg. c. 59.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dee. Dig. <&wkey;> 501.]</p> <p>2. Corporations &wkey;>269 — Unpaid Stock Subscriptions — Action by Creditor — Evidence.</p> <p>In an action by a judgment creditor of a corporation to recover unpaid stock subscriptions, evidence was admissible to show that defendants were induced to subscribe for the stock by fraudulent representations that certain persons in whom they had confidence had subscribed for stock, and that on discovering the fraud they had repudiated their subscriptions, with the consent of tie corporation, prior to the time credit was extended to it by plaintiff.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 887, 888, 980, 1149-1159, 2277; Dec. Dig. <&wkey;>269.]</p> <p>3. CORPORATIONS <&wkey;80 — Stock Subscriptions — Rescission por Fraud — Procedure.</p> <p>Stock subscriptions procured by fraudulent representations may be rescinded by the subscriber by notifying the corporate authorities, without taking legal proceedings.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 240-264, 1407, 1407V2; Dec. Dig. &wkey;80-.]</p> <p>4. Corporations &wkey;>80 — Subscription Contracts — Grounds por Rescission — False Representations.</p> <p>A promotor’s false representations that certain persons in whom the subscribers had confidence had subscribed for corporate stock, when relied on by the subscribers, constituted such fraud as authorized them to rescind their subscription contracts.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407% ; Dec. Dig. <&wkey;80.]</p> <p>5. Corporations <&wkey;243 — Stock Subscriptions — Repudiation—Liability to Creditors.</p> <p>A person induced by fraud to become á subscriber to the capital stock of a corporation is relieved from liability to the corporation’s creditors, where he repudiates his subí 'option promptly and before the rights of the creditors intervene.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 943, 944, 946-950, 952-959, 974, 975, 979; Dec. Dig. <&wkey;>243.]</p> <p>6. Corporations <&wkey;83 — Stock Subscription-Cancellation por Fraud — Consent.</p> <p>The rule that a stock subscription contract cannot be canceled except with the consent of all stockholders does not apply to a contract procured by fraudulent representations of the pro-motor of the corporation; the right to cancel in such case not being dependent on consent.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 328-336; Dec. Dig. &wkey;83.]</p> <p>7. Alteration oe Instruments &wkey;JÍ8 — Stock Subscription — Release op Subscribers.</p> <p>The alteration of the terms of a stock subscription contract, without consent of, the subscribers, by changing the number of shares and the amount of capital stock subscribed for, being an alteration importing fraud or improper design, releases the subscribers from liability under the contract.</p> <p>[Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 140-145; Dec. Dig. <&wkey;18.]</p> <p>8. Alteration op Instruments <&wkey;>23 — Recovery op Original Instrument — Fraudulent Intent.</p> <p>The rule that where the instrument has been altered recovery may be had on the original instrument applies only where the alteration has been without fraudulent intent.</p> <p>[Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 1924207; Dec. Dig. <&wkey;>23.]</p> <p>9. Corporations <&wkey;84 — Stock Subscription —Release op Subscribers — Departure prom Contract.</p> <p>The incorporation of a company with a capital stock of 810,000, instead of $15,000, as represented to subscribers, releases subscribers who have not consented thereto, acquiesced therein, or otherwise lost their right to object to such 'departure from the terms of the subscription contract.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 296-327; Dec. Dig. <S¿>84.]</p> <p>10. Corporations <&wkey;269 — Stock Subscriptions — Release op Subscribers — Change op Corporate Name — Burden op Proop.</p> <p>Where, in a creditor’s action to recover on stock subscriptions, defendants claimed to have been released because the company was incorporated as the “Co-operative Furniture & Coffin Manufacturing Company,” instead of as “The Cooperative Furniture Manufacturing Company,” as stated in the subscription contract, the burden was on defendants to prove that such change in the corporate name was a material alteration.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 887, 888, 9SO, 1149-1159, 2277; Dec. Dig. &wkey;>269.]</p>

Error from Navarro County Court; R. R. Owen, Judge. Action by the Dawson State Bank against G. W. Brunson. Judgment for plaintiff, and defendant and the sureties on his replevin bond bring error.

<p>Appeal from District Court, Bexar County; W. P. Ezell, Judge.</p> <p>Action by James Routledge against the Rambler Automobile Company, August Ernest Staacke, and Herman George Staacke, and others. Judgment for plaintiff against the corporation and defendants August Ernest Staacke and Herman George Staacke for damages and against the corporation only for the costs of a former appeal, and defendants August Ernest Staacke and Herman George Staacke appeal, and plaintiff files a cross-assignment of error complaining of the failure of the court to render judgment against the individuals for the costs.</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Suit by W. W. Lipscomb and wife against G. C. Walker and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Carriers <@=>316, 344 — Injuries to Passengers — Actions—Burden of Proof.</p> <p>A passenger suing for a personal' injury sustained by jumping from a moving train under the belief that a collision was imminent, must show that he was injured because of actionable negligence, and that he was free from contributory negligence; and, though there was actionable negligence, there could be no recovery if he was guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1261,1262,1283,1285-1294,1399 ; Dec. Dig; <§=3316, 344.]</p> <p>2. Negligence <@=>136 — Contributory Negligence — Actions—Question for Jury.</p> <p>Where reasonable minds could not differ on absence of defendant’s negligence, or on the presence of plaintiff’s contributory negligence, it was the duty of the court to direct a verdict for defendant.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. <§=>136.]</p> <p>3. Carriers <§=>302 — Railroads <§=>365 — Injuries to Passengers — Parallel Roads.</p> <p>The K. and G. railroads maintained parallel tracks sufficiently far apart for the safe passage of their trains. A passenger of the K. railroad, believing that a collision between trains of the two companies was imminent, jumped from the train and was injured. Neither of the companies knew of the passenger’s apparent danger. There was no testimony that the K. train whistled, but there was testimony that the C. train whistled, before the trains approached each other, but it did not appear why it whistled. The C. train ran at an excessive speed. Held, that the facts did not show that the railroads were guilty of actionable negligence, though the passenger erroneously believed that he was in imminent danger.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1221-1223; Dec. Dig. <§=>302; Railroads, Cent. Dig. §§ 1254-1256; Dec. Dig. <§=>365.]</p> <p>4. Carriers <§=>338 — Injuries to Passengers —Contributory Negligence.</p> <p>Two railroad companies maintained parallel tracks sufficiently far apart for trains to pass in safety. A passenger jumped from a train, believing that' a collision between trains of the two companies was imminent. Had he looked, he would have seen that the tracks did not cross each other. He was familiar with the tracks and knew to whom they belonged. Had he remained on the train, he would have been safe. He was an experienced traveler accustomed to riding on trains. Held, that he was guilty of contributory negligence, as a matter of law, in jumping from the train.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1352; Dec. Dig. <§=>338.]</p>

<p>Appeal from District Court, Presidio County; W. C. Douglas, Judge.</p> <p>Action by Charles A. Craighead against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff for $9,000, and defendant appeals.</p>

<p>Appeal and Eeeob <@=643 — Recoed on Appeal — Motion foe Ceetioeaei — Time to File.</p> <p>A motion for certiorari, directed to the clerk of the county court, to send up a copy of original citation, filed nearly 11 months after filing of transcript, comes too late, within Courts of Civil Appeals rule 8 (142 S. W. xi) providing that motions as to informalities in the manner of bringing a case into court shall be filed within 30 days after filing of transcript.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2791-2794; Dec. Dig. <S=> 643.]</p>

<p>Appeal from Travis County Court; Wm. Yon Rosenberg, Jr., Judge.</p> <p>Action between Thomas J. Freeman, receiver, and another, and W. B. Walker & Sons. From a judgment for the latter, the former appeal.</p>

<p>Appeal from Midland County Court; J. H. Knowles, Judge.</p> <p>Action by T. A. Sacra against George W. Cloyd. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error <@=»544 — Statement of Facts — Review—Findings op Fact.</p> <p>In the absence of a statement of .facts, the findings of fact cannot be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. 544.]</p> <p>2. Deeds <©=»161 — Conditions—Time of Performance — Reasonable Time.</p> <p>No time being specified for the drilling of a well, which a deed makes part of the consideration, and, failing to do which, provides that the land shall be reconveyed for the same money consideration paid, the law implies that it shall be done in a reasonable time.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent: Dig. § 518; Dec. Dig. <S=»161.]</p> <p>3. Deeds- <§=»165 — Consideration—Failure— Reconveyance.</p> <p>Under a deed requiring the grantee, as part of the consideration, to drill a well within a reasonable time and, failing to do so, to reconvey for the same money consideration, the grantor has a right to a reconveyance on such failure, then tendering the money.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 521; Dec. Dig. €==>165.]</p> <p>4. Deeds €=>147 — Conditions—Mutuality.</p> <p>There is no want of mutuality in the contract evidenced by a deed requiring the grantee within a reasonable time to drill a well as part of the consideration and, failing to do so, to reeonvey for the same money consideration as was paid.</p> <p>[Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 473-477; Dec. Dig. €=>147.]</p> <p>5. Deeds €=168 — Condition Subsequent— Forfeiture.</p> <p>An estate held on condition subsequent is defeated when the condition is broken and the grantor makes entry with intent to forfeit the grant; the estate thereby being reinvested in him, so that thereafter he may convey to another.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 526-533; Dec. Dig. €=>168.]</p> <p>6. Specific Performance €=17 — Rights Assignable-Reconveyance of Land.</p> <p>If a provision of a deed does not make the estate granted one on condition subsequent, which may be defeated by re-entry, but is a mere agreement to reeonvey on certain contingencies, the right to enforce specific performance of it is assignable.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 38-A6; Dec. Dig. €= 17.]</p>

<p>1. Insurance <$=>132 — “Binder.”</p> <p>A “binder” is a verbal contract of insurance in prsesenti, of which the insurance agent makes a memorandum, temporary in its nature, and intended to take the place of an ordinary policy till the same can be issued.</p> <p>(Ed. Note. — For other cases, see Insurance, Cent. Dig. § 210; Dec. Dig. <§=>132.]</p> <p>On Motion for Rehearing.</p> <p>2. Insubance <g=>132 — Cancellation and Substitution of -Binders — Authority oe Agents.</p> <p>The mere request of insured to insurance agents to keep him protected may authorize them, without notice to him, to cancel a binder in one company, and issue one in another company, if in so doing they are following the custom of all insurance offices.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 210; Dec. Dig. <$=>132.]</p> <p>3. Insurance <$=>94 — Un authorized Insurance — Ratification.</p> <p>If insurance agents are not authorized to effect insurance, it cannot be made effective by being ratified by insured after the fire; as ratification must be at a time when a valid contract could be made.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 124; Dec. Dig. <$=>94.]</p> <p>On Motion for Rehearing of Plaintiff in Error.</p> <p>4. Appeal and Erro» <$=>1178 — Disposition op Case — Remand fob New Tbial.</p> <p>Though there was testimony of a custom which could make valid the insurance contract sued on, yet, it having been an irresponsive answer, and the custom not being referred to in the pleadings, and not appearing to have been considered at the trial, and no issue as to it having been submitted to the jury, the judgment on a general verdict for plaintiff will be reversed, and the case remanded for new trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. <$= 1178.]</p>

<p>Error from El Paso County Court; A. S. J. Eylar, Judge.</p> <p>Action by J. C. Huff against the Hanover Fire Insurance Company of New York. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error <&wkey;671 — Record—Assignments of Error.</p> <p>Assignments of error appearing in the brief, but not in the record, as to matters which should have been called to the court’s attention in the motion for new trial, cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. <@= 671.]</p> <p>2. Appeal and Error <&wkey;>554 — Review—Instructions — Exceptions.</p> <p>Any errors in the charge are waived; no bill of exceptions appearing to have been taken, as required by Acts 33d Leg. c. 59.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2472-2477; Dec. Dig. &wkey;> 554.]</p> <p>3. Appeal and Error <@=672 — Review — Fundamental Error.</p> <p>There being evidence and pleading to support the verdict and judgment, rendition of the judgment presents no error in law apparent on the face of the record, or fundamental error, requiring reversal, though not assigned, and though no exceptions were taken to the peremptory charge.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. <§= 672.]</p> <p>4. Pleading <&wkey;366 — Striking out Words— Effect.</p> <p>Merely striking from answer, in an action on a note, the words “defendant * * * consulted with a lawyer” presents no errors and is not a refusal to sustain his pleadings.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. § 1145; Dec. Dig. &wkey;> 366.]</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by John C. Hale against Wells Fargo & Co. Express. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal and Error &wkey;?781 — Dismissal op Action — Extinction op Matteb in Litigation.</p> <p>In an action to abate-a public nuisance, where defendants appealed from an order granting a temporary injunction, upon motion by the state, supported by affidavits, to dismiss the appeal on the ground that the defendants had sold the premises alleged to have been kept as a disorderly house, the case will be dismissed the questions involved being moot whether or not a question of costs is involved.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 63-80, 3122; Dec. Dig. <&wkey;781.]</p>

<p>1. Railroads <&wkey;443 — Construction—Injuries to Stock — Evidence.</p> <p>In an action for the death of plaintiff’s mule, resulting from injuries received by it while crossing a railroad cattle guard, evidence as to negligent construction of the guard held sufficient to support a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. &wkey;443.]</p> <p>2. Railroads &wkey;>447 — Construction—Injuries to Stock — Instructions — Cattle Guard — Statutes.</p> <p>In an action for the death of plaintiff’s mule, resulting from injuries received by it while crossing a railroad cattle guard at the point where the track entered plaintiff’s pasture, it was not error for the court to instruct the jury as to the law of Rev. St arts. 6596, 6598, requiring every railroad to place a sufficient cattle guard at the point of entering a field and to keep it in good repair, such guard to be constructed and kept in repair so as to protect the field from the depredations of stock of every description.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. &wkey;447.]</p> <p>3. Railroads <&wkey;447 — Construction—Injuries to Stock — Instructions — Duty of Railroad.</p> <p>In an action for the death of plaintiff’s mule, resulting from injuries received while crossing a railroad cattle guard, an instruction that in order to find for the plaintiff the jury must find that the railroad failed to construct and keep in repair a sufficient cattle guard, and also that it permitted wheat and other grasses to grow on the track near the cattle guard, so that stock were thereby attracted, was more favorable than defendant was entitled to, since if the guard was insufficient, the railroad was liable, regardless of whether it permitted grass to grow thereon.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. &wkey;447.]</p> <p>4. Evidence <&wkey;219 — Admission—Act of Defendant.</p> <p>In an action for injuries to plaintiff’s mule, caused by a defective railroad cattle guard, evidence that the company had removed a guard like the one on plaintiff’s land from the land of another, and had substituted therefor a different kind of guard, was admissible as a circumstance tending to show an admission by the company that the former guard was insufficient.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 762-770; Dec. Dig. &wkey;219.]</p> <p>5. Railroads &wkey;>442 — Construction—Injuries to Stock — Admissibility of Evidence —Similar Acts.</p> <p>In an action for injuries to plaintiff’s mule received while crossing a railroad cattle guard, evidence that stock frequently passed over cattle guards of the railroad was admissible, when confined to guards like that on which plaintiff’s mule was injured.</p> <p>[Ed. Note. — For other cases, see Railroads, Gent. Dig. §§ 1596-1607; Dec. Dig. <&wkey;442.]</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Action by J. P. Graham against the Gulf, Colorado & Santa Fé Railway Company/ Judgment for plaintiff, and defendant appeals.</p>

H. Arnold, Judge. Action by C. T. Lawson, for himself and as next friend of his minor son, Walter Lawson, against the Hamilton Compress Company. From a judgment for plaintiff, defendant appeals.

<p>Brokers <&wkey;88 — Actions for Compensation —Issues—Instructions.</p> <p>Where a broker sought to recover compensation for procuring a purchaser of property, pursuant to a contract of employment made by the wife of the owner as his agent, and the wife denied the employment, and the owner denied her authority to act for him, the action of the court in charging that if the broker rendered the services, the owner was liable, and in refusing to charge that, to warrant a recovery, it must appear that the owner authorized his wife to employ the broker, or knew of the employment and approved it, or did not seasonably disaffirm it, was reversible error.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. &wkey;88.]</p>

<p>1. Appeal and Error &wkey;> 106 — Decisions Reviewable — Intermediate Decisions — . Change oe Venue — Statute.</p> <p>Under Rev. St. 1911, art. 1833, providing for the transfer of the record upon an order changing the venue on a plea of privilege to the venue, and providing that nothing therein shall prevent an appeal from the judgment sustaining the plea of privilege, where such judgment was entered in a district court, it was reviewable in the Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 726-734; Dec. Dig. <&wkey;> 100J</p> <p>2. Venue <&wkey;21 — Change oe Venue.</p> <p>In an action to enjoin suit upon an obligation alleged to have been a forgery, where it was not alleged that the defendants, resident in a county other than that of suit, had been connected in the forgery committed in the county of suit, or that they had done any act in such county for which they could be sued therein, their plea of privilege to the venue was properly sustained.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 34; Dec. Dig. &wkey;>21.]</p>

<p>1. Appeal and Error <&wkey;1002 — Review — Verdict— Sufficiency of Evidence.</p> <p>Notwithstanding conflicting evidence, the verdict on sufficient evidence cannot be disturbed on appeal. .</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <&wkey;> 1002.]</p> <p>2. Appeal and Error i&wkey;547 — Bill of Exception — Personal Examination out of Court.</p> <p>The bill of exceptions does not show error, in refusal, at the trial, to permit a physician for defendant, outside the courtroom and not in the presence of the jury, to examine the foot of plaintiff, for alleged injury to which he sued, with the view of showing he was malingering; it not showing a full and complete examination could not have been made in the courtroom and the presence of the jury, or that the physician had been subpoenaed, or that his testimony could have been obtained by a reasonable postponement.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. <S&wkey;547.]</p>

F. O’Neal, Judge. Action by Connor Bros. against John and Rob Spearman, in which A. M. Rhyme intervened, seeking a judgment against defendants. Judgment for plaintiffs and for intervener, and defendants and intervener appeal.

<p>1. Bankruptcy &wkey;>195 — Adjudication — Effect.</p> <p>Where, within four months after the levy of an attachment, the debtor was adjudicated bankrupt, the attachment was vacated, and other persons claiming the attached property may question the validity of the lien on that ground.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 296-305; Dec. Dig. <&wkey;>195.]</p> <p>2. Judgment <&wkey;649 — Conclusiveness—Matters Concluded.</p> <p>A judgment that plaintiff was not entitled to attached property because the debtor became a bankrupt within four months after attachment is not an adjudication that other creditors were entitled to the property.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1161; Dec. Dig. &wkey;649.]</p>

<p>Appeal from District Court, Delta County; A. P. Dokoney, Judge.</p> <p>Action by J. G. Matthews, as next friend, for Izoriah Knight and another against A. D. England and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Insurance <@=>580 — Right to Proceeds — Vendor and Purchaser.</p> <p>Where the purchaser of lands gave purchase-money notes secured by a vendor’s lien, a subsequent purchaser, taking subject to the lien, but assuming no liability on the notes, who insured the premises for his own benefit, as against the plaintiff who by regular conveyance had become the owner of the vendor’s lien, was entitled to the proceeds of the policy.</p> <p>FEd. Note. — For other cases, see Insurance, Cent. Dig. §§ 1439-1443; Dee. Dig. <@=>580.]</p>

<p>1. Eminent Domain &wkey;>8 — Construction of Authority.</p> <p>All grants of the governing authority conferring the right of eminent domain are to be strictly construed.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 25, 30, 34, 43, 44; Dec. Dig. &wkey;>8.]</p> <p>2. Eminent Domain <@^47 — Property Subject to Condemnation — Property Pbevi-ously Condemned.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, enacted for the purpose of reclaiming swamp and overflow lands for agricultural purposes, article 5567 of which confers upon improvement districts generally the right of eminent- domain lo be exercised for acquiring rights of way for levees, etc., over and through any private or public lands, including levees or other improvements already constructed, the district may condemn a railroad right of way spanned by trestles upon the showing that the right of way for a levee, after filling certain openings therein, would not destroy or injure its use as an integral part of the railroad or materially impair or interfere with or be inconsistent with the railroad’s use or be detrimental to the public.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. <@¿>47.]</p> <p>3. Eminent Domain <&wkey;47 — Property Previously Condemned — Inconvenience and Expense.</p> <p>In such case, where it appeared that, if the improvement district did not use the railroad right of way, it would entail an increased expense of $3,000 without any compensating benefit, the public interest in the building of the levee to reclaim and increase the value of agricultural lands overcame the railroad’s right to halt the construction of such improvement by the cheapest and most utilitarian method by which the purpose of the act might be accomplished, so that matters of convenience and expense to the district might be considered, although, if not considered, they would not make performance of its duty practically impossible.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. &wkey;>47.]</p> <p>4. Appeal and Error <&wkey;1008 — Review — Question op Fact.</p> <p>Where the trial court’s conclusions of fact, not challenged by the appellant, are sufficient to support judgment, the Court of Civil Appeals has no authority to disturb them.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dee. Dig. <&wkey;>1008.]</p>

<p>Appeal from Shelby County Court; E. W. Hooker, Judge.</p> <p>Action by M. D. Cooper against A. E. Day and O. M. Gibbs. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Camp County Court; J. M. Burford, Special Judge.</p> <p>Action by M. L. Allen against First Guaranty State Bank of Pittsburg. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Anderson County Court; E. V. Swift, Judge.</p> <p>Action by H. W. Williams against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Continuance @=14 — Grounds — Amendment of Petition.</p> <p>In an action for personal injuries, an amendment of the petition as to the character of the injuries did not entitle defendant to a continuance, where the change made was covered by depositions then on file, the application did not indicate the probability of the necessity for any further testimony, and no injury or surprise was shown, especially where the amendment made no material'change, and the application was not supported by an affidavit, as expressly required by Rev. St. 1911, art. 1917.</p> <p>[Ed. Note. — For other eases, see Continuance, Cent. Dig. §§ 25, 99-112; Dec. Dig. @=14.]</p> <p>2. Appeal and Error @=1050— Harmless Error — Admission of Evidence.</p> <p>In an action for personal injuries, evidence that plaintiff did not or could not accept invitations to social functions did not injure defendant, as it could not intensify or add to her testimony as to her physical and mental condition.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. @=1050.]</p> <p>3. Carriers @=298 — Liability for Injuries to Passengers — Contributory Negligence.</p> <p>If a railway passenger was thrown down by an unusual and negligent jerk of a train, it was immaterial whether or-not the train was moving when she arose to leave the car.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1192, 1205, 1206; Dec. Dig. @= 298.]</p> <p>4. Trial @=>350— Special Issues — Issues to be Submitted.</p> <p>The court properly refused to submit special issues calling for mere details not controlling the disposition of the case, on the answer to which no judgment could have been predicated, as only the controlling issues should be submitted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. @=>350.]</p> <p>5. Appeal and Error @=>704 — Record—Matters to be Shown — Special Issues — Submission to Adverse Party.</p> <p>An assignment of error complaining of the refusal to submit special issues cannot be considered, where the bill of exceptions does not indicate that the issues were ever submitted to the counsel for the adverse party.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2900, 2939-2941; Dec. Dig. @=>704.]</p> <p>6. Appeal and Error @=>730, 757 — Briefs— Assignments of Error — Requisites and Sufficiency.</p> <p>Where assignments of error complaining of the trial court’s definitions of proximate cause and negligence did not show what such definitions were, and the charges complained of were not copied into the briefs, there being neither a proposition nor a statement, the court was not called upon to examine the record to find out what the charge was.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016, 3092; Dec. Dig. @=>730, 757.]</p> <p>7. Damages @=221 — Special Findings — Inconsistency.</p> <p>In an action for personal injuries, there was no contradiction between special findings in answer to special issues that plaintiff was suffering from neurasthenia, and that she was not suffering from neurasthenia before or at the time the injury was inflicted.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 563-566; Dec. Dig. @=>221.]</p> <p>8. Appeal and Error @=>742 — Assignments of Error — Statement Accompanying Assignment.</p> <p>The words “see under seventh,” following assignments of error, did not comply with the rule as to statements, especially where the statement under assignment No. 7 had no pertinency to the assignments in question.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=742.J</p> <p>9. Appeal and Eeeoe <§=>1052— Haemless Eeeoe — Evidence.</p> <p>In an action for personal injuries, whether there was any evidence tending to. show the permanency of the injuries was immaterial, where there was no claim that the verdict was excessive.'</p> <p>Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 4171-4177; Dec.Dig. <§=>1062.] 10. Teial <§= 194"- Insteuctions — Weight op Evidence.</p> <p>In a railway passenger’s action for injuries, it would have been a clear invasion of the province of the jury to charge that it was negligence for a passenger to pass from a car to the platform while the car was moving.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-464, 466-466; Dec. Dig. <§=>194.]</p> <p>11. Trial <§=>187 — Insteuctions—'Weight op Evidence.</p> <p>In an action against a railway company, an instruction that the testimony of witnesses in the employment of the railroad company, in the absence of anything to 'discredit or contradict their evidence, could not be arbitrarily disregarded, was properly refused, as the jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 414 — 419; Dec. Dig. <§=>187.]</p> <p>12. Trial <§=>260 — Instructions Covered by Those Given.</p> <p>Where the question of contributory negligence was fully submitted in the court’s charge, there was no necessity to reiterate it by a special charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <§=>260.]</p> <p>13. Appeal and Error <§=>727 — Briefs—Assignments of Error — Requisites and Sufficiency.</p> <p>In a passenger’s action for injuries, an assignment of error asserting that prejudice and excitement concerning the trial of the cause existed among the people of C., that during the argument the courthouse was crowded with citizens of C. and with sympathizers and probably relatives and friends of the jurors, which influence was under the observation of the court and exhibited itself by applause, laughter, and in other respects, and that such influence was not likely to give a railroad a fair trial, was too general to require consideration, especially where there was no showing of anything to arouse any community to such a pitch of excitement, it did not appear whether the laughter and applause were drawn out by plaintiff’s attorneys or those for defendant, and, though the court on a motion for new trial found against such charges, the assignment was not supported by a bill of exceptions or by the affidavits of bystanders, but was based only on the motion for a new trial supported by the affidavit of one of defendant’s counsel upon information and belief.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2998, 3016-3024; Dec. Dig. <§=>727.]</p> <p>14. Appeal and Error <§=>560 — Record — Form.</p> <p>Where the testimony of jurors in support of a motion for a new trial on the ground that the verdict was taken by lot, together with objections and remarks of counsel, covered 40 typewritten pages, the evidence should have been put m narrative form, agreed to by the attorneys, and approved by the judge.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2490-2493; Dec. Dig. <§=> 560.]</p> <p>15. New Trial <§=>52 —Grounds —Misconduct of Jury — Quotient Verdict.</p> <p>Though the conduct of a jury, in dividing by 12 the aggregate of the different amounts which the different jurors thought should be awarded, was not to be commended, it did not require a new trial, where there was no prior agreement that the quotient so obtained should be the verdict, .and the verdict was in fact for $2,500 less than the sum so obtained.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 101; Dec. Dig. <§=>52.]</p> <p>16. Exceptions, Bill of <§=>36 — Time foe Filing.</p> <p>A bill of exceptions to the action of the court in refusing a motion for a new trial should not be considered, where it was not filed until nearly two months after the adjournment of the court at which the cause was tried.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 44-46, 48, 51-53, 56; Dec. Dig. <§=>36.]</p> <p>17. Exceptions, Bill of <§=>10 — Requisites and Sufficiency.</p> <p>' A_bill of exceptions complaining of the argument of plaintiff’s counsel, which recited that defendant contended that the court, having ruled against defendant on the same question, was thereby allowed by force of the ruling to make the same argument, for which reason defendant did not except in open court before the jury, and that defendant contended that such argument was improper and should have been stopped by the court, and prejudiced and influenced the jury improperly, was too indefinite and uncertain to support an assignment of error, especially as it apparently indicated that no exception was taken to the argument.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 11; Dec. Dig. <§=>10.]</p> <p>18. Trial <§=>121 — Argument of Counsel-Scope.</p> <p>In an action for personal injuries, it was not improper for plaintiff’s counsel, in his argument, to tell the jury what amount he thought they should give plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. <§=>121.]</p> <p>On Motion for Rehearing.</p> <p>19. Appeal and Error <§=>837 — Matters Reviewable — Matters Not Complained of.</p> <p>An appellate court has no authority to consider the excessiveness of the verdict, if no complaint is made thereof by the party affected.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. <§=>837.]</p> <p>20. Trial <§=>250 — Instructions — Applicability to Case.</p> <p>Where a ease was submitted on special issues, special charges to find for defendant under certain circumstances therein stated were properly refused, as they called for a general verdict.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. <§=>250.]</p> <p>21. Appeal and Error <§=>766 — Briefs—Excuses for Defects.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2115, providing that, not less than five days before the time of filing of the transcript in the Court of Civil Appeals, the appellant or plaintiff in error shall file with the clerk of the district court a copy of his brief and give notice to the appellee or defendant in error of such filing, defects in. appellant’s brief were not excusable on the ground that the cause was set down for submission shortly after it was filed, as the law contemplates that appellants should be ready to submit their eases when they file their transcripts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126; Dec. Dig. <§==» 766.]</p>

T. Lyttleton, Judge. Action by Dreeben Key, by his next friend, against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Dreeben Key, a boy nine years old, sues, through his father as next friend, the appellant for damages for personal injuries.

P. Dohoney, Judge. Action by J. W. Wilson against Wells Fargo & Co. Express and another. Judgment for the plaintiff, and defendants appeal. The appellee sued the express company and the Texas & Pacific Railway Company for damages for personal injuries.

<p>Error from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by J. B. Clayton against F. M. Raike. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Vendor and Purchaser <&wkey;334 — CONTRACTS — Performance — Recovery oe Partial Payments Made.</p> <p>Where a vendor, in a contract of sale stipulating for partial payments and a conveyance of good title at a future date subject to a vendor’s lien, and for the return of the partial payments on the vendor being unable to make good title within a specified time, did not disclose to the purchaser that he had made a prior contract of sale to a third person, who had executed a deed of trust, the purchaser, on the vendor being unable to convey good title within the time fixed, could recover the money paid and a note executed for a partial payment, as against the objection that the purchaser consented to the bringing by the vendor of a suit against the third person to determine his rights, and the purchaser could not be required to await the outcome of that suit to enable the vendor, if successful therein, to convey a good title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. &wkey;»334; Contracts, Cent. Dig. § 1203.]</p> <p>2. Vendor and Purchaser <&wkey;340 — Contracts — Enforcement—Waiver.</p> <p>Where a vendor knew, at the time a note given by the purchaser for a part of the price matured, that he could not execute a deed conveying good title, as stipulated for in the contract of sale, and he made no demand on the purchaser to pay the note, he waived nonpayment, and could not rely thereon to defeat an action by the purchaser for a partial payment made and for the note.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1003-1007 ’, Dec. Dig. &wkey;>340.]</p> <p>3. Vendor and Purchaser &wkey;>334 — Contracts — Enforcement—Waiver.</p> <p>A vendor, contracting to convey real estate on the purchaser paying a specified sum subject to a vendor’s lien for the balance, notified the purchaser of his inability to convey because of an outstanding contract in favor of a third person who had executed a deed of trust, and stated his unwillingness to continue the contract with the purchaser indefinitely, unless the purchaser made the payments stipulated for in the contract. Thereafter the vendor offered to close the deal without fixing any time when he thought he could make title, and the purchaser at that time stated that he did not have the money and could not take the land. The vendor was unable to convey a good title within the time fixed by the contract, and it might take a long time thereafter before he could perfect his title. Seld, that the purchaser could recover the partial payment made and a note given for a partial payment.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. t&wkey;>334; Contracts, Cent. Dig. § 1203.]</p>

<p>Appeal from Harris County Court, at Law; Clark C. Wren, Judge.</p> <p>Action by H. W. Templeton against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Jefferson County Court; R. W. Wilson, Judge.</p> <p>Action by Mrs. Stella Schofield and another against the Texas Bank & Trust Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Adverse Possession <§=»43 — Disavowing Title of Owners.</p> <p>Where N. took possession of land without being in a fiduciary relation to, or recognizing the title of, plaintiffs, it was not necessary for N., when thereafter recognizing P. as owner, by taking a lease from her, to disavow plaintiffs’ title, in order for P. through N. to hold adversely to plaintiffs.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 213-224; Dec. Dig. &wkey;> 43.]</p> <p>2. Adverse Possession <&wkey;13 — Title Under Five Years’ Statute.</p> <p>P., having a recorded tax deed, and five years’ possession through a tenant, all the time paying the taxes, acquired title under the five-year statute.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. &wkey;></p>

<p>Appeal and Error <&wkey;1135 — Affirmance — Failure to Snow Error.</p> <p>Where the appellant files no brief and there is no error apparent on the face of the record and the judgment is one which the court could legally render, the judgment will be affirmed without consideration of the assignments of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4454, 4455; Dec. Dig. &wkey;> 1135.]</p>

<p>Appeal from Hamilton County Court; J. L. Lewis, Judge.</p> <p>Action by R. O. McDermitt and another against the St. Louis Southwestern Railway Company of Texas and another. From a Judgment for plaintiffs, defendant named appeals.</p>

<p>Appeal from Falls County Court; W. E. Hunnecutt, Judge.</p> <p>Action by A. H. Davis against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Coryell County ; J. H. Arnold, Judge.</p> <p>Action by J. C. Crass against Flim Adams. Judgment for defendant, and plaintiff appeals.</p>

<p>Criminal Law <&wkey;1114 — Appeal and Error —Review.</p> <p>In the absence of motion for new trial, statement of facts, and bill of exception, the only question for review on appeal from conviction of crime is the sufficiency of the indictment.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921;. Dec. Dig. <&wkey;> 1114.]</p>

<p>Appeal from District Court, McLennan County; E. C. Street, Special Judge.</p> <p>Jim Hale was convicted of forgery, and he appeals.</p>

<p>1. Appeal and Error <§=>971 — Opinion Evidence-Competency op Witness — Discretion op Trial Court.</p> <p>The competency of a witness to testify as an expert is primarily for the trial court, and its decision will not he disturbed unless manifestly erroneous.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. <§=> 971.]</p> <p>2. Evidence <§=>543% — Opinion Evidence-Competency op Witness.</p> <p>A witness, who testified that he had had 13 years’ experience with cattle, and that from this experience as a shipper and dealer knew how much more his cattle would have brought if they had been transported without delay than they did bring, was competent to give his opinion of the extra shrinkage in the cattle caused by delay.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2359; Dec. Dig. <¿=>543%.]</p> <p>3. Evidence <§=>533 — Opinion Evidence — Conclusion op Witness.</p> <p>The testimony of a witness qualified to express an opinion that a shipment of live stock shrunk in weight a specified number of pounds per animal is not objectionable as a conclusion of the witness, but is admissible as an opinion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2341; Dec. Dig. <§=>533.]</p> <p>4. Carriers <§=>229 — Transportation op Live Stock — Delay — Measure of Damages.</p> <p>Where there is negligent delay in transporting cattle, the measure of damages is the difference between the amount received for them and the amount which would have been received had they reached the market on time.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. <§=>229.]</p> <p>5. Carriers <§=>227 — Transportation op Live Stock — Delay — Evidence — Sufficiency.</p> <p>A shipper suing a carrier for negligent delay in transporting live stock need only prove delay and resulting injury, and the carrier must plead and prove facts excusing the delay.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. <§=>227.]</p>

H. Wilburn, Judge. Action by J. E. Lindsey against the Houston & Texas Central Railroad Company and another. From a judgment for plaintiff against defendant named, the latter appeals.

<p>1. Chattel Mortgages <&wkey;197 — Removal on? Property prom Country — Recording Mortgage.</p> <p>The term “valuable consideration without notice,” in Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6841, declaring a chattel mortgage void “as to all creditors and purchasers” of the mortgaged property “for valuable consideration and without notice,” on the property being removed, with consent of the mortgagee, from the county where the mortgage is recorded, and the mortgage not being recorded within four months after the removal in the county to which the property is removed, qualifies not only “purchasers” but “creditors.”</p> <p>[Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 430-433; Dec. Dig. &wkey;> 197.]</p> <p>2. Appeal and Error &wkey;>1051 — Harmless ‘Error — Admission op Evidence.</p> <p>It being substantially admitted and shown by other evidence that defendant had knowledge of the fact, ex-ror in admitting secondary evidence of the giving of notice thereof was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. &wkey;> 1051.]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by J. B. Seeger against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

T. Prewitt, Judge. Action by Joe Hubbs against O. L. Marshall. From a judgment for defendant, after a trial de novo on appeal from a justice court, plaintiff appeals. Reversed and rendered.

<p>1. Chattel Mortgages <§=»150 — Record as Constructive Notice.</p> <p>From the time a chattel mortgage is deposited for registration, as required by statute, it becomes constructive notice of the lien, unaffected by failure of the clerk to properly index the names of the parties.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 246-252; Dec. Dig. <&wkey;> 150.]</p> <p>2. Appeal and Error &wkey;>837 — Review — Facts Not Pleaded.</p> <p>Facts shown by the evidence, but not pleaded, cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. &wkey;837.]</p>

<p>Appeal and Ebeok <&wkey;549 — Bills op Exceptions — Necessity poR Review.</p> <p>Where the record contains no bills of exceptions as expressly required by the statute as a prerequisite to consideration of objections to the charge and refusals to charge, the assignments of error relating thereto are not reviewable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2441-2451; Dec. Dig. &wkey;> 549.] •</p>

<p>Appeal from District Court, Tarrant County; J. W. Swayne, Judge.</p> <p>Action by Alice Loyd against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Error from Panola County Court; Geo. I-Harkrider, Judge. Action by C. V. Baugh against M. S. Baugh and R. S. Scoggins. Judgment for the plaintiff against the defendant M. S. Baugh and for the defendant Scoggins against the plaintiff, and both plaintiff and defendant M. S. Baugh bring error.

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action by N. C. Young against the Marshall Traction Company. Judgment for plaintiff, and defendant appeals.</p> <p>The suit was by appellee against appellant for damages for injury to his person, caused by negligence on the part of employés of appellant operating one of its street cars on East Austin street in the city of Marshall. Appellee in the nighttime was riding horseback, going west on said street, and the street car was west of him, moving east. His account of the accident, testifying as a witness, was as follows:</p> <p>“My horse was in a fox trot as the car came'in on the other block about 100 yards, or 75 or 80 yards. They were coming pretty fast and making a good deal of noise, lighted ail ovei-. The horse stopped 'all at once; threw up his head; stiffened himself all over. The car kept coming, and I spurred the horse to move him up; but he didn’t move, but rah backward. I tightened my reins to try to get away from where I was. I was about a third of the way coming into that block, and was right on the street car track in the middle of the street. The horse stopped, and I could not do anything with him. I tightened the reins, and the car kept on coming. I had to do something pretty quick, as it did not look like they were going to stop the car. There is an opening there between Mr. Toone’s and Mr. Davis’ residences, where they drive in and out between the two yards, 15 or 20 feet west of where I was, and my first thought was to make that place, and go in there, and get out of the way of the car. I could not do it, as I had to go 15 or 20 feet to get to that place, and I couldn’t turn round or go forward, and couldn’t do anything. I held my lines the best I could as the car came closer, and as the car came closer the horse went down where he was, either struck or fell down; but in the scramble the car was in on top of me and the horse both. * * * The only thing the horse would do was to run backward and forward and keep his head toward the car. * * * There was a headlight on the car, and the track seemed to be in bad shape, which caused the light to bounce up and down. The car didn’t hold up, nor stop. When it ran against me and the horse, it kept on going. It was going about as fast as I ever saw a car go anywhere on the street. I would say it was going 20 miles an hour, but that would be merely guesswork, as I don’t know how fast they run. * * * I think my horse at one time got over north of the street ear track. He then got back on the south side of the street car track, and was on the south side when he fell against the car, or the car hit him. * * * He reared and wheeled and pitched as the car kept coming. * * * Don’t know whether the car tripped him, or -he fell himself. Don’t know whether the front of the car hit him or not. I don’t know whether he fell against the side of the car or not. My foot hit the running board on the side of the car, but don’t know what hit the horse.”</p> <p>Haynes, the motorman operating the car, testified as follows:</p> <p>“The first I noticed Mr. Young, I was 15 or 20 feet from him. * * * His horse was to the right of the track on the north side of the track, and became frightened and ran backward — I suppose back to the curb on the north side, far enough for the street car, in passing, not to hit him. I thought that the horse would be frightened, but that the street car would get by; but the horse lunged and crossed right in front of the car on the track. What frightened me was the horse trying to cross. The horse went to the curb on the south side of the track after he crossed. At the same time the rider was holding the horse’s head towards the car, and the horse was trying to get away from it. By that time, while the horse was at the curb on the south side of the track, my car passed by him at least two-thirds of the way. Then the horse began to run back. I could have speeded up and got away, but.I didn’t. I was afraid the car would run into the horse. * * * The front end of the car did not hit the horse. * * * Qi]je car was coasting down hill to the east. I was running about 5 miles an hour. At that rate of speed, I could stop at a very short distance. It would require 4 or 5 feet to stop, and I could stop in that distance. I pulled down on the car, slacking its speed, but didn’t stop it still. I was going about 5 miles an hour, and pulled down the speed to about one-half that speed. The car was going about 2% miles an hour when it hit him. As soon as I saw the horse was clear of the ear I increased its speed. I didn’t think the car hit him. The way I saw it, the car didn’t hit the horse. I thought he was hurt by reason of his horse falling on him. When the horse fell, he was 2 or 3 feet south of the car. I didn’t feel the street car hit the horse, though I was looking for it.”</p> <p>The appeal is from a judgment in favor of appellee for $1,800.</p>

<p>1. Judgment <&wkey;>253 — Amount — Petition-Ad Damnum Clause.</p> <p>Though the amount stated in the ad damnum clause is less, judgment may be rendered for the amount due, calculated according to the terms of the notes sued on, fully described in the petition.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 443, 444; Dec. Dig. &wkey;253.j</p> <p>2. Bills and Notes 4&wkey;534 — Provision for Attorney — Allowance.</p> <p>The full amount of attorneys’ fees stipulated in notes sued on may in the absence of plea and proof of its unreasonableness, and therefore on default, be included in the judgment.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dee. Dig. &wkey; 534.]</p>

<p>Exceptions, Bill of &wkey;>59 — Correction— Necessity for Fraud of Mistake — Statute.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2063, providing that it shall be the duty of the party taking a bill of exceptions to reduce it to writing, where from allegations in motions to correct bills of exception it appeared that they were made up by the attorney of the moving party, it not being alleged' that the defects were due to accident or mistake or to imposition practiced upon the moving party’s attorney in making up the bills, or on the judge who approved them, the action of the trial court in overruling the motions for correction was proper.</p> <p>TEd. Note. — For other cases, Bill of, Cent. Dig. §§ 106-111; 59.] see Exceptions, Dec. Dig.</p>

<p>1. MORTGAGES &wkey;>38 — ABSOLUTE DEEB — EVIDENCE.</p> <p>Evidence held to sustain a finding that a deed by a husband and wife, though absolute in form, was intended as a mortgage.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. Dig. &wkey;38.]</p> <p>2. Vendor and Purchaser <&wkey;244 — Absolute Deed as Mortgage — Notice.</p> <p>Grantees in a deed held, under the evidence, to have notice that the grantor had title under a deed from' a husband and wife absolute in form, but intended as a mortgage.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. &wkey;>244.]</p> <p>3. Judgment <&wkey;787 — Bien — Constructive Notice.</p> <p>A judgment creditor has constructive notice of whatever rights prior purchasers from the debtor have, where the property is in possession of tenants who attorn to such purchasers.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1361, 1363-1367; Dec. Dig. &wkey; 787.]</p> <p>4. Judgment <®=787 — Bien—Priority—Con-veyances.</p> <p>As against a judgment creditor, grantees in a deed from the debtor, absolute in form, but intended as a mortgage, who, at the instance and for the benefit of the grantor, conveyed the land prior to the attaching of the creditor’s lien, divests the title out of the debtor.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1361, 1363-1367; Dec. Dig. &wkey; 787.]</p>

<p>1. Appeal and Error <&wkey;916 — -Peesumptions —Pleading to Support Judgment.</p> <p>Rev. St. 1911, art. 1812, provides that civil suits shall be commenced by petition, and article 2157 et. seq. prescribes the manner- of supplying necessary pleadings lost at the time of rendering judgment. The original transcript on appeal contained no pleading, but contained the clerk’s recital that the pleadings had been lost, which, on motion, was stricken, and a supplemental transcript contained what was certified as a correct and true codv of the original petition, not shown to have been before the court at its rendition of judgment. but which was sufficient in terms to support the judgment. Held, that it would be assumed that the court below had the petition before it when it rendered judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. <S&wkey; 916.1</p> <p>2. Appeal and Error <&wkey;916 — Burden of Proof — Absence of Pleading to Support Judgment.</p> <p>Appellant, complaining of the absence of any petition to support the judgment rendered for plaintiff, had the burden .of establishing the fact upon which he relied to show the error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. <S&wkey; 916.]</p> <p>3. Pleading <&wkey;406 — Objections—Waives— Judgment by Confession — Effect.</p> <p>A judgment reciting an appearance of defendant and his withdrawal of his answer is in the nature of a judgment by confession, and operates as a waiver of all errors not fundamental or jurisdictional; and an objection merely that the trial court at the time of rendition of the judgment did not have before him a pleading sufficient to support the iudgment was not jurisdictional, but amounted to more than a mere irregularity.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 1355-1359, 1361-1365, 1367-1374, 1386; Dec. Dig. &wkey;>406.1</p>

<p>Appeal and Error <&wkey;>1135 — Failure to Show Fundamental Error— Aeeirmanoe. Where the court on appeal struck out the statement of facts and refused to reinstate it, the judgment will be affirmed, in the absence of fundamental error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4454, 4456; Dec. Dig. &wkey; 1135.]</p>

District Court, Johnson County ; O. L. Lockett, Judge. Suit by A. M. Morgan and others against John W. Floore and another. From orders appointing a receiver and granting an injunction, defendants appeal.

Kennon, Judge. Suit by the Lakeside Irrigation Company against W. S. Strickland and others. From an order granting a temporary injunction, defendants W. S. Strickland and another appeal.

<p>1. Appeal and Error <@=3231 — Reservation oe Grounds oe Review — Objections and Exceptions.</p> <p>In an action for the death of an infant, the court charged, if the jury found for plaintiffs, to find for them such sum as they believed to be the pecuniary value to the parents of the services of their deceased daughter from the time of her death until she would have arrived at the age of 21 years, after deducting the cost and expense of her maintenance for the same period of time, and that they might find such other sum as the evidence might show would be equal to the pecuniary benefit that the parents had a reasonable expectation of receiving from their daughter after she reached the age of 21 years, had she not died. Seld, that even though such instruction was on the weight of the evidence as assuming that, if the child had not died from the injury, she would have lived to the age of 21 years, the judgment would not be reversed for such error; the objection to the instruction having been general and not having pointed out the particular portion of the charge which was on the weight of the testimony.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. <@=>231; Trial, Cent. Dig. §§ 689, 690.]</p> <p>2. Death <©=104 — Actions for Causing Death — Instructions—Damages.</p> <p>Such instruction was erroneous because of the failure to tell the jury that they could not allow damages for grief, loss of the child’s society, or mental pain and anguish; it not, as claimed, expressly limiting the recovery to the pecuniary value of the child’s services, as it did not expressly tell the jury that they could not allow damages other than the pecuniary value of her services.</p> <p>[Ed. Note. — Eor other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. <S=104.]</p> <p>3. Appeal and Error <©=1068 — Reservation oe Grounds oe Review — Measure oe Damages.</p> <p>The error in such instruction could not he regarded as harmless, though defendant made no complaint that the verdict was excessive, and the verdict was not in fact excessive, in the sense that the court would be justified in setting it aside as excessive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. <©=1068.3</p> <p>4. Appeal and Error <©=>216 — Reserving Error — Instructions — Necessity oe Requests.</p> <p>Assuming that the error in such instruction was merely one of omission and not a positive error, where defendant objected thereto because of the failure to exclude from the jury's consideration damages for grief, loss of the child’s society, and mental pain and anguish, and the trial court overruled such objection, defendant was not required to prepare and request a special instruction curing the omission, as the recent statute requiring objections to the charge to be presented in writing before the charge is read to the jury, besides requiring a dissatisfied litigant to afford the trial court an opportunity to correct alleged errors in the charge, is intended to allow such litigant the benefit on appeal of errors in the charge which he has pointed out, and which the trial court has refused to correct.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <©=>216; Trial, Cent. Dig. § 028.]</p>

R. Bowen, Judge. Action by J. O. Brown against the Galveston, Harrisburg & San Antonio Railway Company, begun in justice court and appealed by plaintiff to the county court. From a judgment there for plaintiff, defendant appeals.

<p>1. Appeal and Error <§=3-544 — Failure to Take Bill of Exceptions.</p> <p>Where appellant failed to take a bill of exceptions as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, providing that the ruling of the court in giving, refusing, or qualifying instructions shall be regarded as approved, unless excepted to and exceptions shown by bill of exceptions, assignments of error as to the refusal of instructions will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2478, 2479; Dec. Dig. <®=»544.]</p> <p>2. Telegraphs and Telephones <S==>38 — Delay in Delivering Message — Mistake in Name of Addressee.</p> <p>In an action against a telegraph company for failing to deliver a message, informing the addressee that his brother was dying, in time for the addressee to attend the funeral, it was the telegraph company’s duty, notwithstanding that there was a mistake in the addressee’s name, to exercise ordinary diligence to deliver the message to the proper party, regardless of whether such mistake proximately contributed to the delay.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. <§=>38.]</p> <p>3. Telegraphs and Telephones <®^38 — Delay in Delivering Message — Directions as to Delivery.</p> <p>Where the sending agent of a telegraph company had received specific instructions as to how the addressee of a message could be reached by telephone, but negligently failed to promptly transmit such information, and the receiving agent negligently failed to deliver the message after such directions had been received by him, a finding that the delay was caused by the negligent acts of both agents was warranted, notwithstanding a mistake in the addressee’s name.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. <§=> 38.]</p> <p>4. Telegraphs and Telephones <§=338 — Delay in Delivering Message — Defenses— Fee for Delivery.</p> <p>It was no defense to an action for negligent delay in delivering a telegram, stating that the addressee’s brother was dying, that the contract with the telegraph company stipulated that an extra fee would be charged for delivering the message beyond its free delivery limits, and that no such fee was paid, where the message was forwarded from the receiving office to the addressee over the telephone line of another company; the fee for such delivery being paid to that company by the addressee himself.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. <§=3 38.]</p> <p>5. Telegraphs and Telephones <§3^71 — Delay in Delivery — Damages.</p> <p>A verdict of $1,000 for delaying the delivery of a telegram stating that the addressee’s brother was dying, and thereby' preventing him from attending the funeral, was excessive.</p> <p>[Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. <§=371.]</p>

<p>Appeal from District Court, Hood County; W. J. Oxford, Judge.</p> <p>Proceedings by J. B. Ross for the probate of the will of M. Kell, deceased, in which Mat L. Kell and another appeared as contestants. From a judgment admitting the will to probate, contestants appeal.</p>

<p>1. Insurance <@=>400 — Life Insurance — Reinstatement of Policy — Reviver of Contest Clause.</p> <p>Where a life insurance policy is issued providing that it shall not be contestable after one year, and, after lapsing for nonpayment of premiums, is revived in accordance with its provisions, the contest clause is also revived, and the company is not barred from contesting the policy within one year after the revival, although several years have elapsed since the first issuance of the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1086; Dec. Dig. <@=>400.]</p> <p>2. Insurance <@=>393 — Life Insurance — Assignment of Policy — Estoppel of Insurer.</p> <p>Under Rev. St. 1911, art. 4953, providing that every policy of insurance issued after the 1st day of January, 1910, shall contain the entire contract between the parties, where a life insurance policy was issued in the year 1908, with the provision that it should be incontestable after one year, and, having lapsed for nonpayment of premiums, was assigned by the insured to the plaintiffs, to secure his debt, and subsequently, after January 1, 1910, was revived in accordance with its provisions, the insurer having knowledge of the assignment, there being nothing said in the renewed policy that it was a renewal and no mention being made of any circumstance that made it subject to forfeiture, the insurer was estopped to contest payment of such policy to the assignees on the ground that in applying for its renewal the insured had made certain material false statements as to his condition of health, although the insurer had no knowledge of the falsity of the statements previous to the renewal, since the insurer’s assent to an assignment creates a new contract between it and the assignee.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1039; Dec. Dig. <@=>393.]</p>

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Action by J. L. Costley against George W. Beaver and others. Prom the judgment rendered, defendant Beaver appeals.</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by M. E. Poster against the International & Great Northern Railway Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Comanche County; J. H. Arnold, Judge.</p> <p>Action by R. W. Gray against Mary J. King and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Tarrant County ; Marvin PI. Brown, Judge.</p> <p>Action by John F. Day against L. D. Mercer. From a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from District Court, Jefferson County; John M. Conley, Judge.</p> <p>Action by Sophia Stalworth against the Gulf Refining Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Harris County Court, at Law; Clark C. Wren, Judge.</p> <p>Action by the Security Trust Company of Houston against H. P. Mansfield and others. There was a default judgment for plaintiff, and certain of the defendants appeal.</p>

A. Wilcox, Judge. Action by S. A. Stone & Co. against Davis & Moore. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Bee County Court; T. M. Cox, Judge.</p> <p>Action by P. E. O’Reilly against Dan Cryer. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and Error <@=>1062 — Harmless Error — Special Issues — Verdict Sustained by Other Findings.</p> <p>Where plaintiff’s automobile was struck by a backing train at a street crossing, the submission of special issues whether the flagman was at his post on the crossing and was using due care, and, if not, whether the collision would have occurred if he had done so, was not reversible error, although not based on the pleadings, where the verdict was sustained by findings on other issues submitted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <§=> 1062.]</p> <p>2. Appeal and Error <@=>1062 — Harmless Error — Special Findings — Verdict Sustained by Other Findings.</p> <p>Where plaintiff’s automobile was struck by a backing train at a street crossing, special findings that the view of the track was obstructed by a switch shanty was not prejudicial error where the sufficiency of the judgment did not depend thereon.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <@=> 1062.]</p> <p>3. Railroads <@=>347 — Operations—Buildings near Track — Evidence.</p> <p>The erection and maintenance of buildings near a railroad track, although not necessarily constituting an independent ground of. negligence, may be shown on the question of contributory negligence and of the exercise of due care in the operation of trains near such buildings.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. <@=>347.]</p> <p>4. Appeal and Error <@=>.1070— Harmless Error — Special Verdicts.</p> <p>A finding upon an immaterial issue in a special verdict, if the judgment does not conflict with the findings on material issues, is immaterial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. <@=> 1070.]</p> <p>5. Railroads <@=>347 — Obstructions of Crossings — Evidence.</p> <p>Where a plaintiff’s automobile was struck by a backing- train at a street crossing, evidence that plaintiff deviated from the direct route and went around a switch shanty at the crossing because hacks were lined up on the other side was admissible on the issue of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. <@=>347.]</p> <p>6. Appeal and Error <@=>1052 — Harmless Error — Error Favorable to Complaining Party.</p> <p>Where plaintiff’s automobile was struck by a backing train at a street crossing, the admission of plaintiff’s testimony that, if the bell on the locomotive had been rung,- lie would have heard it, could, not be complained of by defendant where the jury found specially that the bell was in fact rung.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. <©=> 1052.]</p> <p>7. Appeal and Error <©=>1062 — Harmless Error — Measure of Damages.</p> <p>Where plaintiff’s automobile was struck by a backing train at a street crossing, the submission of a special issue as to the reasonable cost of repairing an automobile was not prejudicial to defendant as not submitting the proper issue of damages, where such measure was submitted in another special issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <§=> 1062.] .</p> <p>8. Trial <©=>351 —Special Findings —Requests — Accident at Crossing.</p> <p>Where plaintiff’s automobile was struck by a backing train at a street crossing, a special finding as to whether the collision would have occurred if the train had not been moving faster than six miles an hour, stating an element of proximate cause not in itself objectionable, was proper in the absence of a request that other elements be included.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. <©=>351.]</p> <p>9. Railroads <§=>348 — Collision at Crossing-Speed op Train.</p> <p>In an action for injuries sustained in a collision between plaintiff’s automobile and defendant’s train at a street crossing, evidence held to support a special finding that the train was moving faster than six miles an hour.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 822, 823, 827; Dec. Dig. <©=>348.]</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by Franz Brass against the Texar-kana & Ft. Smith Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error <@=500 — Review—Refusal op Requested Charges.</p> <p>The refusal to give requested charges will not be reviewed, where the bills of exception fail to show that the charges were requested and refused, and the refusal excepted to before the charge was read to the jury, as required by Acts 33d Leg. c. 59.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <©==> 500.]</p> <p>2. Mortgages <@=372 — Sale Under Power— Admissibility of Evidence.</p> <p>In a suit to recover land by a grantee from a trustee under a trust deed to secure a loan, where the pleadings and evidence showed no irregularity in a trustee’s sale which rendered it void or subject to attack for inadequacy of consideration, it was not error to exclude evidence as to the value of the land.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1102, 1103, 1105-1117; Dec. Dig. <§=>372.]</p> <p>3. Mortgages <§=>353 — Sale Under Power— Validity—Notice.</p> <p>Notice to the debtors of the trustee’s sale of the land under the trust deed prior to such sale is not a prerequisite to a valid sale.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1050; Dec. Dig. <@=353.]</p> <p>4. Appeal and Error <©=>1058 — Harmless Error — Exclusion of Evidence — Fact Otherwise Established.</p> <p>Where the defendants’ testimony as to the value of land was uncontradicted and they were in no way impeached, they were not prejudiced by the exclusion of other evidence as to the value.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. <§=>1058.]</p> <p>5. Appeal and Error <@=>742 — Assignments op Error — Generality.</p> <p>An assignment that the court erred in excluding testimony to prove that the signatures of deeds of trust introduced in evidence were procured by fraud, as alleged in defendants’ answer, under which the .proposition was that, where the signature of an instrument is obtained by fraud and the signer did not know the nature and character of the instrument or its legal effect, the instrument is void and of no effect and not binding on the maker, and evidence thereof is inadmissible, is not sufficiently specific to be entitled to consideration, and the proposition does not cure the defect.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]</p> <p>6. Appeal and Error <@=>742 — Assignment of Error — Statement—Necessity.</p> <p>An assignment of error is not entitled to consideration, where there is not such a statement of the evidence subjoined thereto as is sufficient to explain and support the proposition and to enable the court to determine the question.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <@=>742.]</p> <p>7. Appeal and Eeeob; <@=>1056 — Evidence— Admissibility — Materiality.</p> <p>It is not error to exclude evidence offered to show fraud which is wholly insufficient to justify a finding of fraud.</p> <p>[Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. <§=>1056.]</p> <p>8. Appeal and Error <@=>1056 — Harmless Error — Exclusion of Evidence — Admission of Facts.</p> <p>Where the defendants in open court admitted that plaintiffs were entitled to the land sued for if defendants executed a certain deed of trust, the exclusion of evidence that the execution of the deed was procured by fraud was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. <@=>1056.]</p> <p>9. Trial <@=>139 — Taking Question from Jury — Sufficiency of Evidence.</p> <p>Where neither the evidence admitted nor that offered and excluded was sufficient to authorize a finding of fraud, it was not error to refuse to submit that issue to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig.^ §§ 332, 333, 338-341; 365; Dec. Dig. <@=</p>

<p>1. Pleading <§=129 — Allegation—Failure to Traverse — Admission.</p> <p>In an action for work and materials performed and furnished on a certain house, where the .petition’s allegation that the work was done on a house owned by defendant was not denied,, it admitted ownership.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 27CK-275; Dec. Dig. <§=129.]</p> <p>2. Appeal and Eeeoe <§=173 — Admission of Evidence.</p> <p>In an action for the value of work and materials, performed and furnished on a house, alleged to belong to defendant, where defendant’s pleadings did not deny its ownership, but the court improperly permitted the introduction of evidence in denial, defendant could not complain that the jury disregarded its evidence on the-point.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. <®=173.]</p>

Action by E. E. Churchill and others against the Olds Motor Works and others. From a judgment for plaintiff, defendant named appeals.

<p>Action by G. H. Hermann against John F. Schroeder. Judgment for the defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Tyler County; A. B. Davis, Judge.</p> <p>Action by Jack Moss and another against John H. Broocks and others. From a judgment for plaintiffs, defendant named appeals.</p>

<p>Costs <@=3260 — Appeal fob Delay — Damages.</p> <p>Where plaintiff in error filing his petition and bond for writ of error and obtaining a writ of supersedeas took no steps to file a transcript in the court of appeal, and filed no briefs, and on the day before submission of the cause filed a motion to dismiss, and no statement of facts or bill of exceptions were filed, the writ of error was sued out for delay, and the judgment would be affirmed with damages.</p> <p>[Ed. Note. — For .other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. 260.1</p>

<p>Appeal from Jefferson County Court; R. W. Wilson, Judge.</p> <p>Action between W. C. Averill and H. J. Wierliauser. From a judgment for H. J. Wierbauser, W. C. Averill appeals.</p>

<p>Appeal from Orange County Court; O. R. Sholars, Judge.</p> <p>Action between E. L. Bruce, trustee, and W. H. Stark and others. From a judgment for W. H. Stark and others, E. L. Bruce appeals.</p>

<p>1. Master and Servant @=>265 — Res Ipsa Loquitur.</p> <p>The doctrine res ipsa loquitur applies in an action for injuries sustained by a servant through the master’s negligence.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 877-908; 955; Dec. Dig. @=>265.]</p> <p>2. Master and Servant @=>265 — Defective Bridge — Derailment op Train — Res Ipsa Loquitur.</p> <p>In an action for the wrongful death of plaintiff’s husband, a brakeman on defendant’s train which was derailed and wrecked upon a trestle, evidence examined and held to sustain a verdict for plaintiff on the theory that the derailment itself, with the surrounding circumstances, and the condition of the trestle, showed that the wreck was caused by some unexplained defect raising an inference of negligence on the part of the defendant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. @=>265.]</p> <p>3. Master and Servant @=>124, 235 — Inspection-Bridges.</p> <p>A railroad company owes the duty to its employes to inspect its roadway and bridges so as to make them reasonably safe, and the employes .have the right to rely on the proper performance of such duty.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent.. Dig. §§ 235-242, 710-722; Dec. Dig. @=>124, 235.]</p>

L. Goodman, Judge. Action by Carlo Salvato against R. G. Harris and another, begun in justice court and appealed to the county court. From a judgment there for plaintiff, defendants appeal.

<p>Appeal from Potter County Court; W. M. Jeter, Judge.</p> <p>Action by the Graham Paper Company against W. J. Williams. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Newton County Court; W. E. Gray, Judge.</p> <p>Action by the Newton County Bank against E. P. Montgomery and others. From a judgment for defendants, plaintiff appeals.</p>

Error from District Court, Harris County; Chas. E. Ashe, Judge. Petition for mandamus by the Houston Packing Company against W. T. McDonald and others. A demurrer to the petition was sustained, and judgment of dismissal entered on a refusal to amend, and plaintiff brings error.

<p>Appeal from Brown County Court; Frank H. Sweet, Judge.</p> <p>Action by Brooke Smith & Co., against H. L. Dennis. Judgment for defendant, and plaintiffs appeal.</p>

<p>Executors and Administrators <S=o449— Claims — Service—Pleading—Variance.</p> <p>The evidence showing plaintiff took charge of deceased’s business under an agreement to receive as compensation a share of the profits, he may not, even if the evidence show the amount of profits, recover in. an action against the ad-ministratrix for a certain sum as due him, as the value thereof, for services rendered deceased as bookkeeper and clerk.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1850-1854; Dec. Dig. <@=449.]</p>

<p>Appeal from District Court, Hale County; L. S. Kinder, Judge.</p> <p>Action by H. J. Pipkin and others against R,. C. Ward and another. From a judgment for defendants, plaintiffs appeal.</p>

Munroe, Judge. Trespass to try title by N. Potka against Ed Carter, in which plaintiff secured possession of the property by writ of sequestration. From a judgment awarding possession of the premises to plaintiff, but giving damages to defendant for dispossession under the writ of sequestration, plaintiff, together with the sureties on his sequestration bond, appeal.

<p>Appeal from District Court, Fisher County; John B. Thomas, Judge.</p> <p>Action by the Cowboy State Bank & Trust Company against J. O. Guinn and others. Prom a judgment for defendants, plaintiff appeals.</p>

Munroe, Judge. Trespass to try title by N. Potka against Ed Parmer, in which plaintiff secured possession of the property by writ of sequestration. Prom a judgment awarding possession of the premises to plaintiff, but giving damages to defendant for dispossession under the writ of sequestration, the plaintiff appeals.

Error from District Court, Dallas County; J. G. Roberts, Judge. Action by the Camden Fire Insurance Association against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for defendants, and plaintiff brings error.

<p>Appeal from District Court, Parker County; F. O. McKinsey, Judge.</p> <p>Action by Frank Thomas against the Weatherford, Mineral Wells & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Wilis <&wkey;674^-Express Trust — “ Spendthrift Trust.”</p> <p>A will and codicil which gave the testator’s property to trustees to manage and collect the income, and to -pay a fixed sum monthly to the testator’s son, with power to make additional advancements if they should deem best, creates a “spendthrift trust,” the essential element of which is inalienability and nonliability for the debts of the beneficiary.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 1585; Dec. Dig. &wkey;674.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Spendthrift Trust.]</p> <p>2. Wills &wkey;»686 — Construction — Codicil-Trust.</p> <p>Where a will created a spendthrift trust in favor of testator’s son, to continue for 25 years, and the principal then to be paid to the son, if living, a codicil which created no trust, was expressly declared to be a part of the will, and which provided that the “trusts herein created” should be continued during the life of the son, applied to the spendthrift trust, and continued it during the son’s life after the expiration of the 25 years.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1031-1637; Dec. Dig. &wkey;686.]</p> <p>3. Wills <&wkey;470 — Construction—Intent op Testator — Surrounding Circumstances.</p> <p>In construing a will the intent of the testator, as expressed in the whole instrument when read in the light of the circumstances surrounding the testator when the will was written, must govern.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 988; Dec. Dig. <5&wkey;470.]</p> <p>4. Wills <&wkey;687 — Construction — Remainder.</p> <p>Where a will created a spendthrift trust in favor of testator’s son for 25 years and provided that if the son should die during that period the property should go to testator’s heirs, otherwise to the son, and a codicil extended the trust for the life of the son, but made no provision as to the disposition of the principal thereafter, and it appeared that the son was weak intellectually, and had become estranged from testator, who was more anxious to prevent the squandering of his property than to care for the son, and that testator had an affection for his collateral relatives, the intention of the testator was to vest the property in the collateral kindred on the expiration of the trust.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1638-1643; Dec. Dig. &wkey;687.]</p> <p>5. Wills &wkey;>687 — Construction — Spendthrift Trust-Remainder.</p> <p>Even if it was the testator’s intent after the execution of the codicil that the property should go to the heirs of the son, on the termination of the trust, it was his intention that it should go to them undiminished by any act of the son, and creditors of the son cannot levy on and sell the son’s interest therein, and thereby acquire a right to the possession thereof at the termination of the trust on, the death of the son.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1638-1643; Dec. Dig. § 687.]</p>

D. Guinn, Judge. Action by the Farmers’ & Merchants’ State Bank against Thomas S. Falvey and others. From the judgment, so far as in favor of defendants Falvey and Cavia, plaintiff appeals.

F. O’Neal, Judge. Action by B. H. Epperson and others against Gordon Dunn, one Yantis and others. Judgment for plaintiffs, and defendants appeal.

<p>1. Continuance <&wkey;14— Right to Continuance.</p> <p>The original petition indicated that plaintiff purchased the note in suit after maturity. Defendant’s answer set up failure of consideration and purchase after maturity. The testimony at the first trial was not sufficient to notify defendant that purchase before maturity would be relied upon. By trial amendment, made the day before the second hearing, plaintiff set up purchase before maturity. The property transferred by plaintiff in consideration of the note was located at a point far distant. Only three days of the term remained. Held that, where defendant’s motion for a continuance alleged that he believed and had good cause to believe the transfer was made after maturity, and it appeared that his plea of failure of consideration might be sustained, it was improper to deny him a continuance, his original answer sufficiently denying the trial amendment.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 25, 99-112; Dec. Dig. &wkey;14.]</p> <p>2. Pleading <&wkey;205 — General Demurrer — Special Exceptions.</p> <p>A petition in an action on a note, which averred purchase before maturity, is not subject to general demurrer because not averring the date of maturity, although it is subject to special exception; but, where not excepted to, there is no variance between the petition and a note showing that it would mature in one year.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. <&wkey;>205.]</p> <p>3. Limitation oe Actions &wkey;> 127 — Running op Limitations — Amendments—New Cause op Action.</p> <p>Where the original, as well as the amended, petition described the same note, though the last alleged purchase before maturity, no new cause of action was stated, and limitations were tolled by the original suit.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. 127.]</p>

<p>Appeal from District Court, Hale County; L. S. Kinder, Judge.</p> <p>Action by Pearl Harp against Mrs. M. J. Hodges, individually and as community administratrix of W. R. Hodges, in which B. Rowan and another were impleaded. Prom a judgment against the impleaded defendant Rowan, he appeals.</p>

<p>1.Highways <&wkey;90 — Road Districts — Territory — Constitutional and Statutory Provisions.</p> <p>Const. art. 3, § 52, as amended in 1904, empowers the Legislature to authorize any county, any number of adjoining counties, or any political subdivision of the state or a county, “or any defined district now or hereafter to be described” by a majority vote of its resident property tax payers, to issue bonds or lend its credit for the construction and operation of roads, which territory may include municipal corporations, and Rev. St. art. 627, giving to such districts the same powers, and other articles thereof relating to the election, and to the issuance and sale of bonds, were not intended to be limited to political subdivisions either then in existence or to be subsequently created by the Legislature ; but such political' subdivisions might for the first time be created by the action of the commissioners’ court in ordering an election-in a particular territory.</p> <p>[Ed. Note — For other cases, see Highways,. Cent. Dig. §§ 301, 302; Dec. Dig. &wkey;90J</p> <p>2. Statutes <&wkey;206 — Construction—Giving Effect to All Parts.</p> <p>All the language of a statute must be given effect, if it is possible to do so.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 283; Dec. Dig. <i&wkey;206.]</p> <p>3. Highways <&wkey;90 —Road Districts — Indebtedness — Statutes.</p> <p>Under Const, art. 3, § 52, as amended in. 1904, declaring that the total indebtedness of any city shall never exceed the limits imposed by other constitutional provisions, the issuance of bonds of a road district, including a city which had already created an indebtedness and, issued bonds to the amount permitted by the Constitution, did not increase the bonded or other indebtedness of the city, as it and the district were separate municipalities, and, the provisions not prohibiting the placing of an additional burden by taxation upon property located within a city which has already reached its constitutional limit of indebtedness, but only prohibiting bonded indebtedness of the municipality beyond a certain limit, such municipal indebtedness did not render the road district’s issuance-of bonds void.</p> <p>[Ed. Note. — For other cases, see Highways,. Cent. Dig. §§ 301, 302; Dec. Dig. &wkey;>90.]</p> <p>4. Highways <&wkey;90 — Road Districts — Bonds —Time.</p> <p>Under Rev. St. art. 632, providing that the bonds of a road district shall run not less than 20 nor more than 40 years, with such option of redemption as may be fixed by the commissioners’ court, the court’s fixing of 40 years as the-date of maturity of the district bonds, reserving the option to redeem some of them before the expiration of 20 years, was valid, since the option, did not relate merely to such time as might intervene after the expiration of 20 years and the time fixed for the maturity of the bonds.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. <§=>90.]</p> <p>5. Highways <&wkey;90 — Road Districts — Bonds-—Interest.</p> <p>•Under Rev. St. arts. 627-641, not requiring the order providing for an election on an. issuance of bonds by a road district to state when interest thereon shall be payable, and providing that the bonds shall bear not more than 5% per cent., and article 633, making the general laws relating to county bonds applicable, and article 612, declaring that interest on county bonds may, in the discretion of'the commissioners’ court, be payable semiannually, the issuance of bonds of a road district bearing interest at 5 per cent, payable semiannually was valid, although the order of the commissioners’ court under which the election was held stated, that the vote was to be on the issuance of bonds bearing interest at 5 per cent, per annum.</p> <p>[Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. <&wkey;>90.]</p>

Error from District Court, Brown County; John W. Goodwin, Judge. Action by E. H. Flynn and another against C. W. Gill and others. There was a judgment for plaintiffs, and defendants Gill and Badford bring error.

<p>Appeal from District Court, Roberts County ; F. P. Greever, Judge.</p> <p>Action between C. H. Anthony and O. B. Hardin, Sheriff, and another. From a judgment for the latter, the former appeals.</p>

<p>1. Appeal and Error &wkey;>1010 — Findings— Conclusiveness.</p> <p>A finding supported by evidence and riot attacked by assignment of error is conclusive on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. <&wkey;>1010.]</p> <p>2. Homestead &wkey;>128 — Mortgages — Validity.</p> <p>Where a creditor of a debt not within any of the constitutional exceptions to the prohibition against incumbering a homestead took a mortgage of the homestead of the debtor and his wife, with knowledge of the existence of the homestead, the mortgage was void.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 224-232; Dec. Dig. &wkey;128.]</p>

<p>1. Total @=260 — Instructions—Refusal of Instructions Covered by Charge Given.</p> <p>It is not error to refuse requested instructions, where the instructions given fairly and fully submit the case.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]</p> <p>2. Nuisance &wkey;54 — Actions—Evidence—Instructions.</p> <p>Where, in an action for damages caused by the erection and maintenance of a brick plant on land adjacent to plaintiff’s residence, there was evidence that a third person had previously maintained a small brick plant on the premises where defendant maintained the plant complained of, but there was no proof that the small plant caused any injury to plaintiff, an instruction, limiting the jury to a consideration of the injury caused after defendant became the owner of the plant and stating that he was not responsible for any injury caused by prior owners, sufficiently guarded defendant’s rights.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 130; Dec. Dig. @=54.]</p> <p>3. Trial <&wkey;312 — Instructions on Jury Returning to Court — Statutory Provisions.</p> <p>The statute requiring the submission to the jury of special issues does not repeal the statute authorizing a judge, on request of the jury, to give additional instructions.</p> <p>TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. &wkey;312.]</p> <p>4. Trial @=312 — Instructions on Jury Returning to Court.</p> <p>A party may not complain of an instruction given to the jury returning into court and asking for further instructions, which conforms to instructions originally given and is favorable to appellant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. &wkey;312.]</p>

<p>1. Carriers &wkey;>228 — Carriage of Live Stock —Delay in Transportation — Shrinkage.</p> <p>In an action against a common carrier for damages to a shipment of live stock through delay in transportation and rough handling, evidence examined, and held to warrant the refusal of a peremptory instruction for defendant and to sustain a verdict for plaintiff based upon the shrinkage in the weight of the cattle when delivered.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. &wkey;>228.]</p> <p>2. Trial <&wkey;-253 — Instructions — Ignoring Evidence.</p> <p>In an action for damages to a shipment of live stock through the carrier’s delay in transportation, an instruction to find for defendant if the shipment could not have reached its destination in time for the morning market was properly refused, where the evidence showed that the market was open until 3 o’clock p. m. and sometimes as late as 7 p. m.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. &wkey;253.]</p> <p>3. Trial &wkey;>250 — Instructions — Application to Pleadings and Evidence.</p> <p>An instruction eliminating the grounds of recovery and submitting issues not made by the pleadings nor sustained by the evidence is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. &wkey;250.]</p>

<p>Appeal from Criminal District Court, Harris County; G. W. Robinson, Judge.</p> <p>Henry Lewis was convicted of burglary, and he appeals.</p>

<p>Appeal from Williamson County Court; Richard Critz, Judge.</p> <p>Tom Scott, was convicted of larceny, and he appeals.</p>

<p>Appeal from Williamson County Court; Richard Critz, Judge.</p> <p>Calla Wilson was convicted of a misdemeanor, and he appeals.</p>

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action by L. S. Cator against the Commonwealth Bonding & Casualty Insurance Company and others. From judgment for plaintiff, the defendant named appeals.</p>

<p>Appeal from District Court, Collin County; M. H. Garnett, Judge.</p> <p>William Gordon was convicted of manslaughter, and he appeals.</p>

<p>Appeal from District Court, McLennan County: Richard I. Munroe, Judge.</p> <p>George Harrison was convicted of manslaughter, and he appeals.</p>

<p>Appeal and Error &wkey;781 — Dismissal — Grounds — Mandamus.</p> <p>Where, pending appeal from the denial of an application for a writ of mandamus to compel a district clerk to issue an. execution on a judgment, the clerk’s term of office expires and his successor qualifies and is installed, the cause will be dismissed; it being the duty of appellate court to refuse to decide questions where the matter in controversy has ceased to exist or the decision would be inoperative.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 63-80, 3122; Dec. Dig. &wkey;>781.]</p>

<p>Appeal from District Court, Jefferson County; W. H. Davidson, Judge.</p> <p>Action by Kate S. White and another against G. M. Sells and others. From a judgment for plaintiffs, defendants appeal</p>

<p>Appeal from District Court, Wharton County; Samuel J. Styles, Judge.</p> <p>Action by H. A. Cline and another against E. F. Booty and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Chattel Mortgages <@=>8—Filing—Sufficiency.</p> <p>Where a mortgaged hay press was situated in a field within one county, the registration of the mortgage in that county was sufficient notice, even though the property was occasionally moved into an adjoining county, the field lying partly in both counties.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 162-165 ; Dec. Dig. <S=>87.]</p> <p>2. Chattel Mortgages <@=>269 — Foreclosure.</p> <p>A chattel mortgage may be foreclosed by action, though containing no power of sale.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 553, 554; Dec. Dig. <=> 269.]</p> <p>3. Reformation of Instruments <@=>19 — Power of Court of Equity.</p> <p>Where, through mutual mistake, a chattel mortgage misdescribed the note securing the debt, equity will award reformation.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. <§=>19.]</p> <p>4. Chattel Mortgages <@=>272—Sufficiency —Description.</p> <p>Where a chattel mortgage correctly described the debt, but erroneously set up the giving of two instead of a single note to secure the entire amount, the error was immaterial, the debt being the real thing secured, and foreclosure could be had.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 559; Dee. Dig. <@=>272.]</p> <p>5. Chattel Mortgages <@=>178 — Mortgaged Property — Conversion.</p> <p>Where a second mortgagee foreclosed his lien and bought in the mortgaged property, denying the rights of the prior chattel mortgagee, there was a conversion and he was liable for the purchase price.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 358, 359; Dec.Dig. <@=>17S.]</p> <p>6. Chattel Mortgages <@=>178 — Mortgaged Property — Judgment.</p> <p>Where a subsequent chattel mortgagee converted the property, sums collected from him should be credited on the judgment against the mortgagor, while sums collected from the mortgagor should be credited on the judgment against such mortgagee.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 358, 359; Dec.Dig. <@=>178.]</p>

<p>1. Fraud <&wkey;52 — Buyer’s Action for Damages — Evidence.</p> <p>In an action for damages on account of a seller’s false representations in the sale of a thresher for threshing a crop of peas, evidence that the buyer wrote and mailed a letter to the seller complaining of defects in the thresher, which letter he did not then have, was admissible as showing his good faith and diligence in notifying of the defects.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 48; Dec. Dig. <&wkey;52.]</p> <p>2. Sales <&wkey;85 — Notice of Defects — Sufficiency.</p> <p>Under a written contract for the sale of a thresher, stipulating that notice of defects should be given the seller by registered letter, the requirement of registration was intended to secure prompt notice to the seller, and if it received timely, notice by an unregistered letter there was a substantial compliance with the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 236-238; Dec. Dig. &wkey;85.]</p> <p>3. Fraud &wkey;>58 — Sale of Thresher — Notice of Defects — Sufficiency.</p> <p>In an action for damages from a seller’s false representations as to a thresher, the buyer’s uncontradicted evidence that he had written and mailed a letter to defendant notifying of defects was sufficient to show that such written notice had been given to the seller.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 55-59; Dec. Dig. &wkey;58.]</p> <p>4. Fraud <&wkey;50 — Buyer’s Action for Damages — Burden of Proof.</p> <p>In an action for damages from misrepresentations in the sale of a thresher, on the ground that the seller did not deliver the machine contracted for, it was not necessary to prove notice to the seller of defects, as required by the written warranty.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 46, 47; Dec. Dig. &wkey;^50.]</p> <p>5. Appeal and Error i&wkey;1050 — Harmless Error — Admission of Immaterial Evidence.</p> <p>In such case the court’s admission of proof of the immaterial fact that the buyer had given notice of defects as required by the warranty, was not ground for reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. &wkey;1050.]</p> <p>6. Appeal and Error &wkey;1051 — Harmless Error — Admission of Evidence.</p> <p>In such action, where it was clearly shown that a person whom the buyer had requested to notify the seller of defects was the seller’s agent, error, if any, in allowing the buyer to testify that such person had said he was defendant’s agent, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <&wkey;> 1051J</p> <p>7. Fraud &wkey;>32 — Buyer’s Warranties — Action for Damages.</p> <p>A buyer, who by false representations is induced to purchase machinery sold under a written contract containing certain warranties, is not restricted to an action on the written contract, but can sue on the antecedent fraud by which the contract was procured.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 28; Dec. Dig. <&wkey;32.]</p> <p>8. Fraud <&wkey;59 — Buyer’s Action for Damages — Measure.</p> <p>In an action against a seller for damages on account of false representations made in sale of thresher for the purpose of threshing peas, as known to the seller, on the ground that it would not thresh peas and that the part known as the pea-thresher attachment was not delivered until the entire crop was lost, the measure of damages would be tbe price of the peas and the expense the buyer incurred in attempting to thresh them with the machinery furnished, less the expense he would have incurred in threshing and marketing them, what he could have sold the unthreshed peas for, and whatever benefit he derived from the crop in the fertilization of his land.</p> <p>[Ed. Note. — For other cases, see Fraud, Gent. Dig. §§ 60-62, 64; Dec. Dig. <&wkey;>59.]</p> <p>9. Fraud <&wkey;60 — Buyer’s Action for Damages — Elements of Compensation.</p> <p>In such case, the buyer was not entitled to recover the ordinary expense of threshing, preserving, and marketing the peas, since he would have been subject to that expense, even if there had been no misrepresentations as to the thresher furnished by the seller.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent.. Dig. § 65; Dec. Dig. <&wkey;>60.}</p> <p>10.Fraud <&wkey;50 — Buyer’s Action for Damages — Burden of Proof.</p> <p>In such case, the burden was upon the-buyer, and not upon the seller, to furnish the proof necessary to enable the court to deduct the ordinary and necessary expense of threshing and marketing the crop of peas from the damages claimed, based on a total loss of the crop and the money spent in trying to operate the thresher.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 46, 47; Dec. Dig. <&wkey;>50.]</p>

Error from District Court, Brewster County; W. C. Douglas, Judge. Action by J. W. Weaver against S. B. Hovey and another, as receivers of the Kansas City, Mexico & Orient Railway Company of Texas, and said railroad company. Judgment for plaintiff, and defendants bring error.

<p>1. Judges <@=16 — Resignation — Special Judge — Constitutional and Statutory Provisions.</p> <p>Const, art. 16, § 17, and Rev. St. 1911, art. 1672, providing that all officers shall continue to perform the duties of their offices until their successors are duly qualified, are mandatory and intended to prevent vacancies in office and cessation of the functions of the government, and hence the judge of the special district court, who had resigned, to take effect September 30th, at midnight, continued in office and was authorized to hold his term of court until his successor was appointed, and on his refusal to do so, and the Governor’s failure to appoint a successor, a special judge elected by the bar of the court was authorized to sit until the completion of any business of the court.</p> <p>[Ed. Note. — For other cases, see Judges, Gent. Dig. §§ 46, 53-59; Dec. Dig. <@=16.]</p> <p>2. Trial <@=18 — Reception oe Evidence — Witness’ Deposition — Presence oe Plaintiff.</p> <p>In a switchman’s action for personal injuries, wherein his deposition was on file, it was not error to bring him into the courtroom on a stretcher without showing that he could only reach the courtroom in such way, since he had the right to use the deposition or to testify in the case as a witness.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 37, 42%; Dec. Dig. @=18.]</p> <p>3. Continuance <@=46 — Grounds—Surprise —Sufficient Cause.</p> <p>In a switchman’s action for injuries, wherein his petition was amended to set up an ordinance fixing the rate of speed at which engines might .be operated within city limits, and assigning negligence in operating an engine at a greater speed, and a copy of the ordinance was attached to the pleading, filed September 10th, about 20 days before trial, defendant’s application for a continuance on the ground of surprise at the new matter pleaded, stating that the ordinances were contained in the minute books of the city council, not otherwise accessible, so far as known to defendant, and that the allegation necessitated an exhaustive examination of the records to ascertain whether the ordinance had been repealed or amended, without showing any effort to examine the records containing the minutes of the city council, or the number, etc., of the books to be examined, or the probable time it would take, did not show “sufficient cause” for a continuance.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 132-140; Dec. Dig. <§=46.]</p>

<p>Error from District Court, Brewster County; W. C. Douglas, Judge.</p> <p>Action by A. J. Williams against S. B. Hovey and another, as receivers of the Kansas City, Mexico & Orient Railway of Texas, and said railroad company. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Appeal and Error <@=1002 — Review — Jury’s Findings — Conflicting Evidence.</p> <p>A jury’s findings of fact on conflicting evidence are conclusive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <@=> 1002.]</p> <p>2. Pleading <@=>8 — Legal Conclusion — Fraud.</p> <p>Fraud must be specifically pleaded, and so when it is alleged that by false and fraudulent representations, and by overreaching by flatteries and persuasions a conveyance was induced, exceptions to the pleading should be sustained as merely stating a legal conclusion.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28½, 68; Dec. Dig. <@=>8.]</p> <p>3. Evidence <@=507 — Subject of Opinion Evidence.</p> <p>Whether a person is well treated by his wife and family is a question of fact not calling for the opinion of an expert.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 2310; Dec. Dig. <©=507.]</p> <p>4. Trial <@=75 —Waiver of Error — Admission of Evidence.</p> <p>Error in admission of opinion evidence of a’ fact is waived by failure to object to like evidence thereof.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 171-182, 252; Dec. Dig. <@=75.]</p> <p>5. Trial <@=85 — Deception of Evidence-Necessity of Specific Objection.</p> <p>It was not error to overrule an objection which did not point out the particular part of an interrogatory objected to, and which did not separate the objectionable portion from the remainder of the answer clearly admissible.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 223-225; Dec. Dig. <S=85.]</p> <p>6. Evidence <@==510 — Mental Capacity — Expert Opinion.</p> <p>On an issue as to contracting capacity, an expert’s opinion that he does not believe the party was ever capable of making a good trade, because of his mental condition and his implicit confidence in people, was admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2314; Dec. Dig. <S=510.]</p> <p>7. Evidence <©=510 — Expert Opinion — Statement of Legal Conclusion.</p> <p>Such answer did not involve the statement of a legal conclusion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2314; Dec. Dig. <@=510.]</p> <p>8. Evidence <©=501 — Mental Capacity — Basis for Opinion.</p> <p>On an issue as to contracting capacity, a witness testified that in talking to the party on different occasions, he would pause, look off in a staring way, and continue to do so, reach in his pocket for tobacco, and again begin conversation, and so made witness guess as to his mental condition, and that at threshing time he saw him do things which to witness seemed uncalled for and unreasonable. Held, that this did not furnish basis for an opinion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. <@=501.]</p> <p>9. Appeal and Error <@==>1066 — Prejudicial Error — Instructions — Statement of Issues.</p> <p>Improperly stating the issues is not ordinarily reversible error; but, where rescission of a contract is sought for insanity of a party alone, and the court, in reciting the issues, stated it was alleged that he “was, by reason of impaired health and weakness of mind, wholly incapacitated,” the error was prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <©=1066.]</p> <p>10. Trial <@=>352 — Special Issues — Submission to Jury.</p> <p>Where in a case involving capacity of a party executing a contract, and a deed and notes 30 days thereafter, it appears that, if insane, his mental capacity was intermittent, special issues to the jury as to his capacity when they were executed should be submitted disjunctively.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. <@=352.]</p> <p>11. Contracts <@=>99 — Mental Capacity — Burden of Proof — Avoidance' of Defense.</p> <p>In an action against a wife, based on transactions with her deceased husband, plaintiff had the burden of proving ratification and affirmance thereof, pleaded by him in avoidance of her defense that her husband was insane when he executed the contract, deed, and notes sued on.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 448-453, 1197-1199, 1799, 1800; Dec. Dig. <@=>99.]</p> <p>12. Contracts <@=>92 — Contracting Capacity — Instruction.</p> <p>On an issue as to the contracting capacity of a party, the court charged that the question for the jury to decide was whether he had sufficient mental soundness and capacity to understand the nature, terms, and effect of the contract and transaction in detail, and as a whole to determine and appreciate the rights, benefits, and values he was acquiring, and the rights, values, and obligations exchanged therefor, to hold these elements of the details in his mind and reflect on them rationally, and to exercise his mind in respect to them in a rational way. Held, that the charge was not overexacting in its requirements.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 411-414, 1153, 1155; Dec. Dig. <@=92.]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by the General Bonding & Casualty Insurance Company against the city of Dallas and others. Judgment for defendants and plaintiff appeals.</p>

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by Annie May Young and others against Susan L. Campbell and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Pleading <S^>228 — Exception—Pleadings Considered.</p> <p>In an action on. a guaranty, where plaintiff alleged that defendants were parties or privies to a former judgment and were concluded thereby and excepted to the part of the answer relating to the effect of such former judgment, and wherein defendants admitted the allegations of the petition, except as to the former judgment, as to which it was alleged that they were in no wise a party thereto, such allegation was but a conclusion of law, and the fact stated in the petition was admitted, so that the petition was properly considered by the trial court, though, "upon exceptions to the answer, the rule is that defendant’s pleadings alone are to be considered.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. <&=>228.]</p> <p>2. Guaranty <@^79 —Judgment —Conclusiveness — Parties.</p> <p>Where defendants sold their bank with a certain note due and guaranteed the collection of the note when reduced to judgment and reserved in their guaranty contract, a right to select an attorney to prosecute the note to judgment, and, under such reservation, selected an attorney who, under their direction, brought suit in the name of the plaintiff and prosecuted the note to judgment, they were privies at least, and in fact were parties with a beneficial interest in the judgment, which was conclusive as to them.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 93; Dec. Dig. <@=»79.)</p> <p>3. Guaranty <@=^82 — Suit Against Principal-Parties.</p> <p>Guarantors are bound by a separate contract to that of their principal, and cannot, as a rule, be made parties in a suit against him.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 97; Dec. Dig. <¿^82. ]</p> <p>4. Judgment <@^>624 — Bar—Parties.</p> <p>It is not' alwa3fs necessary, that the parties to two suits should be nominally the same in order that one may bar another, but it is generally sufficient if they are substantially the same in interest.</p> <p>• [Ed. Note. — For1 other cases, see Judgment, Cent. Dig. § 1139; Dec. Dig, <@=^624. ]</p> <p>5. Guaranty <@=3-79 — Judgment—Collateral Attack.</p> <p>The sellers of. a .bank with a note due it, who guaranteed its collection when reduced to judgment in a suit by their attorney and under their direction, had the opportunity of applying to the court entering the judgment against their principal to open or vacate it, and, being privies, had a right to prosecute an action in that court to defeat the fraud of the assignee and the principal, .and, by reason of their right to an assignment of the judgment, might have filed a bill in that court to Set aside the judgment, and, not having done so, could not, when sued on the judgment, collaterally attack it.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 93; Dec. Dig. <§=>79.] '</p> <p>6. Judgment <@=>5:UG-Validity — Fraud.</p> <p>As between parties and privies, a judgment obtained by fraud is not absolutely void, but voidable.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 956; Dec. Dig. <@=>514.]</p> <p>7. Principal and Agent <§=>115 — Acts op Agent — Representations.</p> <p>Where defendants had sold their bank and a note due it and had guaranteed its collection, reserving control over its reduction to judgment, and the plaintiff, when it purchased the note and took the guaranty, had no knowledge that a certain person was liable on the note, his representations that the note was good and collectible was made individually and not in the interest of, or as agent for, plaintiff, and did not bind the plaintiff.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 339-343; Dec. Dig. <§=> 115.]</p> <p>8. Guaranty <§=>79 — Conclusiveness op Judgment — Principal and Guarantor.</p> <p>In such case, where the guarantors, who had direction of a suit to reduce the note to judgment preparatory to taking- an assignment of the judgment, in the absence of any allegation that they did not know of the postponement of the collection of the note or of such party’s misrepresentation as to the maker’s financial standing, were concluded by the judgment entered on the note from setting up such postponement and misrepresentation to defeat their liability. .</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 93; Dec. Dig. @=>79.]</p>

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by Jim Bartek against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Vendor and Purchaser @=>294 — Vendor’s Lien — Enforcement-Liability for Cost.</p> <p>J. sold land, receiving vendor’s lien notes in payment. The grantee conveyed to G. On nonpayment of the notes, J. instituted foreclosure proceedings. The decree directed the sheriff to apply the proceeds of the sale of the land to the payment of the judgment and the costs of the suit, and declared that J. should have and recover all costs against her grantee and G. Held, that the judgment did not give any priority to costs, and, where the proceeds of the sale were insufficient to satisfy the costs and the amount due, G. was liable for the costs; execution against his grantor having failed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 830; Dee. Dig. @=> 294.]</p> <p>2. Execution @=>172 — Injunction—Right to.</p> <p>Where plaintiff was liable for costs of a suit foreclosing vendor’s lien notes, he cannot, without having offered to satisfy the costs, enjoin execution, for injunction is granted only to a party not in default.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. <©=>172.]</p> <p>3. Judgment <©=>532 —Construction —Liability for Costs.</p> <p>Where a judgment provided that plaintiff should have and recover his costs against the defendants jointly and severally, a further direction that in case the land did not sell for enough to satisfy the judgment the sheriff should make the balance out of one of the defendants-under execution does not nullify the earlier provision.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 976, 977; Dec. Dig. <@=>532.]</p> <p>4. Vendor and Purchaser <©=>294 — Vendor’s Lien Notes — Costs.</p> <p>Where plaintiff promised his grantor to-pay vendor’s lien notes on the land, he was primarily liable, and, in a suit to foreclose the notes, costs might be awarded against him.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 830; Dec. Dig. @=>- 294.]</p> <p>5. Vendor and Purchaser @=>294 — Enforcement of Vendor’s Lien — Liability for Costs.</p> <p>Plaintiff purchased land subject to vendor’s lien notes. Defendant, to avoid the expense of joining him, requested him to reconvey to her.</p> <p>Plaintiff refused, and was made a party. Held that, as he had orally agreed to discharge the notes, he was liable for costs, and could not, the land not haying sold for a sufficient amount to discharge the notes and costs, have execution enjoined.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 830; Dec. Dig. 294.]</p>

<p>Error from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by J. B. Strange and others against H. B. Cohen. There was a judgment for defendant, and, on plaintiff’s motion, costs were retaxed against defendant, who brings error.</p>

<p>Appeal from District Court, Coleman County ; Jno. W. Goodwin, Judge.</p> <p>Action between the Ft. Worth Publishing Company and Theodore Armstrong. There was a judgment for the latter, and the former appeals. On motion to strike out statement of facts.</p>

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Action by the Rio Grande & Eagle Pass Railway Company against the Railroad Commission of Texas. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.</p> <p>Action by R. E. Hoppe against J. W. Green and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Error from Grayson County Court; J. 0. Adamson, Judge.</p> <p>Action by W. D. Collins against the Agricultural Insurance Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Interpleader <&wkey;23 — Bill—Sufficiency.</p> <p>A petition setting up that plaintiff had in its possession a fund as prizes, in which it claimed no interest, which belonged to two of the defendants, and which was adversely claimed by the three, is a good bill of interpleader.</p> <p>[Ed. Note. — For other cases, see Interpleader, Cent. Dig. §§ 47, 51; Dec. Dig. <S&wkey;23.]</p>

<p>Appeal from District Court, Navarro Coupty; H. B. Daviss, Judge.</p> <p>Action by the First National Bank of Corsicana and others against W. J. Brown and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Grayson County; W. M. Peck, Judge.</p> <p>Action by Dorothy Scoggins against the Texas Traction Company. Judgment for plaintiff, and defendant appeals.</p>

T. Armistead, Judge. Proceedings by the St. Louis Southwestern Railway Company of Texas against H. L. Sterling to have a judgment set aside. From an order of dismissal, the railroad company appeals.

<p>Appeal from District Court, Dallas County ; J. C. Roberts, Judge.</p> <p>Charles E. Linxwiler procured a divorce. Thereafter the defendant, his wife, was granted a new trial, and Audrey L. Linxwiler appeared and filed a plea in intervention, asserting that on the day of the decree she married plaintiff. From an order denying her plea, Audrey L. Linxwiler appeals.</p>

<p>1. Abatement and Revival <©=345 — Grounds of Abatement — Termination of Receivership.</p> <p>The discharge of a receiver of a railroad company by the court appointing him, pending an action against him for damages to a shipment, operated as a complete bar from further liability against him, and it became the court’s duty, when his discharge was shown, to dismiss the action against him.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 226-236; Dec. Dig. <©=>45.]</p> <p>2. Justices of the Peace <©=150 — New Trial in County Court — Defenses—Availability.</p> <p>In an action against the receiver of a railroad company brought in justice’s court and tried de novo in the county court, he could defend in the county court on the ground that he had been discharged by the court appointing him, though such defense was not pleaded in the justice’s court.</p> <p>[Ed. Note — For other cases, see Justices of the Peace, Cent. Dig. §§ 508-515; Dec. Dig. ISO.]</p> <p>S.Appeal and Error <©=31073 — Harmless Error — Erroneous Judgment.</p> <p>The error in rendering judgment against the receiver of a railroad company, notwithstanding his discharge by the court appointing him was not rendered harmless by a recital in the judgment that execution should issue only against his codefendant; such judgment being final against him notwithstanding such provision.</p> <p>[Ed. Note. — For other cases see Appeal and Error Cent. Dig. §§ 4240-4247; Dec. Dig. <@=3 1073.]</p> <p>4. Justices of the Peace <©=3152 — Appeals —Bringing in New Parties.</p> <p>Under Const. art. 5, § 16, providing that the county court shall have exclusive jurisdiction in all civil cases, when the matter in controversy shall exceed in value $200 and not exceed $500, and appellate jurisdiction in cases of which justice’s courts have original jurisdiction when the judgment appealed from shall expeed $20, and section 19 giving justices of the peace jurisdiction in civil matters where the amount in controversy is $200 or less, and providing that appeals to the county court shafl be allowed where the judgment is for more than $20, and Rev. St. 1911, arts. 1767, 2291, containing similar provisions, where, in an action against the receiver of a railroad company for damages to a shipment, he pleaded in the county court that the railroad’s property and franchises had been sold, and that he had been discharged, plaintiff had a right to bring in the purchaser of such property and franchises as a defendant, though the amount in controversy would not have given the county court original jurisdiction; such purchaser having become liable to plaintiff under Rev. St. 1911, arts. 6624, 6625, relative to the liability of purchasers of the property and franchises of railroad companies.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 516-519; Dec. Dig. ®=>152.]</p> <p>5. Limitation of Actions <@=>55 — Computation of Period of Limitation.</p> <p>Where an action for damages to a shipment was brought against the receiver of a railroad company within two years after the cause of action accrued, and a purchaser of the railroad company’s property and franchises, which became liable for the damages, was made a party to the action and served with process within two years from the time of its purchase, the action was not barred as against it, assuming that the two years’ limitation applied.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. <©=355.]</p> <p>6. Limitation of Actions <©=>13 — Estoppel to Plead Limitations.</p> <p>Where the delay in filing suit was occasioned by reason of a promise of payment on the part of a defendant, which promise was based on plaintiff’s forbearance to sue, such defendant was estopped from pleading limitations.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 56-58; Dec. Dig. <©^> 13.]</p> <p>On Motion for Rehearing.</p> <p>7. Justices of the Peace <©=44—Jurisdiction — Amount in Controversy — Interest.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2322, providing that, when a claim or demand is lodged with a justice of the peace for suit, it shall be his duty to issue a writ or citation for the defendant, the succeeding article providing that the citation shall state the nature of plaintiff’s demand, and article 2326 providing that the pleadings shall be oral, except where otherwise specially provided, but that a brief statement thereof may be noted on the docket, though where a suit is brought for damages, and interest is .sought to be recovered from the time of the injury, the interest is a part of the damages and may be so considered in determining the jurisdiction, where the claim lodged with the justice of the peace showed that plaintiff sued for $185.24, with $10 as attorney’s lees, no interest being mentioned, the citation issued by the justice described the action as one to recover the sum specified, and slated that plaintiff prayed judgment for such amount, with “legal interest,” attorney’s fees, and costs, and a citation issued from the county court to a party brought in as defendant described plaintiff’s claim as a claim for damages for $185.24, it affirmatively appeared that plaintiff sought only to recover interest on the judgment and not as a part of the judgment, and hence that the amount in controversy was within the jurisdiction of the justice’s court, though the judgment entered in each court included interest on the amount of the damages, and was for an amount in excess of $200, especially as any doubt should be resolved in favor of the jurisdiction of the court, and also in view of the fact that defendants below contended that the justice’s court did have jurisdiction, and that the county court therefore had no jurisdiction to bring in a new defendant.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157 — 172; Dec. Dig. <@=^44.]</p> <p>On Second Motion for Rehearing.</p> <p>8. Justices of the Peace <§=44t — Jurisdiction-Amount in Controversy — Excessive Judgment.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2291, providing that justices of the peace shall have original jurisdiction in civil matters where the amount in controversy is $200 or less, exclusive of interest, and article 2391 providing that any party to a final judgment in the justice’s court may appeal therefrom to the county court, where such judgment or the amount in controversy shall exceed $20, exclusive of costs, where the claim filed with the justice, together with the citation and notation on the justice’s docket, showed that the suit was for less than $200, with h prayer for interest on the judgment from the time of its rendition, and not for interest as a part of the damages, the justice’s court and the county court on appeal had jurisdiction, though the judgments entered were for more than $200, and such judgments were not void, as the judgment must conform to, and be controlled by, the pleadings.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. <@=»44.]</p>